author: DOYLE, J.

text:
    ROBERT WATSON v. STATE.
    No. A-1336.
    Opinion Filed March 4, 1913.
    (130 Pac. 816.)
    1» APPEAL — Grant of Change of Venue. An application for a change of •venue is addressed to the sound discretion of the court, and, unless an abuse of this discretion is shown, the judgment will not he reversed on appeal.
    2. TRIAL — Change of Venue — Counter Affidavits. On an application for a change of venue, on the ground "that the minds of the inhabitants of the county in which the cause is pending are so prejudiced against the defendant that a fair and impartial trial cannot be had therein,” the court may permit the introduction of counter affidavits for the purpose of contesting the grounds of the application.
    3. JURY — Challenge to Panel — Harmless Error. A challenge to the panel on the ground that only two jury commissioners participated in selecting the jury list, and that the names from the municipal townships were not selected in proportion to the voting strength of such townships, is insufficient, unless it is shown that the irregularities were such that the defendant has suffered material prejudice, as prescribed by section 6795, Procedure Criminal (Comp. Laws 1909 [sec. 5242, Rev. Laws 1910]).
    4. SAME — Insufficiency of Regular Panel — Open Venire. At any time during the term of court after the regular panel has been drawn and summoned, when for the trial of any cause the regular panel of petit jurors shab appear to be insufficient, as a matter of discretion with the court, the jury may be completed from talesman, or the court may direct that an open venire be issued to the sheriff or his deputies for such number of jurors as may be deemed necessary.'
    5. APPEAL — Harmless Error. Where a petition in error assigns error on every proceeding had upon the trial, but the brief does not point out specifically the grounds of objection, nor the portion of the record applicable thereto, and counsel fail to support the assignments with citation of authority, and it appears from an examination of the record that the constitutional right of the defendant to a “trial by an impartial jury of the county” was fully accorded, this court will not disturb the discretion exercised by the trial court in denying a change of venue and overruling a challenge to the panel.
    (Syllabus by the Court.,)

      Appeal from District Court, McIntosh County; B. C. Allen, Judge.

    Robert Watson was convicted of manslaughter, in the first degree, and he appeals.
    Affirmed.

      Jach G. Harley and James B. Miller, for plaintiff in error. Chas. West, Atty. Gen., Smith C. Matson, Asst. Atty. Gen., and B. E. Gish, for the state.
   DOYLE, J.

The plaintiff in error, Robert Watson, hereinafter referred to as the defendant, was- convicted of first degree’ manslaughter in the district, court of McIntosh county under an indictment charging him with the murder of one Robert Gentry on or about November 14, 1910, in said county, and upon such conviction was sentenced in accordance with the verdict of the jury to serve a term of 20 years’ -imprisonment in the state penitentiary.

The judgment and sentence was rendered March 29, 1911. To reverse the judgment, an appeal -was perfected by filing in this court August 29, 1911, a petition in error with case-made. Upon the trial the defendant admitted the killing of Gentry, but sets up as a justification therefor that it was done in necessary self-defense.

The circumstances under which the homicide was ■ committed are, briefly, as follows: Robert Gentry, the deceased, and Duff McIntosh left Checotah on Sunday, November 14th, and went to Onapa, and from there to the house of Willie Collins, and there participated in a game of poker with three or four other parties. After supper the game was renewed, the participants sitting on the floor, and playing' on Gentry’s lap-robe, which was spread on the floor. About midnight Watson quit playing, and the game continued between the deceased and Alvin Arnold. Collins, McIntosh, and the defendant looking on. The deceased and the defendant began “rawhiding” one another about the game until bad feeling developed, and the deceased ^took a pistol from his coat pocket, and told the defendant to let him alone, or he would shoot him “in the fat part of the hip.” It was conceded, however, that this particular language was not used. The defendant then said, “Just shoot me then,” but the deceased continued the game with Arnold, and seemed to show no disposition to execute his threat. The defendant stood around for a short while, and then walked out, sajdng, “You won’t say that later,” or words to that effect. The deceased made no hostile demonstration as the defendant left. In about twenty minutes the defendant returned. The deceased, sitting on the floor near the open door, was still playing cards with Arnold. Without warning there was a shot from the outside. At the same time the deceased raised slightly, the light went out, and it is a disputed fact as to whether or not he fired his automatic pistol. Immediately there came from the outside the report of a shotgun,■ and three pistol shots in rapid succession. The defendant, Watson, then entered the ^oom, holding a shotgun in both hands. When the first shot was fired from the outside, the deceased dropped his pistol, fell over on his elbow, and said, “0! I am killed.” In the early morning several persons, including the marshal of Onapa, having heard that some person had been killed at Collins’ house, went there and found the body of the deceased inside of the door in a sitting position against the wall. There was a shotgun wound in the pit of the stomach, and three bullet holes in the body. They found no weapon or money on his body.

Duff McIntosh testified that, when he heard the defendant coming back, he went out, and walked about 75 yards, and stood there; that, when the shooting commenced, the light went out, and he walked to his brother’s house.

Alvin Arnold testified that the deceased fired two shots, and there were four shots fired from the outside, and then the defendant stepped into the room, holding a shotgun with both hands; that, when the shot was fired from the outside, the deceased fell over on his elbow, and said, “0! I am killed;” that Willie Collins lit a lantern, and in a few minutes they all left the place, Willie Collins riding double with the defendant on his horse.

The defendant, as a witness on his own behalf, testified that he lived on his allotment near Bond’s Switch, and had known Robert Gentry “pretty nigh all his life;” thait he, with other parties, was drinking whisky and playing stud poker at Willie Collins’ house; that, when 'he quit the game, that left Alvin Arnold and Gentry playing; that he said something or other just in a joking way, and Gentry jerked out his gun, and said, “If you do not get out of here, I will shoot you;” that one word brought on another, and he told Gentry that he would not say any more if he was mad; that he stayed in there a little bit, and went out, and was out in the yard about 15 minutes, when he heard Willie Collins coming through the cotton stalks, saying, “I will kill the son of a bitch;” that he asked him, “Who are you going to kill?” and he said, “Alvin Arnold,” and he said, “'No; your are not,” and run up and grabbed him and wrenched the gun out of his hand; that just then he heard a shot, and it grazed him; that he looked, and saw Robert Gentry shooting him from the door; that he then fired two shots at Gentry with his shotgun, and then Willie Collins with a pistol shot three shots at Gentry; that he told Collins not to shoot any more, and Willie Collins stepped inside, and picked up Robert Gentry’s automatic pistol, and brought it out and gave- it to him, and he then went to his home, Collins going with him.

Willie Collins, in rebuttal, testified that he heard a “whoop,” and stepped out, and saw the defendant coming in the gate with a shotgun, and he walked directly toward the door, and threw the gun down and went to shooting; that he said to him, “Robert, don’t do that,” and the defendant shoved him back, and said, “I will do the same for you;” that he fired two shots with the shotgun, and then three shots with a 45-caliber pistol, and then made witness go into the house and light the lantern, and the defendant followed him in; that as they went in Alvin Arnold came out; that the defendant said he was wounded, and made witness go with him; that they went down to Bartons at Bond’s Switch, and left the horse there, and then went back to Collins’ house; that the defendant made him go in and light the lamp, and then he came in and picked up Gentry’s automatic pistol, and shot one shot out of the door with it; that they then went and .got in Gentry’s buggy, and drove to the defendant’s home.

The transcript of the testimony covers about 400 pages, but the foregoing statement is sufficient to understand the assignments of error, which are in effect:

First: “That the court erred in refusing to order a change of venue.” The application was supported by the affidavits of the defendant and three other persons, to the effect “that the minds of the inhabitants of McIntosh county are so prejudiced against the defendant that he cannot receive a fair and impartial trial in said bounty.” Later the defendant filed a large number of supporting affidavits setting forth the following statement of facts: “That the relatives of Bobert Gentry, deceased, are very prominent and influential in said county, and they are active in this prosecution against the defendant, and that the defendant was tried and convicted of cutting Grant Johnson, who was for many years a deputy United States marshal, and that he is also a man of large personal influence in the county, and that the defendant took an active part in the county seat contest between Checotah and Eufaula, in the interest of Che-cotah.” The state filed an equal number of counter affidavits from citizens of various parts of the county, abundantly showing there was no such state of feeling generally prevailing throughout the county as would prevent the defendant from having a fair and. impartial trial therein. The statute provides that in such cases the court may in its discretion grant or refuse the change of venue. Turner v. State, 4 Okla. Cr. 164, 111 Pac. 988; Starr v. State, 5 Okla. Cr. 440, 115 Pac. 356. We are of opinion that there was no error in refusing a change of venue.

Second. “The court erred in overruling the defendant’s challenge to the panel of the petit jurors.” It appears from the record that, when the jury list was selected, only two jury commissioners participated, the Republican member of the board having failed to qualify, and that the jury list as selected disclosed that one-half of the 200 names are persons who live in Checotah township, and that names from two municipal townships were wholly omitted from the jury list. There is no claim that these irregularities were corruptly conceived, or that the jury commissioners who acted were in any way prejudiced against this defendant. We think that, .before the defendant can avail himself of any irregularities on a challenge to the panel, he must show intentional omission on the part of the jury commissioners from which he has suffered material prejudice. The provisions of our Procedure Criminal (sections 6795 and 6801 Rev. Laws 1910, sec. 5842 and 5848 Comp. Laws 1909) enumerate the grounds upon which a challenge to the panel must be founded. The fact that the jury commissioners failed to strictly follow the provisions of the jury law is not in itself a sufficient ground to sustain a challenge to the panel. It must be shown that such irregularities were prejudicial to the substantia] rights of the defendant. We are of opinion that the challenge to the panel was properly overruled. However, we will say that it is the duty of district courts to compel, not only compliance with the spirit of these statutes, but, as far as practicable, the jury commissioners should be compelled to comply with the letter thereof.

Third. “The court erred in refusing the defendant’s request for a full panel of 24 jurors duly drawn from the jury box as selected by the jury commissioners.”

Fourth. “The court erred in ordering the sheriff to summon additional jurors upon an open venire from the body of the county.” We are of opinion that these objections are not well taken. The trial court sets forth the facts upon which he based his rulings in the record as follows:

“The Court: The request is denied for the reason that the shortage in the panel is due to the fact that this case was continued over from the 17th; that a number of jurors on the regular panel who announced that they would be disqualified to sit in this case, and 'after good reasons were excused from the panel, and for the further reason that this demand comes too late, having been made after the state announced ready for trial, twelve men called in to the jury box, and sworn to answer questions, and the examination having commenced; that there is also, at this time, twenty qualified jurors in attendance who were summoned in open venire by order of this court in addition to the eighteen that are now here on the regular panel, which gives a panel of thirty-eight qualified men.”

Section 6788, Procedure Criminal, (Comp. Laws 1909) provides:

“If a sufficient number cannot be obtained from the box to form a jury, the court may as often as is necessary, order the sheriff, marshal or such other person as he may designate to summon from the body of the county or from such portion of the county as the court may order, as many persons qualified to serve as jurors as he deems sufficient to form a jury or .may select .from the bystanders with the consent of the defendant, a sufficient number of persons qualified as jurors to constitute the required number. The jurors so summoned may be called from the list returned by the officer and so many of them not excused or discharged as may be necessary to complete the jury, must be impaneled and sworn. The court may upon its own motion, at any time before the jury is sworn to try the cause, excuse from the jury or panel any person whom the court deems, for any reason, unfit to serve as a juror in said cause, and shall not be required to state any reason therefor.”

And the last proviso of section 3986 (Comp. Laws 1909 Rev. Laws 1910, 3693) of the jury act is:

“Provided, further, that at any time during the term of court, after the petit jury has been drawn- and summoned in the manner herein provided for, when, for the trial of any cause, civil or criminal, the regular panel of jurors shall appear to be insufficient, the jury may be completed from talesmen or the court may direct that an open venire be issued to the sheriff or his deputy, for such number of jurors' as may bo deemed necessary to be selected from the body of the county.”

It apjiears that the constitutional right of the defendant to a “trial by an impartial jury of the county” was fully accorded.

The voluminous brief of the learned counsel for the defendant is without the citation of a single authority. This they explain by stating that “most of the propositions herein raised are elementary and statutory, and we think it only necessary to point out these errors to the court in order to secure a reversal of this case.” While we are reasonably certain that counsel could have found no authority to support their con-' tentions, yet, as we have heretofore said, this practice of alleging unfounded assignments of error and arguing the same without the citation of authority to support the contentions made should not be indulged in. It presumably costs counsel effort and time and needlessly occupies the time of the court, and avails nothing.

It is also contended that the testimony shows that the defendant shot Robert Gentry in necessary self-defense, and that, under the proof, the jury was not warranted in returning a verdict of guilty of any crime. We have patiently’ read the transcript of the testimony, and we think the jury under their oaths could not, as reasonable men, have returned a more favorable verdict for the defendant, and there is nothing in the record to indicate that the verdict was the result of passion, prejudice, or partiality. It is our opinion that the evidence not only fully justified the jury in finding the defendant guilty of first degree manslaughter, but ■ a verdict for murder would not have been unwarranted.

The case appears to have been carefully and ably tried on the part of the court as well as counsel.

Finding no prejudicial error, the judgment is affirmed.

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


source: Caselaw Access Project

author: FURMAN, J.

license: Public Domain

text:
    DUG MOORE v. STATE.
    No. A-1398.
    Opinion Filed March 8, 1913.
    (130 Pac. 517.)
    1. GAMING — “Gambling Device” — Information. The proh'bitions contained in sections 2422 and 2426, Comp. Laws 1909, do not alone extend to those who deal or play or conduct the 'various games of chance therein specified, but such prohibition extends to the carrying on or opening of any such prohibited game, and the use therein of any device. And any table or other device, necessarily adapted to the use, and necessarily used in the carrying on of any such game, is a gambling device in contemplation of law, and the setting-up or using of such table or device is prohibited; and an information under said sections, charging the defendant with permitting certain tables to be set up and used for the purpose of gambling in rooms occupied by him and under his control, charges a public offense.
    2. JURY — Summoning Talesmen. Where all of the jurors, whose names have been regularly drawn from the jury box and summoned, do not appear at a term of the court, the trial judge, in his discretion, may order other drawings from the jury box, or he may order an open venire addressed to.the sheriff summoning the necessary number of talesmen from the body of the county to complete the jury.
    (Syllabus by the Court.)

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

    Dug Moore was convicted of violating the gambling laws, and appeals.
    Affirmed.

      Davidson & Williams, for appellant.

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

Appellant demurred to the information upon the ground that it did not state facts sufficient to constitute a public offense against the laws of the state of Oklahoma. The information alleged that on the 15th day of January, 1910, in Tulsa county, appellant "did unlawfully and wrongfully permit a certain gambling table and devices to be set up and used, to wit, one' crap table and one roulette wheel in a certain room of a certain building situate on the west side of Main street in the city of Tulsa, Oída., and known as the Moore Hotel, said room and hotel being then and there in the possession and occupied by said Dug Moore, at and on which certain games, to wit, craps and roulette, were then and there conducted and played by divers persons, whose names are unknown to your informant, for money and other representations of value; said Dug Moore then and there having the control of said room and building described as aforesaid.”

Sections 2422 and 2426, Comp. Laws 1909, are as follows:

“Sec. 24-22. Owners or Employees of Games Guilty. — -That every person who deals, plays or carries on, or opens or causes to be opened, or who conducts, either as- owner or employee, whether for hire or not, 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, is guilty of a misdemeanor, and is punishable by a fine of not less than one hundred dollars nor more • than one thousand dollars, and by imprisonment in the county jail for a term not less than thirty days nor more than six months.”
“Sec. 2426. Penalty for Leasing Building or Grounds for Gambling. — Every person who shall permit any gambling table, bank, or gaming device prohibited by sections 2422 and 2424 of this act, to be set up or used for the purpose of gambling in any house, building, shed, shelter, or booth, lot or other premises to him belonging, or by him occupied, or of which he hath, at the time, possession or control, shall be, on conviction thereof, adjudged guilty of a misdemeanor, and punished by a fine not exceeding two hundred dollars, nor less than one hundred dollars, or by imprisonment in the county jail for a term not exceeding six months nor less than thirty days, or by both such fine and imprisonment in the discretion of the court.”

The two sections above quoted were enacted by the Legislature of Oklahoma Territory in 1893, and were continued in force in this state by the terms of the Constitution. In 1897 these sections were construed; and an information charging substantially the same offense as that charged in the information now before us • was held to be, good by the' Supreme Court of Oklahoma territory in the case of Jones v. Territory, 5 Okla. 536, 49 Pac. 934. Judge Tarsney, speaking for the court, said:

“We are bound to give the language used by the Legislature such interpretation as will support its evident intent, if the language used is fairly susceptible of such interpretation! That the Legislature intended to prohibit the setting up or use of gambling tables is beyond doubt;, and that they intended to punish those who should permit such tables to be set up cannot be questioned. * * * We are therefore clearly of the opinion that it was the intention of the Legislature to prohibit the owners, occupants, or persons in possession or control of houses, buildings, etc., from permitting any gaming table, bank, or gaming device to be set. up or used for the purpose of gambling therein; and that the language of sections 1 and 5, above quoted, with sufficient clearness, shows such' intent, and that therefore the information in this case did charge a public offense, and that the demurrer was rightly overruled.”

We think that Judge Tarsney was correct in his interpretation of these statutes, and that his decision in the case of Jones v. Territory is conclusive of this question.

Second. It appears from the record that out of the list of jurors selected by the jury commissioners and regularly drawn and summoned for the regular panel in the county court of Tulsa county, at the term at which this cause was tried, only seven of the jurors so drawn and summoned qualified, and that appellant objected to going to trial until a full panel had been regularly drawn and summoned and impaneled as the regular trial jury for that term of the court. The court overruled this objection, and ordered the clerk to issue an open venire addressed to the sheriff of Tulsa county for eight talesmen from which to complete the trial panel for this cause, to which the appellant objected. The objection was by the court overruled, and appellant excepted thereto. Eight talesmen were summoned and appeared under said open venire, and five of these qualified upon examination for cause, and these five talesmen,, were placed upon the panel, to all of which appellant excepted.

The contention of counsel for appellant is that he had a right to a full panel of jurors duly drawn from the’ jury box, as selected by the jury commissioners, and that the trial court was without authority to order the sheriff to summon additional jurors upon an open venire from the body of the county. To sustain this contention would be to of times subject the trial courts to great and unnecessary delay in drawing and summoning tales-men. This objection was passed upon in an elaborate opinion by Judge Doyle in the case of Robert Watson v. State, ante, 130 Pac. 816, decided at the present term of this court; and we there held that the objection was not well taken. Even if the matter had never been decided by this court, it is settled by the provisions of the statute.

Section 3987, Comp. Laws 1909, relating to juries in county courts, among other things provides:

“The court may for any cause in its discretion, excuse any person drawn and summoned as a petit juror: Provided, further, that at any time during a term of court, after a petit jury has been drawn and summoned, in the manner as herein provided, for the trial of any cause, a regular panel of jurors shall apioear to be insufficient, the jury may be completed from tales-men, or the court may direct an open venire to issue to the sheriff for such number of jurors as may be deemed necessary, to be selected from the body of the county: Provided, that jurors in the county court shall receive the same compensation as jurors in the district court."

Our statute does not require that the names of additional jurors shall be drawn from the box when all of those who were originally drawn do not appear. The judge, whenever in his discretion he regards it as necessary, may order other drawings from the box, or he may order an open venire and have the talesmen selected from the body of the county. A defendant is not entitled to any particular juror. All that the law vouchsafes to him is a fair and impartial trial jury, selected in substantial compliance with the law. No authorities „ are cited by counsel for appellant in support of their contention, and no attempt is made to show any injury to appellant or how he was deprived of any substantial right by the ruling of the trial court.

Section 3995, Comp. Laws 1909, is as follows:

"A substantial compliance with the provisions of this act shall be sufficient to prevent the quashing or setting aside of any indictment of a grand jury chosen hereunder, unless the irregularity in drawing, summoning or impaneling the grand jury resulted in depriving a defendant of some substantial right, but such irregularity must be specifically presented to the court on or before the cause is first set for trial. A substantial compliance with the provisions of this act shall be sufficient to prevent the setting aside of any verdict rendered by a jury chosen hereunder, unless the irregularity in drawing, and summoning or impaneling the same, resulted in depriving a party litigant of some substantial right: Provided, however, that such irregularity must be specifically presented to the court at, or before, the time the jury is sworn to try the cause.”

We think that the action of the court in this case was a substantial compliance with the provisions of our statute, and that, in the absence of any showing of injury to appellant, it would be a miscarriage of justice to set aside this verdict upon the objection made. This is not only the law in Oklahoma; but it is manifestly just, and is in strict harmony with the weight of authorities.

The law is thus stated in 24 Cyc. 254:

“Where some of the jurors summoned fail to appear, it is not necessary, in the absence of statute, for the court to delay the impaneling of the jury or postpone the trial; nor is it necessary for the court to have other jurors summoned to fill the places of those who are absent, or to issue attachments for the absent jurors.”

In Patterson v. State, 48 N. J. Law, 381, 384, 4 Atl. 449; loc. cit. 451, the court said:

“The third assignment of error is that the court allowed the call of the jury to proceed before all .the jurors were present, and' without a full list thereof. The record shows that, after the challenge to the array was overruled, the court ordered the list of jurors to be called. Upon the call, six jurors did not answer. The counsel of defendant objected to proceeding until all the jury were present. The objection was overruled, and the names of 48 jurors summoned were put in the box, from which the jury for this cause was drawn. If it is necessary that every juror of the 48 summoned for service at the term should be present in court when a case is called for trial, it would be quite impossible to conduct the prosecution of criminal trials successfully. Our statute requires only that the list of 48 jurors be served. It does not require that all the jurors shall be present when the case is moved. The language of the section, with respect to a tales, clearly shows that the presence of all is not essential. .It provides that if, by reason of challenges or the default of jurors, or otherwise, a sufficient number cannot be had of the original panel to try the issue, a tales may be awarded. The power of the court to excuse a juror from the general panel for cause is recognized in this as well as in other states. Smith v. Clayton, 29 N. J. Law, 358; Ware v. Ware, 8 Me. [8 Greenl.] 42; State v. Ward, 39 Vt. 230.”

In People v. Lee, 17 Cal. 76, loe. cit. 80, the court, upon a like proposition, said:

“(7) When the court directed the clerk to call and impanel the jury in the cause, objection was made on the ground that several of the jurors of the original panel, summoned for the term, had been previously excused without the consent of the defendant; and, being overruled, the further objection was made that there was not a full panel present, and this was in the same manner disposed of. There was no error in these rulings.”

In State v. Hallbach et al., 40 S. C. 298, 18 S. E. 919, the court held that:

“Defendant in a criminal ease is not entitled to have the panel full, or entirely read over, before entering on his right of challenge.”

The testimony in this case is overwhelming and conclusive as to the guilt of appellant. Appellant offered no evidence in his own behalf, but relies alone upon the technical skill and ability of his attorneys to secure a reversal of the judgment of the lower court. The instructions of the court are' in harmony with° the view expressed in this opinon. We find no error in the record.

The judgment is in all things affirmed.

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


author: ARMSTRONG, P. J.

text:
    CHARLEY SMITH v. STATE.
    No. A-1441.
    Opinion Filed March 8, 1913.
    (130 Pac. 517.)
    APPEAL — Affirmance. When a petition in error and case-made are filed in th's court, it is the duty of counsel to prepare and file briefs or appear and orally argue any assignments of error relied upon for reversal. When this is not done, the appeal is treated as abandoned, and in the absence of fundamental error, the judgment of the lower court will be affirmed for want of prosecution.
    (Syllabus by the Court.)

      ■Appeal from District Court, Le Flore County; Malcolm E. Rosser, Judge.

    Charley Smith was convicted of larceny of domestic animals, and brings error.
    Affirmed.

      Tom W. Neal, for plaintiff in error.

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

The plaintiff in error, Charley Smith, was convicted at the April, 1911, term of the district court of Le Flore county on a charge of larceny of domestic animals, and his punishment fixed at imprisonment in - the. state penitentiary for a period of three years. The appeal was perfected in this court on the 21st day of October, 1911. The petition in error points out no specific ground for reversal, but generally alleges error in the overruling of the motiQn for new trial and in arrest of judgment. No briefs have been filed by counsel on behalf -of the plaintiff in error, and no appearance made for oral argument. We have examined the record, and find that no constitutional right was denied the accused.

The judgment of the trial court is in all things affirmed.

DOYLE and FHRMAN, JJ., concur.


author: FUEMAN, J.

text:
    STATE v. R. J. LAWRENCE.
    No. A-1472.
    Opinion Filed March 8, 1913.
    (130 Pac. 508.)
    1. CONSTITUTIONAL LAW — Gaming—Distribution of Governmental Powers — Statutory Provisions — Definition of Offense of “Gaming.’* (a)It is the exclusive province of the Legislature to declare what shall constitute a crime, but it is the duty of the courts to determine whether a particular act done or omitted is within the in-tendment of a general statute. '
    (b) The Legislature in creating an offense may define it by a particular description of the act or acts constituting it, or it may define it as any act which produces or is reasonably calculated to produce a certain defined or described result.
    (c) Section 2782, Comp. Laws 1909, which provides that any person who wilfully and wrongfully commits an act which grossly injures the person or property of another, or which grossly disturbs the public peace or health, or 'which openly outrages public-decency, and is injurious to public morals, is guilty of a misdemeanor, is not void for uncertainty, but constitutes a valid provision of our law, and as such should be enforced.
    (d) When the Legislatnre creates, withont defining, an offense which was a crime under the common law,-the definition of the crime given by the common law will be treated by the courts as though it were a part of the statute itself, and will render certain and definite that which might otherwise be uncertain and indefinite.
    (e) Gaming has always been an offense at common law. A wager laid upon the result of any contest of chance, skill or-strength between men or beasts or men and beasts constitutes, gaming.
    (f) Bets publicly and openly made ;n the presence of and among an assembly of men, women, boys, and girls who are witnessing a game of base ball are prohibited by section 2782, Comp. Laws 1909.
    2. INDICTMENT AND INFO RMATIO N — Evidence—judicial Notice-—Duplicity in Indictment, (a) Thiis court takes judicial notice of the fact that the game of baseball when properly conducted is. an innocent public amusement, and constitutes the most entertaining and popular public pastime or sport of the American people.
    (b) For an indictment held to be good which charged, the-offense of openly and publicly betting upon a game of baseball, see opinion.
    (Syllabus by the Court.)

      Appeal from Bryan County Court; J. L. Bappolee, Judge.

      E. J. Lav,-fence was prosecuted for openly and publicly betting on a game of baseball, in violation of Comp. Laws 1909, sec 2782. A demurrer to the information was sustained, and defendant discharged, and the state appeals.
    Eeversed and remanded.

      J. T. McIntosh, Co. Atty., for the State.
   FUEMAN, J.

The information alleges that on the 27th day of April, 1911, in Bryan county, the defendant did “willfully and wrongfully commit an act which grossly disturbed the public peace, -openly outraged public decency, and injured the public morals, by then and there, in the presence of and among divers and sundry persons assembled at a baseball game and consisting of men and women, boys and girls, bet the sum of five, dollars with one Jake Sims on said game, and said betting and gambling was done publicly and openly ’ in the presence of said persons so assembled.” To this information the defendant filed a demurrer, upon the ground that the facts stated therein did not constitute a crime under the statutes of this state. The trial court sustained the demurrer, and ordered that the defendant be released from custody, to all of which the state excepted. The information in this case is based on section 2782, Comp. Laws 1909, which is as follows:

“Every person who willfully and wrongfully commits any act which grossly injures the person or property of another, or which grossly disturbs the public peace or health, or which openly outrages public decency, and is injurious to public morals, although no punishment is expressly prescribed therefor by this code, is guilty of a- misdemeanor.”

Two questions are presented by this appeal. The first is as to whether or not the statute upon which this information is based is void for uncertainty. The second is as to whether or not the information is bad for duplicity.

First. Our Constitution provides that in all criminal prosecutions the accused shall be informed of the nature and cause of the accusation against him, and have a copy thereof, and be confronted with the witnesses against him, and have compulsory process for obtaining witnesses in his behalf, and that he shall have the right to be heard by himself and- counsel. See Williams’ Ann. Const. Okla. sec. 28. This provision of the Constitution would become nugatory if the Legislature could create a crime in such broad and indefinite language that a citizen charged with a violation of such statute would not know what he must prepare to defend against, and where the court and jury would be without a fixed standard to determine what acts would constitute such offense. Penal statutes ought not to be expressed in language so uncertain as to mislead or deceive the common mind. It may be stated as a general principle of criminal jurisprudence that penal statutes should be expressed in such language that every man of ordinary understanding may be able to know when he has committed a crime. If this be not true, then to a large extent the judicial would be substituted for the legislative department of the state. See Ex parte Hunnicutt, 7 Okla. Cr. 213, 123 Pac. 179.

We are satisfied that in sustaining the demurrer to the information in this case the trial court acted upon the views which have just been expressed. While these views are correct, yet it is equally true that, when a statute uses words and terms which are of settled legal meaning or which indicate offenses known to and defined by the common law, the statute is sufficient, and should be sustained. Greater certainty in describing an offense is never necessary than the nature of the subject-matter dealt with will reasonable admit. See State v. Coyle et al., 8 Okla. Cr. 686, 120 Pac. 316.‘Reasonable certainty is all that is required. It is true that, the language of section 2782 is general, yet the words and terms which it uses in describing.the offenses therein created are of settled meaning and indicate offenses well known to and' defined by the common law. As every man is charged with knowledge of the law, we cannot see how it can be said that a person of ordinary understanding could fail to know what offenses were intended to be created by the section in question. But this statute has already been sustained by this court. In the ease of Stewart v. State, 4 Okla. Or. 564, 109 Pac. 243, 32 L. R. A. (N. S.) 505, this court in construing this very statute in express terms decided that where the Legislature creates, without defining, an offense which was a crime under the common law, the common-law definition of the crime will be adopted, and will be considered as a part of the statute itself. The opinion is by Judge Richardson, who was then a member of this court. It considers this question exhaustively, and we think that the opinion is a magnificent and unanswerable piece of reasoning. We earnestly commend it to the careful consideration of the judges and lawyers of Oklahoma. It may be said that the opinion in Stewart’s Case, being based upon a state of facts involving a breach of the peace, is not decisive of the question presented by the information in this case, which alleges a state of facts which openly outraged public justice and decency, and which injured public morals. But a careful reading of the Stewart Case will show that the reasoning and the authorities cited apply with' equal force to the allegations contained in the information now before us as they apply to the allegations contained in the information in Stewart’s Case. Gaming has.always been an offense at common law. A wager laid upon the result of any contest of chance, skill, or strength between men or beasts or men and beasts constitutes gaming. Mr. Blackstone says it is an offense of the most alarming nature, tending by necessary consequence to promote idleness, theft, and debauchery among those of the lower class, and that among persons of a superior rank it has frequently been attended with sudden ruin and destruction and abandoned prostitution of every principle of honor and virtue. See 4 Blackstone, p. 171.

Every appellate court in Christendom has characterized gaming as a crime against decency and as being injurious to public morals, and as an offense which agitates and disturbs the public peace. This court has announced its views on this subject in no uncertain terms in the case of James v. State, 4 Okla. Cr. 587, 112 Pac. 944, 34 L. R. A. (N. S.) 515, 140 Am. St. Rep. 693. James had been convicted of keeping what was known as a “Turf Exchange,” at which his patrons congregated and bet upon horse races run at’ another place. He was prosecuted under section 2422, Comp. Laws 1909. This court held that the conviction could not be sustained by virtue of section 2422, but the court went further, and said: •

“There is no doubt but that the making of bets and wagers in these exchanges constitutes gambling, and the exchanges themselves are common gambling houses, and are therefore nuisances per se. Rex v. Rogier, 1 B. & C. 272, 8 E. C. L. 117, 2 Dowl. & R. 431; U. S. v. Dixon, 4 Cranch, C. C. 107 [Fed. Cas. No. 14,970]; Vanderworker v. State, 13 Ark. 700; State v. Layman, 5 Har. (Del.) 510; State v. Black, 94 N. C. 809; People v. Weithoff, 51 Mich. 203 [16 N. W. 442], 47 Am. Rep. 557; Anderson v. Stale (Tex. App.) 12 S. W. 868. See, also, 14 Am. & Eng. Enc. L. p. 694,'and cases there cited. They are such under our statutes. Under’ section 5771, Comp. Laws 1909, their operation may be enjoined, they may be abated as provided in chapter 71 of said laws, and under section 2465 of said laws their operation constitutes a misdemeanor, and those who conduct them may be prosecuted criminally and have inflicted upon them the punishment prescribed by section 2032, but a’ prosecution will not lie on an information based upon section 2422.”

We are of the opinion that Comp. Laws 1909, sec. 2782, is not void for uncertainty and that it is valid and enforceable, and that any act which is willful and wrongful and which results in grossly disturbing the public peace, or openly outrages public decency, or injures public morals, is within its terms, and constitutes an offense against the laws of the state of Oklahoma.

Second. The indictment is not bad for duplicity because it charges that the defendant did willfully and wrongfully commit certain Sets which grossly disturbed the public peace, openly outraged public decency, and injured public morals. If the acts charged were of such a nature as to produce either one or all of the results mentioned, the offense would be complete. The information charged that the defendant publicly and openly and willfully and wrongfully and in the presence of and among divers and sundry persons, consisting of men, women, boys, and girls assembled at a baseball game, did bet the sum of $5 with one Jake Sims on'said game, and that this act grossly disturbed the public peace, openly outraged public decency, and injured public morals. This court takes judicial .notice of the fact that the game of baseball, when properly conducted, is an innocent public amusement, and constitutes the most popular and entertaining public pastime or sport of the American people. It is known from one end of our country to the other as the great American game, and is patronized by all classes, conditions, and sexes of our people, both old and young. As gaming is recognized as a pernicious crime by the law, it logically follows that open and public betting on this game in the presence of and among men, women, boys, and girls when assembled to witness a game of baseball is injurious to public morals and outrages public decency, and tends1 to destroy the peace and tranquility of the persons so assembled, and thereby disturbs the public peace. We do not desire to be understood as holding that a private wager upon the result of a baseball game, when not openly and publicly made, would constitute a violation of this provision of the statute.

We are therefore of the opinion that the trial court erred in sustaining the demurrer to the information in this case. The judgment of the lower court is reversed, and the cause is. remanded, with directions to the county court of Bryan county to set aside its order sustaining the demurrer and discharging the defendant, and to reinstate this case upon its docket, and proceed with the trial of the same in accordance with the views herein expressed.

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


text:
    EDMOND MORGAN v. STATE.
    No. A-1416.
    Opinion Filed March 8, 1913.
    (130 Pac. 522.)
    1. APPEAL — Review of Evidence. The credibility of witnesses, and the weight and effect to be given to their testimony, is a question solely for the jury’s determination; and, to reverse a judgment for the reason that the verdict is contrary to the evidence, the court must find, as a 'matter of law, that the evidence is insufficient to warrant the conviction.
    2. TRIAL — Remarks of Prosecuting Attorney. Remarks of the prosecuting attorney in his argument before the jury, objected to as improper, will be considered and construed in reference to the evidence; and, in order to constitute reversible error, the impropriety indulged in must have been such as may have influenced the verdict.
    3. SAME — Argument of Prosecuting Attorney. The prosecuting attorney has the right, in' his argument before the jury, to discuss all the facts bearing upon the issue within the scope of the evidence.
    (Syllabus by the Court)

      Appeal from, District Court, Seminole County; Tom D. McEeown, Judge.

    Edmond Morgan was convicted of manslaughter in the first degree, and appeals.
    Affirmed.

      Crump é Slcinner, for plaintiff in error.

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

Plaintiff in error, Edmond Morgan, hereinafter referred to as the defendant, was convicted of first degree manslaughter, in the district court of Seminole county, on an information filed in said court November 29, 1909, charging him with the murder of one Willie Nusky in said county on or about October 24, 1909, and, in accordance with the verdict of the jury, was sentenced to serve a term of four years’ imprisonment in the penitentiary. The judgment and sentence was entered o.n April 29, 1911. To reverse the judgment, an appeal was perfected by filing in this court October 2, 1911, a petition in error with ease-made.

The petition alleges numerous assignments of error, only two of which are presented in the brief. First. It is contended “that the evidence is insufficient to sustain the verdict.” The circumstances under which the homicide was committed are briefly as follows: Defendant and the deceased were full-blood Indians. On the night of the homicide, they attended a negro dance some five or six miles from the home of the deceased. Some time after midnight they left the dance and returned to the home of the deceased about 4 o’clock in the morning. The testimony for the state tends to show that the defendant there stabbed the deceased, and he died almost immediately. The defense was a denial, and that, on the road from the dance, the deceased had a fight with a negro whisky peddler, and that the negro had cut him.

The first witness for the'state, Mollie Wilson, testified that she and her sister Eoda Wilson were staying at the house of the deceased, and were sleeping in the same room with his wife, but on different beds; that the deceased came home about 4 o’clock in the- morning, and shortly afterwards the defendant came in; that they both then went out, and she heard the deceased groan; that his wife then went out and said, “They are striking him;” that she went out, and the deceased was lying on the ground; that they picked him up, the defendant assisting, and carried him into the' house, and he was dead in a few minutes.

Eoda Wilson testified that when she heard Millie Nusky, the wife of the deceased, say, “They are striking him,” she took a light and went out. The deceased was lying on the ground, and the defendant was standing by, and she saw the defendant give a knife to Millie Nusky,- and Millie handed the knife to her, and the next day, at the inquest, she gave the knife to the officers; that there was blood on the knife and blood on the ground where the deceased fell; that the defendant stayed at the house until daylight.

Dr. Yates testified that he was a practicing physician; that he examined the body of the deceased, and found a slight wound, just an abrasion, across the forehead, also a wound on the temporal eminence of the cranium, and a third wound below the collar bone, between the second and third ribs, that seemed to be a stab with a knife blade; that the wound- ranged down in the direction of the heart; and that this wound would have caused almost if not instant death.

On behalf of the defendant, Jim Woods testified that he met the deceased and the defendant at Konawa, and went with them three miles south to a negro dance, the night of the killing.

Millie -Nusky testified that she was the wife of the deceased; that, on the night of the homicide, her husband, Willie Nusky, did not come home until about 4 o’clock in the morning; that he came into the house and sat down on the bed and said “that they had been having a fight and a negro stabbed me”; that there was blood on his face, and, while he was talking to her, the defendant came in and said, “I am going on home;” and her husband said to him, “You had better stay with me to-night and go home in the morning;” and the defendant said, “All right, I will strip my horse,” and went out the door, and her husband followed him out; that her husband and the defendant “had nothing against each other, and he did not kill her husband.” Her cross-examination we quote from the record:

“Q. Didn’t you state to Eebecca West, who was acting as interpreter- before the coroner’s jury on the 25th day of October, 1909, at the inquest held over the dead body of Willie Nusky, that you saw Edmond Morgan stab Willie Nusky, and that he then gave you the knife? * * * Q. Or that in substance? * * * A. No, 'sir; I never said it. Q. Didn’t you state to Eebecca West, at the coroner’s inquest held before W. A. Duncan on the 25th day of October, 1909, that there was nobody present at the time Willie Nusky was killed but Edmond Morgan? * * * A. No sir.”

Further:

“Q. Did you see Willie Nusky fall? A. Yes, sir. Q. What did you say when you saw him fall? A. I stated ‘that they were striking him and he was falling/ Q. Who was outside of the house with Willie Nusky other than Edmond Morgan? A. No one else.”

The defendant testified on .his own behalf that he was about 20 years old; that he was with Willie Nusky the night he was killed and when he died; that he and the deceased and Jim Woods went to the negro dance from Konawa, got there about midnight, stayed about on hour, and he and the deceased then started home; after going a few miles, they were overtaken by a negro whisky peddler named Dindy, and a difficulty took place; that the deceased and Dindy got off their horses and were fighting, and witness took a knife from the negro and put the deceased on a horse and brought him home; that he, did not exactly know where Dindy lived, but that he was now dead; that, just before they reached the Nusky home, the deceased’s hat fell off, and witness stopped to hunt.for the hat, and then followed him into the house; that deceased asked him to stay all night, and he said, “All right,” and went out to strip his horse, and the deceased followed him out, and, as he started to unsaddle the horse, he- saw him fall; that the women came out with a light, and he helped them take him into the house, and then stayed there until daylight; and that he (the defendant) did not stab and kill the deceased.

In rebuttal, Mrs. Kebecca West testified that she acted as interpreter at the inquest, and that Millie Nusky stated in that examination that Edmond Morgan, the defendant, stabbed her husband, Willie Nusky.

It is the exclusive province of the jury to determine questions of fact. They, and they only, have a right to judge the credibility of the various witnesses; and the weight and effect to be given their testimony was a question solely for the jury’s determination; and we think that the defendant received, at the hands of the jury, the benefit of every doubt in the case, and we only wonder that the jury by their verdict assessed the minimum penalty.

The second assignment relates to alleged misconduct on the part of the prosecuting attorney during the trial, and in his argument to the jury. Exception was taken and objection is made to the rigor of the cross-examination of Millie Nusky and the defendant. These are matters largely within the discretion of the trial judge; and, in view of the testimony of the wife of the deceased and the defendant’s testimony, we think the discretion was not abused. Their testimony justified a searching examination into her relations with the defendant.

In the course of the argument, the prosecuting attorney used this language:

“I did say the woman had been fixed, and I say it now. You don’t only have my word for it, gentlemen of the jury, but 'you have the word of Dr. Yates, and you have the word of Mrs. West.”

This statement was objected to, and the prosecuting attorney said; “I don’t know; probably a better word would be that I believe, from the evidence, that she committed perjury.” This it is claimed constitutes misconduct on the part of the prosecuting attorney.

The remarks of counsel must be considered and construed in reference to the evidence, and it is doubtful if they were objectionable. The testimony teems with indications of willful perjury upon the part of the wife of the deceased. She had testified, at the preliminary, that the defendant stabbed the deceased. On the trial as a witness for the defendant, her testimony was just the opposite. A prosecuting attorney, confronted with such a witness, necessarily feels a great surprise, and naturally concludes that perjury has been committed. The second objection is that he used the following language:

“All must be drawn on the conclusion that he was a frequent caller at the home of the deceased, and that the deceased’s wife is now trying to shield him by her testifying as it is shown from the witness stand. Where is the motive?”

This was the conclusion of an elaborate argument on the question of motive, and we think the argument was legitimate, under the evidence in the case. However, the trial court sustained the objections.

In order to constitute reversible error, the impropriety indulged in must have been such that may have wrongfully influenced the verdict. The verdict returned shows that no injury was suffered by the defendant.

In Thacker v. State, 3 Okla. Cr. 485, 106 Pac. 986, it is held:

“Peinarles of the prosecuting attorney in his argument before the jury, objected to as improper, will be considered and construed in reference to the evidence; and, in order to constitute reversible error, the impropriety indulged in must have been such as may have influenced the verdict.”

After a careful examination and consideration of the entire record, we are of opinion that the defendant had a fair trial, and we are satisfied that the verdict is sufficiently supported by competent evidence, and that no error was committed prejudicial to his substantial rights.

The judgment of the district court of Seminole county is therefore affirmed.

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


text:
    JAMES R. BAYLESS v. STATE.
    No. A-1437.
    Opinion Filed March 11, 1913.
    (130 Pac. 520.)
    1. LARCENY — Information—Allegations as to Ownership — Possession. In an information for ‘‘larceny of live stock” when the ownership of the property stolen is alleged, and that the defendant did then and there willfully, unlawfully, and feloniously take, steal, and carry away by stealth said property without the knowledge or consent of said owner, and with the felonious intent to deprive said owner of said property, and with the felonious intent to convert said property to the use and benefit of the taker, possession and taking from possession of the owner is sufficiently alleged; the law implying his possession from his ownership.
    2. TRIAL — Questions for Jury — Credibility of Witnesses. The jury are not bound to believe testimony because it is uncontradicted and not directly impeached. The credibility of the witnesses testifying in behalf of defendant is the exclusive province of the jury to determine, and although such testimony may he uncontradicted, and not directly impeached, when there are facts and circumstances admitted and proven tending to lessen the probability that such testimony is true, the jury may give it such weight as they deem proper, even to the extent of wholly disregarding the same.
    3. APPEAL — Discretion of Court — Jury Disagree on Punishment — Dismissal. The discharge of the jury without the consent of the defendant, where the jury returned a verdict of guilty and failed to agree on the punishment, is a matter in the discretion of the trial court, and its action will be conclusive, unless there appears to have been a clear abuse of discretion.
    (Syllabus by the Court.)

      Appeal from District Court, Le Flore County; Malcolm E. Rosser, Judge.

    James B. Bayless was convicted of larceny of two mules, and appeals.
    Affirmed.

      Tom W. Neal, for plaintiff in error.

      Chas. West, Atty. Gen., Smith C. Matson, Asst. Atty. Gen., and Jos. L. Hull, Sp. Asst. Atty. Gen., for tbe 'State.
   DOYLE, J.

Plaintiff in error, hereinafter referred to as defendant, was convicted in the district court of Le Flore county, and sentenced to serve a term of 2 1-2 years’ imprisonment in the penitentiary on an information, the charging part of which is as follows:

. “That the said James E. Bayless on the day and within the county and state aforesaid did then and there willfully, unlawfully, and feloniously steal, take, and carry away by stealth two mules the property of. John Blaylock, without his knowledge, or consent, and with the felonious intent to deprive the said John Blaylock of the said property, .and) with the felonious intent to convert the same to the use and benefit of him the said James E. Bayless, contrary to,” etc. ■

To reverse the judgment an appeal was perfected. The errors assigned will be considered in the order presented.

First.' It is contended that the court erred in denying the motion in arrest of judgment. The motion was based on the ground that the information does not state facts sufficient to constitute the crime of larceny of live stock under the statute. The learned counsel in his brief insists that the information is fatally defective, in that “it fails to allege the possession of the property taken to be in another at the time it was taken.” In a prosecution of this character the information is predicated upon the statute defining the crime of larceny of live stock, the ownership of the animals stolen must be alleged and proved, ; and it is necessary to allege and prove a felonious intent on the part of the taker to deprive the owner thereof, and to convert the same to his, the taker’s, own use. Crowell v. State, 6 Okla. Cr. 148, 117 Pac. 883. Presumably, possession, actual or constructive, accompanies ownership. Where ownership is alleged, possession is sufficiently alleged, and a specific allegation that the taking was from the possession of the owner is not essential. This information is sufficient in that respect, and .we have no doubt whatever of its sufficiency.

Second. That the verdict of the jury is not sustained by sufficient evidence. We think the verdict was amply sustained, and in support of this conclusion we submit a summary of the evidence.

John Blaylock testified, in substance, that at the time in question he was the owner of two mules which he described as two yearling mare mules, one was blue or mouse-colored and the other he would call a yellow bay; that he kept them in a pasture near Heavener; that he missed the mules, in the fall of 1908, and employed defendant to help search for them; that the following June he found one of the mules in a pasture near Summerfield in the possession of W. B. Franklin; that Mr. Franklin then paid him for both mules; that originally he bought these mules from John Bayless, a brother of- defendant.

John Roberts testified that he lived at Summerfield; that in the fall of 1908 he met defendant and another man on the road east of Summerfield with two young mules. Defendant offered to sell them to him for $85. Defendant said he was on his way to Mr. Franklin.

W. D. Mitchell testified that he lived near Summerfield; that in the fall of 1908 defendant passed his house with another man and they had a pair of mule colts,° one was a blue mouse-colored, and the other what he would call a light bay. Since then he saw these mules with Mr. Franklin.

W. R. Franklin testified that he was in the mercantile business in Summerfield. In the fall of 1908 he bought from defendant two yearling mules. One was a mouse-colored, and one sort of brown-colored. In the spring of 1909 these mules were claimed by John Blaylock, and he paid Mr. Blaylock for them. He paid defendant for the mules by paying a $75 note due by him at the Le Flore County Bank and two cash payments of $10 and $5.

On behalf of defendant, Tip Sloan testified that in 1908 he sold defendant a gray mare pony; that he afterwards saw the pony in the possession of some horse traders in Monroe; that his wife was the defendant’s sister.

Jim Watson testified, in substance, that he was with defendant when he traded this pony to some horse traders; that defendant gave the pony and $40 for two mules about two years old; that he is a nephew of defendant.

C. D. Pittsford testified that he was present when defendant traded the pony for the mules.

William ICellog testified that he saw defendant’s gray pony in the possession of the horse traders.

Oscar Davis testified that he saw these mules in the possession of the horse traders, and about two or three days later he saw the mules at Mr. Franklin’s.

In rebuttal the state offered in evidence records of the county court showing the information and conviction of the witness Jim Watson for the offense of selling intoxicating liquors.

It is argued by the learned counsel that the records show that no attempt was made to impeach or discredit defendant’s witnesses Pittsford, ELellog, and Davis, and their testimony, including that of the witness Watson, stood uncontradicted 'by the state at the time of the submission of the case to the jury.

The jury are not bound to believe testimony because it is uncontradicted, and not directly impeached. The credibility, of the witnesses testifying in behalf of defendant is the exclusive province of the jury to determine; and, although such testimony may be uneontradicted -and not directly impeached, when there are facts and circumstances admitted and proven tending to lessen the probability that such testimony is true, the jury may give it such weight as they deem proper, even to the extent of wholly disregarding the same. Wainscott v. State, 8 Okla. Cr. 590, 129 Pac. 65. Here the defendant, without testifying on his own behalf, attempts to explain his possession of the mules by the story of a trade of a gray pony and some money for them with “some .horse traders.” .Who these mysterious horse -traders were is not shown, whence they came or where they went does not appear, and no one seems to have seen them there except defendant’s relatives. If defendant’s witnesses told the truth' in their account of this trade, why did the defendant accept the employment by Mr. Blaylock to search for the missing mules? If the trade really took place, why did not the defendant then tell Mr. Blaylock that he had traded for the mules and had sold them to Mr. Franklin'? This surely, would have been the course and conduct of an innocent man. The story of the trade is absolutely inconsistent with the uncontradicted testimony as to defendant’s subsequent conduct, and his conduct was absolutely inconsistent with innocence. A common explanation of possession given by the thief upon discovery is that he bought the goods from an unknown person. This explanation is entitled to little weight with the jury, or with the court which is passing on the facts. The explanation may be so improbable that, even if not contradicted by evidence, the jury will disbelieve it. The reasonableness of it is for the jury. See 25 Cyc. 138. It is onr opinion that, the evidence is amply sufficient to establish beyond a reasonable doubt the falsity of the explanation of defendant’s possession.

Third. Error is assigned on’ the ruling relative to the record proof of the conviction of the witness Watson, contained in the county court. There was no prejudicial error therein.

Several assignments relate to the refusal of the court to give requested instructions. We have carefully examined these assignments and find that the instructions given were more favorable to the defendant than the law warrants. The following instruction was given at the defendant’s request:

“The recent or unexplained possession of stolen property is a circumstance which you should consider in connection with the other evidence in the case, but you cannot convict the defendant on such possession alone, unless the possession is recent and unexplained.”

Besides this, the court instructed fully on the law of circumstantial evidence. Where the fact of the theft has been shown, and the question is whether or not the defendant committed it, his recent possession of the stolen property is a cir- . cumstance for the jury to' consider and weigh in connection with the other evidence in the case. The presumption against the defendant is one of fact, to be drawn or not, as the jury may determine, in connection with and in consideration of all the evidence in the case. Davis v. State, 7 Okla. Cr. 322, 123 Pac. 560. The defendant cannot complain of an instruction given on his request.

Finally, it is urged that the court erred in refusing to' require the jury to retire and reconsider their verdict when they returned a verdict of guilty, which failed to assess the punishment. The record shows that the court instructed the jury as. to the penalty to be inflicted. The jury had deliberated some-50 minutes, and reported to the court that they "could not agree upon the punishment. Section 2029, Snyder’s Sts., provides:

“Where the jury find a verdict of guilty, and fail to agree on the punishment to be inflicted, or do not declare such punishment by their verdict, the court shall assess and declare the punishment and render the judgment accordingly.”

This was a matter within the discretion of the trial court and its action will be conclusive, unless there appears to have been a clear abuse of discretion. There is nothing in the record to show an abuse of discretion.

There being no reversible error, the judgment of the district court of Le Flore county is affirmed.

AEMSTEONG-, P. J., and FITEMAN, J., concur.


text:
    WELCH v. STATE.
    No. A-1597.
    Opinion Filed March 11, 1913.
    (130 Pac. 514.)
    1. APPEAL — Briefs. Where lawyers take an appeal to this court, it is their duty to file a printed or typewritten brief in which they must clearly point out the errors upon which they rely and make an argument in support of the positions which they assume.
    2. APPEAL — Misdemeanor Case — Filing Case-Made. Under our statute, an appeal in a misdemeanor case must be perfected by filing a ease-made or transcript of the record in this court within 60 days from the date of the judgment, unless this time is extended by an order duly entered by the trial judge in the records of his court; and in no event can an appeal be perfected after the lapse of 120 days from the date of the judgment.
    3. APPEAL — Notice of Appeal. Notice of appeal must be served upon the county attorney and the clerk of the court from which the appeal is taken, as required by statute.
    (Syllabus by the Court.)

      Appeal from, Garvin County Court; W. B. M. Mitchell, Judge.

      J. T. Welch was convicted of violation of the prohibition law, and appeals.
    Dismissed.

      J. S. Garrison, for appellant.

      E. G. Spilman, Asst. Atty. Gen., for the State.
   FURMAN, J.

On the 27th day of September, 1911, judgment was rendered in the county court of Garvin county against appellant for a violation of the prohibitory liquor law, and his punishment was assessed at a fine of $50 and 30 days’ confinement in the county jail. From this judgment, appellant attempted to appeal.

The transcript of the record was filed in this court on the 24th day of January, 1912; but counsel, who represented appellant in the trial court, have evidently abandoned the appeal, as no brief has ever been filed or any appearance made in this court in behalf of appellant.

It would be impossible for this court to transact its business if it did not require lawyers, who appeal cases, to properly present them to the court; and, when no brief is filed pointing out the errors relied upon, this court cannot do more than examine the record for jurisdictional errors.

On an examination of this record, we find that the time for perfecting the appeal, which the statute places at 60 days from the date of the judgment, was never extended by the trial court. This time expired on the 26th day of November, 1911. The record was not filed in this court until the 24th day of January, 1912, 59 days after the time allowed by law expired. We also find that notices of appeal, as required by statute, were never served on the county attorney and the clerk of the court from which the appeal was taken. Both of these defects are jurisdictional and are fatal to this appeal. For these reasons, the court has never acquired, jurisdiction of this case, and cannot consider the record for any purpose.

The appeal is dismissed, with directions to the county court of Garvin county to proceed to enforce its judgment.

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


text:
    J. W. GOINS v. STATE.
    No. A-1468.
    Opinion Filed March 13, 1913.
    (130 Pac. 513.)
    1. TRIAL — Separation of Jury. On proof of a violation of the provisions of Procedure Criminal (section 6858, Comp. Laws 1909, Rev. Laws 5906), by permitting the jury to separate'after the case is finally submitted, the defendant is entitled to the presumption that such separation has been prejudicial to him, and the burden of proof is on the prosecution to show that no injury could have resulted therefrom to the defendant.
    2. NEW TRIAL — Separation of Jury. Where a bailiif in charge of a jury, after the case has been finally submitted, permits a juror to leave the jury room and go out upon the streets, and such juror’s conduct during his absence is unexplained, the trial court should sustain the motion for a new trial.
    (Syllabus by the Court..)

      Appeal from Payne County Court; P. D. Mitchell, Judge.

    J. W. Goins was convicted of violating tbe prohibitory law, and appeals.
    Eeversed.
    See, also, 6 Okla. Or. 704, 119 Pac. 1130.

      J. M. Springer, for plaintiff in error.

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

Plaintiff in error was convicted of having possession of intoxicating liquors with intent to sell the same, and was sentenced, in accordance with the verdict, to serve a term of 30 days in the county jail and pay a fine of $50.

The judgment and sentence was entered on July 24, 1911. To reverse the judgment, an appeal was perfected by filing in this court, on November 4th, a petition in error with ease-made

Of the numerous assignments' of error relied on for a reversal of the judgment, it is only necessary to consider the one:

'“That the jury were allowed to separate, without leave of court, -after they had retired to and during the time they were deliberating upon their verdict, and before said verdict had been agreed upon by the jury.”

In the motion for new trial, this was assigned as one of the grounds and was supported by two affidavits, to the effect that one of the jurors, O. P. Furman, was permitted to leave the jury room, and went out on the streets of Stillwater and bought bananas, which he brought back to the rest of the jury. This occurred about half past 10 o’clock at night. This fact is not disputed by the state, and no explanation is offered. We are of the opinion that the motion for a new trial should have been allowed.

Section 6858, (Eev. Laws, 5906), Procedure Criminal, provides:

“After hearing 'the charge, the jury may either decide in court, or may retire for deliberation. If they do not. agree without retiring, one or more officers must be sworn to keep ■them together in some private and convenient place, without food or drink, except bread and water, unless otherwise ordered by the court, and not to permit -any person to speak to or communicate with them, nor do so themselves, unless it be by order of the court, or to ask them whether they have agreed upon a verdict, and to return them into court when they have so agreed, or when ordered by the court.”

This statute has been construed in the following cases: Bilton v. Territory, 1 Okla. Cr. 566, 99 Pac. 163; Armstrong v. State, 2 Okla. Cr. 567, 103 Pac. 658, 24 L. R. A. (N. S.) 776; Ridley v. State, 5 Okla. Cr. 522, 115 Pac. 628; Selstrom v. State, 7 Okla. Cr. 345, 123 Pac. 557.

In Armstrong v. State, supra, it is said:

“It -is our opinion that this section imperatively requires that, upon the final submission of the case to the jury, they cannot be permitted to separate, and if, after such submission, the jury separates, such separation vitiates the verdict, notwithstanding no affirmative proof of prejudice is offered. When this provision of the law is-violated, the legal presumption is that it has actually prejudiced the defendant, or tended to his prejudice, in respect to a substantial right.”

In Selstrom v. State, supra, it is said:

“Under the statute (section 6858, supra), the true rule is that upon proof of a violation of the provisions thereof, by permitting the jury to separate and converse with unauthorized persons after the final submission of the case and before a verdict, .the defendant is entitled to the presumption that such misconduct has been prejudicial to him; and the' burden of proof is on the prosecution to show that the defendant has suffered no injury by reason of such misconduct. There are many instances where necessary separations may be held trivial' and nonprejudicial, especially where the undisputed facts are sufficient to rebut the presumption of prejudice; but that is not this case. While the act of the juror Green returning to the jury room was harmless, the conduct of the foreman of the jury, the bailiff, and the sheriff, whether inadvertent or otherwise, was improper and in violation of the statute, and the instructions of the court, and the defendant was entitled to the benefit of the presumption that such misconduct was prejudicial to him. While these officers may have intended no wrong, and their improper acts were not prompted by evil intent, the prosecution only called the bailiff, and did not meet the burden by calling the others to testify in explanation of their misconduct.”

It will be presumed, in the absence of anything to the contrary, that the rights of the defendant were prejudiced by the misconduct of the bailiff in permitting the separation of the jury in disregard of the requirements of the statute. Courts cannot be too strict in compelling a rigid and vigilant observance of the provisions of the statute designed to preserve the purity of jury trials.

For the reasons stated, the trial court erred in overruling, the motion for a new trial. The judgment is therefore reversed.

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


text:
    CHARLEY CURRY v. STATE.
    No. A-1349.
    Opinion Filed March 13, 1913.
    (130 Pac. 513.)
    APPEAL — Review of Conviction. Where the jury find a verdict of guilty, which is approved hy the trial court, and there is evidence in the record to sustain the verdict, it will not be set aside in the absence of prejudicial error.
    (Syllabus by the Court.)

      Appeal from District Court, Pontotoc County; Robert M. Rainey, Judge.

    Charles Curry was convicted of larceny, and appeals.
    Affirmed.

      Crawford & Bolen, for plaintiff in error.

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

Plaintiff in error, hereinafter referred to as “defendant,” was tried and convicted in the district court of Pontotoc county for the offense of larceny of domestic animals and was sentenced to imprisonment for one year in the penitentiary. The judgment and sentence was entered March 3, 1911. An appeal was perfected by filing in this court September 2, 1911, petition in error with case-made.

Without going into a detailed statement of the testimony, the transcript shows that defendant came to Tyrola Friday evening and put his horse in Lewis Waldon’s barn. The next night, the defendant and Lewis Waldon were seen on horseback driving two cows from Tyrola towards Francis, about 9:30 p. m. The next morning about 4 o’clock they were seen going back toward Tyrola without the cattle. This was Saturday night. Monday morning these cows strayed into Francis, their ears had been fresh marked and the bush of their tails cut off. They were placed in a lot and identified by J. M. Manley as his. cows, that were driven away from his place some time Saturday night. A witness testified that he fonnd pieces of cow ears and the bush of their tails about half a mile from Francis. From Tyrola, where they started with the cattle, it is about 10 miles to Francis. Defendant testified on his own behalf that he was hired by Lewis Waldon to help drive the cattle and that he did not know that they were stolen.

The errors assigned are, in effect, that the verdict is contrary to the law and the evidence, and that the court erred in the instructions given. This review of the facts suffices to show that the ease was one for the jury. The sufficiency of the evidence to show the commission of the crime and the guilt of defendant is not a question in the discretion of the court, and this court will not review the evidence in a ease for the purpose of passing upon the weight and credibility of the evidence.

The instructions of the court were fair, and no good purpose . would be served by reviewing the objections to them, further than to state that we find no error in any of the matters complained of pertaining thereto.

From a careful examination of the record we are clearly of opinion that the appeal in this case is destitute of merit.

The judgment of the district court of Pontotoc county will therefore be affirmed.

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


text:
    JOE CLINE et. al. v. STATE.
    No. A-1231.
    Opinion Filed March 15, 1913.
    (130 Pac. 510.)
    1. APPEAL — Briefs—Form. When typewritten briefs are filed in this court, they should be so prepared that they may be read and understood by the court.
    2. CONSTITUTIONAL LAW — Disturbance of Public Assemblage-Statutes — Penal Statutes — Enactment—“Religious Meetings’’ — Disturbance — Religious Liberty — “Religious Service.” (a) The common-law doctrine of a strict construction of penal statutes has no place in the criminal jurisprudence of Oklahoma; but, on the contrary, such statutes must be liberally construed, and the fair import of their provisions must be accorded them, with a view to effect the objects for which they were enacted and to promote justice.
    (b) As to whether or not a congregation of persons constitutes a religious meeting assembled for religious worship is always a question of fact to be determined by the jury from the testimony in each case and the instructions of the court.
    (c) A “religious meeting” is an assemblage of people met for the purpose of performing acts of adoration to the Supreme Being, or to perform religious services in recognition of God as an object of worship, love, and obedience, it matters not the faith with respect to the Diety entertained by the persons so assembled.
    (d) The crowning glory of American freedom is absolute religious liberty and th'e unquestioned and untrammeled right of each person to worship God according to the dictates of his own conscience, without let or hindrance from any person or any source whatever.
    (e) The law affords equal protection to the religious views, rights, and forms of worship of all denominations, all classes, and all sects, and does not undertake to state of what they shall consist, or how such services shall be conducted.
    (f) The celebration of the birth of Christ is a “religious service” in commemoration of an event upon which the hopes and destinies of all Christendom depend.
    (Syllabus by the Court..)

      Appeal from Pottawatomie ■County Court; Boss F. Loclcridge, Judge.

    Joe Cline and Ellis Cline were convicted in tbe county court of Pottawatomie county, charged with the offense of disturbing religious worship. The punishment of appellant Joe Cline was assessed at a fine of $50 and 10 days confinement in the county jail. The punishment of appellant Ellis Cline was assessed at a fine of $25 and 10 days confinement in the county jail. Appealed.
    Affirmed.
    The evidence in this case may be stated in narrative form, as follows: On the evening of the 24th day of December, 1910, there was a Christmas tree celebration in a public school building in Pottawatomie county, which building was used both as a schoolhouse and also as a churchhouse. The meeting in question was held under the auspices of the Methodist denomination. The exercises were to consist of distributing presents from a Christmas tree, recitations by Sunday school scholars, and an address or sermon upon the life of Christ by Eev. Mr: Cross, the Methodist preacher in charge of that station. The meeting was opened by 'singing. The schoolroom was about 30x50 feet, and was full of men, women, and children. While Mr. Cross was speaking with reference to the birth of Christ and asking the Sunday school children some questions, some one in the rear of the room threw a pecan at the preacher, and great confusion was created by a number of young men in the rear of the building. Mr. Cross asked the question as to where Jesus was born. Some one among the young men in the rear of the building answered, “at Waco.” It appears that Waco was the name of a store in this neighborhood. So much noise was made by the young men in the rear of the building, and the meeting was so much disturbed thereat, that Mr. Cross was not able to conclude his remarks, and was compelled to take his seat. Several persons were requested to go back in the rear of the building and get the names of those who were creating the disturbance. As a result of this a fight ensued, in which the appellant Joe Cline participated, and the appellant Ellis Cline used the most shocking profanity. The testimony shows that great confusion resulted from this disturbance, in which both of the appellants participated.

      A. J. Carlton and Baldwin & Pitman, for appellants.

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

(after stating the facts as above.) First. The briefs filed in behalf of appellants in this cause are so badly typewritten, indistinct, blotted, and blurred as to be almost unintelligible. For the .purpose of saving expense to. their clients, we are perfectly willing to permit lawyers to file typewritten briefs; but these briefs should be so prepared that they may be readily read and understood by the court. It is an abuse of the privilege to file typewritten briéfs to prepare them in such manner that they cannot be easily read. We have had so much trouble with indistinct typewritten briefs that we are seriously considering the proposition of requiring all briefs to be printed, and will be forced to do so if counsel do not exercise more care in the future in this, matter. We will either have to adopt this rule, or we will be forced to strike from the records all briefs which are not clearly typewritten and treat the eases in which they are filed as having been submitted without briefs.

Second. After spending nearly two days in trying to find out from the indistinct briefs filed just what the contentions of counsel for appellants are, we think that their position may be summed up in the proposition that the meeting at which the disturbance complained of occurred was simply a Christmas festival; and that, as such, it did not constitute a religious meeting, within the meaning of our statute. Counsel for appellants have cited authorities from a number of states supporting this view; but they have overlooked the fact that in each of the states from whose opinions they quote, the common-law doctrine of a strict construction of penal statutes prevails, and that the opinions upon which they rely are based upon this doctrine. An entirely different rule in the construction of penal statutes exists in Oklahoma. Section 2027, Comp. Laws 1909, is as follows:

“The rule of common law that penal statutes are to be strictly construed has no application to this Code. All its provisions are to be construed according to the fair import of their terms, with a view to effect its objects and to promote justice.”

Let us now apply the doctrine of a liberal construction to the statutes upon which this prosecution is based and accord to all of their provisions the fair import of their terms, with a' view to effect the objects for which they-were enacted and to promote justice. This is just what we are required to do by section 2027, swpra.

The offense of disturbing religious meetings is created and defined by sections 2072 and 2073, Comp. Laws 1909, (Rev. Laws, secs. 2412, 2413), as follows:

“Sec. 2072. Disturbing religious meetings. — Every person who willfully disturbs, interrupts or disquiets any assemblage of people met for religious worship, by any of the acts or things hereinafter enumerated, is guilty of a misdemeanor.
“Sec. 2073. Definition of disturbance. — The following are the acts deemed to constitute disturbance of a religious meeting: 1. Uttering any profane discourse, committing any rude or indecent act, or making any unnecessary noise, either within the place where such meeting is held, or so near it as to disturb the order and solemnity of the meeting. 2. Exposing to sale or gift any ardent or distilled liquors, or keeping open any huckster shop within one mile of the place where any religious society or assembly shall be actually convened for religious worship, and in any other place than such as shall have been duly licensed and in which the person accused shall have actually resided or carried on business. 3. Exhibiting, within a like distance, any shows or plays without a license by the proper authority. 4. Engaging in, or aiding or promoting, within the like distance, any racing of animals or gaming of any description. 5. Obstructing in any manner, without authority of law, within the like distance, the free passage along any highway to the place of such meeting.”

It is seen by these statutes that the terms “religious meetings” and “religious worship” are used interchangeably with each other; and that the same meaning is attached to each. The law guards such meetings so carefully that it makes it an offense to do certain things within one mile of the place at which they are held, although no actual disturbance be proven to have been occasioned thereby.' The theory of the law is that the doing of these prohibited things within such close proximity to the place of such meetings is inconsistent with and violative of the spirit and harmony of such meetings, and the law therefore necessarily implies a disturbance therefrom.

What is the fair import of the terms “religious meetings” and “religious worship” ? The word “religion” is defined in Webster’s New International Dictionary as follows:

“The outward act or form by which men indicate their recognition of the existence of a .god or of gods having power over their destiny, to whom obedience, service, and honor are due; the feeling .or expression of - human love, fear, or awe of some superhuman and overruling power, whether by profession of belief, by observance of rites and ceremonies; or by the conduct of life; a system of faith and worship; a manifestation of piety; as, ethical religions; monotheistic religions; natural relig-ión; revealed religion; the religion of idol worshipers. Religion (as distinguished from theology) is subjective, designating the feelings and acts of .men which relate to God. As distinguished from morality, religion denotes the influences and motives to human duty which are found- in the character and will of God, while morality describes the duties to man, which true religion always influences.”

In attempting to construe our statutes with reference to disturbing religious meetings and religious worship, we must remember that the crowning glory of American freedom is absolute religious liberty; and that every American has the unquestioned and untrammeled right to worship God according to the dictates of his own conscience, without let or hindrance from any person or from any source. The term “religious worship,” therefore,’ can have no technical meaning in a legal sense, and ■ is not restricted to any denomination, sect, or mode of religious worship. In its true sense a religious meeting is an assemblage of people met for the purpose of performing acts of adoration to the Supreme Being, or to perform religious services in recognition of God as an object of worship, love, and obedience, it matters not the faith with respect to the Deity entertained by the persons so assembled.

The law affords equal protection to the religious views, rites, and forms of worship of all denominations, all classes, and all sects, and does not undertake to state of what they shall consist, or how such services shall be conducted. Therefore, as to whether or not a congregation of persons constitutes a religious meeting assembled for religious worship is necessarily largely a question of fact to be determined by the jury from the evidence and under proper instructions from the court. A Christmas festival is not necessarily a religious meeting, and unfortunately it sometimes constitutes anything except a religious service; and as to whether or not this is true is always a question for the jury, under the testimony of each ease and proper instructions from the court. This court takes judicial notice of the fact that religious services in this country generally consist of songs, sermons, and prayers. Counsel for appellants lay great stress upon the fact that there is no direct proof in the record that any formal prayer had been offered oh this occasion prior to the disturbance; but this court also takes judicial notice of the fact that some religious meetings are held without formal prayer. But even if formal prayer was necessary and had not been offered, there is every reason to believe' from the evidence in the record that it would have been offered, had it not been for the conduct of appellants and those acting with them. The proof is certain that the Methodist denomination had charge of the meeting, and a song had been sung, and that Bev. Mr'. Cross, the Methodist preacher in charge of that station, was delivering an address or sermon upon the birth of Christ, a theme upon which the hopes and destinies of all Christendom depend. It was at this point that the meeting was disturbed by the brutal, cowardly, ruffianly, and sacrilegous conduct of appellants and those acting with them, as charged in the information and proven by the testimony. It would be difficult to imagine anything more highly calculated to wound the religious sentiments of the persons there assembled and to create a disturbance than the conduct of which the testimony shows appellants and those acting with them were guilty. To sustain the contention of counsel for appellants would be to make a burlesque of both religion and the law, and to place the most sacred emotions of the human heart at the mercy of brutality, ruf-fianism, and rowdyism. We are only surprised that appellants and all persons acting with them were not each sent to jail for six months and fined the sum of $500. The conduct of which appellants were clearly proven to be guilty cannot be too severely condemned and all such characters should be made to know that if they do not respect the law, which protects the rights and feelings of others, they will be treated and punished as common criminals.

This is the first time that the question as to what constitutes a disturbance of religious worship has ever been presented to this court for ‘determination. This character of offense is so wanton and inexcusable, and is so destructive of peace, morals, and good order, that we feel that the law should be liberally construed in favor of the state and strictly construed against appellants. Such characters are notified that they will look in vain to this court for protection when they violate either the letter or spirit of these statutes.

We find no prejudicial error in the record. The judgment of the lower court is therefore affirmed.

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


text:
    F. C. BAKER v. STATE.
    No. A-1422.
    Opinion Filed March 15, 1913.
    (130 Pac. 524.)
    1. APPEAL — Writ of Error — Review—Questions of Fact. In the absence of prejudicial error, this court has uniformly declined to disturb the verdict of a jury on controverted questions of fact.
    2. TRIAL — Questions for Jury — insanity of Accused. When a plea of insanity is entered on behalf of a person on trial for crime in the courts of this state, the issue as to whether or not he was sane or insane at the time of the commission of the offense is one for the jury, to be determined from all the facts and circumstances in evidence under proper instructions from the court, and is hot an issue upon which an accused is entitled to an instruction advising an acquittal. Such issue should be fairly submitted to the jury under the doctrine laid down in Adair v. State, 6 Okla. Cr. 284, 118 Pac. 416.
    3. JURY — Objection to Panel — Waiver of Error, (a) An objection to the jury panel, raised after the verdict of the jury, in the absence of any showing- or contention that the accused had other than a fair and impartial trial, will not be considered on appeal.
    (b) It is the duty of counsel to raise, at the' proper time and in the proper manner, all objections to the proceedings, and save proper exceptions. When this is not done, they are treated as waived, and there are few exceptions to this rule.
    (Syllabus by the Court.)

      Appeal from Superior Court, Logan County; John D. Chappelle, Judge Pro Tempore.

    F. C. Baker was convicted of felonious assault, and appeals.
    Affirmed.

      John A. Remy, for plaintiff in error.

      Smith C. Matson, Asst. Atty. Gen. (R. ~E. Gish, of counsel), for the State.
   ARMSTRONG, P. J.

The plaintiff in error, F. C. Baker, was convicted in the superior court of Logan county on a charge of assault with intent to kill, committed on the person of his wife, and his punishment fixed at imprisonment in the penitentiary for a period of seven years. The accused as a defense interposed a plea of insanity. We have carefully considered the proofs introduced at the trial and find that they fully warrant the verdict of the jury.

Counsel urge certain errors of law as ground for reversal. The fact that there was testimony introduced at the trial which would warrant a jury in returning a verdict of not guilty is no-ground for reversal when there is strong testimony justifying a conviction. This court has uniformly declined to disturb the verdict of a jury on issues involving controverted questions of fact, in the absence of prejudicial errors of law.

Counsel in his brief urges the court- to reverse this judgment on the ground that the court erred in overruling the motion to advise a verdict. It appears from the record that this-, motion, omitting the caption and formal parts, is as follows:

“The court instructs the jury in this case that the defendant interposes the defense of insanity; that there has been substantial evidence introduced by the defendant in support of' said plea, and therefore, as there has been no- substantial evidence introduced by the state which tends to contradict the same, it will be your duty to return a verdict of not guilty because of his insanity.”

The motion was overruled, and properly so. This question was correctly submitted to the jury by the instructions of the-court. Trial courts in Oklahoma are limited in their power to-interfere with the determination of issues of fact; and, where-there are any facts from which the jury can legitimately deduct either of two conclusions, a motion to advise a verdict should' always be denied, and the question of fact properly submitted' under instructions given.

Counsel next urges that the court erred in permitting nine-of the jurors, who served on this panel, to sit in this case, because they had served more than two weeks prior to the time-this case was called, and had not been held over for further-service by an order of the court. The record is silent on this, point. No objection was made to the panel, and this question was not raised until conviction resulted. There is nothing im the record to indicate that the accused had other than a fair and impartial trial at the hands of the jury as it was selected. We have uniformly declined to consider questions on appeal that were not raised at the proper time in the trial court, except such as constitute fundamental error or error prejudicial per se. Without entering into a discussion of the statute bearing on this point, we decline to interfere with this judgment on this ground, for the reason that the question was not properly raised in the trial court.

Counsel next complains of instructions of the court. We have carefully read the instructions, and find that the issues were properly submitted, and the doctrine laid down in the case of Adair v. State, 6 Okla. Cr. 284, 118 Pac. 416, strictly adhered to. There is no prejudicial error in the instructions.

The only other assignment of error argued in the brief is based upon alleged prejudicial statements made by the county attorney in his argument to the jury. We have carefully examined the record; and, while the argument of the county attorney may be subject to criticism, we are not able to say that this judgment should be reversed upon the ground that the argument was improper and prejudicial. The county attorney should have been reprimanded and the jury admonished to ignore the statements upon which this assignment is based. But counsel for the accused did not ask such action of the court; and the statements are not of sufficient prejudicial character to justify this court in reversing the judgment on the ground that the error was fundamental.

We are of opinion that the judgment' should be, affirmed, and it is so ordered.

DOYLE and FURMAN, JJ., concur.