text:
    WILL BOHANNAN v. STATE.
    No. A-1956.
    Opinion Filed September 10, 1914.
    (142 Pac. 1092.)
    1. INDICTMENT AND INFORMATION —Amendment —Time to Plead, (a) When a trial court sustains an objection to the information on the ground that it fails to state a xmblic offense and permits the filing of a new information, which he holds sufficient, the proceedings should be annulled up to that pmint, and the accused rearraigned and given time to plead, as required by the statute.
    (b) Under section 5695, Rev. Laws 1910, an information may be amended in matter of substance or form at any time before the defendant pleads, without leave of court.
    (c) After plea an information can only be amended by leave of court, and then only when such amendment can be permitted without material prejudice to the rights of the defendant.
    (d) An information cannot be amended in matter of substance after the jury has been impaneled and sworn to try the cause, and can be amended in matter of form only when it is clear that such amendment can be made without injury to the defendant.
    2. SAME — Amendments. The information is the basis upon which a criminal trial rests, and if a case is called for trial, amendments should not be permitted excep>t in cases of necessity, and then only in strict conformity to the law.
    3. SAME — Amendment of Information — Time to Plead. The filing of a new information is the beginning of a new case, and the accused is always entitled to the statutory time in which to plead. This is a plain statutory essential, and cannot be denied when it is claimed in due time.
    (Syllabus by the Court.)

      Appeal from District Court, Okfuskee County; John Caruthers,. Judge.

    Will Bohannan was convicted of burglary, and appeals.
    Reversed.

      C. B. Conner and W. A. Huser, for plaintiff in error.

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

The plaintiff in error, Will Bo-hannan, was convicted at the January, 1913, term .of the district court of Okfuskee county on a charge of burglary, and his punishment fixed at imprisonment in the state penitentiary for a term of two years. This case, after issues were joined, was called for trial, a jury impaneled and sworn, witnesses called and sworn, and the state’s first witness put upon the stand, whereupon counsel interposed an objection to the introduction of testimony on the ground that the information did not state facts sufficient to charge a violation of the laws of Oklahoma. The objection was sustained. The court then permitted the county attorney to amend the information by interlineation. Again counsel objected on the same ground. The objection was sustained, and the county attorney given permission to make another amendment, which was made and the objection renewed. Finally the county attorney asked permission to file a new information, which was granted and the information filed, whereupon counsel demanded 24 hours within which to plead. This demand was denied, and the court directed a plea of not guilty to be entered and proceeded with the trial.

If the court’s action was proper in sustaining the objection of counsel to the introduction of testimony, and -no question is raised on that proposition by the Attorney General, then the demand of the accused for time within which to plead should have been granted. The information is poor enough in its final form.

Section 5695, Rev. Laws 1910, is as follows:

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

We have never held that under this section of the statute an information could be amended in matter of substance after a jury had been impaneled and sworn to try the cause, and it cannot be. In a number of cases it has been held that an amendment in matter of form could be made in this manner when it is clear that no injury could result to the accused. Rollen v. State, 7 Okla. Cr. 673, 125 Pac. 1087.

In Pozzini v. State, 7 Okla. Cr. 692, 126 Pac. 1040, we said:

“* * * If an information is to be amended it should be done before the case goes to trial. It cannot be amended in matter of substance after the impaneling of the jury.”

In Koontz v. State, 10 Okla. Cr. 553, 139 Pac. 842, discussing a similar proposition, this court said:

“On September 5, 1911, plaintiff in error was arraigned. The next day he entered a plea of not guilty, and was remanded to the custody of the sheriff. The case was set for trial September 11th, coming on for trial on that day; the county attorney obtained leave of court to indorse names of additional witnesses upon the information, and to amend said information by interlineation and by striking out certain words, and dismissing as to defendants Charley Koontz and R. F. Graham. Thereupon the state announced ready, and the defendant refused to answer at this time. A demurrer to the amended information was interposed and overruled. The defendant was not arraigned upon the amended information, and no plea was entered thereon. The case proceeded to trial over the objection of plaintiff in error, on the ground that he, being confined in the county jail, was not served with a copy of the amended information. The objection was overruled, and exception allowed. Plaintiff in error then objected to the impaneling of the jury to try said cause. The jury was impaneled and sworn.
“(1) When the state opened its case, plaintiff in error objected to the introduction of evidence, for the reasons, among others, that the defendant had not been furnished a. copy of the amended information; that the defendant was not present in court when the case was called for trial, at' which time the court permitted the county attorney to serve a list of the state’s, witnesses on counsel for plaintiff in error; that the same were not indorsed on the original information, and ‘the defendant renews his objection to the impaneling of the jury and to the array thereof for the reasons stated in his affidavit and challenge to the panel, because of the bias and prejudice of R. L. Trammell, sheriff, against this defendant.’ The objection was overruled, exception reserved. We think that the action of the court in calling the case for trial before a copy of the amended information was furnished to plaintiff in error constitutes reversible error. The language of section 20 of the Bill of Rights is: ‘In all criminal prosecutions the accused * * * shall lie informed of the nature and cause of the accusation against him, and have a copy thereof.’ ”

Under this doctrine the accused was entitled to have a copy of the amended information served upon him and 24 hours, within which to plead.

In the case at bar the court went too- far in permitting amendments and forcing the accused to proceed with the trial. The plain provisions of the law should be respected, and when the court found that the information was insufficient, the jury should have been discharged, and the cause passed for trial to-such time as the statute could be complied with. There is ample authority for the position that the filing of a new information makes a new case, and that the accused is entitled to the sfcatu-ory time in which to plead. Turner v. State, 21 Tex. App. 198, 18 S. W. 96; Whitesides v. State, 44 Tex. Cr. R. 410, 71 S. W. 969.

Ordinarily when an information is fatally defective and a new information is filed in proper form, the accused should be arraigned and his formal plea entered, not after a jury has been impaneled and sworn, but as though no- proceeding had been had against him. People v. Clement, 4 Cal. Unrep. Cas. 493, 35 Pac. 1022; People v. Moody, 69 Cal. 184, 10 Pac. 392.

The other errors complained of in the brief are of minor importance. We are of opinion that the instructions of the court were more favorable than the accused was entitled to receive.

For the error in procedure the judgment is reversed, and the cause remanded for a new trial.

DOYLE, J., concurs. FURMAN, J., absent and not participating.


source: Caselaw Access Project

author: DOYLE, J.

license: Public Domain

text:
    FRANK HAWKINS v. STATE.
    No. A-1886.
    Opinion Filed September 12, 1914.
    (142 Pac. 1093.)

      1. HOMICIDE — Dying Declaration — Admissibility. Proof that decedent died within twelve hours after'he was shot, that his wounds were necessarily- fatal, and that he stated to persons after he was shot that he was dying, and that he expressed no hope of recovery, sufficiently shows that decedent was conscious of impending death, and is in itself a sufficient predicate for the admission of his statements of the circumstances of the homicide as “dying declarations.”
    2. APPEAL — Discretionary Ruling — Denial of New Trial. Motions for new trial upon the ground of newly discovered evidence, made before or after judgment, are addressed to the discretion of the trial court, and its ruling thereon will not be disturbed, except for an abuse of discretion.
    3. HOMICIDE — Murder—Sufficiency of Evidence. See statement of facts for evidence held sufficient to support a capital conviction for murder.
    (Syllabus by the Court.)

      Appeal from District Court, Creek County; Wade S. Stanfield, Judge.

    Frank Hawkins was convicted of murder, and appeals.
    Affirmed.
    The plaintiff in error, Frank Hawkins, and one Lewis Price were jointly informed against for the murder of Will Crockett, in Creek county, on or about the 6th day of April, 1912. A severance was granted, and the state elected to try the defendant Hawkins first. Fie was convicted, and his punishment assessed at death. On the 29th day of October, 1912, in accordance with the verdict, the court rendered judgment, and he was sentenced to be hanged. To reverse the judgment, an appeal was perfected.
    The evidence discloses substantially the following facts: The defendant Hawkins, and his codefendant, Price, were ne-groes, and long-time residents of Creek county, and until some time in March, 1912, lived near Spring Creek, some ten or twelve miles northwest of Bristow. Crockett, the deceased, had also been living near Spring Creek, and had been picking cotton and doing other work for the defendant Hawkins. At that time, the defendant moved - to his brother Ben Hawkins’ place, near Bristow. The defendant Hawkins was a widower, and Crockett’s wife and daughter went with him when he moved. On April 6, 1912, the day of the homicide, in the forenoon, both the defendants, Hawkins and Price, and Crockett, the deceased, were at Ben Hawkins’ house, and some trouble arose between the defendants and Crockett over his wife. During the difficulty either the defendant Hawkins or Price knocked Crockett down with a pistol, and chased him around the house a time or two. He agreed to leave if they would not kill him, and started away in the direction of Bristow. The defendants compelled him to go in another direction, southwesterly from the house, and then followed along behind him. The path followed by Crockett at the direction of the defendants wound around along and across a canyon and through the timber. At last they came to a lonely spot about three miles southwest of the town of Bristow and about one-fourth of a mile from the public highway. Price went around in front of Crockett and nodded his head to Hawkins, who was standing behind. Crockett turned to see what the trouble ivas, and as he turned Hawkins shot him with a pistol, the ball entering his left jaw, ranged upward, and lodged close to the right eye. Crockett fell, and Hawkins and Price dragged him to a gulch and threw him over a ten-foot bank into' a stream of water, about two feet deep. His head, instead of falling into the water, lodged on the side of the bank. After throwing him there, one of them again shot him, this time in the back. They then left him, as they supposed dead, and returned to the home of Ben Hawkins, otherwise known as Ben Broadenaxe, taking a secluded route, but different from the one taken in going. This was between 10 and 11 a. m. In about an hour, Crockett revived and had strength to drag himself a distance of 200 or 300 yards, Arvhere liis calls for help were heard by a white man named Chaides Flint, who lived a little over a quarter of a mile from the scene of the shooting. It was about 1 p. m. when Flint found Crockett in a dying condition, and took him to his house. He stated that he Avas about to die, and asked Flint to take a book out that was in his pocket and write his name, and that of Frank HaAvkins and Lewis Price. Flint’s wife had called Mr. Decker, a neighbor. Crockett then said they had shot him and had throAvn him in the ditch. Flint then went to Bristow and notified the officers and returned with a Mr. Ellis and Purdy, and they took Crockett to Bristow, where he died that evening between 9 and 10 o’clock. About two hours before he died, and after the doctors had 'examined and cared" for him, he said he would like to make a statement, as he thought he Avas dying. Several persons Avere present at the time, and Ralph Ellis, in the presence of W. N. Ellis, and W. W. Lee, James Roberts, and others, Avrote the statement, which, over the defendant’s objection, was admitted in evidence. It reads as follows:
    “About 9 o’clock this morning I was at Ben Broadenaxe’s house. Lewis Price claimed that I had threatened to kill' him, but I never did threaten to kill him or any one else, and he knocked me down Avith the pistol, and Frank Hawkins taken the pistol and drawed it on me and told me to get off the place. I told him, ‘All right,’ and started off. They both said for me to go toward Depew, across the pasture. I acted like I didn’t Avant to go that way, and Frank threw the pistol down on me and made me go. I told them I didn’t want to go that way, because I thought they wanted to do something to me, and they said they wasn’t, but they did make me go across the pasture with the pistol, about one mile and a half, then Lewis Price stepped in front of me with his hand on his hip pocket and nodded his head to Frank Hawkins, and as I turned to look at Frank, Frank shot me in the jarv and' I fell. And they both grabbed me by the legs and drug me to and threw me in a ditch. There Avas about enough water in the ditch to cover me up and after I was in the ditch, one of them shot me in the shoulder. At that time they went away. I lay there, as best I know, about one hour, then crawled out and hallooed for help, and a white man came and taken me to his house.”

      Along in the middle of the afternoon Hawkins and Price were arrested and taken by Ralph Ellis to Bristow. The defendant Hawkins, in a conversation with Ellis, admitted the shooting, and also told conflicting stories as to where the pistol was with which the shooting was done. The pistol, however, was found at the home of Ben Plawkins, and had two empty shells in it. After the defendants were taken to Bristow, the defendant Hawkins had a conversation with his brother-in-law, Dave Von, in which he said that he shot Crockett. He had also told Von a few days before the shooting that he intended to kill Crockett. The next morning several witnesses went to Ben Hawkins’ house and followed the tracks of three men, leading off therefrom in a southwesterly direction; these tracks were followed to where the shooting occurred, and near where Crockett was shot it looked like a scuffle had occurred, and something had been dragged to the top of the bank.
    The defense was an alibi. The defendant Hawkins, as a witness in his own behalf, testified that he was at his brother Ben’s that morning, and that Lewis Price and Will Crockett had some trouble there, and then they made up, and then Crockett asked Price to go with him, and they went off down south together; that he then went over to Pete Plamilton's and returned about noon; that he never had any trouble with Crockett, and had never injured him in any way. He denied admitting to Ralph Ellis that he did the shooting, and denied that he had told Dave Von that he intended to kill Crockett. The only witness produced to corroborate him was his brother Ben, who testified - that he left that morning and went to a sawmill, and when he returned for dinner the defendant was still at his place. The defendant also produced witnesses to prove the bad reputation of the deceased for truth and veracity. The day after the judgment was rendered the defendant filed a supplemental motion for .a new trial, and in support of the same filed the affidavit of his codefendant, who' had been in the meantime tried and convicted and his punishment fixed at life imprisonment, which, omitting the formal parts, is as follows:

      “Affidavit in Support of Motion for New Trial.
    “Lewis Price, being first by me duly sworn, on his oath states: That he was jointly charged by information with the above-named defendant, Frank Plawkins, in the above-entitled cause, with the crime of murdering Will Crockett, and that he was arrested and confined in the county jail. That he told the defendant Frank Hawkins that he killed said Will Crockett, or that, to be specific, he would tell all about the killing of Will Crockett whenever he went to trial. That he never told said Hawkins anything about the particulars of the case until after the trial of the case of the above-named defendant, and that when the arraignment of the above-named defendant and this af-fiant was made, he demanded a severance in the trial of his case from that of the above-named defendant. That he refused to be a witness in the case of the above-named defendant, and that his case was tried after that of the above-named defendant. That on the trial of his case he testified in his own defense, and told all about the case, and his evidence was in substance as follows, to wit: That on the morning of the 6th of April, 1912, he and said Ciockett had some trouble at the home of Ben Plawkins; that Crockett came at him with a stick of wood raised in a threatening manner to strike this affiant; that this affiant knocked said Crockett down, or partly down, with a six-shooter; that thereafter they made up, and Crockett confessed that he, Crockett, was in the wrong; that shortly thereafter said Crockett was preparing to leave, as he said, to go- to Mexico, and he and this affiant left the home of Ben Hawkins together and alone; that he was then on his road home, and was going that far on the road that Crockett was going; that he and Crockett went south and west of where Ben Plawkins lived about two and one-half or three miles on the main road that leads to Depew and sat down by the side of the road about 2-00 yards before coming to a cemetery that was on or near the road; that while there Crockett suddenly jumped up and drew his revolver and attempted to- shoot this affiant, but that this af-fiant caught the revolver with his left hand, and there a life and death struggle took place between affiant and the said Crockett, and in the struggle this affiant drew his own revolver in self-defense and shot Crockett in the back and in the jaw, and then Crockett let loose of the revolver and ran in a westerly direction, and that, this affiant never saw him after that time; that affiant then returned to his own home and ate his dinner and started to the town of Bristow and went by and stopped for a while at the home of Ben Hawkins, which was- directly on his road, and was arrested while there; that affiant was going to Bristow to learn if anything had been heard of Crockett, and, if so, how badly he was hurt, and to submit to arrest in cáse an arrest was considered for the act; that the foregoing statement is true, and said defendant Frank Hawkins was not faith af-fiant and Crockett and knew nothing about it, and that no diligence on the part of the above-named defendant could have learned of the facts. Affiant states that had he thought that a convic-viction could possibly have been had against the above-named defendant, die would have told him, and would have been a witness in his defense at whatever might have been the consequences to himself, but that he knew that the above-named defendant was absolutely innocent, and that he could not conceive •of a jury convicting him of the crime. This affidavit is made for the purpose of securing a new trial and to be attached to a motion filed or to be filed for that purpose.”
    /. L. Byrne and S. H. Sornborger, for plaintiff in error.

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

(after stating the facts as above). The. plaintiff in error was convicted of murder, and sentence of death by hanging was duly pronounced.

There are two questions presented on the appeal in this case. The first contention is that the court erred in admitting in evidence dying declarations. That the declarations of Will Crocket, the deceased, were properly admitted there can be no doubt. That he was dying at the time is admitted, and that he was conscious of impending death is undisputed. There is no testimony tending to show that he had any hope of recovery. The admissibility of dying declarations has repeatedly been passed upon by this court. In the case of Morris v. State, 6 Okla. Cr. 29, 115 Pac. 1030, it is said:

“It is essential to the admissibility of dying declarations, and is a preliminary fact to be proved by the prosecution, that they were made under a sense of impending death. This may be made to appear from what the injured person said, or where from the nature and extent of his injuries it is evident that he must have known that he could not survive. It is sufficient if it satisfactorily appears that they were made under the sense of impending death, whether it be directly proven by the express language of the declarant, or be inferred from his evident danger, or the opinions of the medical attendants, stated to him, or from other circumstances of the case, such as the length of time elapsing between the making of the declarations and his death, and the fact that the declarant was so weak that he could not sign his name and so affixed his mark, all of which are resorted to, in order to ascertain the state of declar-ant’s mind.”

See, also, Ryan v. State, 8 Okla. Cr. 623, 129 Pac. 685; Offit v. State, 5 Okla. Cr. 49, 113 Pac. 554; Blair v. State, 4 Okla. Cr. 364, 111 Pac. 1003.

The second contention is that the evidence is insufficient to support the verdict, and because the evidence of his co-defendant, Lewis Price, as a witness in his own behalf, as set forth in his affidavit offered in support of the supplemental motion for a new trial, so affects the proof relied upon by the state as to make it probable that upon another trial a different verdict would be rendered. We think the foregoing statement of the facts which were brought out at the trial is sufficient to demonstrate that there is no merit in this contention.

In Drew v. State, 6 Okla. Cr. 348, 118 Pac. 667, it was held that:

“A motion for a new trial upon the ground of newly discovered evidence, made before judgment, or after the term at which the judgment was rendered and sentence pronounced, is addressed to the discretion of the trial court, and its ruling thereon will not be disturbed, except for an abuse of discretion; the presumption being that the discretion was properly exercised.”

The whole method and manner of this killing shows that it was a cruel and deliberate murder. It appears from the evidence that the motive that actuated this defendant and his co-defendant, Price, to perpetrate the murder was to secure undisturbed possession of the wife and daughter of the deceased. It is manifest from a careful inspection of the whole record that the defendant has had a fair and impartial trial, and, in obedience to the mandates of the law, he ought to suffer the extreme penalty assessed by the jury.

The judgment is therefore affirmed.

It appears from the record that while this appeal was pending the act of March 29, 1913, regulating the infliction of the death penalty, became effective. As the day fixed for the execution of the judgment and sentence has passed, the cause is remanded to the district court of Creek county for the purpose of appointing another day for the execution of the judgment, as provided by sections 5979 and 5980 (Rev. Laws 1910), Procedure Criminal; proceedings to be had in accordance with the rule prescribed by this court in the case of Alberty v. State, 10 Okla. Cr. 616, 140 Pac. 1025.

The warden of the penitentiary will surrender the defendant to the sheriff of Creek county, who will hold him in custody pending the proceedings in the trial court, or until his custody is changed by due course of law.

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


text:
    LEWIS PRICE v. STATE.
    No. A-1907.
    Opinion Filed September 14, 1914.
    (142 Pac. 1096.)
    APPEAL — Homicide—Affirmance. In a prosecution for murder, the evidence is held to support a verdict convicting the defendant of the crime of murder and assessing his punishment at imprisonment in the penitentiary for life at hard labor, and that no reversible error was committed on the trial.
    (Syllabus by the Court.)

      Appeal from District Court, Creek County; Wade S. Stanfield, Judge.

    Lewis Price was convicted of murder, and appeals.
    Affirmed.
    7. L. Byrne, for plaintiff in error.

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

The plaintiff in error, Lewis Price, and one Prank Hawkins were jointly informed against for the murder of Will Crockett in Creek county, on or about the 6th day of April, 1912. A severance was granted. Prank Hawkins was tried first and convicted, and his punishment assessed at death. Upon'plaintiff in error’s trial he was found guilty of murder by the verdict of the jury, and his punishment assessed at imprisonment in the penitentiary for life at hard labor. On the 29th day of October, 1912, the court pronounced judgment and sentence in accordance with the verdict. To reverse the judgment an appeal was perfected by filing in this court on February 8, 1913, a petition in error with case-made.

This is. a companion case to that of Hawkins v. State, ante, 142 Pac. 1093, opinion this day delivered, and the statement of facts contained in the opinion in the Hawkins case sufficiently states the facts of this case. No question requiring discussion is presented in the record. The information is a good one, the charge of the court is fair, full, and correct, and more favorable to the defendant in some particulars than the evidence required. There can be no doubt as to the sufficiency of the evidence to warrant the verdict of the jury.

After a very careful examination of the record, we have failed to discover anything whereof the plaintiff in error has just right to complain. There being no reversible error in the record, the judgment is affirmed.

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


author: ARMSTRONG, P. J.

text:
    WALTER WILLIAMS v. STATE.
    No. A-2026.
    Opinion Filed September 18, 1914.
    (142 Pac. 1181.)
    1. FORGERY — Indictment and Information — Requesites. (a) Under section 2631, Rev. Laws 1910, any person who has in his posses- , sion a forged or counterfeited instrument knowing the same to be forged or counterfeited, with intent to injure or defraud any person whomsoever, is guilty of forgery in the second degree.
    (b) It is not neecssary for an information under the foregoing section to allege that any particular person was intended to be injured, and the insertion of any sueh name in the information is purely surplusage. •
    (c) The striking out or adding to an information language which is entirely superfluous, and which has no bearing whatever on the validity of the information or the charge therein, does not affect the proceedings.
    2. SAME — Information—Requisites — Sufficiency — Elements of Offense. (a) Under section 2631, Rev. Laws 1910, supra, it is not necessary for the information to allege that the person who committed the forgery of the document the accused is charged with having in his possession with intent to defraud by uttering the same as true committed the forgery with intent to injure or defraud. This is purely a statutory offense, and it is sufficient to lay the charge substantially in the language of the statute.
    (b) Under section 5743, Rev. Laws 1910, an erroneous allegation in the information as to the person injured or intended to be injured is not material under prosecutions of this character. An intent to defraud any person, association, or body politic or corporate is sufficient. Section 2837, Rev. Laws 1910.
    3. APPEAL — Presentation Below — Sufficiency of Verdict. When a person is charged by information with having the possession of a forged or counterfeited instrument with intent to injure another by uttering the same, and the jury returns a general verdict of guilty, fixing the punishment within the limit prescribed by statute for such offenses, and counsel save no exceptions or make no complaint of the. sufficiency of the verdict at the time, this court will not reverse a just conviction. See Bowlegs v. State, 9 'Okla. Or. 69, 130 Pae. 824.
    (Syllabus by the Court.)

      Appeal from County Court, Logan County; A. H. Huston, Judge.

    Walter Williams was convicted of forgery in the second degree, and appeals.
    Affirmed.

      Hepburn & Chappell, for plaintiff in error.

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

Plaintiff in error, Walter Williams, was convicted at the January, 1913, term of the district court of Logan county on a charge of forgery in the second degree, and his punishment fixed at imprisonment in the state penitentiary for a period of two years. The information charged the accused with having possession of a forged deed with intent, upon the part of. the accused, to injure and defraud by uttering the same as true, the charging part of the information being as follows:

“* * * Unlawfully, willfully, knowingly, feloniously and falsely have in his possession a certain forged and counterfeited warranty deed, purporting to be the act of one J. E. Baker in conjunction with his wife, Ollie Baker, the tenor of which-is as follows, to wit [setting forth deed]. Said deed being then and there forged and counterfeited in this, to wit: That the signature of said J. E. Baker to said deed was false, forged, and counterfeited and not the genuine signature of the said J. E.Baker, as the said Walter Williams then and there well knew, by which said deed the fee-simple title to the real estate therein described purports to be transferred and conveyed to one Agnes 'O. Gaffney, with the felonious intent then and there, on the part of him, the said Walter Williams, to.cheat, wrong, and defraud the said Agnes O. Gaffney by uttering said deed to be true, contrary-to and in violation of the statutes in such case made'and provided, and against the peace and dignity of the state.”

The information is based upon section 3631, Rev. Laws 1910, which is as follows:

“Any person who has in his possession any forged or counterfeited instrument, the forgery of which is hereinbefore declared to be punishable, other than such as are enumerated in the last section, knowing the same to be forged, counterfeited or falsely altered with intent to injure or defraud by uttering the same to be true, or as false, or by causing the same to be uttered, is guilty of forgery in the second degree,”

Counsel filed a demurrer to the information, which was overruled'by the court, and of this action of the court they complain. The information was entirely sufficient. In the case of People v. Smith, 125 Mich. 566, 84 N. W. 1068, the Supreme Court of Michigan, discussing a similar statute, said:

“The first assignment of error is that the information charges no offense under the statute, as it does not allege that the ticket was falsified, forged, or counterfeited by some person with intent to injure or defraud in connection with the alleged forgery of the ticket. The information, we think, cannot have the construction contended for. It alleges that the respondent had in his possession a certain false, forged, and counterfeit ticket, with intent to injure and defraud. This was a strict compliance with section 2631 of the statute above quoted. Haskins v. Ralston, 69 Mich. 63, 37 N. W. 45 [13 Am. St. Rep. 376].”

See, also, State v. Turner, 148 Mo. 206, 49 S. W. 988; Lockard v. Commonwealth, 87 Ky. 201, 8 S. W. 266; Eldridge v. Commonwealth, 21 Ky. Law Rep. 1087, 54 S. W. 10.

Counsel next contend that the court erred in permitting the. amending of the information. There is no* merit in this contention. Section 5743, Rev. Laws 1910, provides:

“When an offense involves the commission of, or an attempt to commit a private injury, and is described with sufficient certainty in other respects to identify the act, an erroneous allegation as to the person injured, or intended to be injured, is not material.”

This court construed this section in Ellington v. State, 7 Okla. Cr. 252, 123 Pac. 186, and the doctrine announced is controlling here.

Section 2837, Rev. Laws 1910, is as follows:

“Whenever, by any of the provisions of this chapter, an intent to defraud is required in order to constitute any offense, it is sufficient if an intent appears to defraud any person, association or body politic or corporate whatever.”

Under these sections of the statute and the opinion of the court in the Ellington case, it is clear that the allegation in the information that the accused intended to injure Agnes O. Gaff-ney was surplusage and not required. The amendment inserted the name of Robert A. Gaffney also, but this adds nothing to and detracts nothing from the information. State v. Weaver, 149 Iowa, 403, 128 N. W. 559, 31 L. R. A. (N. S.) 1046, Ann. Cas. 1912C, 1137, and cases cited; State v. Stark, 202 Mo. 210, 100 S. W. 642. See, also, Wishard v. State, 5 Okla. Cr. 611, 115 Pac. 796. „

Counsel next contend that the verdict is insufficient. This contention is also without merit. The verdict is in the following form:

“We, the jury, sworn and impaneled in the above entitled cause, do upon our oaths find the defendant guilty and assess his punishment at two years in state penitentiary.” .

Counsel and the accused were present when this verdict was returned and made no objection and took no exception at the time. The verdict is sufficient, although in bad form. Counsel and the accused evidently understood for what he was being tried, and also of what he had been found guilty. See Bowlegs v. State, 9 Okla. Cr. 69, 130 Pac. 824.

There is no error in this judgment. The accused is clearly-guilty under the facts. In our opinion the judgment should be.affirmed; and it is so ordered.

DOYLE, J., concurs. . FURMAN, J., absent and not participating.


text:
    JOHN BUXTON v. STATE.
    No. A-2005.
    Opinion Filed September 22, 1914.
    (143 Pac. 58.)
    1. APPEAL — Continuance. A motion for continuance, on the ground of absent witnesses, is addressed to the discretion of the trial court, and its decision will not be disturbed, unless an abuse of discretion appears.
    2. CONTINUANCE — Discretion. It is no abuse of discretion to overrule a motion for continuance, where no diligence is shown to-procure the attendance of, or take the deposition of, a nonresident-witness.
    3. APPEAL — Harmless Error — Challenge to Jury Panel. A challenge to the panel on the ground that, in selecting the jury list, “the jury commissioners failed to select the list of jurors from the various municipal townships in the county 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. Procedure Criminal (section 5842, Rev. Laws 1910).
    4. WITNESSES — Cross-Examination of Accused. A defendant, by availing himself of the statutory privilege of becoming a witness, has voluntarily changed his status from defendant to witness, and thereby waives his constitutional exemption from being a witness against himself, and places himself in the attitude of any other witness in respect to the right of cross-examination.
    5. SAME — Accused as Witness — Scope of Examination. Under section 5881, Rev. Laws 1910, providing that, in criminal proceedings, "the person charged shall at his own request, but not otherwise, be a competent witness,” a codefendant is competent as a witness for all purposes, where he requests to be a witness in his own behalf. It does not matter whether his testimony is for or against himself, or for or against his codefendant; the only limitation in the statute is that he cannot be compelled to testify either for himself, his codefendant, or for the state while he is a party in the case.
    6. TRIAL — Witnesses—Submission of Issues — Guilt of Codefendant. Under section 5880, Rev. Laws 1910, providing that "when two or more persons are included in the same indictment or information, and the court is of opinion that in regard to a particular defendant there is not sufficient evidence to put him. on his defense, it must, before the evidence is closed, in order that he may be compelled to be a witness for his codefendant, submit its opinion to the jury, who, if they so find, may acquit the particular defendant for the purpose aforesaid,” held, that where the record fails to show that a defendant seasonably announced that he intends to use his eodefendant as a witness, and where the record shows that such eodefendant testified as a voluntary witness in his behalf, the omission of the court to separately submit to the jury its opinion that, in regard to said codefendant, there is not sufficient evidence to put him on his defense does not constitute preju- • dicial error.
    '7. HOMICIDE — Murder—Sufficiency of Evidence. See opinion, for statement of evidence held sufficient to support a capital conviction for murder.
    (Syllabus by the Court.)

      Appeal from District' Court, Choctaw County; Summers Hardy, Judge.

    John Buxton was convicted of murder, and appeals.
    Affirmed.
    S'. M. Cunningham, and Wiygul & McClary, for plaintiff in érror.

      C. J. Davenport, Asst. Atty. Gen., for the State.
   DOYLE, J.

This appeal is prosecuted from a conviction had in- the district court of Choctaw county, in which John Buxton, plaintiff in error, was found guilty of murder, and his punishment assessed at death. The information on which plaintiff in error was tried and convicted jointly charged that plaintiff in error, John Buxton, and one A. F. Buxton did in Choctaw county, and state of Oklahoma, on or about the 18th day of July, 1912, kill and murder one Sloan Pool. Upon their trial the jury returned a verdict which reads as follows:

“We, the jury, duly impaneled and sworn in the above-entitled cause, do upon our oaths find the above-named de-defendant John Buxton guilty of murder as charged in the information herein, and assess his punishment at death, and find the defendant A. F. Buxton not guilty.”

The verdict was rendered November 21, 1912. On the 27th day of November, 1912, in accordance with the verdict, the court pronounced judgment, and he was sentenced to be hanged. An appeal was perfected by filing in this court May 22, 1913, a petition in error with case-made.

There were but three eyewitnesses to the homicide: Jess Allen and the two defendants. A substantial statement of the testimony in the case is as follows:

Jess Allen testified that he lived at the time at the home of A. F. Buxton, the father of the defendant John Buxton. Sloan Pool, the deceased, together with witness and old man Buxton, scaled logs in the forenoon. After dinner they returned, and on the way the defendant John Buxton joined the three. They first scaled witness’ logs and old man Buxton’s logs; and they then scaled the defendant John Buxton’s logs. As to what happened thereafter the witness testified as follows :

“We was all sitting there on a log, and John asked me how many logs I believed he had in the mill yard, and I had them all set down together in the book I had, and I couldn't tell; I was sitting between him and Mr. Pool, and. Mr. Pool sat down on the log to show John how many logs was in the mill yard. Mr. Pool was showing him in his book and pointing out to me that I had them all. Mr. Pool showed John that there was all the logs set down, and John said, T don’t want them to be like the last month’s pay day,’ or ‘settlement.’ I forget which, and Mr. Pool asked him how was that, and he said, ‘You figured me out of I believe. Said he never done it. John said he did, and Mr. Pool said he didn’t, and John called him a damn liar, and Mr. Pool disputed his word, and John asked him if he meant to dispute his word, and Mr. Pool said, ‘Yes. in that way I mean to dispute your word.’ I heard something snap like a gun, and I raised my head, and about that time John shot him. When he started to shoot, Mr. Pool was sitting between him and me. I got up and walked plumb around the other side of old man Buxton, by John, and he done quit shooting. The second shot John fired, Mr. Pool fell. Mr. Pool was hit five times; he had five bullet holes in him. When he shot Mr. Pool, Mr. Pool had a scale stick in his right hand and book, and after he fell, if he said a word, I didn’t hear him. ■ After Mr. Pool was dead, John walked right up at him and said, ‘You God damn son of a bitch, the next log you scale will be in hell,’ and shot him again. Pie was right up over him; right up at him when he fired the last shot: After the shooting John says, ‘Ret me see if he still holds this knife,’ and run his hand in Mr. Pool’s left pocket, and I walked down the road, and after I got about twenty steps John told me to come back, and I went back. John had the knife in his left hand and the gun in his right hand, and he asked me, says: ‘Now, by God, how are you going to swear about this?’ I studied a minute, and I says: T don’t know, John. I guess I will have to swear the truth.’ And he said I didn’t have to do any such a God damn thing. I said if I didn’t, I wouldn’t. Pie said, ‘Well, I guess I will have to whittle on myself,’ and he took the knife and •cut himself down here and there (indicating), and made three ■or four gashes on his arm. Then John reached over Mr. Pool and stuck his knife in his hand, and we walked down to■ward the mill. After John shot Mr. Pool, Mr. Buxton, his father, says, ‘John, where you done wrong is shooting him so .many times,’ and John says, ‘Oh, hell.’ ”

Witness further testified that defendant was about eight or ten feet from Pool when defendant began to shoot; that he heard defendant tell old man Buxton one day “that he might take his six-shooter and make Mr. Pool write him a check just as big as he wanted it at the muzzle of his six-shooter.”

On cross-examination he testified: That he was 26 years old; had lived in that county twelve or thirteen years; had been farming, became acquainted with Buxtons about six months before the killing; had been living at the elder Buxton’s about a month. That John and old man Buxton had been cutting logs on the same twenty acres of land. That witness had never been a witness before in any case. That, when John and Mr. Pool began quarreling, old man Buxton asked them “to come on and let’s get through scaling logs.” That, when John commenced to shoot, old man Buxton was ten or twelve feet away. That witness was further away. That, about the time witness raised his head, John shot. The first two shots were about as fast as he could shoot. He further testified, as on direct examination, as to defendant cutting himself; further that witness was arrested; that when Mr. Pool fell he had a book in one hand and a scaling stick in the other; that, when defendant shot, Mr. Pool had his hands down by his side. He further testified that he knew Mrs. Ruth Holden, daughter of Mr. Buxton; that he had been with her since the killing, took her driving; denied that the officers threatened to put him under bond if he did not quit going with her; that he did not tell her that he had sworn falsely against her father and brother and was sorry.

On redirect examination he testified: That he had never at any time or place said to her that he had sworn falsely against her father or brother. That the shooting occurred in “this county and state,” near Frogville. That defendant shot Mr. Pool with a 32 Colt’s revolver, which witness had let defendant have about a month or longer before. That he was keeping the check on the scaling. That after the shooting he and old man Buxton went back north and west to the mill. Defendant went about halfway, and then turned back south, went off whistling that old song “Chicken”; went towards his home. When witness returned, there was a crowd at the body. That after the shooting he made a statement as to the shooting to Tom Capps. That old man Buxton was telling them about Mr. Pool cutting John. That, before John left witness and old man Buxton, “He said me and old man would have plenty of time to talk it over so we could both tell it alike.”

G. A. Turnbow testified: That he lived on July 18th near Frogville; had known Mr. Pool about- two months. After the killing he saw Mr. Pool’s body in the road about 180 steps from his house; examined the body, and found five wounds, one on right shoulder, one in left hip, one in the head, and two other wounds. The bullet which entered the hip ranged up. The one in the right shoulder ranged up a little bit. The one in the left side ranged up a ways, and struck a rib. One bullet lodged between the shoulders. The one bullet entered the head right behind the ear. One bullet hole was in the left trouser’s leg; didn’t touch the leg. The bullet which entered the head powder-hurned; saw no other powder burns. Six bullets struck the body and clothing. That the first ones who reached the body were the three men who lived in Texas: Mr. Johns, Mr. Gears, and Mr. Reasnor. That in the relaxed fingers was a pocket knife. That he saw defendant pass through his lot and yard about 30 minutes before the shooting. There were five shots in quick succession, and just a little bit elapsed, and a sixth shot. Mr. Johns came and told him about the man being killed. Pie went there and noticed the scaling stick and book and pencil “tying tolerable close’" to his feet; also found six cartridge hulls tying there right close to his head. His pipe was tying close to his mouth. He examined the knife. There was a little bit of blood on the edge and point.

H. L. Johns testified: That he lived at Blossom, Tex. On the day of the shooting he had been at Ever edge Lake, fishing. As he was going home, he ran across the body of Mr. Pool, lying on his right shoulder with one hand a little in front of his face with a knife in his hand. Plis hand was relaxed; the knife sticking in it. Discovered a little blood on the end of the knife. The head was powder-burned. One wound was about his right shoulder. Saw daybook and pencil and scaling stick near him. There was one track which went down the road south fifteen or twenty steps and turned around and came right back to the body. Saw the pipe. Saw a man count the cartridges that were picked up. The pencil, book, and scaling stick were a little bit south from the body.

The Defense.

A. F. Buxton testified that he was 51 years old; father of defendant John Buxton; lived in Oklahoma twelve years, with exception of a few months; lived near Lawton; has five children; never been arrested for any offense prior to this. As to the facts leading up to and including the killing, this witness testified:

“We walked something like twelve or fifteen steps, and we come to this crooked pole of a log that laid along side of the road where the wagons run, and I was in front, and Mr. Pool started to sit down on it, and I says: ‘Mr. Pool, don’t sit down; let’s go on and finish up scaling the logs; we havn’t got but a few.’ He says: T am hot and tired, and I am going to rest.’ Pie set down on the log, and Johnny on the other side, and Jess Allen on the other side of John, and I walked up and set down side of Mr. Pool. And Mr. Pool got his book out, or rather had it in his hands; I don’t remember whether he hadn't put it in his pocket, but any way he went to looking at his book, and John says to Jess Allen, says, ‘Where’s our book?’ and Jess handed it to him. He got up and come around and sat down on his hunkers kinda between John and Mr. Pool, and he looked at it a minute, and he couldn’t understand the way Jess had set down the logs. He never had set any logs down — a botched up way. I never had it in my hands. Jess went on to show how he set the logs down, and they talked on there a few minutes, and they begin to quarrel over the scaling of the logs, and I says, ‘Men,’ I says, ‘Don’t go to quarreling over these logs.’ I says, ‘Let’s go on and finish scaling these logs.’ I says, ‘Stop it right now, and let’s go on and finish scaling these and get through with it; we have just a few above the mill, and we will be done and get settled up, and maybe everything will work out all right.’ And Mr. Pool says, T am going to scale every log from start to finish, and what was on the yard and all, from start to finish.’ Johnny says, ‘You are not going to scale my logs I have been settled for; in the month before this,’ he says, ‘I cut to the amount of something over-14,000 feet (I don’t remember the amount) at two dollars and a half a thousand, and something over 9,000 feet at six bits a thousand, and was paid to the amount of $44.60 for them; settled up full.’ Mr. Pool says, T am going to scale every log from start to finish;’ and he says, ‘You never cut any such damned amount, and I am not going to pay you a damned cent, only what my books shows for.’ John says, ‘You are a damned liar;’ and Mr. Pool says, ‘God damn you, you think you can run something over somebody;’ and he had his scale stick and book and pencil in his left hand and knife in his right hand. He had his knife out before he got off the log sharpening his pencil, and still had it in his hand and started at Johnny, and cut at him three or four times with his knife, and Johnny run back three or four steps, and was pulling his gun out, and Pool discovered him pulling his gun and stopped, and John' commenced shooting, and fired, as nigh as I could tell. It was just like that until every shot was fired (indicating). I throwed up my hands. I stood there in the road when I was talking to him about going to scale the logs and scraped a place in the road with my foot. I just throwed my hand up that way, watching them, because they was standing out that way, and I was like here (indicating) when he began shooting, and, if there had been any movement sideways to amount to anything, I could see I was in great danger of getting shot, for it was all done awful quick; just as quick as I believe any man could have done it in the world. Jess Allen, he got up when they commenced quarreling. I-Je got up and walked around John and Mr. Pool and went and stood behind this tree, with his head down, whittling with his knife, and, when John began to pull his gun, Jess Allen started to run. He wasn’t running fast, but started off moving pretty lively down the road, and had went down kinda into the holler, and went something like twenty steps from where he was standing behind that tree. John, after he quit shooting, he stepped right up something like I should judge five feet in front off to one side of where Mr. Pool was laying and throwed the cartridges out of his gun and took it and stuck it right back in his clothes that way, and Jess came back up and went right on by us, and he ran something like 30 steps the other way south, and I hollered at him and says, ‘Jess, come back and let’s go to the mill and report what’s done;’ and he come back, and, before he got back up even with where Mr. Pool was, why I done started on and took the lead and him and Johnny after me.”

He further testified that John didn’t call Allen back and asked him how he was going to swear; did not remember whether he said anything to John immediately after the shooting; that he (witness) did not have anything to do with the killing.

On cross-examination he testified: He saw John that morning coming out of the road with a shotgun; knew of no reason why John would be carrying a pistol that day. When the last shot was fired, Pool was leaning on his elbow and fell over. He was down when the last shot was fired; was making no demonstration then; knife in his hand; died with the knife in his hand. That Pool was cursing Turnbow that day, and said, he had notion to kill him.

Defendant John Buxton, as a witness in his own behalf, testified that:

“On the morning of the 18th I took a shotgun and went out in the woods squirrel hunting, and when I was coming back home I met my father and Jess Allen in the road, going over to the mill, and I asked them where they were going, and they said to the mill to scale up their logs. I went home and ate breakfast. It was then about 7 or 8 o’clock. I then went over to the mill. I stayed around the mill until about noon, and Mr. Pool came back from scaling logs. He told me they had been out there scaling. He said he had scaled my logs that were out there on the Nelson place, so I told him I would go over after dinner. He said he was going to scale the rest of them that evening on the twenty acres east of there, where we cut some logs, and I told him that I would come over and go down and scale up the rest of my logs. I went home, and after dinner I went over to the woods where the logs were at and sit down there on a log by the side of the road and waited until they come. And when they come we went on out east across the road, probably 75 or 100 yards, before we struck any logs where we had cut, and I set down on a log, when they went scaling my father’s logs, and after they got them scaled they called me, or my father did, and I went out there and scaled the rest of my logs that we had there; only a few, I don’t remember how many, ten or twelve of them. Jess Allen said he had the number of my logs scaled up there, and I asked him how many, and the way he had his figures put down he did not understand it himself. Mr. Pool, who had them on his book, you know, and was showing him what he had them down there, and made some remark about the amount of logs. The amount of thousand feet I had scaled, and something was said about that; I don’t remember just how it started, but he claimed that the month before that I had only cut 7,000 feet. There was some of the stuff Mr. Lear was giving us two dollars and a half and six bits a thousand, for cottonwood. We got a dollar a thousand for the other logs, and I had cut something over 9,000 feet of that dollar and six bits stuff, and a little over 14,000 feet of the two and a half stuff; it all amounted to $44.65. And Pool said I didn’t cut any such a damn thing, and that I only cut 7,000 feet of that two dollars and a half stuff. That there was' not but 14,000 feet in all that I cut the month before. I told him it could not be that way, because Mr. Lear went out in the timber, him and I and Wooten, the man that was working for Mr. Lear, and scaled the logs, and he paid me in full for every log that I cut there. I never had had any settlement with Mr. Pool at all; Mr. Lear was doing the paying; and he said he was going to scale them all over from start to finish. He had sawed part of them up, hauled them all out of the timber, and part was in the yard and some in the timber. Said he was going to scale them, and wouldn’t pay me for a God damn thing only what was on his books. I called him a God damn liar, and told him he wasn’t going to scale my logs that way, because Mr. Lear had scaled my logs and paid me, and that had nothing to do with the pay day then at all, because Mr. Lear scaled, the logs and marked them in the timber so they could be told from any other logs I cut after that; they done was marked. He cussed me and said he would be God damned if he would do any such as that, and I must be trying to it run over somebody. I told him I wasn’t going to try to run over him, but he wasn’t going to scale my logs, for it didn’t have nothing to do with them. When he cussed he got up, and he was standing here and had his knife in his hand, and he cut me with his knife. When he struck at me and cut me, I backed off a step or two to get my gun out, and it kinda hung in my clothes. When I pulled it out I shot him.”

Pie further testified that “it was just a little old pocket knife;” that Pool cut him once on the breast and twice on the arm; that he was carrying the pistol for protection against Frank Vansel and Charley McCoomis, as he had been told by different parties that they were laying in the woods waiting to kill him; that he fired the shots in self-defense, believing that he was in danger of losing his life; and that “I shot him to keep him from killing me.” Pie denied making any statement to Allen as to what Allen should testify to.

Mrs. Ruth Holden testified: That she is the daughter of A. F. Buxton; is married, not living with her husband, and had not since about May 18th; knew Jess Allen. That she had a conversation with him at the city jail after the killing, and Allen said he had sworn falsely in the preliminary trial against witness’ father, and was sorry, and wanted her to forgive him. The jailer was then standing by the window. That she went driving with Allen. That at another time Allen said the same thing, and, further, that he did not want to go on the witness stand and perjure himself. That if she would go to Texas with him he would not come back. Further, that he had a horse and buggy on which there was a mortgage. That he would turn the buggy back and sell the horse and get money to leave.

State’s Rebuttal.

Cleve Smith testified that, in company with Wes Smith, Ode Hornbeck, and W. M. Langley, he met defendant John Buxton about 1 o’clock on the day of the killing, and asked him if he was going to the picnic, and defendant answered:

“Yes, if he could get a settlement out of those damned fellows over there, and he was going to have a settlement if he had to kill some of the s- of b — —s.”

To the same effect is the testimony of W. M. Langley.

J. E. Lackey testified that he heard defendant John Bux-ton state about the 1st of July that the company was beating him, and “if they do I am going to kill Pool, and I want a crack at Capt. Lear.’'

Two or three other witnesses testified to having heard defendant make ’ indirect threats against deceased.

Mr. Wyrick testified that he was associated with the deceased, Sloan Pool, in running the sawmill at Frogville; that the deceased was keeping scale, and witness was sawyer in the mill; that he had never heard Mr. Pool use an oath; that, on the day of the killing, defendant John Buxton came to the mill in the morning and remained until midday, and he noticed that he was carrying a pistol under his jumper.

The first assignment of error is that “the court erred in overruling the motion for a continuance.” The affidavit for a continuance contained .all the formal allegations required by law, and, among others, the following statement:

“That on the 7th day of November, 1912, he filed a prae-cipe, and caused to issue a subpoena for Mack Ham, of Frog-ville, Choctaw county, Olcla., and had the same placed in the hands of the sheriff of Choctaw county for service. That the sheriff’s return on said subpoena shows that said witness has not been found. That, if the witness Mack Ham were present and sworn, he would testify in substance that on the day of the homicide, for which these defendants stand charged, he, in company with another party was traveling a road some 15 yards distant from the place of the homicide. That their attention was attracted by what to them at that time appeared to be a quarrel between two parties, neither of whom he knew. The two parties were both visible to him, and he saw at that time, two other parties present, making in all four people present where the quarrel was taking place. Fie saw one of the parties get up off a log and walk around in front of the other party, and he heard him state, Tf you say I have cheated you, you are a damned liar.’ There were other words passed which affiant did not understand at that time. One of the parties, who seemed to have a stick in one hand, advanced toward the other party, holding the stick in the left hand, and with his right hand made two or three strikes at the other party as though he was cutting him with a knife, when the party being assaulted drew a pistol and fired either five or six shots. That the said witness, if present, would, testify that the party who did the shooting did not go to the body of the deceased after the shots were fired, and did not draw his gun on any other person. That affiant and the other party who was with him remained where they were standing for five or ten minutes after the shooting, and then went on the road toward Ft. Towson. That they did not go to the body of the deceased or the immediate place of the homicide because they did not want to be witnesses in the case. The defendant is informed: That the said Mack Ham has removed from the county of Choctaw and now resides in the state of Texas. That he did not know of his removal from the county of Choctaw in time to procure his deposition to be used in this cause. That his absence is not caused by his consent or procurement. That the testimony of said witness is material, and the defendant believes the same to be true. That, if this case should be continued for the term, the defendant will be able to procure the attendance of said witness or secure his deposition. That defendant has no other witness by whom he can prove all of the facts that he seeks to show by this witness. Wherefore the defendant prays that this case be continued for the term, in order that he may procure this testimony.”

The record shows that defendant was not put upon trial until more than four months after his arrest. Had the defendant exercised due diligence, he could have learned, within a very short time after November 7th, the date of the issuance of the subpoena, that said witness was a nonresident, and proceedings to procure his deposition should have been taken.

In our opinion the application lacks evidence of good faith, and the affidavit does not. disclose such diligence on the part of the defendant to procure the attendance of this witness as the law under the circumstances of the case required, or such as made it the duty of the court to grant the continuance. Key v. State, 10 Okla. Cr. 207, 135 Pac. 950; Hopkins v. State, 9 Okla. Cr. 104, 130 Pac. 1101; Boswell v. State, 8 Okla. Cr. 152, 126 Pac. 826.

The second assignment is that “the court erred in overruling the motion to quash the jury panel.” In support of the challenge and objection to the panel, the record shows that at the time of the hearing on the said motion to quash, and challenge to the panel, and before the drawing of the jury, it was stipulated and agreed as follows:

“It is agreed by and between counsel for the state and for the defendants: That the jury commissioners, in making the proportionment for the selection of jurors from which the present panel is drawn, selected the jurors from the six municipal townships in Choctaw county, and that the proportion in four of the six townships was made practically correct. That in one township the commissioners selected 55 jurors, when there should only have been, if properly proportioned, 48. That in another township the commissioners selected nine jurors, when there should have been, if properly proportioned, twenty.”

It is our opinion that, before the defendant can avail himself of any irregularity 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.

Our Procedure Criminal provides that:

“A challenge to the panel can be founded only on a material departure from the forms prescribed by law, in respect to the drawing and return of the jury, or on the intentional omission of the sheriff to summon one or more of the jurors drawn, from which the defendant has suffered material prejudice.” (Section 5842, Rev. Laws.)

The motion to quash, or challenge to the panel in this case, does not state any facts from which the defendant has suffered material prejudice. 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 substantial rights of the defendant. The challenge to the panel was properly overruled. Watson v. State, 9 Okla. Cr. 1, 130 Pac. 816; Edwards v. State, 8 Okla. Cr. 341, 127 Pac. 872.

The next assignment is that the court erred in permitting the state, over his objection, to ask the defendant on cross-examination “whether or not he was a fugitive from justice.1' The court ruled that “he need not answer unless he wants to." The defendant answered:

“I don’t know whether to say ‘Yes’ or ‘No.’ I will not answer the question that way, because I don’t know whether I am or not; under the circumstances of that case, I don’t know. If I knew 1 would answer ‘Yes’ or ‘No.’ ”

He was then asked:

“Plave you made bond for your appearance in the circuit court to answer certain charges there?”

And answered:

“My father and Jim Holder made a bond for me to appear there during court."

Pie was then asked:

“Have you ever responded to that bond in the circuit court of Sevier count}'-, Ark.?”

And answered:

“I did. I was there while court was going on, and, after they adjourned court that evening, the sheriff told me to go down to his office, and he would give me a bond to take out home and have filled and put the case off until the next term of court and bring it back to him. He give me a bond for $350, and told me to take it out there and get it filled. I goes home and stayed a couple of weeks, and I can’t get this bond filled. 1 took the bond and goes back to De Queen, and I told the sheriff: ‘Here is the bond you give me to have filled for my appearance at the next term of court. I don’t know those people and I cannot make it. I guess you will have to put me in jail.’ He says: ‘That's all right, if I want you I will let you know. Just report once in a while where you are at.’ And told me to go back home.”

On redirect examination he was asked by his counsel:

“Q. State what the nature of the charge was, if any, they had against you there? A. Why, they had a charge against me for a breach of the peace and resisting an officer and drawing a gun. Q. Did you ever stand trial?"

In general it may be said that a defendant, by availing himself of the statutory privilege of becoming a witness in his own behalf, has voluntarily changed his status from defendant to witness, and thereby waives his constitutional exemption from being a witness against himself (section 21. Bill of Rights), and consequently may be cross-examined within the usual boundaries. Generally speaking, the question as to whether or not a defendant is a fugitive from justice is improper, and not admissible to discredit the witness, and an objection should be sustained. The defendant is only required to meet the specific charge made against him, and is not called upon to defend himself against any other charge. However, in this case, the court in effect sustained the objection, but the defendant voluntarily and without further objection answered the questions, and fully explained his conduct, showing that he had left Arkansas with the permission of the sheriff, and no instruction was asked that such testimony be disregarded by the jury. The evidence in chief by the defendant as to his reasons and purpose in carrying a shotgun and a pistol possibly opened the door wide enough to allow him to be asked the question.

The only assignment remaining which requires notice is that “the cou-rt erred in overruling the defendant's motion for air instructed verdict for the defendant A. F. Buxton.” The record shows that, at the close of the state's evidence in chief, defendant A. F. Buxton requested the court to instruct the jury to return a verdict of not guilty as to A. F. Buxton, and that the court stated that, at the close of the evidence, he would hear defendant on the proposition of so advising the jury. After the • evidence was all in, and before the case was argued, the county attorney moved the court to advise the jury to acquit defendant A. F. Buxton. Thereupon the court so instructed the jury, and stated:

“If the jury concur in the opinion of the court, you may sign this verdict by one of your number as foreman, and, if not, you may indicate it, and I will prepare the general instructions. (The jury indicate that they prefer to wait until they go to their jury room to consider their verdict.)”

Our Procedure Criminal provides:

“If, at any time after the evidence on either side is closed, the court deem it insufficient to warrant a conviction, it may advise the jury to acquit the defendant. But the jury are not bound by the advice, nor can the court, for any cause, prevent the jury from giving a verdict.” (Section 5896, Rev. Laws.)

Defendant John Buxton contends:

“That he was entitled to have the testimony of his code-fendant given under circumstances most favorable to him, at least not unnecessarily unfavorable to him.”

Under the statute, the jury are not required to take the advice given by the court. Whether or not the court erred in this respect depends upon the effect to be given the following statutory provisions:

Section 5046, Rev. Laws 1910, provides:

“No person shall be disqualified as a witness in any civil action or proceeding, by reason of his interest in the event of the same, as a party or otherwise, or by reason of his conviction of a crime; but such interest or conviction may be shown for the purpose of affecting his credibility.”

There are certain statutory exceptions to this provision which have no bearing upon the question involved.

Procedure Criminal (section 5882, Rev. Laws) provides:

“Except as otherwise provided in this and the following chapter, the rules of evidence in civil cases are applicable also in criminal cases.”

Section 5881 (Rev. Laws) provides:

“In the trial of all indictments, informations, complaints and other proceedings against persons charged with the commission of a crime, offense or misdemeanor before any court or committing magistrate in this state, the person charged shall at his own request, but not otherwise, be a competent witness.”

Under section 5046 (Rev. Laws 1910), all persons are competent witnesses, unless shown to be within the statutory exceptions, and the reason for many rules of the common law, based on the incompetency of parties, has ceased to exist.

Under section 5881, supra, in all criminal trials “the person charged with crime shall at his own request, but not otherwise, be a competent witness.”

By these provisions, when a defendant requests to be a witness, and takes the witness stand in his own behalf, he has voluntarily changed his status from defendant to witness, and he becomes a competent witness for all purposes. It does not matter whether his testimony is for or against himself, or for or against his codefendant. The only limitation in the statute is that he cannot be compelled to testify either for himself, his codefendant, or for the state, while he is a party in the case.

The following provisions of our Procedure Criminal prescribe the manner and mode of compelling a codefendant to testify as a witness, conditioned upon his ceasing to be a party in the case:

Section 5879 (Rev. Laws 1910) provides:

“When two or more persons are included in the same indictment or information, the court may, at any time before the defendants have gone into their defense, on the application of the county attorney, direct any defendant to be discharged from the indictment or information, that he may be compelled to be a witness for the state.”

Section 5880 (Rev. Laws 1910) provides:

“When two or more persons are included in the same indictment or information, and the court is of opinion that in regard to a particular defendant there is not sufficient evidence to put him on his defense, it must, before the evidence is closed, in order that he may be compelled to be a witness for his co-defendant, submit its opinion to the jury, who, if they so find, may acquit the particular defendant for the purpose aforesaid.”

The record does not show that defendant John Buxton requested the court to discharge his codefendant, or moved the court to direct a verdict of acquittal on the ground that the evidence for the state was insufficient to put his codefendant on his defense, and in order that he might be compelled to be a witness for his codefendant, John Buxton. The motions to acquit were made by defendant A. F. Buxton, in his own behalf. The record does show that this defendant’s codefendant on his own request became a witness, not only in his own behalf, but in behalf of his codefendant, John Buxton, as well. The court further charged the jury as follows:

“You are instructed that the court is of the opinion that the testimony in this case is insufficient to warrant a verdict of guilty against the defendant A. F. Buxton upon a charge of murder, or. of manslaughter in the first degree, and that you should return a verdict of not guilty as to the defendant A. F. Buxton.”

If it were shown by the record that, when the state closed its evidence in chief, defendant John Buxton announced that he intended to use his codefendant as a witness, the point raised would be properly presented. We think that, in the absence of such a showing, this defendant cannot be heard to complain. It further appears upon the whole record that there could have been no prejudicial error in the court’s ruling, so far as it related to defendant A. F. Buxton’s motion to direct a verdict of acquittal, as defendant John Buxton had the full benefit of the testimony of his codefendant as a voluntary witness in his behalf.

Any one accustomed to weighing evidence cannot read the record without being fully impressed with the conviction that the homicide was the result of deliberate preparation. The jury, with a due regard for their oaths, could not have reached any other conclusion.

Upon a careful consideration of the whole case, we have discovered no error to the prejudice of any of the substantial rights of the defendant. Wherefore the judgment appealed from is, as the law demands, affirmed.

It appears from the record that, while this appeal was pending, the act of March 29, 1913 (Eaws 1913, c. 113), regulating the infliction of the death penalty, became effective. As the day fixed for the execution of the judgment and sentence has passed, the cause is remanded to the district court of Choctaw county for the purpose of appointing another day, under the provisions of Procedure Criminal (sections 5979 and 5980, Rev. Laws 1910), which prescribe the procedure when a judgment of death has not been executed on the day appointed; proceedings to be had in accordance with the rule prescribed by this court in the case of Alberty v. State, 10 Okla. Cr. 616, 140 Pac. 1025.

The warden of the penitentiary will surrender the defendant to the sheriff of Choctaw county, who will hold him in custody pending the proceedings in the trial court, or until his custody is changed by due course of law.

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


text:
    J. A. ESTEP v. STATE.
    No. A-1769.
    Opinion Filed September 30, 1914.
    (143 Pac. 64.)
    1. FORMER JEOPARDY — What Constitutes — Intoxicating Liquors. Plaintiff in error was convicted of tlie offense of unlawfully having possession of intoxicating liquors with the intention of violating provisions of the prohibitory law. He had previously been tried and acquitted by a jury on an information charging that he did keep and maintain a qdace in which liquors were kept for the purpose of selling, etc. The time of the commission of the offense was alleged the same in both informations. Upon arraignment defendant filed a motion to quash the second information on the ground of former acquittal of .the offense charged, which was overruled. Thereafter he entered a plea of not guilty, and a special plea of a former judgment of acquittal of the offense ’charged. The constitutional guaranty, not to be twice put in jeopardy, is as follows: "Nor shall any person, after having been once acquitted by a jury, be again put in jeopardy of life or libertj' for that of which he has been acquitted. Nor shall any person he twice put in jeopardy of life or liberty for the same offense.” Const, art. 2, sec. 21. Held, that to make the offenses the same, the informations need not be identical in language, and that on the pleadings and the record and proofs of identity the offenses charged were the same; it was therefore error to overrule the motion to quash.
    2. SAME. Under our system of jurisprudence, if the state elects through its authorized officers to prosecute an offense in one of its phases, or aspects, and upon his trial the defendant is acquitted by a jury, it cannot afterwards prosecute the same criminal act or transaction under the color of another name.
    3. SAME — Evidence. Under the constitutional guaranty not to be twice put in jeopardy, the decisive test on a plea of former jeopardy is whether the same testimony will support both charges. Otherwise stated, the offenses are the same whenever evidence adequate to one information will equally sustain the other.
    4. SAME — “Same Offense.” As used in Const, art. 2, sec. 21, providing that no person shall be twice put in jeopardy .for the same offense, the term “same offense” does not signify the same offense eo nomine, but the same criminal act, transaction, or omission.
    (Syllabus by the Court.)

      Appeal from County Court, Cleveland County; F. B. Swank, Judge.

    J. A. Estep was convicted of a violation of the prohibitory law, and appeals.
    Reversed.

      B. F. Wolf, for plaintiff in error.

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

Plaintiff in error, Estep, was convicted and pursuant to the verdict was sentenced to be confined in the county jail for six months, and to pay a fine of $500. The information upon which he was convicted was filed October 11, 1911, and was verified by the oath of the county attorney. The charging part is as follows:

“That on January 1, 1910, and continuously thereafter, day after day, and upon the 7th and 8th and 16th clays of November, 1910, and divers other days until the 6th day of October, A. D. 1911, in Cleveland county, state of Oklahoma, said J. A. Estep, late of said county, and within the jurisdiction of this court, did unlawfully and willfully have and keep in his possession spirituous, vinous, malt, and fermented liquors and imitations thereof and substitutes therefor, and beer and whisky with the intention of violating the provisions of the prohibitory law of the state of Oklahoma, contrary to,” etc.

Upon arraignment he filed a motion to quash the information on the ground of former acquittal of the identical charge, which motion was overruled. He then interposed a demurrer to the information, which was overruled. Thereafter he entered a plea of not guilty, and special plea of a former judgment of acquittal of the offense charged. In support of the motion to quash, and to support the special plea of former acquittal, an information, also verified by the county attorney, was introduced in evidence, the charging part of which is as follows :

“That on the 1st day of January, 1910, and continuously day after day, and on the 7th and 8th days of November, 1910, and divers other days until the 6th clay of April, 1911, said John Estep, late of said county, and within the jurisdiction of this court, did unlawfully and willfully keep and maintain -a certain place in Noble, Oklahoma, in which spirituous, vinous, malt, and fermented liquors, and imitations thereof and substitutes therefor were received and kept for the purpose of selling, bartering, giving away, and otherwise furnishing to divers persons to affiant unknown, contrary to,” etc.

Also the record, showing that on October 9, 1911, he was tried on this information in said county court by a jury as John Estep, and that the jury returned the following verdict:

“We, the jury, impaneled and sworn to try the issues in the above numbered and entitled cause, do upon our oaths find the defendant not guilty.”

The motion to quash and special plea of former acquittal averred that J. A. Estep is the identical person as John Es-tep; that by reason of the former information, trial, evidence, and acquittal by a jury, the defendant has been in jeopardy of the identical offense charged, and that this is a prosecution for that of which he has been acquitted. Said motion and special plea were duly verified. The evidence shows that plaintiff in error, at all times mentioned in the pleadings, was the proprietor of a livery stable and a cold-drink stand in the town of Noble. Frank W. Eilson, Santa Ee agent at Noble, produced express .and freight records, showing deliveries to John A. Estep, from January 1, 1910, to July 21, 1911, shipments being Vivitone, Blue Malt, beer and whisky. On cross-examination he stated that he was a witness in the other case and these were the same identical records and books, and that his evidence, so far as he knew, was the same in each case and covered the same space of time. Four other witnesses testified for the state, and all stated that they were witnesses in the former case, and that their evidence in this case was substantially the same as that given by-them in the former case. Several witnesses testified on behalf of the defense, and, to support his special plea, the defendant introduced in evidence the information in the former case, and the verdict of not guilty rendered by the jury therein. The jury returned a verdict finding that the defendant had not theretofore been acquitted of this charge, and further finding the defendant guilty as charged, and assessed the maximum punishment.

The principal question presented by the record and the errors assigned is that of former jeopardy. The constitutional guarantee not to be twice put in jeopardy is found in section 21 of the Bill of Rights and is as follows:

“Nor -shall any person, after having been once acquitted by a jury, be again put in jeopardy of life or liberty for that of which he has been acquitted. Nor shall any person be twice put in jeopardy of life or liberty for the same offense.” (Const, art. 2, sec. 21.)

In general it may be said that the issue on a plea of former jeopardy is one of fact rather than pleading. However, there are exceptions to this general rule, and a former acquittal may always be pleaded'in bar to a second indictment or information for the same offense. In this case, we are of the opinion that the motion to quash, considered in the nature of a plea in abatement, presented a question of law to be determined on the pleadings and the record. To make the offenses the same, the in-formations need not be identical in language. The name of the offense in the two informations may differ, and within our constitutional guaranty the offenses be the same. 1 Bishop’s New Cr. L. par. 1050. The term “same offense/’ as used in the constitutional provision, does not signify the same offense eo nomine, but the same criminal act, transaction, or omission.

It will be observed that the first information charges that the defendant did keep and maintain a place in which liquors were received and kept for the purpose of selling, bartering, giving- away, or otherwise furnishing, as denounced by section 3610, Rev. Raws 1910. The offense defined by this section is a continuing offense, and an information charging a violation of this section may charge such keeping with a continuando. State v. Brozan, 10 Okla. Cr. 52, 133 Pac. 1143.

“A continuing offense is a transaction or a series of acts set on foot by a single impulse, and operated by an unintermit-tent force, no matter how long a time it may occupy.” (Wharton, Cr. PI. ±74.)

The second information purports to charge a violation of that clause of section 3605, Rev. Laws 1910, which provides that it shall be unlawful for any person “to have the possession of any such liquors with the intention of violating any of the provisions of this chapter.” The allegation of time is the same as alleged in the first information, except that the continuando extends over the time between the filing of the two informa- » tions.

The first information was defective, in that it did not allege any particular place in which said liquors were kept. However, our Procedure Criminal provides that when the defendant “was acquitted on the merits, he is deemed acquitted of the same offense, notwithstanding a defect in form or substance in the indictment'or information on which he was acquitted.” Section 5808, Rev. Laws 1910. If the offense defined by the clause of section 3605, already quoted, is a continuing 'offense, then the charge' in the second information should have been included in the first information, as a separate count, under section 5741, Procedure Criminal, providing that:

“Where the same acts may constitute different offenses, or the proof be uncertain as to which of two or more offenses the accused may be guilty of, the different offenses may be set forth in separate counts in the same indictment or information and the accused may be convicted of either offense.” (Rev. Raws 1910, sec. 5741.)

It appears that both informations were verified by the oath of the county attorney; that the names of the witnesses indorsed on both are the same, and the second information reaches back and covers nearly sixteen months of the time covered by the first information. An essential ingredient of both offenses sought to be charged is the unlawful possession of intoxicating liquor. That being one of the material facts in issue on the first trial, and determined in defendant’s favor by the verdict, he should not be again put in jeopardy for that of which he has been acquitted. A series of criminal charges cannot, under our system of jurisprudence, be based upon the same criminal act or transaction; a single criminal act cannot be split up or subdivided into two or more distinct offenses and prosecuted as such. If the state elects, through its authorized officers, to prosecute an offense in one of its phases or aspects, and upon his trial the defendant is acquitted by a jury, it cannot afterwards prosecute the same criminal act or series of acts under color of another name. The state will not be permitted to split or divide up an offense into divers parts, and punish each moiety. See Hirschfield v. State, 11 Tex. App. 207. A jeopardy on one information will bar a second whenever the proof shows the second case to be the same criminal act or transaction.

To give our constitutional provision the force evidently intended by the language used, and to render it effectual, the decisive test is whether the same testimony will support both charges. Otherwise stated, the offenses are the same whenever evidence adequate to the one information will equally sustain the other. The constitutional guaranty of immunity from a second prosecution is, in its nature, a restraint on the courts, and constitutional provisions for the security of the personal rights of the citizen should be liberally construed.

For the reasons stated, we have come to the conclusion that the court erred in overruling the motion to quash the information.

The second information, in so far as it purports to charge a violation of that clause of section 3605 already quoted, is bad for duplicity, and from that viewpoint the court erred in overruling the demurrer thereto.

The defendant requested an instruction based on section 5809, Rev. Laws 1910, which provides:

“When the defendant shall have been convicted or acquitted upon an indictment or information the conviction or acquittal is a bar to another indictment or information for the offense charged in the former, or for an attempt to commit the same, or for an offense necessarily included therein, of which he might have been convicted under that indictment or information.”

No instructions having been given by the court based upon the foregoing section, the refusal of the court to give the instruction requested constitutes reversible error.

When, at the close of the state’s evidence in chief, it appeared that the evidence adduced was the same as that on the first information, in our opinion the court should have directed a verdict of former acquittal. Considering the record as a whole, there can be no doubt that the acquittal of the defendant by the jury on the trial of the first information operates as a bar to his conviction upon the second information. The judgment is therefore reversed and the cause remanded, with directions to dismiss.

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


author: DOYLE, J-

text:
    RICH ALEXANDER v. STATE.
    No. A-2169.
    Opinion Filed October 3, 1914.
    (143 Pac. 205.)
    1. APPEAL — Time for Perfecting. In misdemeanor cases the appeal must be taken within 60 days after the judgment is rendered, provided, however, that the trial court or judge may for good cause shown extend the time in which an appeal may be taken, not exceeding 60 days. In such cases the appeal is taken by filing in this court a petition in error with case-made attached, or transcript of the record, together with proof of service of notices of appeal as required by statute, and when this is not done within the time prescribed by Procedure Criminal (section 5991, Eev. Laws 1910), this court does not acquire jurisdiction of the appeal, and such an appeal will be dismissed.
    2. SAME — Time for Perfecting. The statute limiting the time within which appeals can bo taken to this court is mandatory. The law makes no provision for delays occasioned by miscarriage by mail, and a plaintiff in error at his peril takes the chances of delay by sending the record through the mail.
    (Syllabus by the Court.)

      Appeal from County Court, Haskell County; William L. Crittenden, Judge.

    Rich Alexander was convicted of the unlawful sale of intoxicating liquor, and appeals.
    Appeal dismissed.

      A. L. Beckett, for plaintiff in error.

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

Plaintiff in error was convicted on an information which charged the unlawful sale of intoxicating liquor, and, in accordance with the verdict, was sentenced to be confined in the county jail for 90 days, and to pay a fine of $150. The judgment-was rendered on the 12th day of November, 1913. The Attorney General has moved to dismiss the appeal on the ground that the petition in error with case-made was not filed in this court within the time allowed by law in which to perfect said -appeal, in that the trial court or judge did not extend the statutory time of 60 days within which to perfect said appeal, as shown by the case-made.

Plaintiff in error has filed an answer to the motion of the state to dismiss, wherein it is averred that on the 8th day of January, 1914, plaintiff in error deposited in the United States post office at Stigler, properly addressed to the clerk of the Supreme Court of Oklahoma, and with postage thereon prepaid, the petition in error with case-made; 'that the time ordinarily taken for the transmission of mail matter from Stigler to Oklahoma City is less than one full day; that plaintiff.in error had every right to believe, and did believe, that said petition in error and case-made would be delivered to the clerk of the Supreme Court in the city of Oklahoma within, the time allowed by law to perfect said appeal.

In support of the averments are filed the affidavits of A. L. Beckett, counsel for plaintiff in error, and J. T. Kelley, postmaster at Stigler.

An appeal in a criminal case is taken by filing in this court a petition in error with case-made or transcript of the record attached, together with proof of service of the notices of appeal, as required by statute, section 5992, Rev. Laws 1910. When this is not done within the time allowed by the statute (section 5991, Rev. Laws 1910), this court does not acquire jurisdiction of the appeal. Bandy v. State, 5 Okla. Cr. 397, 114 Pac. 341; Green v. State, 7 Okla. Cr. 5, 120 Pac. 1037.

Our Code of Criminal Procedure provides (section 5991, Rev. Laws 1910) that:

“In misdemeanor cases the appeal must be taken within sixty days after the judgment is rendered: Provided, however, that the trial court or judge'may, for good cause shown, extend the time in which such an appeal may be taken, not exceeding sixty days."

In the case of Gorman v. State, 9 Okla. Cr. 351, 131 Pac. 939, it was held:

“The statute limiting the time within which appeals can be taken to this court is mandatory; and, where counsel delay perfecting an appeal until the last moment, they do so at their peril, and if the time for taking an appeal has expired before the appeal is perfected, this court is without power to do otherwise than dismiss the appeal.”

In the case of Cannady v. State, 6 Okla. Cr. 634, 117 Pac. 653, it is said:

“Counsel for appellant attempt to excuse their failure to perfect said appeal within the time prescribed by law by showing that this delay was caused through some miscarriage of the post office department of the United States. The law makes no provision for such delays as this. Counsel at their peril take the chances of sending matter through the mail at the last day. It is their duty to take such steps as will insure the filing of their appeals in this court within the time prescribed by law.”

When in a misdemeanor case the appeal is not perfected within 60 days from the rendition of the judgment, the record must show a proper order made by the trial court or judge thereof, before the expiration of the first 60 days, extending the statutory time in which the appeal may be taken; otherwise the appeal will be dismissed, because this court is without jurisdiction to review the record on appeal.

In the case at bar the petition in error and case-made was not filed in this court until the sixty-third day after the judgment was rendered. Plaintiff in error shows that the failure to perfect his appeal within the time prescribed by the statute was due to some miscarriage of the mails. The law makes no provision for delays of this kind. Plaintiff in error at his peril takes the chances of delay by sending the record through the mails. It follows that the motion to dismiss the appeal should be ■sustained. It is therefore ordered that the purported appeal be, and the same is hereby, dismissed, and the cause remanded to the trial court, with direction to proceed with the execution of its judgment.

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