author: DOYLE, Judge,

text:
    Leroy Dickinson v. State.
    No. A-4.
    Opinion Filed November 15, 1909.
    (104 Pac. 923.)
    1. ASSAULT AND BATTERY — Defense of Property — Deadly Weapon — Defense of Person. In a criminal prosecution for pointing a gun, the court instructed the jury, “that, if you find from the evidence that the prosecuting witness, Abe Wiebe, together with his assistants, were in the act of working upon the public highway and in the prosecution of the work got beyond the line of the road onto defendant’s property, and were then plowing and scraping on his property, such being the fact, it would not excuse or authorize the defendant in assaulting the prosecuting witness, Abe Wiebe, by pointing a gun at him, in order to require him to desist from such work. No individual has any right to assault another with a deadly weapon by pointing a gun at him because of the fact that such person is trespassing upon the land of another.” Held, correct in principle; but, in view of the evidence, it was the duty of the court to further instruct the jury that defendant had the right to go where the parties were trespassing upon his premises and request them to leave, and, if they did not accede to his request, that he had a legal right to expel them as trespassers therefrom, provided, that in so doing he did not use more force or violence than was reasonably necessary to effect that purpose, and that, if assaulted by such a trespasser, he had a right to defend his person, independent of the right of defense of his property.
    2 TRIAL — Refusal to Reopen Case — Evidence of Good Character-Admissibility. On the trial of a person accused of the commission of crime, he may offer evidence to show that his character was such as to make it unlikely that he would be guilty of the crime charged. Such evidence being essentially relevant, it was’ error to refuse to reopen the case for this purpose, under the circumstances stated.
    (Syllabus by the Court.)

      Error from, District Court, Woods County; J. L. Pancoast, Judge.

    Leroy Dickinson was convicted of pointing a gun at another, and he brings error.
    Eeversed and remanded.
    Leroy Dickinson, plaintiff in error (hereinafter designated defendant) was informed against in the probate court of Woods county, Okla. T., which information charged that he “did then and there unlawfully, wrongfully, and wilfully point a. deadly weapon, to wit, a single-barrel shotgun at another person, to wit, Abe Wiebe.” The cause was tried in said probate court, and the defendant was found guilty. From this conviction the defendant appealed to the district court of Woods county, Oída. T. Upon a trial there had the defendant was again found guilty. A motion for a new trial was filed and overruled. On the 5th day of October, 1907, judgment was rendered, adjudging the defendant guilty as charged, and that he be imprisoned in the county jail of Woods Cpuntjr, Oída. T., for a périod of four months and to pay a fine of $100, and costs. From which judgment defendant appeals. On September 21, 1908, there was filed with the clerk of this court a case-made and petition in error. At the September, 1909, term the cause was submitted.
    That part of the evidence which .we deem necessary to present the errors on the trial complained of is as follows:
    The prosecuting witness, Abe Wiebe; testified that he was road supervisor in Liberty township, and that on the 2d day of January he went with two men to work the road; that the defendant came along where they were plowing and ordered them off; that he had a single-barrel shotgun; and that he cursed and abused witness and presented the gun. On cross-examination he testified as follows:
    “Q. How did he hold the gun? A. [Indicating] He held it about this shape. Q. Did he have the gun to his shoulder? A. .No. Q. He wasn’t looking down the sights of the gun and pointing at you? .A. No. Q. How far was he from you? A. [Indicating] As far as from here to that corner. Q. And he was cursing you all the time? A. Yes, sir; he was. Q. And you say you were not on Dickinson’s land at that time? A. Why, I was on a section line according to my best judgment. Q. But you know now, do you not, whether you were or not? A. After it was' surveyed out, I seen that I was a little on one side of the section line. Q. Then what happened about pointing the gun? What did he do then? A. He stood there a while and cursed me and abused me,'and I talked to him, and said, Tt would be better if you had talked to me like a man,’ but he wouldn’t heed nothing. Finally he let the gun down, set it on the ground and held it by the barrel this way, and kept abusing me right along, and finally I got tired of it, and I said, ‘Mr: Dickinson, if you think you can abuse me in any kind of a way you want to, you -are off/ and I made a step, and Pulían stopped me, and he hauled off and said: ‘Let blip. come. It will be the last time he ever comes. He will never come again.’ Q. Who said that? A. Leroy Dickinson. Q. How close were you to him then? A. I didn’t make any advance at all. Q. How close were you to him when this occurred? A. Just about the same distance. Q. And he had the gun with the butt of it down on the ground ? A. Yes, sir. Q. And in the quarrel did he raise the gun up ? A. Yes, sir [indicating]; he took the gun this way and hauled off. Q. Did he point it at you? A. No; he was going to strike me with it. ■ Q. And he stood there with the gun? A. No. Q. What did he do? A. While we went to load up, he walked off toward his brother’s.”
    J. W. Pulían and J. E. Lord, witnesses on behalf of the territory testified in substance to the same state of facts.
    Defendant, testifying on his own behalf in part testified as follows:
    “Q. State whether or not on the 2d day of January, this year, you had a difficulty with these gentlemen. A. I did. Q. Tell the court and jury just exactly what occurred and where it was. A. Well, it was nearly 20 rods, or a little better, from the corner, and it was over on the land that I had, that was my land, 40 rods or a little better. I saw them working on this hill and saw that it was on my land. I says, ‘I’ll go over there.and have them desist from working on my premises.’ I went over there with that intention, and I told Mr. Wiebe when I went over there, I says ‘What are you folks doing?’ ‘Oh,’ he says, ‘we’re just having a' little fun.’ 1 says, ‘This ain’t very good fun.’ ‘Now,’ I says, ‘I’d like to have you quit and get off my premises and leave it alone.’ I said: ‘I want you to find the section line. I want you to find it, and I want you to keep it.’ Then he commenced and says, ‘Why didn’t you come like a man and tell me?’ I says, ‘There ain’t no man about you, for,’ I says, ‘you came right before the commissioners here and told them lies.’ Well, I told him to leave there, and after I told him to leave, he said he would go on and-work it, and I said, ‘After you get it worked, I’ll put a fence across it in the other township.’ I said, ‘You would have no right to go over there and open it.’ We had some little words about it, and he got Mr. Lord down nearly 20 rods as a witness, claiming that I had threatened him. I said, ‘If a man comes without any right and goes to work on my premises, without my consent, I might do something to him/ That was my remark, but I did not point the gun. The gun was carried on my shoulder all the way down. When I alked to Wiebe I dropped it, like that [indicating], and talked to him until I went away. Q. Did Wiebe make anjr effort to get toward you at any time while you were there talking? A. Yes, sir. Q. And what did you do then? A. As he stepped toward me, I stepped back and let the gun draw through my hand this way. Q. At the time you stepped back did you have the muzzle pointed toward him? A. No. Q. At any time during the argument with Wiebe, did you point the muzzle of this gun toward him? A. Not unless it was when I took it from my shoulder and dropped it this way. Q. With the butt toward the ground? A. Yes, sir. Q. Did you curse Mr. Wiebe? A. No. Q. What was the language you used toward Mr. Wiebe? A. I just talked earnestly, for cursing and swearing is something I never do; I don’t think there is a man in Oklahoma that has heard me swear. Q. And you carried your shotgun down there? A. Yes, sir; on my shoulder. Q. Explain to the jury why you carried your shotgun down there. A. Mr. Wiebe has got a reputation in that neighborhood of being that kind of a man. He has chased people around the house, and— Q. You expected trouble, then, did you? A. I didn’t know what to exjoect. Q. You just took it along? A. For my own body protection. Q. You knew, did jmu, that you might need protection? A. I knew the man.”
    There was no evidence as to whether the shotgun was .loaded or not.

      T. J. Womack, for plaintiff in error.
    — Upon duty of court to instruct jury upon all the law applicable to evidence adduced: Wilson’s Kev. & Ann. Stat., sec. 382, par. 5518; 12 Cyc. 612 b.; Milton v. State, 6 Neb. 136; Ainsworth v. State, 11 Tex. App. 339. Upon the right and extent of use of force by a person in defense of person or property: U. S. v. Wiltberger, 3 Wash. C. C. 515; State v. Vance, 17 la. 138; Combs v. State, 9 S. W. 655; Kendall v. Com. (Ky.) 19 S. W. 173; Crawford v. State, 90 Ga. 701; State v. Smith, 30 Pac. 679; Powers v. Peopile, 42 Ill. App. 427. Upon duty of court to admit evidence showing good character of accused: Stale v. Norihup, 48 la. 583; 1 Bishop Crim. Proe. (3rd Eel.) sec. 1115; Whar. Grim. Ev. (9tli Ed.) see. 66; People v. Ahe, 44 Cal. 288; Reinson v. People, 43 N. Y. 6.

      Chas. West, Atty. Gen., and Chas. L. Moore, Asst. Atty. Gen., for the State.
   DOYLE, Judge,

(after stating the facts as above.) The statute upon -which the information in this case is based (Wilson’s Rev. & Ann. St. 1903, § 2510) reads as follows:

“It shall be unlawful for any person to point any pistol or any other deadly weapon whether loaded or not, at any other person or persons either in anger or otherwise.”

The first question presented arises upon the following assignments, which will be considered together:

“(1) That the court erred in failing to instruct the jury upon all the law applicable to the evidence adduced in the trial of the said action. (2) That the said court erred in giving the following instruction to the jury, to wit: ‘You are further instructed that, if you find from the evidence that the prosecuting witness, Abe Wiebe, together with his assistants, were in the act of working upon the public highway, and in the prosecution of the work got beyond the line of the road onto the defendant’s property, and were then plowing and scraping on his property, such being the fact, it would not excuse or authorize the defendant in assaulting the prosecuting witness, Abe Wiebe, by pointing a gun at him in order to require him to desist from such work. No individual has any right to assault another with a deadly weapon by pointing a gun at him because of the fact that such person is trespassing upon the land of another.’ ”

No error is manifest in the instruction quoted. It is a correct exposition of the law. A mere trespass upon the land of another, even after the trespasser has been warned to depart and has refused, does not justify the landowner to use a dangerous or deadly weapon to resist the trespass, so if one offers to strike with a deadly weapon, although he announces his purpose not to finish the act and commit the homicide if his terms are instantly complied with (although the terms be such as he has a right to exact and enforce by the rule moliter manus imposuit), he is guilty of an assault. The putting in use of a deadly weapon shows a wanton disregard of human life. Clark in his work on Criminal Law, at page .145. lays down the proposition in this terse and explicit language:

“A person may resist a trespass on his property, real or personal, not amounting to a felony, or removal oi destruction of property not feloniously atttempted, by the use of any reasonable force, short of taking or endangering life; but, if he is unable to prevent it, and there is no felony attempted, he must suffer the trespass and the loss of property, and seek redress at the hands of the law, rather than commit homicide.”

See, also, State v. Smith, 12 Mont. 378, 30 Pac. 679.

The defendant further contends that the court erred in failing to instruct the jury upon all the law applicable to the evidence adduced upon the trial. Section 5518, Wilson’s Rev. & Ann. St. 1903, provides:

“In charging thei jury, the court must state to them all matters of law which it thinks necessary for their information in giving their verdict,” etc.

We believe, under the evidence as shown by the transcript, the court should have further instructed the jury in. regard to defendant’s right to defend against an unlawful trespass or intrusion upon the premises of the defendant, otherwise the jury might be disposed to regard his act of going to the place armed, and requesting the prosecutor to leave the premises, as placing him in the attitude of a wrongdoer; and, if his testimony is to be believed in this respect, he acted within his rights in- the protection of his premises and his person.

Section 2233, Wilson’s Rev. & Ann. St. 1903, provides:

“To use or to attempt to offer to use force or violence upon or toward the person of another is not unlawful in the following cases: * * * Third. When committed either by the party about to be injured, or by any other person in his aid or defense, in preventing or attempting to prevent an offense against his person, or any trespass or other unlawful interference with real or personal property in his lawful possession; provided the force or violence used is not more than sufficient to prevent such offense.”

As we view it, the evidence raises two issues on self-defense: First, defense of property; and, second, defense of person. The defendant had a right to go where the parties were intruding upon bis premises and ask them to leave; and, if they did not accede to his request, he had a legal right to expel them as trespassers therefrom, provided that in so doing he did not nse more force or violence than ivas reasonably necessary- to effect that purpose. The defendant testified that he carried the shotgun for his own protection, and not for the purpose of expelling the trespassers. He says he did this because the prosecuting witness, Wiebe, had the reputation of being a quarrelsome and dangerous man. Wiebe admits that he made a threatening demonstration, and that Mr. Pulían stopped him, and that defendant, then .holding the gun by the barrel, drew it back as if to strike him as he was advancing upon him. Against this attempted assault the defendant had the right to defend his person, independent of the right of defense of his property. We are of the opinion that under all the circumstances of the case an instruction embodying the views herein-before expressed should have been given to the jury.

3. The next question to be considered is:

^‘That said court erred in refusing and ruling oxit evidence offered by the plaintiff in error of his good character, and 'of the trait of being a peaceable and law-abiding citizen.”

Under this assignmeent the record shows that, prior to the adjournment for the day, the defendant rested his case, and court adjourned for the day. Counsel for defendant, uxpon the convening of the court, asked leave of the court to reopen the case for the purpose of offering evidence of good character of tlie defendant as to being a peaceable and law-abiding citizen. Counsel for the territory Objected. The court sustained the objection and refused to reopen the ease. It is contended that in this the court erred, and “that the ruling of the court was such an abuse of discretion as amounted to prejudicial error and denial of a substantial right of the defendant to place his previous good character in the scales of justice to be weighed by the jury with the other facts adduced in the course of the trial.” We are constrained to sustain the contention that the refusal of the court to reopen the case and admit evidence of the good character of the defendant was such an abuse of judicial discretion as, under the circumstances, materially affected the substantial rights of the defendant. It is not necessary to cite authorities to show that in a criminal prosecution the accused will be allowed to call witnesses to show that his character was such that would make it unlikely that he would be guilty of the particular crime of which he is charged. When a person is charged with crime, the courts of out-country permit the question of good character of the accused to be put in issue by the accused before the jury. The theory, as we view it, is a wise one. If a man in a community where he lives, by his association among his neighbors, has built up in the years of his life, be they few or many, a character among them for good morals, and of being a peaceable and law-abiding citizen, it is only right that the jury should know that fact.

As was said by Willes, J., In R. v. Rowton, Leigh & C., 520, 540:

“It is a mistake to suppose that, because the prisoner only can raise the question of character, it is therefor a collateral issue. It is not. Such evidence is admissible because it renders it less probable that what the prosecution has averred is true; it is strictly relevant to the issue.”

In Cancemi v. People, 16 N. Y. 506, Strong, J., said:

“The principle upon which good character may be proved is that it affords a presumption against the commission of crime. This presumption arises from the improbability, as a general rule, as proved by common observation and experience, that a person who has uniformly pursued an honest and upright course of conduct will depart from it and do an act so inconsistent with it. Such a person may- be overcome by temptation and fall into crime, and cases of that kind often occur, but they are exceptions: the general rule is otherwise: The influence of this presumption from character wall necessarily vary according to the varying circumstances of different cases. It must be slight when the accusation of crime is supported by the direct and positive testimony of credible witnesses; and it will seldom avail to control the mind in cases where the testimony, though circumstantial, is reliable, strong, and clear. But in cases where the other evidence is nearly balanced, but slightly preponderating against the defendant, the presumption from proof of good character is entitled to great weight, and will often be sufficient to turn the scale and produce an acquittal.”

Prof. Greenleaf in language used by Mr. Justice Patterson in Rex v. Stannard, 7 C. & P. 673, says:

“I cannot in principle make any distinction between evidence of facts and evidence of character. The latter is equally laid before the jury as the former, as being relevant to the issue of guilty or not guilty. The object of laying it before the jury is to induce them to believe, from the improbability that a person of good character should have conducted himself as alleged, that there is some mistake or misrepresentation in the evidence on the part of the prosecution, and it is strictly evidence in the case.” (3 Greenl. on Ev. § 25.)

See, also, Wells v. Territory, 14 Okla. 436, 78 Pac. 124.

Defendant’s good character, as indicating the improbability of his doing the act charged, being essentially relevant, this evidence would have gone to the jury with special force, as under the evidence the commission of the offense charged seems doubtful.

For the reasons stated, the judgment of the lower court is reversed, and the cause remanded.

FUBMAN, PRESIDING Judge, and OWEN, Judge, concur.


source: Caselaw Access Project

author: OWEN, Judge

license: Public Domain

text:
    D. J. Faggard. v. State.
    No. 87.
    Opinion Filed November 15, 1909.
    (104 Pac. 930.)
    1. EMBEZZLEMENT — Bailees—“Any Carrier or Other Bailee." The statute defining the crime of embezzlement by “any carrier or other bailee” (Mansf. Dig. sec. 1640 [Ind. T. Ann. St. 1899, sec. 983]) is not confined to bailies of the generic class “carriers,” but embraces all bailees.

      '¿. EMBEZZLEMENT — Treasurer of Society — Servant. The treasurer of a society may be a servant of the society, and as such may be guilty of embezzling the funds of the society.
    3. INDICTMENT AND INFORMATION — Form and Requisites — Indictment Returned after Statehood. An indictment for an offense committed under the laws in force in the Indian Territory, returned after the admission of the state into the Union, should be in the name of “The State of ■ Oklahoma,” and conclude' “against the peace and dignity of the state.” ■
    4. TRIAL — Direction of Verdict. It is not error for the court to refuse to instruct the jury to return a verdict of not guilty, where there is competent evidence reasonably tending to prove the defendant guilty.
    (Syllabus by the Court.)
    D. J. Faggard was convicted of embezzlement, and brought error to the Supreme Court, whence the cause was transferred to the Criminal Court of Appeals.
    Affirmed.
    The plaintiff in error, hereafter referred to as defendant, was indicted in the district court, Pittsburg county, 11th day of Janu-ar}r, 1908, charged with the crime of embezzling the funds of Local No. 1306, District 21, of the United Mine Workers of America, in Pittsburg county, on the 1st day of May, 1907. He was tried and convicted and sentenced to imprisonment in the penitentiary for one year and one day. The case was appealed to the Supreme Court of this state, and by proper order transferred to this court.

      Wallace Wilkinson, for plaintiff in error.

      Ohas. West, Atty. Gen., and Chas. L. Moore, Asst. A tty. Gen., for defendant in error.
   OWEN, Judge

(after stating the facts as above). The defendant in this ease was treasurer of Local No. 1306, District No. 21, of the United Mine Workers of America,- located in Pittsburg county. On examination of the books kept by him as treasurer of the union he was found to be indebted to the order in the sum of $388. He admitted that he had no funds, and was unable to account for the shortage, except that he must have lost the vouchers on which he paid the mone}', and had failed to enter it on his cashbook.

The petition assigns 19 specifications of error, but this number is reduced by the brief filed by counsel for the defendant. The first assignment urged is that the indictment should have been quashed for the reason that one of the members of tli'e jury commission which selected the grand jury, and one member of -the grand jury which returned the-indictment in this case, lived within that part of Pittsburg county that prior to statehood was portion of the Western District of the Indian Territory, and the ofliense is alleged to have been committed, prior to the admission of the state, in that part of Pittsburg county which was the Central district of Indian Territory. It appears from the record that the grand jury was selected in the manner as provided for by the statute in force prior to statehood, and that the jury consisted of 16 persons, as required by that statute. This court held, in the case of Sharp v. State, ante, p. 24, 104 Pac. 71, that a defendant charged with the commission of a crime is entitled to be tried and dealt with under the laws as they existed at the time of the alleged commission of the offense of which he stands charged, in.all matters where such laws vouchsafe to him a substantial protection. This case seems to have been tried under the Oklahoma criminal procedure, without objection on the part of defendant, but the grand jury was selected and composed of 16 persons, as 'was required by the law-in force at the time of the commission of the alleged offense. We are unable tt> understand how the defendant could possibly be deprived of any substantial right by reason of the fact that one of - the jury commissioners and one member of' the grand jury lived just across the line from what was formerly the Central, district- in which the crime was committed. We are uot unmindful of the rule that a'person charged with crime is entitled to be tried by a jury summoned from the vicinage where the crime is said to have been committed. This'rule applies1 more particularly 'to petit juries than to grand juries; but, even applying it to grand juries, it avails the defendant nothing. If the' grand jury had been selected in a manner different, and composed' of a number different, from that provided, for ip the law in .force, at the time of the commission of. the crime, and that difference deprived him of a, substantial protection, then he could be heard to complain. In the case of United States v. Haskell et al. (D. C.) 169 Fed. 449, the court at great length reviews the authorities on the question presented here, and the holding in this case is in harmony with the rule announced there and the authorities cited.

It is urged with considerable force by counsel for the defendant that section 1640, Mansf. Dig. Ark. (section 983, Ind. T. Ann. St. 1899), under which the indictment in this case was returned, does not apply to a treasurer of a fraternal organization .such as the United Mine Workers. Section 1640 is as follows:

“Section 983. (M. D. 1640.) If any carrier or other bailee shall embezzle, or convert to his own use, or make way with, or .■secrete with intent to embezzle, or convert to his own use, any money, goods, rights in action, property, effects or valuable security, which shall have come to his possession, or have been delivered to him, or placed under his care or custody, such bailee, although he shall not break any trunk, package, box or other thing in which he received them, shall be deemed guilty of larceny, and ■on conviction shall be punished as in cases of larceny.”

Counsel insist that the words, “other bailee,” under the rule, .ejusdem generis, are limited by the word “carrier,” and that under the provisions of this section only those are punishable who occupy the relation of carrier, and in support of that contention cites Dotson v. State, 51 Ark. 119, 10 S. W. 18; State v. Grisham, 90 Mo. 163, 2 S. W. 223, and Whar. Crim. Law, § 1055. We find on investigation that this section of the Statutes of Arkansas, which •were adopted by Congress May 2, 1890, to apply in the Indian Territory, was a part of the Eevised Statutes of Arkansas of 1838, .and a substantial transcript of the Missouri statute. It is true that the Supreme Court of Missouri, in the case of State v. Grisham, 90 Mo. 163, 2 S. W. 223, held:

“Its obvious purpose was to punish in common carriers the -crime of embezzlement, and to the words ‘other bailee’ the rule -iejusdem generis applies; i. e., that under the provisions of that section only those are punishable who occupy the relation of common carrier, or some similar contractual relation.”

This decision was rendered by the Missouri court in 1886; long after the statute had been adopted in Arkansas. In June, 1897, and before the Arkansas statute was adopted by Congress, it was construed by the Supreme Court of Arkansas, in the case of Wallis v. State, 54 Ark. 611, 16 S. W. 821, quoting with approval the case of Norton v. State, 4 Mo. 461, which construed this statute before it was adopted in Arkansas. The court in that case held that the section applied to all bailees, that the words “other bailee” were not limited by the word “carriers,” and that it meant all.bailees other than carriers. This opinion was followed in the ease of State v. Broderick, 7 Mo. App. 19. Thus we see the statute was adopted into Arkansas with that construction, and the later case in Missouri of State v. Grisham would not be binding on the Arkansas courts or on this court. The rule that the lawmakers in adopting the act of a sister state intend to adopt the construction put upon it by the higher courts of that state extends only to the construction put upon it prior to its adoption. The rule of ejusdem generis is by no means of universal application, and its use is to carry out, not to defeat, the legislative intent. Where an act attempts to enumerate the several species of a generic class, and follows the enumeration b3r a general term more comprehensive than the class, the act will be restrained in its operation, because it is discerned that the Legislature so intended; but, where the detailed enumeration embraces all the things capable of being classed as of their kind, and general words are added, they must be applied to things of a different kind from those enumerated. For the rule does not require the entire rejection of general words, and is to be used in harmony with the elemental canon of construction that no word is to be treated as unmeaning if a construction can be found that will preserve it and make it effectual. If the Legislature, in the statute under consideration, had undertaken to detail the different kinds of carriers, and had followed the enumeration with the general words “and other bailees,” its purpose might reasonably be implied to include such bailees only as belonged to the class carriers, and had been omitted in the enumeration; but, having employed the generic term “carriers,” and thus included all carriers of every kind, it must have intended, in adding the broader term, to embrace within the act something more than carriers. Otherwise the addition was without purpose, and the term added without meaning. One of the cases relied upon by counsel for defendant is the case of Dotson v. State, 51 Ark. 119, 10 S. W. 18. In our opinion the'holding in that case is not in harmony with the contention made by counsel. In that case the defendant was the bailee of a horse for the purpose of selling it, and delivering the money to the owner. He sold the horse for a check on a bank, cashed the check, and appropriated some of the money. The court held that he could not be convicied for embezzling the check, since it was in his line of duty to make the collection, but held that he was a bailee of the money received for the horse within the meaning of the statute. Section 1055, Whar. Crim. Law, relied on by counsel, provides:

“Section 1055. The term ‘bailee’ is one to be used, not in its large, but in its limited, sense as including simply those bailees who are authorized to keep, to transfer, or to deliver, and who receive the goods first bona fide, and then fraudulently convert.”

A footnote to this section refers to the case of Wallis v. State, 54 Ark. 611, 16 S. W. 821, above referred to.

One assignment urged by counsel for defendant is that, the defendant being a member of the union, and the union being in its nature a fraternal organization, he could not be convicted of embezzling its funds, and cites authorities which announce the rule that a partner or person having an interest in property embezzled cannot ordinarily be convicted of embezzlement. That rule is ivell settled, but has no • application here. It cannot be claimed that, the union was a partnership, and that the defendant was one of the partners. Such associations as the one in question are not partnerships. The purposes of such organizations are benevolent and fraternal, not for the purpose of business or the accumulation of profit. They do not partake of the nature of partnerships. State v. Campbell, 59 Kan. 246, 52 Pac. 455; Laycock v. State, 136 Ind. 217, 36 N. E. 137. A prosecution cannot be maintained against members of societies or against partnerships for embezzlement, because the possession of the particular member or partner is the possession of the whole fraternity or firm, for the benefit of the entire firm; and such men cannot be servants. An officer of such society may be a servant, and may embezzle _ money as such. The proof in this case is to the effect that the defendant was treasurer of the society, that he was paid a salary of $2 per month, and that he received the money from the financial trustees. True, the money was paid by the mining company, and made tip of 60 cents taken from the wages of each member of the union, including the defendant.

Wharton, in his Criminal Law (10th Ed.) § 1017, says:

“The treasurer of a society may be a servant of the society and as such may be guilty of embezzling the funds of the society.”

It is urged by counsel that because the defendant, under the rules of the miners’ union, was required to collect the money and pay it out to the individuals, and to send some of it to the National Union, he was not a bailee; that it was not his duty to return the specific money collected. It may be said that he could have lawfully converted the money into exchange for the purpose of transmission, and that, as this is true, it was not his duty to either return or transmit the specific money. This contention is made under the general rule that, before a person can become a bailee, lie must have specific money or property delivered to him, and he must be held to deliver that specific money or property. The proof here is that the defendant was treasurer of the society. It was his duty to receive the money from the trustees and account for-the same, and was authorized to pay it out only on the vouchers of the secretary countersigned by the presiding officer. Authority to change its form for purpose of delivery would not authorize its conversion to his own use or for any other purpose. There was nothing in his duties as treasurer which would create the relation of creditor and debtor. That is a relation which can arise only through consent of both parties. Bankers conduct their business with money deposited, and the right to use such deposits is implied from the character of their pursuits. In such cases the right of use carries the right of property, and the relation of debtor and creditor springs from the deposit. But a deposit of money creates the relation of debtor and creditor, and passes the right of property in the money only when it is made with the understanding, express or implied, that a right of nse goes with the deposit. Such is not the case with money collected by a treasurer. It is not a part of his business to use the money of the society. He collects it for the sole purpose of safekeeping and disbursing, under the orders and directions of the society.

It is next urged that the court was without jurisdiction for the reason that the indictment was in the name of the state of Oklahoma, and concluded with the words “against the peace and dignity of the state.” The Constitution of the state (section 192, Bunn’s Ed.) is as follows:

“The style of all writs and processes shall be ‘The State of Oklahoma.5 All prosecutions shall be carried on in the name and by the authority of the state of Oklahoma. All indictments, in-formations, and complaints shall conclude, ‘against the peace and dignity of the state.’ ”

Under this section the form of the indictment is proper. The indictment contains an allegation that the acts complained of were contrary to the form of the statute in such cases made and provided. This means against the statute in force at the time the offense was committed. The defendant was certainly not deprived of any substantial protection by reason of the form of the pleading; and the district court of Pittsburg county had jurisdiction of the case, and we deem it unnecessary to do more than cite the authorities in which the same question has been disposed of. Ex parte Lyda Howland, ante, p. 142, 104 Pac. 927; Ex parte Curlee, 30 Okla. 192, 95 Pac. 414; Higgins v. Brown, 20 Okla. 355 (1 Okla. Cr. 33), 94 Pac. 703; Packer v. People, 8 Col. 362, 8 Pac. 564, and authorities there cited.

It is urged that the court abused its discretion in overruling the defendant’s motion for a continuance. It appears that the prosecuting attorney agreed that, the motion might be read as a deposition, and this was done as provided for in the Oklahoma, procedure. In the case of George Elmo Vance v. State, post, p. 208, 105 Pac. 307, ive held that this court would not review the action of the trial court in overruling motion for continuance unless it clearly appears that the discretion was abused, and it does not so appear in this instance.

The next assignment is that an examination of the record will show that the court permitted the witnesses Gayley and Mabry to testify as to the contents of the treasurer’s books, from notations made by them, in place of the book itself. The record discloses that each of these witnesses held copies of this book made by themselves, and they were permitted to refer to these copies to refresh their memory, and that the book itself was introduced. A witness may refer to a memorandum made by himself in order to refresh his memory, and we find no error in the court permitting these witnesses to refer to their copies.

Counsel urge that the court should have directed the jury to find the defendant not guilty for the reason that all the evidence in the case that tended to prove the defendant guilty was the circumstance that the money was paid to him, and that he failed to (satisfactorily account for same, and that there should have been an instruction defining the punishment for petit larceny. The evidence is to the effect that the money was delivered to the defendant, that he failed to satisfactorily account for it, and that his books bore evidence of having been falsified in the items giving him credit for money paid out, and that he had taken credit for larger sums than he had paid on the vouchers on file. It was for the jury to determine whether he had converted the money with a fraudulent intent. His evidence Avas that he had paid the money on vouchers which he had lost and had failed to enter on his books. That was a question of fact to be determined by the jury. The proof is undisputed that the amount unaccounted for was more tiran $10. The court did not err in refusing to direct a verdict Ardiere there Avas competent testimony reasonably tending to prove the defendant guilty, and there is no error in refusing to give the instruction on petit larceny, Avhen under all the proof, if he were guilty at all, he Avas guilty of faking a sum greater than $10.

The judgment of the trial court is affirmed.

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


author: DOYLE, Judge

text:
      Ex parte John Turner.
    No. A-394.
    Opinion Filed November 15, 1909.
    (104 Pac. 1071.)
    1. HABEAS CORPUS — Commitment upon Preliminary Examination —Inquiry Into Validity. An order of commitment to hold for trial before the district court, issued by a magistrate before whom a person is brought for examination upon a felony charge, after such examination is concluded, and a finding made that there is sufficient cause to believe defendant guilty of the felony, is not “a process issued on any final judgment of a court of • competent jurisdiction.” as provided under section 4867, Wilson’s Rev. & Ann. St. 1903.
    2. HABEAS CORPUS — Preliminary Examination — Sufficiency of Evidence. Where there is no legal or competent evidence to sustain it, an order of commitment to hold for trial before the district court, is void, and petitioner will be discharged on habeas corpus.
    (Syllabus by the Court.)
    Original application by John Turner for a writ of habeas corpus.

    Writ allowed, and prisoner discharged.
    The petition was filed in this court on the 25th day of October, 1909, and presented to Furman, presiding judge, who on said day allowed the writ, making it returnable before this court on November 6, 1909. The petition sets forth the following facts: That John Turner, petitioner, is illegally restrained of his liberty by L. E. Martin, sheriff of Lincoln county. That such illegal restraint consists in the following: That said petitioner was arrested upon a charge of assault with intent to kill one Thomas Marks, and taken before J. J. Parsons, a justice of the peace in and for Lincoln county, and a preliminary examination was had'. That upon such examination there ivas no evidence offered which showed, or tended to show, in any manner, that an offense amounting -to a felony had been committed against or under the laws of the state of Oklahoma, nor was there any evidence .offered which showed, or in anjr manner tended to show, there was any probable cause or belief that said John Turner had been guilty of any offense whatever under tire laws of the state of Oklahoma, yet, notwithstanding the premises, the said justice of the peace refused to discharge the said John Turner, and on the 25th day of October issued a commitment, commanding L. E. Martin, sheriff of Lincoln count}', to take into his custody and safely keep to await the action of the grand jury at the next term of the district court of Lincoln county, and fixing bail in the sum of $500. Also alleging that the warrant of commitment under which petitioner is held in custody is illegal and insufficient -in law, and also an abstract of the testimony taken before the examining magistrate. To which writ a return was made by said sheriff in effect that he had the body of the said petitioner before the court, and for authority and cause of the restraint of the said Turner in his custody lie sets forth in Lis return a copy of the order of commitment, which is as follows:
    “Commitment. Justice Court. State of Oklahoma, County of Lincoln — ss.: In Justice Court Before J. J. Parsons, a Justice of the Peace in Osage Township. State,of Oklahoma, Lincoln Count}' — ss.: Territory of Oklahoma to the Sheriff or any Constable of Lincoln County: Whereas, John Turner has been brought before me, a justice of the peace for Osage township, upon a eha'rge of attempting to shoot to kill one Thos.,Marks, and áfter hearing the testimony, and it appearing to me that the offense as charged in the complaint has been committed, and that there is sufficient evidence to believe that John Turner is guilty thereof: You are therefore commanded to take said John Turner into your custody and' him safely keep to await the action of the grand jury at the next term of the district court of Lincoln county, and that he shall be admitted to bail in the sum of $500, and this you shall in no wise omit. J. J. Parsons, Justice of the Peace. Commitment. Territory of Oklahoma v. John Turner. Issued 25th day of October, 1909.”
    On the hearing the questions as to the insufficiency of the warrant of commitment were waived, and the ease submitted on the question of alleged want of probable cause, and that there was no legal or competent evidence introduced upon said examination, which proved, or tended to prove in any manner,' the commission of a felony.

      The evidence adduced upon the preliminary before the Justice, as an examining magistrate, is substantially as follows: Thomas Marks, the prosecuting witness, testified: That on August 1, 1909, he rented the blacksmith shop and tools from the defendant for $15 per month, payable in advance, and on said day paid one month’s rent, and on the 1st day of September again paid said rent. That during the month of September he loaned $7 to defendant, on demand. That on October 7th defendant came to the shop and demanded the rent for October or the balance due after applying the $7 loaned. That he refused to pay the rent, and the defendant tendered back the $7 and demanded possession of the shop and made several attempts to close the shop door, which he resisted and refused to deliver possession. That defendant then made the remark, “I will see if I cannot close this shop,” and went away. Tliát he then left the shop, and when he returned he found the shop closed and locked. He further testified that defendant made no threats in his hearing or presence, and “did not point a gun at me, nor in any way attempt to assault me with a gun or any other weapon.” That the next morning he paid the balance of the month’s rent and has continued in possession of the shop. Charles Stewart testified: That he saw and heard all that was done at the blacksmith shop. That defendant spoke to Thomas Marks about the rent due for the shop. Mr. Marks did not pay him, and defendant told him he was going to take possession of the shop. He attempted several times to close the door, and Marks would push the door open. Mr. Marks was inside, and the defendant on the outside. Mr. Marks told the defendant he could not close the door, and the defendant answered, “I will see if I can’t,” and went away. Mr. Marks then left the shop and went away. I later saw the defendant coming towards the shop with a rifle in his hand and his son with him. He came to the shop and handed the rifle to his son and told him to take it home, and shut and locked the shop doors and went away. The defendant did not point the gun toward any person or did not make any threats towards the complaining witness. I do not know whether the gun was loaded or not. To the same effect was the testimony of Lester Anderson and J. J. Williams. There was no testimony offered on behalf of the defendant. Counsel for the defendant moved that he be discharged for the reason that there was no evidence tending to establish the fact that a felony had been committed, which was overruled.

      R. E. Burns, for petitioner.

      Charles L. Moore, Asst. Atty. Gen., and Wilson, Deputy Co. Atty., for respondent.
   DOYLE, Judge

(after stating the facts as above). It is insisted at the outset, on the part of the state, that: As it appears from the record that a complaint having been made and filed, charging that a felony had been committed, upon which a warrant issued for the defendant, upon which he was arrested, a preliminary examination duly had before an examining magistrate, and thereupon a finding made that the defendant was guilty as charged in said complaint, and his bail fixed in the sum of $500. That petitioner failing to give bail, had been legally committed for trial before the district court of Lincoln county, and that, this so appearing, the petitioner should be remanded upon the record under section 4867, Wilson’s Eev. & Ann. St. 1903, wherein it is expressly provided that:

<cNo 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 eases following: * * * Second, upon any process issued on any final judgment of a court of competent jurisdiction; or, fourth, upon a warrant of commitment issued from the district court, or any other court of competent jurisdiction upon an indictment or information.”

It was held by this court in the case of Ex parte Charles Johnson, 1 Okla. Cr. 414, 98 Pac. 461, where this question was raised, that an order of commitment to hold a defendant for trial, issued by a magistrate upon a preliminary examination, and a finding made that it appears that the defendant is guilty as charged in the complaint, is not “a process issued on any final judgment of a court of competent jurisdiction,” nor is such a commitment included 'in any process named in section 4867, supra, and that therefore there is no prohibition in said section to prevent a court or judge from inquiring into the illegality of the imprisonment of a person under a commitment of an examining magistrate.

The material question, however, in this ease, is whether on the evidence submitted to us a felonious offense is made out against petitioner.

.Counsel for petitioner contend that there was no evidence of the commission of the felony charged, or any other offense, of which under our laws the district court of Lincoln county would have jurisdiction. Section 2206, Wilson’s Rev. & Ann. St. 1903, prescribes that:

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

This section contains two clauses, and embraces two species of offenses, punishable alike. The first clause relates to shooting, shooting at, or attempting to shoot at, another, with any kind of firearm, air gun, or other means whatever, with intent to kill any person. The complaint in this case was framed upon this clause of said section and charges “an attempt to kill by attempting to shoot.” The initial ingredient of this offense is an assault. Certain elements or particulars are therein specified, which when united form the complement of the offense. The facts and circumstances which the evidence offered, prove or tended to prove, do not constitute the elements of the offense charged. At most the evidence offered tended to prove a minor misdemeanor of which the justice court had jurisdiction as a trial court.

While the conduct of the petitioner as shown by the record was reprehensible, upon the evidence as a whole, giving it its full force and effect, there is an absolute failure of proof that the offense of attempting to kill by attempting to shoot was committed, or that there was probable cause- to believe petitioner guilty as charged.

In Hicks v. Com., 86 Va. 223, 9 S. E. 1024, 19 Am. St. Rep. 891, the Supreme Court of Virginia, in considering an indictment charging the defendant with attempt to poison, with intent to kill, one A., by buying the poison and delivering it to one L., and soliciting her to administer it in coffee to A., says:

“An attempt to commit a crime is compounded of two elements: (1) The intent to commit it; and (2) a direct ineffectual act done towaids its commission.”

2 Bishop, Crim. Proc. par. 71. Or, as Wharton defines it:

“An attempt is an intended, apparent, unfinished crime.”

Therefore the acts must reach far enough towards the ac-' complislnnent of the desired result to amount to the commencement of the ■ consummation. It must be not merely preparatory. In other-words, while it need not be the last proximate act to the consummation of the offense attempted to be perpetrated, it must approach sufficiently near to it to stand either as the first, or sonic subsequent step in a direct movement towards the commission of the offense after the preparations are made. McDade v. People, 29 Mich. 50; Bouv. Law. Dict. “Attempt.”

It has been often held that the purchase of a gun with intent to commit murder, or the purchase of poison, with the same intent, does not constitute an indictable offense, because the act done in either case is considered as only in the nature of a preliminary preparation, and as not advancing the conduct of'the accused beyond the sphere of mere intent. “To make the act an indictable attempt,” says Wharton, “it must be a cause, as distinguished from a condition; and it must go so far that it would result in the crime, unless frustrated by extraneous circumstances.” 1 Whart. Crim. Law, par. 181.

This principle is well illustrated by the ease of People v. Murray, 14 Cal. 159. In that case the defendant was indicted for an attempt to contract an incestuous marriage with his niece. It ivas shown that, after declaring his intention to marry her, he actually eloped with her, and sent for a magistrate to perform the ceremony, and at the trial he was convicted; but on- appeal the judgment was reversed, the appellate court holding that these were mere preparations, and did not constitute an attempt, within the meaning of the statute. In delivering the unanimous opinion of the court, Field, C. J., said:

“The evidence shows very clearly the intention of the defendant; but something moré than the mere intention is necessary to constitute the oliense charged. Between preparation for the attempt and the attempt itself there is a wide difference. The preparation consists in devising or arranging the means or measures necessary for the commission of the offense; the attempt is the direct movement towards the commission after the preparations are made. To illustrate: A party may purchase and load a gun, with the declared intention to shoot his neighbor; but, until some movement is made to usé the weapon upon the person of Jiis intended victim, there is only preparation, and not an attempt. For rhe preparation he may be held to keep the peace, but he is not chargeable with any intent to kill. So, in the present case, the declarations and elopement and request for a magistrate were preparatory to the marriage; but until the officer was engaged, and the parties stood before him, ready to take the vows appropriate to the contract of marriage, it cannot be said in strictness (i. e., in a legal sense) that the attempt was made. The attempt contemplated by the statute must be manifested by acts which would end in the consummation of the particular offense but for the intervention of circumstances independent of the will of the party.”

Whatever may been petitioner’s intention, there is no testimony showing any overt act in an attempt to kill or injure, and the allegation of want of probable cause is therefore sustained.

For the reasons stated herein, we are of opinion that there is no legal authority for holdiiig the petitioner in custody, and he must be discharged.

Writ of habeas corpus allowed, and petitioner discharged.

FURMAN, PRESIDING Judge, and OWEN, Judge, concur.


author: DOYLE, Judge.

text:
    T. J. Bailey v. United States.
    No. 811,
    Ind. T.
    Opinion Filed November 18, 1909.
    (104 Pac. 917.)
    1. APPEAL — Review—Lost or Destroyed Record — New Trial. Where, in a proceeding in error properly instituted, it appears that the record in the case has been lost or destroyed without possibility of substitution, through no fault of the appellant or his counsel, but solely because of the action of the court officials or some accident or act of Providence for which no one is responsible, and without which record the errors complained of cannot be considered, the Criminal Court of Appeals has the power to order a new trial’ of the cause.
    2. SAME. Where a convicted defendant perfects his appeal to a court of last resort, and the record in the cause becomes lost or destroyed without fault on the part of the defendant or his counsel, and said record cannot be substituted, a motion to reverse the judgment and grant a new trial is properly awarded to prevent a miscarriage of justice, or the deprivation of the legal right of appeal.
    (Syllabus by the Court.)

      Error from the United States Court for the Southern District of the Indian Territory; J. T. Dickerson, Judge.

    T. J. Bailey was convicted of larceny, and brought error to the United States Court of Appeals for the Indian Territory, whence the cause was removed to the Supreme Court of Oklahoma, and then transferred to the Criminal Court of Appeals. On motion to reverse judgment and grant a new trial by reason of loss of record.
    ^Reversed and remanded.

      A. M. Croxton, for plaintiff in error.

      Fielding Lewis, Asst. Attv. Gen., and Charles L. Moore, Asst. Atty. Gen., for the United States.
   DOYLE, Judge.

T. J. Bailey, was indicted, tried, and convicted in the United States Court for the Southern District of the Indian Territor}', sitting at Ada, for the crime of larceny. Motions for new trial and in arrest of judgment were duly filed, overruled, and exceptions allowed, and on the 19th day of October, 1906, the court pronounced judgment, and sentenced him to serve a term of two years’ imprisonment in the federal prison. A writ of error was allowed to the United States Court of Appeals for the Indian Territory, and the cause was there pending when Oklahoma was admitted as a state. The cause was then removed to the Supreme Court of Oklahoma as by law provided, and, upon the organization of the Criminal Court o£ Appeals, it was duly transferred by the Supreme Court to- this court. The docket entries of the cleric of the Supreme Court show that the record in this cause was delivered to the late Fielding Lewis, as Assistant Attorney General, and that said record has not been returned to said clerk. The cause has been passed from term to term to give the Attorney General’s office an opportunity to supply the record, It now appears by the admission of Charles L. Moore, Assistant Attorney General, assigned to represent the stale before this court, that this record is hopelessly lost, and cannot be supplied by substitution, and that this unfortunate condition exists through no fault, neglect, or laches on the ¡oart of the appellant or his counsel sel. For these reasons the motion of the appellant to reverse the judgment and grant a new trial is not contested on the part of the state. It thus appears that the record has been lost through, no fault of appellant or his counsel and that it cannot be reproduced or a copy thereof substituted. We are of opinion that the right to have the judgment reviewed, and in case of error reversed, vacated, or modified, should not be denied to a defendant when he has complied with all the requirements of the law in perfecting his appeal, and in this case, owing to the unfortunate circumstances assigned, a new trial should be granted as a matter of right and justice.

It seems to be well established, as a general rule, that where a defendant has done all that the law requires in perfecting-his appeal, and where the record necessary for a review of the case is lost or destroyed while in the custody of an officer of the court, in order to prevent a possible miscarriage of justice by depriving the defendant of his legal-right of appea1, a new trial will.be granted.

In Crittendon v. Schermerhorn, 35 Mich. 370, Chief Justice Cooley said:

“Where a party has lost the benefit of his exceptions from canses beyond his control, it is proper to give him a new trial, and this we have done in some cases where the judge’s term of office expired before exceptions could be settled.”

In Borrowscale v. Bosworth, 98 Mass. 34, it was said:

“We can have no doubt that where a party has regularly taken exceptions in a cause, and has lost the benefit of them without fault of his own, a new trial may be granted. He has a right by law to the judgment of the higher court upon the decision by which he feels himself to be aggrieved, and”a new trial may be his only remedy.”

In the ease of Hume v. Bowie, 148 U. S. 245, 13 Sup. Ct. 582, 37 L. Ed. 438, the Supreme Court of the United States recognized the general rule, and said:

“Ordinarily, where a pari}', without laches on his part, loses the benefit of his exceptions through the death or illness of the judge, a new trial will be granted.”

In the case of State v. Reed, 67 Mo. 36, it appeared that the record of the case was defective, and upon a suggestion by the appellant of a diminution of the record a certiorari was awarded, to which a return was made to the effect that, the office of the clerk of court had been broken open, and nearly all of the papers in the case stolen. The record sent up in obedience to the cer-tiorari was therefore more defective than the first. Tn consequence of the inability to obtain a perfect record a motion filed to reverse the judgment on that ground was sustained.

In the case of Ruston v. State, 15 Tex. App. 336, the court said:

“It appears that the defendant, without any fault or neglect upon his part, or on the part of his counsel has been deprived of a most important legal right; and, such being the case, the judgment of conviction will be reversed and the case remanded.”

In the ease of Fire Ass’n v. McNerney, 54 S. W. 1053, a case decided by the Court of Civil Appeals of Texas, it appears that the court’s instructions to the jury had been destroyed by fire subsequent to the trial, and a motion was made and heard to substitute an instruction in place of one destroyed as a basis for an exception to such charge by the appellant. There was a dispute between the parties as-to the correctness of the substituted copy. The trial court refused to substitute the charge as requested, on the ground that it had no recollection of having given such a charge as was contended for by the defendant in error, and that the proof offered did not establish the charge contended for by plaintiff in error. The court said with reference to that motion:

“We are of the opinion that if the court, upon a hearing of such motion, finds it impossible to supply the lost papers ( if the loss is not due to appellant’s fault or negligence), a new trial should be granted. A party should not be deprived of his right of appeal by loss of the record due to an accident not chargeable to him.”

In State v. Gaslin, 32 Neb. 291, 49 N. W. 353, the court said:

“A litigant should not be deprived of the right to have his case heard in a court of last resort on account of the failure of the official stenographer to furnish him a copy of the testimony.”

In Sanders v. Norris, 8.2 N. C. 243, the court said:

.“The defendant is entitled to his appeal, and has lost it by no laches on his part; and in such cases it has been the established practice in this court to order a new trial.”

In the case of Richardson v. State, 15 Wyo. 465, 89 Pac. 1027, Chief Justice Potter, in an able opinion, after reviewing -the authorities, said:

“Incidental to the power to compel a correct record to be sent up, or a bill of exceptions to be settled, is the power, as it seems to us, of ordering a new trial of the cause, where it is made to appear that the only record in the cause has been destroyed without possibility of substitution through no fault of the appellant, or where, without fault on the part of the appellant or his counsel, but solely because of the neglect or delay of some court official, or some accident or act of providence for which no one is responsible, it has become impossible for a bill of exceptions to be settled, without which the errors complained of cánnot be considered.”

We find no express provision in the laws in force in the Indian Territory, under which this appeal was taken, authorizing a new trial for the reason stated in the motion. However, it is clear that in any case properly before this court, where it is made to appear that the record in the ease has been destroyed, without possibility of substitution, through no fault of the appellant or his counsel, the court may order a new trial. Otherwise, under such circumstances, it would be a denial of justice to place the burden of this unfortunate condition of affairs upon the appellant, and deny him the right to have the proceedings of his trial .reviewed by the court of last resort. Both upon reason and authority wé. are convinced that such a manifest injustice ought not, and need not, be permitted. Upon that ground, and for the reasons stated, we are of opinion that there should be a new trial awarded.

The judgment of the United States District Court of the Southern District of the Indian Territory in said cause is hereby reversed, and the cause remanded to the district court of Pontotoc county.

OWEN, Judge, concurs; FUKMAN, PeesidiNg Judge, disqualified.


text:
    P. F. Tyler v. State.
    No. A-261.
    Opinion Filed November 18, 1909.
    (104 Pac. 919.)
    1. APPEAL — Necessity of Accused Being in Custody. Where a defendant has been convicted and sentenced to serve a term in state prison, and perfects an appeal to this court, it is essential that he should be in custody pending his appeal, by being confined in the county jail or state prison, as may be provided by law. or constructively in custody by being admitted to bail; otherwise he waives his right of having his conviction reviewed by this court.
    2. APPEAL — Dismissal—Escape by Accused. The Criminal Court of Appeals will not consider an appeal unless the defendant is. where he can be .made to respond to any judgment or order which may be rendered in the case. And where the defendant makes his escape from the custody of the law, and is at large as a fugitive from justice, this court will on motion dismiss the appeal.
    (Syllabus by the Court.)

      Appeal from District Court, Blaine County; Prank M. Bailey, Judge.

    P. F. Tyler was convicted of forgery and appealed. Motion by the State to dismiss the appeal, for the reason that appellant had escaped from, the custody of the law and was a fugitive from justice.
    Appeal dismissed, and cause remanded, with directions.
    See, also, 2 Okla. Cr. 455, 102 Pac. 716.
    Plaintiff in error, P. F. Tyler, was indicted in the district court of Blaine county, tried by a jury, and found guilty of the crime of forgery. Motions for a new trial and in arrest of judgment having been made, and overruled and exceptions allowed, the court adjudged according to the verdict, on the 22d day of April, 1909, that he3 P. F. Tyler, be sentenced to the state prison to be confined at hard labor for a term of three years; term to begin at the time said defendant is delivered to the warden of the state prison. On the same day he prayed an appeal to the Criminal Court of Appeals, which was granted, and 60 daj's were given him in which to prepare and serve a case-made. On June 19th the time was extended 30 days from the 21st day of June. On July 17, 1909, there was filed with the clerk of this court a petition in error and case-made, together with proof of service of notices of appeal, upon H. N. Boardinan, county attorney for Blaine county, and E. J. Warner, clerk of the district court of said county.
    On the 5th day of November, 1909, there was filed in this case the motion of the Attorney General, on behalf of the state, to dismiss the appeal, which motion is as follows:
    “Comes now the above-entitled defendant in error, the state of Oklahoma, by its Attornejr General, Charles West, and the Assistant Attorney General, Charles L. Moore, and moves the above-entitled court to grant an order dismissing the plaintiff in error’s appeal filed herein, and in support hereof alleges and states: (1) That the plaintiff in error herein has heretofore, until the 6th day of August, A. D. 1909, been confined and imprisoned in the county jail of Blaine county, state of Oklahoma, and was so confined and imprisoned therein under and by virtue of an order of the district court of Blaine county, Okla., and also under and by virtue of an order of the above-entitled Criminal Court of Appeals of the state of Oklahoma, pending his appeal herein, and while in default of bail. That on the 6th day of August, A. D. 1909, while the said P. F. Tyler was then and there so imprisoned and confined in said jail, under and by virtue of the above-described orders, the said P. F. Tyler did then and there unlawfully and wrongfully, and without authority of law, make his escape from the said jail, and did thereafter fiee from the said county of Blaine and from the state of Oklahoma, and that the said plaintiff in error, P. F. Tyler, is at this time a fugitive from justice and his present whereabouts unknown. That by reason thereof the said plaintiff in error, P. F. Tyler, has abandoned his appeal in the above-entitled cause of action, and has wrongfully and unlawfully fled from the jurisdiction of the above-entitled court, and is not longer entitled to have his appeal considered and determined in the above-entitled court, and all of which actions upon the part of the said plaintiff in error, P. F. Tyler, have been voluntary and wrongful and unlawful and contrary to law and the orders of the court. In support hereof are attached the affidavits of George A. McArthur, P. W. Southwick, and W, B. .Skeen, and by this reference made a part hereof. Wherefore, the defendant in error respectfully prays the court to grant and issue an order dismissing the plaintiff in error’s appeal herein, and remanding this case to the trial court, with instructions to carry into effect the original judgment and sentence of the court herein.”
    This motion is founded on the affidavit of George A. Mc-Arthur, sheriff of Blaine county, which affidavit is as follows:
    “I, George A. McArthur, of lawful age, after being first duly sworn, do depose and say: That I am the duly elected, qualified, and acting sheriff of Blaine county, state of Oklahoma, and that 1 have been such sheriff since on or about the -day of-, A. D.-. I further certify and state that I have been personally acquainted with the above-named plaintiff in error, P F. Tyler, for - years last past. That the said P. F. Tyler was convicted of the offense of forgery in the second degree upon the trial of the ease to -eview which his appeal to the above-entitled court has been takem That in the trial of the said case in the district court .of Blaine county, Okla., which said case was and there entitled, ‘Case No. -, The State of Oklahoma, Plaintiff, v. P. F. Tyler, Defendant/ the said defendant, P. F. Tyler, was sentenced by the trial court to three years’ imprisonment, at hard labor, in the State Penitentiary at McAlester, Okla, as shown by ‘.lie records and proceedings in said case. That on the-day of -, A. D. -, the said P. F. Tyler was rem'anded by the Criminal Court of Appeals to.my care and custody as sheriff of Blaine county, Okla., and was thereafter detained and imprisoned in the common jail'of Blaine county, Okla., in the town of Wa-tonga therein, under and by virtue of said order and commitment. That thereafter, to wit, on the 6th day of August, A. D. 1909, while the said P. F. Tyler was so confined and imprisoned in said common jail of Blaine county, Okla., and in my care and custody, as the sheriff of said county, he, the said P. F. Tyler, did then and there, without my knowledge or consent and against my will, escape from said common jail of Blaine county, Okla., and flee from said Blaine county and from the state of Oklahoma, and that the said P. F. Tyler is at this time a fugitive from justice, and his present whereabouts is to this affiant unknown.”
    Also the affidavits of P. W. Southwick and W. B. Skeen, deputy sheriffs of said county, corroborating the foregoing affidavit, notice of the motion to dismiss was served on counsel for plaintiff in error. The cause was submitted on said motion on November 6, 1909.

      Baker & Bloss, for plaintiff in error

      Chas. 1 Vest, Atty. Gen., and Chas. L. Moore, Asst. Atty. Gen., and H. N. Boardmm, County Atty., for the State.
   DOYLE, Judge

(after stating the facts as 'above). The question presented for decision, by the motion of the Attorney General on behalf of the state, in this case, is a new one in this court, although the like question has often been considered and decided by other courts of last resort. It will be observed that it is shown by the affidavit of the' sheriff of Blaine county, upon which the motion to dismiss is founded, that the plaintiff in error, P. F. Tyler, escaped from his custody on the 6th day of August, 1909, and is at large as an escaped convict. His appeal to this court was perfected on July 17, 1909. There has been no appearance oh behalf of the plaintiff in error to resist the motion. However it may be «argued that under the provisions of the act of criminal procedure, the defendant is entitled to 'have his appeal considered. Section 5606, Wilson’s Rev. & Ann. St. 1903, provides:

“An appeal to the Criminal Court of Appeals may be taken by the defendant,' as a matter of right from any judgment against him; and upon the appeal, any decision of the court, or intermediate order made in the progress of the case may be reviewed.”

Doubtless this is the law; and, if the defendant in this case had remained in the custody of the law, his appeal would have been considered upon the assignments of error, and the judgment against him reviewed by this court, but he cannot unlawfully escape from the custody of the law, and, while he is at large as an escaped convict and fugitive from justice, claim the right to have his appeal considered and determined, and thus obtain a review by this court of the judgment and rulings of which he complains.

From a review of the authorities we are convinced that it is no part of our duty as an appellate court to consider or review the judgment, orders, and rulings of which he complains, while he is at large as an escaped convict. Such has been the uniform holding of the courts of last resort in other jurisdictions, and it meets our full approval. In the language of Chief Justice Waite, in Smith v. United States, 94 U. S. 97, 24 L. Ed. 32, we may say of the case at bar:

“If we affirm the judgment, he is not likely to appear to submit to his sentence. If we reverse it and order a new trial, he will appear or not as he may consider most for his interest. Under such circumstances we are not inclined to hear and decide what may prove to be only a moot case.”

While it is the constitutional right of the accused, in a criminal prosecution “to be heard by himself and counsel,” it must be held, we think, that he has no right to appear by counsel alone after he has escaped from lawful custody and is at large.

“A provision of the Constitution that the defendant has a right to be heard in person or by counsel does not entitle the defendant to appear by counsel when he has escaped.” (Com. v. Andrews, 97 Mass. 543; People v. Genet, 59 N. Y. 80, 17 Am. Rep. 315.)

In Maine the court declined to-hear argument until the defendant was brought into custody. This is probably the earliest case in the United States. Anonymous, 31 Me. 592.

“Where an appeal is taken to a higher court, and the defendant is not required to personally appear before the appellate court, the fact of the escape is usually brought to the court’s notice by affidavit filed by the prosecution.”

See People v. Redinger, 55 Cal. 290, 36 Am. Rep. 32; Sherman v. Com., 14 Grat. (Va.) 677.

In McGowan v. People, 104 Ill. 100, 44 Am. Rep. 87, Chief Justice Scott said:

“The plaintiffs in error are in no position to invoke the judgment of this court in respect to the errors alleged to have been committed on their trial and conviction in the court below. ' They do not stand ready to abide that judgment when pronounced, but since suing out the writ they have broken jail, and fled from the custody of the officer, and are standing in defiance of the law and its officers. It is a matter within the discretion of the court whether we will hear the writ under these circumstances. The better practice clearly is that the cause shall not proceed to a hearing when the persons to be affected are not within the jurisdiction of the court to answer to its judgment, but are in the attitude of fugitives from justice. While it is not essential to the validity or binding force of any judgment which may be rendered by this court upon exceptions presented by one who has been convicted upon a criminal charge that he should be present in court, either at the hearing of the cause or upon the rendering of the judgment, yet it would be idle for the court to proceed to determine the questions presented when the ■possibility of enforcing whatever judgment it might pronounce must depend upon the option of the fugitive to return into custody, or upon the remote chances of their ultimate recapture by the officers of the law. Before the powers of the court can appropriately be called into action in a criminal procedure like this, 'the person to be affected by the judgment ought to be within the control of the court below, either actually by being in custody, or constructively by being on bail. The reason of the rule is obvious. Should a hearing of the cause result in an affirmance of the judgment below, the escaped prisoners would not be likely to return voluntarily to meet the execution of the sentence. Should a reversal result, they might return and submit to another trial, or not, as the grounds of the decision might suggest to them the prudence of one or the other course of action. We do not think it would subserve the ends of justice to permit persons charged with crime to speculate in this manner upon their chances of escape or conviction. Persons appealing to this court for redress should stand in an attitude to accept and abide the result, whatever that may be. The authorities upon the question are in harmony Avith the reason of the rule. * * * ”

The appellant, by escaping from jail, where he was being held pending a determination of his appeal to this court, has voluntarily withdraAvn himself from the jurisdiction of the court. So far as he has any right to be heard under the Constitution,' and the statute before this court, he must be deemed to have waived it by escaping from the custody of the law. Where a person convicted of a felony has escaped from the custody of the laiv, no order or judgment, if any should be made, can be enforced against him, and appellate courts Avill not give their time to proceedings which, for their effectiveness, must depend upon the consent of an escaped convict. While we find no express provision of our statute authorizing a dismissal of an appeal in a criminal case for the reasons stated in the present motion, we are of opinion that the appellant by his OAvn act has waived the right to have his case considered and determined. In this conclusion we are sustained by the authorities quoted, and many others.

For the reasons given, the motion of the Attorney General to dismiss the appeal is sustained, and the cause remanded to the district court of Blaine county, Avith directions to cause the judgment and sentence to be carried into execution.

FUBMAN, Presiding Judge, and OWEN, Judge, concur.


author: PER CURIAM.

text:
    Kid Kelley v. United States.
    No. 728,
    Ind. T.
    Opinion Filed November 18, 1909.
    (104 Pac. 922.)
    COURTS — Jurisdiction—Criminal Court of Appeals as Successor to Territorial Court. The Criminal Court of Appeals of Oklahoma, as the successor to the United States Court of Appeals of the Indian Territory in all criminal causes pending therein not transferred to the United States Circuit or District Courts for the state of Oklahoma, did not acquire jurisdiction of a capital case, where a final decision had been rendered by said federal court several weeks prior to the admission of Oklahoma as a state, in which cause no motion or petition for rehearing had been filed, or was pending, and wherein a writ of error had apparently been allowed to the United States Circuit Court of Ap- ' peals of the Eighth Circuit.
    (Syllabus by the Court.)

      Error from the United States Court for the Southern District 'of ■ the Indian Territory; Ilosea Townsend, Judge.

      : Kid Kelley was convicted 'of murder, and appealed to the United States Court of Appeals, whence the cause was transferred to the Supreme Court of the State of Oklahoma, and thence to the Criminal Court of Appeals. Cause stricken from docket.

      Chas. West, Atty. Gen., and Chas. L. Moore, Asst. Atty. Gen., for the State.
   PER CURIAM.

Appellant Kid Kelley was indicted, tried, and convicted of murder, and sentence of death was pronounced against him. The killing occurred at Tishomingo on January 11, 1904. From the judgment and sentence an appeal was taken to the United States Court of Appeals for the Indian Territory. On September 26, 1907, the judgment of the lower court was affirmed in an .opinion rendered by Clayton, Justice, in which Gill, Chief Justice, and Lawrence, Justice, concurred. From this judgment it appears that a writ of error was allowed on October 10, 1907, to the United States Circuit Court of Appeals for the Eighth Circuit, and on said day it appears from the files the following order slaying execution was made:

“United States Court of Appeals in the Indian. Territory, Kid Kelley, Plaintiff in Error, v. United States, Defendant in Error. Stay of Execution. Whereas, lately at the September, A. D. 1907, term of United States Court of Appeals for the Indian Territory at South McAlester in a suit pending in said court between Kid Ivellej^, plaintiff in error, and the United States, defendant in error, a judgment and sentence was rendered against the said Kid Ivelley and the said Kid Kelley has obtained a writ of error to the United States Circuit Court of Appeals for the Eighth Circuit at St. Louis, Missouri, to reverse the judgment and sentence in the aforesaid suit and the citation directed to the United States of American citing and admonishing the United States- of America to be and' appear in the United States Court of Appeals in the Eighth , Circuit at the City of St. Louis, Missouri, sixty days from and after the date of said citation; which citation has been duly served. It is therefore ordered and directed that the execution of said judgment and sentence be and the same is hereby stayed and superseded subject to the order and judgment of the United States Circuit Court of Appeals for the Eighth Circuit at St. Louis, Dated this 10th day of October, 1907. W. B. FT. Clayton, Judge of the United States Court of Appeals in the Indian Territory.”

Upon the admission of Oklahoma the files in said cause were transferred to the Supreme Court of the state of Oklahoma, and upon the organization of the Criminal Court of Appeals were transferred by the Supreme Court to this court.

On April 1, 1909, the Attorney General filed a motion to strike said cause from the docket, which motion is as follows:

“Comes now the Attorney General, and informs the court that he is advised that this cause is inadvertently and erroneously upon the.docket, in that final decision had been rendered by the United States Court of Appeals of Indian Territory prior to statehood; the said court at the time of said decision having full, jurisdiction of the subject-matter of the action. He therefore suggests and recommends that the said cause be stricken from the docket of this court as improvidently thereon.”

From our examination of the files and records in the case we must conclude that the Supreme Court of Oklahoma or this court has never acquired jurisdiction in said cause, as no motion or petition for rehearing appears to have been filed in the case before the United States Court of Appeals for the Indian Territory, and apparently a writ of error was obtained to the United States Court of Appeals for the Eighth Circuit at St. Louis.

The motion of the Attorney General is allowed. It is therefore by the court ordered that said cause be stricken from the docket.


author: PEE CUKIAM.

text:
    Wesley Yandel v. Territory.
    No. 2118.
    Opinion Filed November 18, 1909.
    (104 Pac. 923.)
    1. COURTS — Criminal Court of Appeals — Rules of Practice— 'Power to Make. The power to make reasonable rules for the regulation of the practice before the Criminal Court of Appeals is expressly conferred upon the court by statute. Section 10, art. 2, c. 14, p. 172, Sess. Laws 1909.
    2. APPEAL — Review—Dismissal of Appeal — Grounds. A motion to dismiss an appeal for want of prosecution will be sustained, where the record shows there has been a failure by the appellant to comply with the rules and orders of the court in said ■ case.
    (Syllabus toy the Court.)

      Appeal from District Court, Pottawatomie County; B. F. Bunvell, Judge.

    Wesley Yandel was convicted of manslaughter in the first degree, and he appeals.
    Appeal dismissed.
   PEE CUKIAM.

On the 21st day of March, 1906, the grand jury returned into the district court in and for Pottawatomie county, Okla. T., an indictment against Wesley Yandel and Ben Mitchell, charging them with the crime of murder. The defendants were arraigned and pleas entered, and on March 29, 1906, on application of the defendants, a severance was granted, and the court ordered that the cause proceed to trial against the defendant Wesley Yandel. The trial was begun on said day, and on the 31st day of March, 1906, the jury returned into court a verdict against the defendant Wesley Yandel, finding him guilty of manslaughter in the first degree. Motions for new trial and in arrest of judgment were duly filed and overruled by the court and exceptions allowed. Thereupon the defendant was sentenced to serv> a term of eight years in the penitentiary. Time was given to the defendant in which to make and serve' a case-made on his appeal to the Supreme Court, and his bail was fixed at $7,000, which was given. On March 25, 1907, the ease-made and petition in error was filed in the Supreme Court of the territory of Oklahoma. Upon the admission of Oklahoma as a state the case was transferred to the Supreme Court of the state of Oklahoma. Upon the organization of the Criminal Court of Appeals, as directed by statute, the Supreme Court transferred the case to this court, but no record, ease-made, and petition in error have ever been trans-fered to this court. No appearance has ever been made in this court on behalf of the defendant, although said ease has been continued from term to term since the organization of this court.

For this reason, it appearing that the defendant has abandoned his appeal, the appeal is, on the motion of Assistant Attorney General, Charles L. Moore, dismissed for want of prosecution, with directions to the district court of Pottawatomie county to enfore/ die judgment and sentence.