author: TUBMAN, Presiding Judge.

text:
    Wm. H. Rhea v. Territory.
    No. 306.
    Opinion Filed November 27, 1909.
    (105 Pac. 314.)
    1. CONTINUANCE — Discretion of Court — Review—Application— Sufficiency — Allegation as to Absent Testimony — Threats, (.a) An application for a continuance is addressed to the discretion of the trial court, and, unless an abuse of this discretion is shown from the record, a conviction will not be reversed because a continuance was not granted.
    (b) An application for ,a continuance must be complete within and of itself. It cannot be aided by inference or presumption. The presumption will be entertained that the application states the facts relied upon in the strongest possible light in favor of the defendant.
    (c) An application for a continuance must not only state the facts expected to be proven by the absent witness; but must go further and state enough of the facts of the case to enable the trial court to understand the materiality of the absent testimony.
    (d) It is not enough, in an application for a continuance in a murder case, to allege that the defendant expects tx> be able to prove by the absent witnesses that the deceased threatened to kill the defendant; but the application should go further, and allege that the defendant will be able to prove that at the time of the homicide the deceased, by some act then done, caused the defendant to believe that the deceased was then about to carry such threats into execution.
    2. HOMICIDE — Indictment and Information — "Murder” and “Manslaughter” — Inclusion of 'Lower Degrees of Offense, (a) While, in one sense, “murder” and “manslaughter” are separate crimes, yet, in a broader sense, they involve but one crime and are only different degrees of felonious homicide.
    (b) The rule of criminal pleading is universal that an indictment for the highest degree of a crime includes all of the lower degrees of the same crime.
    (c) Upon an indictment for murder,’ a defendant may be» convicted for manslaughter.
    3. INSTRUCTIONS — Failure to Call Wife as Witness — Review— Discretion of Lower Court — Additional Instructions, (a) in a case of murder, where it appears from the record that the wife of the defendant, is a material witness in the ease, it is not improper for the court to instruct tLj jury that by the laws of this state a wife is not a competent witness against her husband in such case, but that the defendant has the right to call her as a witness if he so desires.
    (b) It would be improper for the court to suggest to the jury what inferences might arise from the failure of a defendant to place his wife upon the witness stand in his behalf. Tiheste inferences would depend upon the particular facts in each case and would be proper subjects for argument by counsel.
    (c) If, before a jury has retired and begun the consideration of their verdict, the court thinks that it is necessary for their information to give them additional instructions, it has the power upon its own motion to give such instructions, and, in the absence of a showing of an abuse of this discretion, a reversal will not result therefrom. For circumstances not amounting- to an abuse of this discretion, see opinion.
    4. HOMICIDE — Self-Defense—Threats, (a) It is not error for the court to refuse to give an instruction upon the law of threats in a murder case which omits to state that, before the right of self-defense would arise upon threats, it must appear from the evidence that the deceased was then doing some act indicating a purpose to carry such threats into execution.
    5. TRIAL — Harmless Error — Admission of Evidence — Same Facts Testified to by Accused, (a) While it is true that, -as a general proposition, a defendant is entitled to a trial upon legal evidence alone, yet it is equally true that the admission of incompetent evidence which would not have prejudiced the defendant is not ground for reversal and constitutes harmless error.
    (to) Although evidence may be improperly admitted -against the defendant, on account of which a conviction would be reversed, yet. if the defendant takes the witness stand and testifies to the same thing, the error in receiving the other evidence will become harmless, and then will not toe ground for reversal.
    (Syllabus by the Court.)

      Appeal from District Court, Canadian County; C. F. Inuin, Judge.

    William H. Bhea was convicted of manslaughter, and he appeals.
    Affirmed.
    At the March term, 1907, of the district court of Canadian county, the grand jury returned an indictment against Wm. B. Bhea, hereinafter called “defendant,” charging him with the murder of Arthur Newall. Said cause was tried at the July term, 1907, of said court, and the defendant was found guilty of manslaughter. A motion for new trial was presented and overruled, and the punishment of the defendant was fixed by the court at 30 years' imprisonment in the penitentiary, and sentence was pronounced accordingly. The- case is regularly before us on appeal.

      J. M. Frame and B. B. Forrest, for appellant.

      Charles West, Atty. Gen., and E. G. Spilmam, Asst. Atty. Gen., for the Territory.
   TUBMAN, Presiding Judge.

The first assignment of error complains of the action of the trial court in overruling defendant's application for a continuance. Section 4504, Wilson's Rev. & Ann. St. Okla. 1903, is as follows:

“A motion for a continuance, on account of the absence of evidence, can be made only upon affidavit, showing the materiality of the evidence expected to be obtained, and that due diligence has been used to obtain it, and where the evidence may be; and if it is for an absent witness, the affidavit must show where the .witness resides, if his residence is known to the party, and the probability of procuring his testimony within a reasonable time, 'and what facts he believes the witness will prove, and that he believes them to be true. If thereupon, the adverse party will consent that on the trial the facts alleged in the affidavit shall be r.ead and treated as the deposition of the absent witness, or that •the facts in relation to other evidence shall be taken as proved to the extent alleged in the affidavit, no continuance shall be granted on the ground of the absence of such evidence.”

This statute governs applications for continuances in criminal as well as in civil cases. From this statute it is seen that an application for a continuance is not sufficient unless it shows upon its face that the evidence sought to be obtained is material. An application for a continuance is addressed to the discretion of the trial court, and, unless an abuse of this discretion is shown, a conviction will not be reversed because .a continuance was not granted. This can only be made to appear from the record. It therefore necessarily follows that an application for a continuance must be complete within and of itself. It cannot be aided by inference or presumption. It devolves upon a defendant seeking a continuance to show himself entitled to it by definite, exact, and certain averments. The court will presume that the pleader has stated in tlie application the grounds relied upon in the strongest possible manner in favor of the defendant seeking the continuance. The statute in mandatory terms requires the application to show “the materality of the evidence expected to be obtained.” This necessarily includes two propositions: First, the application should set forth the facts expected to be established by the absent witness; second, it must also show that such facts are material to the issues to be submitted to the jury upon the trial. Where the facts stated in an application may or may not be material, the facts in connection therewith which would make them material must also be stated. In other words, an application for a continuance, whiel1 does not set forth the facts or circumstances of the case sufficiently to enable the court to see that the testimony sought to be obtained is material, is fatally defective. This is the only logical construction which can be placed upon our statute upon the subject of continuances.

The application for a continuance in this case is based upon the absence of three witnesses, by whom the defendant stated that he expected to prove that the deceased had threatened to kill him (the defendant); but the application did not state a single fact or circumstance connected with the case which would render testimony of threats admissible. Is it the law that, if A. threatens to kill B., for this cause alone B. may arm himself and hunt A. up and shoot him down? If so, then fear and cowardice constitute a justification for murder. This is not, and never has been, the law. Even if there were authorities to this effect, we would not tolerate the doctrine that under the influence of mere fear one with legal sanction may become an assassin.

In Walter Reed v. State, 2 Okla. Cr. 589, 103 Pac. 1053, Judge Doyle, speaking for this court, said:

“If A. threaten the life of B., this fact will not of itself justify B. in killing A. There must be some overt act on the part of the person making the threat, from which it appears that there is real or apparent danger of the execution of the threat. Mr. Wharton, in his work on Criminal Evidence (paragraph V5Y), says: ‘Can evidence to the effect that the deceased, prior to a homicide, threatened the defendant’s life, be received? And, if so, is it a prerequsite to the proof of such threats that they should be shown to have been communicated to the defendant? Certainly, if such evidence is offered to prove that the defendant has a right to kill the deceased, there being no proof of a hostile demonstration by deceased, then it is irrelevant. If A. threatens B/s life, and this threat is known to B., B/s duty is to have A. arrested by due process of law, not to shoot him; the right of self-defense being conditioned on an apparent attack. On the other hand,, if the question is as to which party in the encounter is the assailant, then it is admissible to prove by the prior declarations of either that the attack was one he intended to make. Threats to this effect by the defendant are always, as has been seen, admissible; and it is properly held that there is equal reason, supposing a collision between the deceased and the defendant to be first proved, for the admission of threats by the deceased/ And Kerr on Homicide, p. 423, says: ‘Where it is clearly and unequivocally shown that the defendant was the aggressor, and there is no pretense that the decea'sed was about to carry the threats into execution, or that the defendant had reasonable grounds to believe and did believe that such was the case, evidence of such threats by the deceased, although they were communicated to the defendant, is inadmissible/ ”

The Court of Criminal Appeals of Texas properly announce the doctrine that mere threats alone amount to nothing, in the absence of proof that, at the time the deceased was killed, by some act then done the deceased manifested an intention to carry such threats into execution, and that an application for a continuance which only purported to prove threats should be refused. Garter v. State, 8 Tex. App. 372-375; Logan v. State, 17 Tex. App. 50-58; Allen v. State, Id. 637-644; Miles v. State, 18 Tex. App. 156-171; Brooks v. State, 24 Tex. App. 274-284, 5 S. W. 853; Ellis v. State, 30 Tex. App. 601-604, 18 S. W. 139; Ex parte Taylor, 33 Tex. App. 531-536, 28 S. W. 957.

We approve the principle announced in these cases. The application for a continuance in this case is fatally defective in failing to state facts and circumstances connected with the case, which would have rendered threats admissible and therefore material. The trial court did not err in refusing to grant the continuance.

Second. In their brief counsel for the defendant say:

“Plaintiff in error also contends: That it was error for the court to give instruction No. 2 (Record, p. 16). This contention is based upon the grounds: (1) That the indictment upon which the defendant was tried, which was good as a statutory indictment for murder, did not include the elements necessary to constitute the crime of manslaughter in the first degree; (2) that said indictment consisted of a single count which was sufficient in form under the statute as an indictment for murder. That under the statutes of Oklahoma but one offense can be set out or contained in one count, and that while it is permissible to charge the same act in different ways to meet the possibilities of the proof, or where the same act may constitute different offenses, the same may be set out in different counts in the indictment, but never is it allowable for one count to contain an allegation of more than one offense.”

Sections 2162 and 2163, Wilson’s Rev. & Ann. St. 1903, are as follows:

“Homicide is the killing of one human being by another.
“Homicide is either: First, murder. Second, manslaughter. Third, excusable homicide. Or, fourth, justifiable homicide.”

From this it is seen that onr statute divides felonious homicide into two degrees, namely, murder and manslaughter. While in one sense they are separate and distinct crimes, yet in a broader sense they both involve but one offense, and that is a felonious homicide; in other words, they are simply different degrees of one and the same crime. There is therefore no necessity for including in an indictment for murder a separate count charging manslaughter, for the rule of criminal pleading is universal that an indictment for the highest degree of a crime includes all of the lower degrees of the same crime. If a defendant is acquitted on an indictment for murder, who will contend that he can afterwards be indicted and convicted for manslaughter for the same homicide? This alone demonstrates that manslaughter is included in an indictment for murder. Every proper indictment for murder informs the defendant that he is charged with the felonious killing of a human being. This certainly gives him full.notice of the nature and cause of the accusation against him. He cannot be heard to complain if he is found guilty of a lower degree of the very crime with which he is accused than that stated in the indictment.

We could fill volumes with quotations from authorities sustaining these views. Mr. Wharton, in his great work on Homicide (section 653, on page 1043), says:

“On an indictment for murder the jury may find a verdict of manslaughter or of murder in the second degree; so also, on an indictment for murder in the second degree, there can be a conviction for manslaughter. Different defendants may be convicted of ■different degrees, and a verdict in a prosecution for murder of guilty as charged of manslaughter is sufficiently certain to warrant ■a judgment and does not find the accused guilty of two offenses. This rule applies to a verdict in a prosecution for murder of invol■untary manslaughter, consisting of a killing in the commission of an unlawful act not amounting to a felony, or of a lawful act done in an unlawful manner or without due caution or circumspection. And a person charged with murder may be convicted of negligent homicide. And -a conviction of involuntary manslaughter, consisting of the killing of a white person, though it does not apply where the involuntary manslaughter has special statutory ingredients which must be alleged, and which are not included in a general charge contained in the indictment, or where such manslaughter is regarded as a misdemeanor only. And á verdict for manslaughter may be returned in a prosecution for murder under a statute declaring an attempt to produce an abortion, which causes death, to be murder, as well as in the case of an indictment for any other 'kinds of murder. * * *”

This question has been passed upon by the Supreme Court of Oklahoma Territory in the case of Jones v. Territory, 4 Okla. 47, 43 Pac. 1073. Judge Burford, in rendering the opinion of the court, said:

“The appellant, Tom Jones, was prosecuted in the district court of Payne county for the crime of murder, tried by jury, convicted of manslaughter in the first degree, and sentenced to 50 years in the territorial penitentiary at Lansing, Kan. He brings the cause to this court upon certified copies of the indictment and journal entries embracing the trial, verdict of the jury, judgment, and sentence of -the court. No other parts of the record or proceedings of-the trial are before this court. The assignment of error contains 13 alleged errors, the first of which is as follows: ‘The verdict of the jury finds the defendant guilty of two offenses, both of murder and manslaughter in the first degree.’ The verdict as set out in the journal entry is as follows: ‘Territory of Oklahoma v. Tom Jones. Verdict of Jury. We, the jury, in the above entitled cause, do upon our oaths .find the defendant guilty in manner and form as charged in the indictment of manslaughter in the first degree. N. S. Davis, Foreman.’ There is no merit in the contention that this verdict finds the defendant guilty of two crimes.. The indictment charged murder in the usual form and embraces within its terms the charge of manslaughter. in the first degree. It was proper on a trial of the charge of murder for the jury to find the defendant guilty of any charge necessarily embraced within that contained in the indictment, and the jury in their verdict makes certain that which they intended to do by finding the defendant guilty of manslaughter in the first degree in manner and form as charged in the indictment.”

The court therefore did not err in giving the instruction permitting the jury to find the defendant guilty of manslaughter.

Third. Counsel in their brief say:

“Plaintiff in error next complains that the court erred in giving the' following instructions: ‘The jury are instructed that by the laws of the territory a wife is not a competent witness against her husband in a criminal case, and that the territory has no power to compel her to testify, nor will she be allowed voluntarily to do so; but she can be used in behalf of the defendant when called by him, the defendant having that right if he desires to use the same.’ ”

The record shows that the above instrnetion was given by the court after the prosecution had closed its opening argument, ana while defendant’s counsel was making his closing speech to- the jury. It was contended, and the appellant now contends, that the giving of the instruction was inopportune and constitutes prejudicial error.

In support of this contention, counsel cite State v. Hatcher, 29 Cr. 313, 318, 44 Pac. 586, 587, from the Supreme Court of Oregon. The Supreme Court said:

“The record discloses that the defendant’s counsel, in their argument to the jury, maintained that the deceased was killed while attempting to commit a forcible felony on. the defendant’s wife. The district attorney, replying thereto, said in substance:"There were but three persons present at the tragedy — tlie defendant, his wife, and the deceased. That the voice of the deceased was hushed in death. That the state could not call Mrs. Hatcher as a witness, and it was in the power of the defendant to have produced her. That she could have told all about the affair. That, if present, her testimony would have been adverse to the defendant, otherwise he would have secured her attendance; but failing to do so is proof that her testimony would have been against the defendant/ The defendant’s counsel objected to this language, for the reason that the absence of the defendant’s wife was no evidence of his guilt; but, the objection having been overruled, an exception was allowed.”

In passing upon this question, the Supreme Court said:

“First, the record fails to disclose that the defendant’s wife was, at the time of the trial, within the reach of the process of the court; and, second, it is also silent as to whether she had consented to become a witness for her husband, for without such consent upon her part she could not be compelled to testify. Hill’s Ann. Laws Or. 1892, § 1366. In criminal actions the accused shall, at his own request, but not otherwise, be deemed a competent witness, provided his waiver of said right shall not create any presumption against him; but when he offers himself as a witness he becomes subject to the ordinary rules of cross-examination. Id. § 1365; State v. Abrams, 11 Or. 169, 8 Pac. 327, supra. If no presumption of the defendant’s guilt can be invoked by reason of his failure to testify in his own behalf, how can such a presumption be created in his failure to produce his wife' as a witness, when she cannot be compelled to testify without her consent.”

Hpon this ground this decision was correct, because under the statute of Oregon the right of the husband to use his wife as a witness depended upon her consent. We have no such statute. Therefore upon this ground the case cited has no application. Section 5495, Wilson’s Rev. & Ann. St. 1903, is as follows:

“Except as otherwise provided in chapters 68 and 69, of the statutes of Oklahoma, the rules of evidence in civil cases are applicable also in criminal eases; provided, however, that neither husband nor wife shall in any ease be a witness against the other except in a criminal prosecution for a crime committed one against the other, but they may in all eases be witnesses for each other, and shall be subject to cross-examination as other witnesses, and shall in no event on a criminal trial be permitted to disclose com-munieations made by one to the other except on a trial of an offense committed by one against the other.”

From this it is seen that no restriction or limitations are placed upon the right of the husband to place his wife upon the stand to testify in his behalf. She has no more right or power to refuse to testify when so placed upon the stand than any other witness would have.

The other ground upon which the decision in Hatcher’s Case is based is not supported by reason. The attempted analogy between the- failure of the husband to call his wife as a witness in his behalf, and his failure to take the stand as a witness for himself, fails because in the latter instance there is a mandatory, arbitrary statute forbidding that any reference shall be made to such failure or that any inference of guilt shall be drawn therefrom. There is no such provision in the statute making the wife a competent witness for her husband. We decline to be bound by a precedent which is based upon an attempted judicial amendment of a statute. For these reasons we do not recognize the ease of Hatcher v. State as an authority in point.

The statute of Texas is similar to ours. Under that statute the Texas Court of Appeals, in Mercer v. State, 17 Tex. App. 476, said:

“We do not think the remarks of the prosecuting attorney, in his closing argument to the jury, which are complained of by the ■defendant, were beyond the scope of the legitimate argument. It was disclosed by the evidence that the defendant’s wife must have known important facts bearing directly upon the issue in the case, and that she was within easy reach of the process of the court. She could have explained fully the occurrence testified about by his two daughters when he got. his gun and said he would blow his brains out. She could have testified, perhaps, to many other facts which would have shed light upon this horrible transaction. It was not within the power of the prosecution to adduce her testimony, because, being the defendant’s wife, she was not permitted under the law to testify against him in this case. He alone could ■call for her testimony, and compel its production. Her knowledge of the facts, whatever that knowledge might be, was at his command — was within his reach; and without he produced it, or eon-sented to its production, it was a sealed book, which, no human tribunal has the power to open against him. Under these circumstances, we think the prosecuting attorney was justified in the remarks complained of, and that the court did not err in'its action in relation thereto.”

Counsel in their brief say:

“It is true that where a party suppresses testimony, induces the witnesses to leave the jurisdiction of the court, to swear falsely, or suppress some fact in his knowledge, or commits other acts of bad faith in connection with his cause, the same may be considered as a circumstance in the ease; but never can the reliance of the defendant upon a legal right be impugned as bad faith or be distorted into evidence against him.”

The instruction given simply informed the jury that the defendant had the legal right to call his wife as a witness in his behalf, if he so desired. We cannot see how this could have injured the defendant. Telling a jury what the rights of a defendant are cannot deprive him of them; but counsel contend that it pointed out a defect in the defendant’s case. They say.

“Coming from the bench, a solemn declaration of law which they must consider in their deliberations, it was particularly harmful to the defendant, and, while it came in the form of an instruction of the court, the purpose that it really served was that of an argument to the jury- pointing out a defect in defendant’s case.”

In a number of states the husband is denied the right to place his wife on the witness stand in his behalf in a criminal case. This was the law in that .part of the state which was known as Indian Territory, prior to statehood. This often caused juries to sympathize with a defendant upon trial, because he was deprived of the testimony of his wife. It was therefore only fair to the territory that the jury should have been informed that if the wife of the defendant was not placed upon the witness stand, or if no effort to have this done had been made, it was not the fault of the territory, but was because the defendant did not desire it to be done. If inferences might be drawn, unfavorable to the defendant, from this failure to place his wife upon the witness stand or his failure to make any attempt to secure her testimony, they would be justi-fled by law. This is the principle upon which the case of Mercer v. State, 17 Tex. App. 452, hereinbefore quoted, was affirmed. In fact, the principle is of universal application.

In Wigmore on Evidence, vol. 1, § 285, we find the following:

“The nonproduction of evidence that would naturally have been produced by an honest and therefore fearless claimant permits the inference that its tenor is unfavorable to the parties claim. Ever since the case of the chimney sweeper’s jewel, this has been a recognized principle (1722, Armory v. Delamirie, 1 Strange, 505) : fA chimney sweeper’s boy, finding a jewel, took it to the defendant, a jeweler, for appraisal; but the defendant would not restore it. In an action of trover, in proving the value, The Chief Justice (Pratt) directed the jury that, unless the defendant did produce the jewel and show it not to be of the finest water, they should presume the strongest against him,' and make the value of the best jewels the measure of their damages, which they accordingly did.’ ”

Mr. Wigmore then cites an unanswerable array of authorities to support the principle announced

It would have been improper, under our practice,. for the court to have suggested to the jury what inferences they might draw from the failure of the defendant to place his wife upon the witness stand or to attempt to do so. The duty of the court ended in stating the law. Argument upon the law and the facts is always for counsel.

The instruction complained of was given before the argument on behalf of the defendant was concluded. Of course, it is better for all of the instructions to be given before the argument is begun. Section 5518, Wilson’s Rev. & Ann. St. 1903, is as follow^:

“In charging the jury, the court must state to them all matters of law which it thinks necessary for their information in giving their verdict, and if it .state the testimony of the case, it must in addition inform the jury that they are the exclusive judges of all questions of fact. Either party may present to the court any-written charges, and request that it be given. If the court thinks it correct and pertinent, it must be given, if not, it must be refused. Upon each charge presented and given or refused the court must indorse or sign its decision. If part of any written charge be given and part refused the court must distinguish, showing by the indorsement or answer what part of each charge was given and what part refused.”

If, before the jury have retired and begun the consideration of their verdict, the court thinks that it is necessary for their information to give them additional instructions, it has the power to do so, and, in the absence of a clear showing of abuse of this power, a reversal will not result therefor. Under some conditions it might be proper to give counsel for the defendant an opportunity to be heard as to the application of such instructions to the evidence in the case when given after they had concluded their argument. The instruction complained of stated the law correctly, and we fail to find any abuse of discretion upon the part of the trial court in submitting it to the jury.

Fourth. . Counsel in their brief say:

“Appellant also contends that it was error for the court to refuse the defendant’s request to instruct the jury as prayed for in the sixth instruction requested by the defendant and refused by the court, which was excepted' to; same being as follows: ‘In determining the question 'of- whether the defendant believed that he was in imminent danger of losing his life or receiving great bodily harm, you will take into consideration the threats, if any, made by deceased against the defendant, the feeling existing between the deceased and the defendant, the enmity of the deceased toward the defendant, if any, and all facts and. circumstances surrounding the immediate transaction as well as all which preceded it.’ It is a well-settled rule of law that, when the question is as to whether the defendant believes himself to be in danger, communicated threats is a proper matter for the due consideration of the jury in determining that question. It is so apparent that the refusal of this instruction was error that we will not make further comment.”

This instruction does not state the law correctly. It is not true that the defendant had the right to kill the' deceased because the deceased may have threatened the defendant, qr on account of ' any feeling which may have existed between the deceased and the defendant. If this was the law, then malice would be an element of self-defense, and a premium would be placed upon assassination. No matter what threats may have been made by the deceased against the defendant, no matter what the state of feeling between the deceased and the defendant may have been, the defendant did not have the legal right to kill the deceased, unless at the time of the homicide, by some act then done, the deceased manifested a purpose of then carrying such threats into execution. This all-important condition is ignored and left out of the requested instruction, but was clearly stated in the- general instruction given by the court to the jury. The trial court did not err in refusing the special instructions requested. The principle therein announced is repugnant to reason, and, so far as we have been able to find, is not supported by a single authority.

Fifth. Counsel for the defendant complain of the action of the court in refusing to strike out the testimony of Charles L; Engle, to the effect that, soon after the defendant left El Keno, the Christian church took up the matter of the support of the wife and children of the defendant and assisted them in this respect, and to the further effect that the witness had never heard the character of the wife of the defendant called into question until the deceased was killed by the defendant. ■ The' objection urged to this testimony is that stated by counsel to “the tendency of the evidence, and the purpose for which it was offered was to show that the defendant was worthless and profligate and had failed to support his family; that Mrs. Ehea was a worthy woman of good character, that had been slandered by the defendant.” It is true.as a general rule, a defendant is entitled to be tried on legal evidence alone; but from this it does not necessarily result that a reversal should follow the reception of incompetent testimony in every case.

The Court of Criminal Appeals of Texas has time and again decided that the admission of incompetent evidence, which could not have prejudiced the defendant, is not cause for reversal. Avery v. State, 10 Tex. App. 199-212; Post v. State, 10 Tex. App. 579-595; Logan v. State, 17 Tex. App. 50-57; Bond v. State, 20 Tex. App. 421; Hooper v. State, 29 Tex. App. 614-616, 16 S. W. 655; Sargent v. State, 35 Tex. App. 325-337, 33 S. W. 364; Shaw v. State, 39 Tex. App. 162, 45 S. W. 597; Roberts v. State, (Sup.) 16 S. W. 255; Lettz v. State, 21 S. W. 371. In the ease of Stephens v. State, 26 S. W. 728, it is held that, although evidence may be improperly admitted against a defendant, if he takes the stand and testifies to the same thing, the error is harmless.

In'this ease the defendant, while on the stand, testified that for many months before this homicide he had spent but little of his time with his family and had contributed very little to their support, and that during this time his wife had taken in washing to support herself and children. He also testified to his confidence in his wife until he became suspicious as to her relations with the deceased. Ilis own evidence was to the same effect and was-much more damaging against himself than was the testimony of the witness Engle. Therefore, even if Engle’s evidence was improperly admitted, the error was harmless.

■ ' Counsel for the defendant make no objection as to the sufficiency of the testimony. It is therefore not necessary for us to discuss the evidence further than-to say that the guilt of the defendant was the only rational conclusion at which an intelligent and honest jury could arrive. In fact, we see no rational escape from the verdict rendered.

The defendant in this case having been sentenced by the trial court to confinement in the penitentiary at Lansing, Kan., said judgment is amended and reformed, and said sentence will be changed to imprisonment in the penitentiary of Oklahoma at Mc-Alester, and, as so amended, the judgment of the lower court is affirmed.

DOYLE and OWEN, Judges, concur.


source: Caselaw Access Project

author: PEE CUEIAM.

license: Public Domain

text:
    Joseph Inskeep v. State.
    No. 113.
    Opinion Filed November 27, 1909.
    (105 Pac. 1118.)

      Appeal from Greek County Court; John Gm-uthers, Judge.

    Application of Joseph Inskeep for writ of habeas corpus.

    Writ denied, and petitioner brings error to the Supreme Court. Case transferred to Criminal Court of Appeals. Case stricken from the docket.

      Charles West, Atty. Gen., and Charles L. Moore, Asst. Atty. Gen., for respondent.
   PEE CUEIAM.

Appellant, Joseph Inskeep, filed his petition in the district court of Creek county for a writ of habeas corpus. The writ was denied, and petitioner appealed from the judgment of said district court- to the Supreme Court, by filing with the clerk of said court a petition in error and case-made, on March 20, 1908. On the organization of the Criminal Court of Appeals, said cause was erroneously transferred to this court. The Attorney General has filed the following motion in said cause:

“Comes, now, on this November- 2, 1909, and moves the court to strike this cause .from the docket for the reasons following, that is to say: (1) That this is-a civil action, being in the nature of a petition for writ of habeas corpus, filed in the district court of Creek county, state of Oklahoma, and over which this court has no appellate jurisdiction. (2) That no appeal- was perfected by the service of notices. of appeal on the county attorney of Creek county, and on the clerk of the district court of said Creek county.”

From our examination of the files in the cause, we must conclude that this court has never acquired jurisdiction of the cause, as it does not appear from the record that notices to the county attorney of Creek county, and to the clerk of the district court o£ Creek county, that defendant appeals from the judgment rendered, have been served as required by section 5610, Wilson’s Rev. & Ann. St. 1903. It is apparent from the record that said cause was bjr order of the Supreme Court inadvertently transferred to this court.

The motion of the Attorney General is therefore allowed, and said cause is ordered to be stricken from the docket of this court.


author: PER CURIAM.

text:
    Friday Davis et al. v. State.
    No. A-385.
    Opinion Filed December 1, 1909.
    (105 Pac. 1118.)

      Error from Seminole County Court; T. S. Cobb, Judge.

    Friday Davis and Israel Davis were convicted of resisting an executive officer, and they bring error.
    Dismissed.

      Crump, Rogers & Iiwrris, for plaintiffs in error.
   PER CURIAM.

The plaintiffs in error were tried and convicted for the offense of resisting-an executive officer in the performance of his duty, and judgment rendered that they be confined in the county jail of Seminole county for 30 days and each paj- a fine of $50, from which judgment they appealed to this court by filing with the clerk on October 23, 1909, their petition in error and case-made. On November 29th there was filed with the clerk of this court, on behalf of said plaintiffs in error, by their attorneys of record, a dismissal of said appeal. It is therefore ordered that said appeal be, and the same is, hereby dismissed, and the cause remanded to the county court of Seminole county.


author: OWEN, Judge

text:
    Clark Greenwood v. State.
    No. 284.
    Opinion Filed December 7, 1909.
    (105 Pac. 371.)
    1. ABORTION — “Use” of Instrument — What Constitutes. An indictment, alleging. “That on the— -day of May, in the year of our Dord, one thousand nine hundred and six, at and within said county, and within the jurisdiction of said court, Clark Greenwood, then and there 'being, did then and there unlawfully, willfully, and feloniously advise and procure Ethel Carpenter, a pregnant woman, to use certain instruments, with the unlawful and felonious intent of him, the said Clark Greenwood, to procure the miscarriage of the said Ethel Carp'enter, the same not being necessarj' to preserve the life of the said Ethel Carpenter,” held sufficient to charge an offense under section 2370, Snyder’s Comp. Laws, 1909 (section 2268, Wilson’s Rev. & Ann. St. 1903), prohibiting the “use” of instruments.
    2. PARTIES TO OFFENSES — “Principals”—Who Are. All persons concerned in the commission of a crime, whether they directly commit the act constituting the offense, or aid and abet in its commission, though not present, are “principals.” Section 2045, Snyder’s Comp..Laws, 1909 (section 1948, Wilson’s Rev. & Ann. St. 1903).
    3. INDICTMENT AND INFORMATION — Statement of Facts. An indictment should recite the material facts an circumstances constituting the offense, rather than charge that defendant has committed a certain specified crime.
    (Syllabus by the Court.)

      Error from District Court, Comanche County; J. T. Johnson, Judge.

    Clark Greenwood was convicted of procuring an abortion, and he brings error.
    Affirmed.
    At the January term of the district court of Comanche county the plaintiff in error was indicted, charged with the crime of procuring an abortion. The charging part of the indictment, as appears in the ease-made, is as follows:
    “That on the-day of May, in the year of our Lord, one thousand nine hundred and six, at and within said county, and within the jurisdiction of said court, Clark Greenwood, then and there being, did then and there unlawfully, willfully, and felon- • iously advise and procure Ethel Carpenter, a pregnant woman, to use certain instruments with the unlawful and felonious intent of him, the said Clark Greenwood, to procure the miscarriage of the said Ethel Carpenter; the same not being necessary to preserve the life of the said Ethel Carpenter.” The case was tried to a jury, defendant convicted and sentenced to imprisonment for a term of two years. A motion for new trial was filed and overruled, and exceptions saved. The case is before us on case-made.

      Al J. Jennings, for plaintiff in error.

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

(after stating the facts as above). Counsel for defendant, in the brief filed in this case, urge two assignments of error for reversing the case. The reasons urged are: “First. There is no public offense charged in said indictment, for the following reasons, viz.: The advising or procuring a. pregnant woman to use instruments is not contemplated by the act itself, and because the pleader failed to set out the name of the instrument employed, and also failed to tell upon what portion of complainant’s body the instrument or instruments were used, and m what manner. Second, there was no corroboration of Ethel Carpenter, an accomplice.”

. The statute under which this prosecution was had (section 2370, Snyder’s Comp. Laws, 1909; section 2268, Wilson’s Rev. & Ann. St. 1903), is as follows: •

“Every person who administers to any pregnant woman, or who prescribes for any such woman, or advises or procures jmy such woman to take any medicine, drug or substance, or uses or employs an instrument, or other means whatever, with intent thereby to procure the miscarriage or such woman, unless the same is necessary to preserve her life, is punishable by imprisonment in the state prison not exceeding three years, or in a county jail not exceeding one year. ’

Does the indictment charge the defendant with a violation of this statute? This section prescribes a punishment for every person who “uses” any instrument with intent to procure the miscarriage. The indictment alleges that the defendant “did then and there unlawfully, wilfully, and feloniously ‘advise’ and ‘procure’ Ethel Carpenter, a pregnant woman, to. use certain instruments, with the unlawful and felonious intent of him, the said Clark Greenwood, to procure the miscarriage of the said Ethel Carpenter.”

To be guilty under this statute one must “use” the instrument. Does the “procuring” and “advising” the use of instruments constitute a “use” in violation of this section? Section 2045, Snyder’s Comp. Laws, 1909 (Wilson’s Rev. & Ann. St. 1903, § 1948), is as follows:

“All persons concerned in the commission of crime, whether it be felony or misdemeanor, and whether they directly commit the act constituting the offense, or aid and abet in its commission, though not present, are principals.”

Under this statute all of the persons concerned in the use of the instruments, with the intent to procure the miscarriage, would be guilty of using the instruments, and could be prosecuted as principals. It is not necessary that the indictment should use the exact language of the statute. On the contrary, it is better pleading to describe more particularly the acts of the defendant which constitute the crime. It is a general rule that it is not sufficient to charge in the indictment that the defendant has committed a certain specified crime, but that it must be stated how he committed the crime, by reciting the material facts and circumstances constituting the offense. This rule is announced by Joyce on Indict! ments, § 241, citing a number of authorities.

This court, in the case of Weston v. Territory, 1 Okla. Cr. 407, 98 Pac. 360, said:

“In an indictment for committing an offense against a statute the offense may be described in the general language of the act, but the description must be accompanied by a statement of all the particulars essential to constitute the offense or crime, and to acquaint the accused with what he must meet on the trial.”

And, in the case of Vickers v. United States, 1 Okla. Cr. 452, 98 Pac. 467, this court said:

“In framing an indictment the general rule is ‘that the offense shall be so described that the defendant may know how to answer it, the court what judgment to pronounce, and that a conviction oi acquittal on it may be pleaded in bar of another indictment for the same offense.’ ”

The Supreme Court of California announced the same rule in the ease of People v. Aro, 6 Cal. 208, 65 Am. Dec. 503. The defendant there was charged with murder, and the court said:

“Murder is a conclusion drawn by the law from certain facts, and in order to determine whether it has been committed^ it is necessary that the facts should be stated with convenient certainty ‘For this purpose the charge must contain a certain description of the crime of which the defendant is accused, and a statement of the facts1" by which it is constituted, so as to identify the accusation, lest the grand jury should find a bill for one offense, and the defendant be put on his trial in’ chief for another.’ This is necessary, so that the prisoner may know of what crime he is accused, and have time to prepare his defense on the facts. It is. also necessary that the jury mav be warranted in their finding, the court in its judgment, and the prisoner be protected against any subsequent prosecution for the same offense. 1 Chitty, Criminal Law, 170; Willis v. People, 1 Scam. (Ill.) 401.”

The same court, in the case of People v. Hood, 6 Cal. 236, said:

“ An indictment should set forth the facts and circumstances of the alleged offense so that the accused may be prepared for his defense.”

The crime alleged to have been committed hv the defendant in the case at bar was the use of the instruments with the- intent to procure a miscarriage. The defendant advised and procured their use, and thereby became a principal in the crime; and, under the rule announced in the authorities just quoted, it was proper for the indictment to set out the facts and circumstances constituting the offense. The facts constituting the offense, so far as this defendant was concerned, were the advising and procuring, and, under the allegations here, the defendant was given notice that he was charged with having advised and procured, the use of the instruments with the intent to procure a miscarriage. If the .indictment had alleged in the exact language of the statute that the defendant did use the instruments, certainly the state would have been permitted, under section 2045, Snyder’s Comp. Laws 1909, above quoted, to prove that the use consisted of his advising and procuring. There can be no fault in the indictment in alleging, in specific terms, the particular acts of the defendant complained of constituting the offense. It is to the advantage of the defendant. By this allegation he is informed that he violated that section, not by using the instruments himself, but by advising and procuring their use.

As to the failure of the indictment to allege the name of the instrument employed, and upon what portions of the body the instruments were used, we think the objections not well taken. Counsel, for authority upon the proposition, cites the case of Cochran v. People, 175 Ill. 28, 51 N. E. 845. The indictment in that case was returned under a statute very different from ours. The statute in Illinois makes the person procuring or causing an abortion or miscarriage guilty of murder if death ensues, and. the indictment in that ease alleges that the miscarriage was performed, and by reason of such miscarriage the woman on whom the operation was performed then and there died. The indictment in the case at bar is under a different statute. Under the statute here the use of the instrument with the intent to procure the miscarriage completes the offense, whether the miscarriage is produced or not.

There is another reason why the Illinois case is not binding on this court. Section 6705, Süyder’s Comp. Laws, 1909 ’(section 5366, Wilson’s Rev. & Ann. St. 1903), is as follows:

“No indictment is insufficient, nor can the trial, judgment, or other proceedings thereon be affected, by reason of a defect or imperfection in the matter of form which does not tend to the •prejudice of the substantial rights of the defendant upon' the merits.”

The defendant in this case is charged with advising and procuring the use of the instruments; and, unless that allegation tends to the prejudice of the substantial rights of the defeudani upon the merits, we are prohibited by this statute from holding the indictment insufficient. In our opinion the language of the indictment does not tend to the prejudice of the substantial rights of the defendant. The proof in the case is to the effect that Ethel Carpenter was a pregnant woman; that the defendant was the cause of her condition; that the defendant procured Dr. Brewer, in the town of Lawton, to use certain instruments on Ethel Carpenter to procure a miscarriage, and that Ethel Carpenter consented to the use of the instruments; that the operation was performed by Dr. Brewer; and "that the defendant provided her with $50'with which to pay the doctor for his services. These facts make the defendant guilty of “using” the instruments under the provisions of section 2045, Snyder’s Comp. Laws 1909, above quoted, and the allegation of the indictment that he did “advise and procure” could not in any way mislead the defendant, or in any way prejudice his substantial rights. The proof further discloses he was not present when the instruments were used. If they were in fact used, as the result of his advising and procuring, the character of the instruments is immaterial, and since he was not present, to allege a description of them, 'oir the portion of her body on which they were used, would avail him nothing. IIe was not cálled upon to defend against using any particular instrument, or in any particular place —he was called upon to defend against the advising and procuring. The objects in requiring particularity in setting out the facts constituting the offense are: First, in order to identify the charge, lest the grand jury find a bill for one offense, and' the defendant be put upon his trial in chief for another; second, that the defendant’s conviction or acquittal may inure to his subsequent protection, should he again be questioned on the samé facts; third, to enable the accused to determine on the line of his defense, and prepare for it both as to the law and the facts; fourth, to put .it in the power of the court to look through the record and decide whether the facts charged are sufficient to support a conviction for a particular crime', and also to regulate the appropriate punishment for the particular offense. This rule is announced by Joyce on indictments, § 242, and was' observed in the case t>f Wingard v. State, 13 Ga. 396. We" think the indictment sufficient, and there, was no error in the action of the trial court in so holding.

The second error complained of is there was no corroboration of Ethel Carpenter. Counsel fox the defendant insists that Ethel Carpenter was an accomplice with the defendant, and that the prosecuting witness, Mrs. Nate Eose, a sister of Ethel Carpenter, and who was present when the operation was performed, is also an accomplice, and, under the rule that a conviction cannot be had on the uncorroborated testimony of an accomplice, the verdict in this ease should be set aside. We are not unmindful of the rule that the defendant in a felony case canuor be convicted on the uncorroborated testimony of an accomphoe. In this case it is not necessary to determine whether Ethel Carpenter is an accomplice, i.t is clear from the evidence as it appeal s in the case-made that Mrs. Kate Eose was not an accomplice, and her testimony was amply sufficient to corroborate Ethel Carpenter, or, taken alone, would amply warrant the jury in finding the defendant guilty. If she had advised, aided and abetted in the operation she would have' been an accomplice. Erom the mere fact that she was present when the operation was performed, • unless she .consented, ¿nd was there for the purpose of aiding in the operation, and encouraged the same, she would not he an accomplice. Her testimony is to the effect that the defendant arranged with Dr. Brewer to come to her residence and perform the operation, and that, when she learned of that, she telephoned Dr. Brewer that he could not perform the operation a-t her residence, and that she advised her sister against the operation, warning her of the dangers attached, and urged the defendant to marry her sister, and that, on her sister’s earnest request, she aecomponied her to the doctor’s office, but never at any time consented to' it. In our opinion she is not to be adjudged an accomplice solely because, through her sisterly affection, she went with her sister to the doctor’s office, when the proof is she did not give her consent to it, but did all in ber power to prevent the operation. Tbe trial court instructed the jury that a conviction could not be had on tbe testimony of an accomplice, uncorroborated by .other evidence, and the instruction clearly defines the term “accomplice,” and told the jury, if they had a reasonable doubt as to whether Mrs. Eose was an accomplice, they would resolve the doubt in favor of the defendant and acquit him. Thére were no exceptions taken to the instruction of the court. This question was properly submitted to the jury.

The judgment of the lower court is,affirmed.

FUBMAN, PRESIDING Judge, and DOYLE, Judge, concur.


author: OWEN, Judge PER CURIAM.

text:
    J. J. CHANDLER v. STATE.
    No. A-113.
    Opinion Filed December 7, 1909.
    (105 Pac. 375.)
    j. APPEAL — Case-Made. A case-made must be signed and settled by the judge who tried the case.
    2¡ INDICTMENT AND INFORMATION — -Sufficiency—Surplusage. The information alleges that defendant committed the “crime of attempting to procure an abortion.” The charging portion of the information alleges facts sufficient to charge defendant with the crime of abortion. Held, the words “attempting to procure an abortion” surplusage.
    3. 'INDICTMENT AND INFORMATION — Amendments. Under section 664)5, -Comp. Laws Okla. 1909 (section 5307, Wilson’s Reiv. & Ann. St. 19-03), an information may be amended by leave of court after the trial has begun, where the same can be done without material prej udice to the defendant, and where the record fails to disclose anything from which prejudice can be inferred, and counsel fail to point out any injury done the defendant by such change, this court will assume there was no error in permitting the change.
    5. INSTRUCTIONS — “Reasonable Doubt.” For an approved defii-nition of “reasonable doubt,” see definition as set out in the opinion.
    5. APPEAL — Harmless Error — Fixing Punishment by Jury. An instruction to the jury to fix the punishment on conviction, when not requested by the defendant, is improper; but the verdict will not be set aside for that reason alone, when it appears that the punishment fixed was not excessive, and no showing is made that the defendant has been in any manner injured.
    (Syllabus by the -Court.)

      .Error from District Coitrt, Seminole County; Malcolm E. Rosser, Judge.

      J. J. Chandler was convicted of crime, and brings error.
    Motion to dismiss denied, and judgment affirmed.
    On the 20th day of January, 1908, complaint was filed before H. M. Tate, justice of the peace, charging the defendant with an attempt to procure an abortion upon Barbara Brown. Upon hearing, the defendant was held for appearance before the district court of Seminole county. The county attorney of- said county, on the 4th day of January, 1908, filed an information against the defendant, and on the 28th day of November, 1908, after the trial had begun, amended the information by interlineation. The defendant was tried and convicted, and the case is before this court on appeal. The Attorney General files motion to dismiss -the appeal.

      Danis '& Davis, for plaintiff in error.

      Chas. West, Atty. Gen., and E. Q. Spilman, Asst. Atty. Gen., for the State.
    — On sufficiency of informations for abortion: Mills y. Commonwealth, 13 Pa. St. 633; Minnesota v. Jay Owens, 22 Minn. 238; Rex v. Cadmon, 1 M. C. C. 114; State v. Morrow, 40 S. Car. 22; Reg. v. Wilson, 7 Cox C. C. 190; State v. Murphy, 27 N. J. L. 112. ,
   OWEN, Judge

(after stating the facts as above). It appears that this case was tried before Malcolm E. Rosser, at a special term of the district court of Seminole county, and that the case-made was settled and signed by A. T. West. The .Attorney General urges that the ease-made is not properly before this court, for the reason that the ease-made must be signed and settled by the judge who tried the case. Section 6074, Comp. Laws Okla. 1909 (section 4741, Wilson’s Rev. & Ann. St. 1903), provides, among other things, as follows:

“The case and amendments shall be submitted to the judge who shall settle and sign the same, and cause it to be attested by-the clerk, and the seal of the court to be thereto attached. It shall then be filed .with the papers in the case.”

Section 6075, Comp. Laws Okla. 1909 (section 4742, Wilson’s Rev. & Ann. St. 1903), among other things, provides as follows:

“The court or judge may, upon good cause shown, extend the time for making a case and the time in which the case may be served; and may also direct notice to be given of the time when a ease may be presented for settlement after the same has been made and served, and amendments suggested, which when so made and presented shall be settled, certified and signed by the judgé who tried the cause; * * * and in all causes heretofore or hereafter tried, when the term of office of the trial judge shall have expired or may hereafter expire before the time fixed for making or settling and signing a case, it shall be his duty to certify, sign or settle the case in all respects as if his 'term had not expired,” etc.

This question was presented to the Supreme Court of the territory of Oklahoma, in the case of City of Enid v. Wigger, 15 Okla. 507, 85 Pac. 697. The court in that case said:

“It must be conceded that the settling and signing of a case-made (by the judge trying the cause) is the exercise of a judicial power, and a judicial function, and one which the law has conferred upon the judge trying the cause and upon no one else. Another judge, while acting as judge of the district, may extend the time within which it is to be done; but the judge who tried the ease must pass upon a motion for a new trial, and must settle and sign the case when prepared for the Supreme Court.”

We agree with the holding of the court in that case. There is. every reason why the ease-made should be settled by the judge who tried the case. He alone knows what proceedings were had. In this case Judge Rosser was acting judge for that district. Tim case-made should have been signed and settled by Judge Rosser, who tried the case. Judge West could not possibly have known what took place except from hearsay. It would not be fair to one trial judge to permit another judge to sign and settle the case-made, The purpose of signing and settling a case-made is to present an authentic record to this court. It is true that in this case the attorneys, as is usual in such matters, stipulated and agreed that the case-made contained a true, full, and correct copy of. all the proceedings in the cause. The statute requires the case-made to be authenticated by the court. The case of Hodgden v. Commissioners, 10 Kan. 637, seems to be directly in point.. In that ease the ease-made was never signed or settled by the judge; but in lieu thereof this stipulation appears at the close: “This case and exceptions is agreed to be correct. S. Atwood, Attorney for Defendants. Tlierodore Sternberg, Attorney for Plaintiffs.” The court, in passing on the question, said:

“This paper is not authenticated as required by the statute to constitute it a case-made. The signature of the judge is as essential to a case as to a bill of exceptions. Without such statutory authentication we cannot examine into it. The agreements of counsel cannot make a case, or a bill of exceptions. That can be done only in the manner provided by the Code. As was said by the court in Leonard v. Warriner, 20 Wis. 42: ‘We cannot permit the stipulation of the attorneys to take the place of or do- away with the necessity of such signing by the judge. If this practice were allowed, attorneys might send up to this court for decision questions never raised in the court below, and even cases to which the attention of the circuit court was never called.’ See, also, People v. Ferguson, 34 Cal. 310; Cohen v. Trowbridge, 6 Kan. 388.”

The motion to dismiss must be sustained so far as it relates to the case-made.

We find that the transcript is properly before the court, and the record proper, under the transcript, will be considered. The record proper, under our statutes, includes the information, the plea of the defendant, the verdict of the jury, the sentence of the court, the instructions given by the court, and those requested by the defendant, together with all indorsements made thereon. Reed v. United States, 2 Okla. Cr. 652, 103 Pac. 371.

The first assignment is that the court erred in entertaining jurisdiction of the cause ; the same being a misdemeanor and not a felony. The first count of the information in this ease, and the one relied on by the county attorney is as follows:

“Comes now Aubrey M. Fowler, the duly elected and acting-county lattorney within and for the county of Seminole, and state of Oklahoma, and informs the district court of the Seventh judicial district of the state of Oklahoma, sitting within and for the said county of Seminole, in said state of Oklahoma, that on the 30th-day of -January, A. D. 1908, the said above-named defendant, J. J. Chandler, was upon complaint duly made and verified, charging the said defendant with procuring an abortion, •brought before II. M. Tate, a justice of the peace within and for said Seminole county, state of Oklahoma, an examining magistrate, duly qualified and acting, and said defendant, J. J. Chandler, being then and there duly informed of the nature and contents of the charge against him, entered his plea of not guilty, and upon examination duly had it was found and adjudged by-said Ií. M. Tate, justice of thq peace aforesaid, that there was reasonable ground to believe that said offense of procuring an abortion had been committed, and that the defendant, J. J. Chandler, was guilty thereof and should be held to answer said charge of procuring an abortion, in the district court within and for said eorxnty of Seminole and state of Oklahoma, and said county attorney, in the name and by authority of the state of Oklahoma, informs said district court: That on the 20th day of December, 1907, said defendant, J. J. Chandler, did in said county and state commit the crime of attempting to procure an abortion. That said crime was committed by the said defendant in the manner following : . That is to say, that the said above-named defendant, J. <T. Chandler, did in the said county of Seminole, said state of Oklahoma, on or about -the 20th day of December, A. D. 1907, then and there unlawfully, feloniously administer to one Barbara Brown, the said Barbara Brown being then and there a pregnant woman, a certain drug,.medicine, and substance, with the intent then and there thereby to procure the miscarriage of the said Barbara Brown; the same not being then and there necessary toi preserve the life of the said Barbara Brown, contrary to the form of the statute in such cases made and provided and against the peace and dignity of the state of .Oklahoma.”

It is urged by counsel for the defendant that because-of the language appearing in the information, “said defendant, J. J. Chandler, did in said county and state commit the crime of attempting to procure an abortion,” this offense is one of attempting to commit a crime, and therefore, under the statutes of Oklahoma, the punishment should be one-half the term prescribed for the offense if committed, and that, under that statute, the punishment would make tins offense a misdemeanor, and the district court would not have jurisdiction. The statue under which this prose-éution was had is section 2370, Comp. Laws Okla. 1909 (Wilson’s Rev. & Ann. St. 1903. § 22G81, which is as follows:

“Every person who administers to any pregnant woman, or who prescribes for any such woman, or advises or procures any such woman to take any medicine, drug or substance, or uses or employs any instrument, or other means whatever, with intent thereby to procure the miscarriage of such woman, unless the same is necessary to preserve her life, is punishable *by imprisonment in the state prison not exceeding three years, or in a county jail not exceeding one year.”

The offense is complete under this section when the medicine is- administered with the intent to procure the miscarriage. It is not necessary that the miscarriage be procured. -The charging part of the information is as follows:

“That said crime was committed by the said defendant, in the manner following: That is to say, that the said above-named defendant, J. J. Chandler, did in the said county of Seminole, said state of Oklahoma, on or about the 20th day of December, A. D. 1907, then and there unlawfully, feloniously administer to one Barbara Brown," the said Barbara Brown being then and there a pregnant woman, a certain drug, medicine, and substance, with the intent then and there thereby to procure the miscarriage of 'the said 'Barbara Brown, the- same not being then and there necessary to preserve the life of the said Barbara Brown, contrary to the form of the statute in such cases made and provided and against the peace and dignity of the state of Oklahoma.”

The defendant could not possibly have been misled by .the information. That part- of the information stating that the defendant committed the crime of attempting to commit an abortion is surplusage. The purpose of the information is to give the defendant knowledge of the act with which he is charged, and which the state alleges was criminal, and against which he must defend. The court did not err in overruling the plea to the jurisdiction. The case was not a misdemeanor, but a felony, and the district court had jurisdiction.

The second assignment of error is that the information failed to charge any offense. Counsel, in support of this assignment, quote section 2812, Comp. Laws Okla. 1909 (section 2669, Wilson’s Rev. & Ann. St. 1903), which is as follows:

“Every person who attempts to commit any crime, and in such attempt 'does any act toward the commission of such crime, but fails, or is prevented or intercepted in the perpetration thereof, is punishable,” etc.

And quotes the preceding section, which is:

“No person can be convicted of an attempt to commit a crime when it appears that the crime inténded or attempted was perpetrated by such person in pursuance of such attempt.”

And they urge that no conviction for the crime of abortion could be had under this information even if the evidence actually proved the commission of the offense. With this contention wc cannot agree. As has been said, the crime was complete when the medicine was administered, and it is net necessary for the information, to allege there was no miscarriage.

The third assignment of error is that the court erred in permitting the county attorney to amend the information after the trial had begun, over the defendant’s objection, and in permitting the county attorney to verify the information after the trial had ■'begun. Section 6645, Comp. Laws Okla. 1909 (section 5307, Wilson’s Rev. & Ann. St. 1903), is as follows:

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

There is nothing in’ the record winch would indicate that it was with material prejudice to the rights of the defendant. Counsel do not undertake in the brief to indicate how the defendant was prejudiced by the interlineation, and if they are not able to point out any substantial right denied the defendant, or any prejudice done him, certainly this court would not be expected to assume that the court erred in permitting the county attorney to make the amendment.

The fifth and fifth-A assignments of error are that the court erred in giving the following instruction:

“If you find from the testimony beyond a reasonable doubt that the defendant, J. J. Chandler, within what is now Seminole county and state of Oklahoma, at any time since the 16th day of November, 190, prescribed l'or Barbara Brown, or procured her to take any medicine, drug, or substance, with intent to procure her miscarriage, she being pregnant at the time, unless it was necessary to preserve* her life, then it will be your duty to convict defendant.”

It is urged under these two assignments that this conviction was without authority of law for two reasons: First, it is urged that the information charges that the defendant did “administer,” and this instruction uses the words “prescribed” or “procured”; second, that the court fixed the date after which the defendant might have been convicted as November 16, 190. In the printed instruction filed in this case, it is true, that the figures appear as “November 16, 190”; but there was no controversy on the trial of the case as to the date of the offense. The information alleges the 20th day of December, 1907, and it is clear to this court that the date fixed by the lower court was that of statehood, November 16, 1907, and this assignment appears to us too technical to receive serious consideration. It is nonsense to say that the trial court would instruct a jury that they might convict the defendant of an offense as early as the year 190. As to the first reason urged, the objection is not well taken. The first instruction given the jury was as follows:

“The defendant in this case, J. J. Chandler, is charged by information with the crime of attempting to procure an abortion. It is alleged in the information that he committed the offense in Seminole county in the state of Oklahoma on or about the 20th day of December, 1907, by unlawfully and feloniously administering to one Brown, she being then and there pregnant, a certain .drug, medicine, or substance with intent then and there to procure the miscarriage of the said Barbara Brown. It also alleges that the miscarriage was not necessary in order to preserve her life. To this charge the defendant has entered his plea of not guilty, and the question of his guilt or innocence is the one you are impaneled and sworn to try,”

This was a clear, full, and complete statement of the offense with which the defendant was charged, and the jury could not pos-si-bly have been misled 'or misinformed as to the issue. It is admitted in the brief filed by counsel that the testimony on part of Barbara Brown is to the effect that the defendant, who is a physician, at one time handed her a bottle of medicine with directions to take the same three times a day. Under this proof the jury was authorized to convict the defendant on the charge made in the information. Her testimony is to the effect that he gave her the medicine. The information charges that he did “administer.” The primary definition of “administer” is to give. The word is not a word having a strict legal or technical import. It is a word in general use, with a common and accepted meaning; and, where a person is charged with administering medicine, it is the same as charging him with giving medicine. State v. Jones, 1 Pennewill (Del.) 109, 53 Atl. 858-861; People v. Quinn (N. Y.) 50 Barb. 128-134; 1 Words & Phrases, p. 195.

Assignment 5B is that the .court erred in defining “reasonable doubt.” The instruction of the court was as follows:

“By a ‘reasonable doubt5 is meant a real substantial doubt existing in the minds of the jury after a fair consideration of all the testimony in the ease. It is such a doubt as would cause a reasonable and prudent man to pause and hesitate' before acting in matters of grave importance to himself. The law does not require the prosecution to prove the guilt of the defendant to an absolute certainty, but does require it be proven to a moral certainty. If, after considering all the testimony, you are morally sure of the guilt of the defendant, .then you have no reasonable doubt, and it is your duty to convict him; otherwise you will acquit him.”

We think this deefinition a good one. Counsel in the brief fail to point out their objection, except to say:

“This is. a clear charge upon the weight of the evidence and is not a correct definition of reasonable doubt, if competent to define the term. It worked manifest injury to the defendant.55

Counsel leave us to infer the injury worked, without pointing it out; neither do they advise us in what particular this, instruct tion misstated the law.

The seventh assignment of error, and subdivisions thereof, are: First, “the court erred in not instructing the jury to consider, in weighing and determining the testimony of Barbara Brown, the fact that she had voluntarily solicited medicine and took the same for the purpose of miscarriage.” This was not error. It was immaterial whether Barbara Brown solicited the medicine, or whether the defendant voluntarily gave it to her. The offense was complete when he gave it to her with intent to procure the miscarriage. Whatever inducements he may have received would not be a defense. The second subdivision under this assignment is (hat “the verdict is contrary to the law and the evidence.” The case-made containing the evidence not being before the court, this assignment cannot be considered as to the weight of the evidence. The verdict was not contrary to law. Under the third subdivision of this assignment, counsel urge that the court erred in instructing the jury as follows:

“If you find the defendant guilty, it will be your duty to assess the punishment at imprisonment in the penitentiary for a term of not less than one nor more than three years, or by iríi-prisonment in the county jail for a period not exceeding one year.”

Counsel insist that, because the record fails to show that the defendant requested that the jury fix the punishment, this instruction was manifest error. Section 2028, Comp. Laws Okla. 1909, is as follows:

“In all cases of a verdict of conviction for any offense against any of the laws of the state of Okahoma, the jury may, and shall upon the request of the defendant assess and declare the punishment in their verdict and the court shall render a judgment according to such verdict, except as hereinafter provided.”

We agree with counsel that under this section the court should not have directed the jury to fix the punishment unless the defendant requested it. But did the action of the court in so directing the jury prejudice the rights of the defendant? If it did, this case should be reversed for that reason; if not, the case should not be reversed. Under this section the jury has the right to fix the punishment, whether the court so directs or not. They must fix the punishment if the defendant requests it. If the court had not so instructed the jury, they could have, and might have, fixed the punishment. Under the statute, and under the instructions of the court, they could have fixed the punishment at three years’ imprisonment. The verdict was for two years. There is nothing in the record to indicate to this court that, if the jury had not fixed the punishment, the court would have given a lighter sentence, and since the jury could have fixed the punishment without the instruction, and there being no showing and no contention made here that the punishment is excessive, we do not believe the defendant was prejudiced by the instruction.

Denied March 22, 1910.

The judgment of the lower court is affirmed.

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

ON PetitioN For ReiieaRINg.

PER CURIAM.

The decision of the court in this case was filed on December 7, 1909. On December 14, 1909, plaintiff in error by hi? counsel filed a petition for rehearing.

After careful consideration of the petition, and oral argument and brief of counsel for plaintiff in error, we are of the opinion that there is no merit in the petition, and that the decision heretofore rendered in this case should not be vacated or modified. The petition for rehearing raises no questions that, were not submitted and passed on in the original opinion, and there is no • contention made that the decision is in conflict with an express statute or controlling decision . ■

The petition for rehearing is therefore denied.


author: .OWEN, Judge

text:
    William Baker et al. v. State.
    No. 115.
    Opinion Filed December 1, 1909.
    (105 Pac. 379.)
    1. COURTS — Admission of Territory — Jurisdiction of Old Offenses. The defendants were indicted in the district court of Pittsburg county, after the admission of the state into the Union, charged with the crime of assault with deadly weapons prior to statehood. By proper order the case was transferred to the county court for trial. Held, the county court had jurisdiction to try the case, and, on conviction, to render judgment against the defendants.
    2 INDICTMENT AND INFORMATION — Form — Indictment Returned After Statehood. The indictment should conclude "against the peace and dignity of the state,” where the indictment is returned since statehood, alleging a crime committed prior to statehood.
    3. TRIAL — Harmless Error — Verdict Fixing Punishment. Where the jury, without authority of law, fixes the punishment, and the court, in passing sentence, assesses the punishment fixed by the jury, the verdict will not be set aside unless it is made to appear that the punishment is excessive, or that the court would have fixed a lighter punishment than that fixed by the jury:
    (Syllabus by the Court.)

      Error from District Court, Pittsburg Countyj B. W. Higgins, ■Judge.

    William Baker and another were convicted of simple assault, and they bring error.
    Affirmed.
    Plaintiffs in error, hereafter referred to as “defendants,” were indicted in the district court of Pittsburg county, at the January term, 1908, charged with having committed an assault on H. B. Stile with deadly weapons on the 5th day of July, 1907. The case was transferred to the county court of Pittsburg county. Defendants filed a motion to quash the indictment, which was overruled, and then a demurrer to the indictment, which was overruled, and exceptions saved. The ease was tried to a jury. The defendants were convicted of the crime of simple assault, and the jury assessed a fine of $15 against each defendant. The ease is before this court on case-made.

      Wallace Wilkinson, for plaintiffs in error.

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

(after, stating the facts as aboye). The petition in error and the brief filed by counsel for defendants present three questions only: First, the'question of the jurisdiction of the court to try the case; second, the validity -of the indictment; and, third, that' the jury assessed the punishment, and not the court.

The indictment -in this case alleges that -the offense was committed on the’ 5th day of July, 1907, which was prior to statehood. The indictment was returned at the January term, 1908, after statehood, and concludes “against the peace and dignity of the state.” Counsel urge that the trial court was without jurisdiction for the reason -that all penal laws in force in the Indian Territory were repealed upon the admission of the state into the Union, except those that were saved by appropriate legislation, and that the clause saves the old law in certain cases only; that is, the cases pending in the United States courts in the Indian Territory at the time of the admission of the state into the Union. This question has been presented to this court and was presented to the Supreme Court of the state before this court was created: In the cases of Ex parte Buchanan, 1 Okla. Cr. 135, 94 Pac. 943, Ex parte Curlee, 1 Okla. Cr. 145, 95 Pac. 414, Ex parte Bailey, 20 Okla. 497, 94 Pac. 553, and Ex parte Brown, 20 Okla. 505, 95 Pac. 556, the Supreme Court held contrary to the contention of the counsel on this proposition. In the ease of Faggard v. State, ante, p. 159, 104 Pac. 930, this court held that the district courts of this state had jurisdiction of offenses committed prior to statehood, where the indictment was found after statehood. We deem it unnecessary here to do more than cite these cases with approval, and the authorities cited therein.

As to the second proposition, counsel insist that because the offense was not committed witliin the state of Oklahoma, nor within Pittsburg count3r, that this indictment should have alleged that this offense was committed within the South McAlester division of the Central district of the Indian Territory, and should have concluded “against the then existing laws of the United States.” This court, in the case of Faggard v. State, supra, in passing on this question, said:

'Tt is next urged that the court was without jurisdiction for the reason that the indictment was in the name of the state of Oklahoma, and concluded with the words 'against the peace and dignity of the state/ The Constitution of the state (article 7, § 19; see. 192, Bunn’s Ed.) is as follows: 'The style of all rvrits and processes shall be “The State of Oklahoma.” All prosecutions shall be carried on in the name and by the authority of the state of Oklahoma. All indictments, informations, and complaints shall conclude, "against the peace and dignity of the state.” ’ Under this section the form of the indictment is proper. The indictment contains an allegation that the acts complained of were contrary to the form of the statute in such cases made aiid provided. This means against the statute in force at the time the offense was committed. The defendant was certainty not deprived of any substantial protection by reason of the form of the pleading, and the district court of Pittsburg county had jurisdiction of the case, and •we deem it unnecessary to do more than cite the authorities in which the same question has been disposed of. Ex parte Lyda Howland, ante, p. 142, 104 Pac. 927; Ex parte Curlee, 20 Okla. 192, 95 Pac. 414, and authorities cited'”

The conclusions-and reasons given in that case are here approved.

Under the third proposition, counsel urge that it has been uniformly held by the courts of the new state that the old Arr kansas laws prohibiting crimes should be applied in a prosecution of cases where the offense was committed prior to statehood, but the procedure of Oklahoma should be followed, citing section 5573, Wilson’s Bev. & Ann. St. 1903, which provides that the court must assess the punishment. The case-made before us does not contain the instructions of the court or those requested by defendants. The first indication that the defendant objected to the jury fixing the punishment is in the motion for new trial. This court held, in the eases of Sharp v. State, ante, p. 24, 104 Pac. 71, and Faggard v. State, supra, that a defendant charged with the commission of a crime is entitled to be tried and dealt with under the laws as they existed at the time of the alleged commission ot the offense of which he stands charged; and, the offense in this case having been committed prior to statehood, the trial' should have been under the procedure in force at the time of the commission of the offense. Of course, the defendants could waive that right, and by their silence consent to be tried under the Oklahoma procedure. The instructions not appearing in the case-made, we are unable to determine whether the court instructed the jury to fix the punishment, or whether the jury did it without instruction. Section 2283, Mansf. Dig. St. Ark. (section 1626, Ind. T. Ann. St. 1899), is as follows:

“A general verdict is either 'guilty5 or 'not guilty5 ; if guilty, the jury affixing the punishment, if the amount thereof is not determined by law.55

If ibis case was being tried under the Arkansas procedure, then it was proper for the jury to fix the punishment; but admitting, for argument’s sake, that it was tried under the Oklahoma procedure, under the statute in force at that time requiring the court to fix the punishment, did the fixing of the punishment at a fine of $15 each in this case prejudice the defendants, or deprive them of any substantial right?

Section 1564, Mansf. Dig. St. Ark. (section 907, Ind. T. Ann. St. 1899), was in force in the Indian Territory at the time of the commission of the offense in this case, and is the section under which the defendants must be punished. That section provides :

“Simple assault, unattended with any apparent design to commit homicide or felony, shall, upon the conviction of any person thereof, be punished by fine, mot exceeding one hundred dollars.55

The jury in this case, under that statute, might have fined each of the defendants $100; but the fine assessed was $15 each. Then it cannot be said that the punishment was excessive. If this case was tried under the Oklahoma procedure, the fixing of the punishment by the jury would have no binding effect, upon the court. It might be considered as a recommendation to the court as to what the punishment should be. If the court saw fit to follow the recommendation of the jury and fix the punishment at a fine of $15, when, under the law, he could have fixed it at $100, certainly the defendants cannot be heard to complain. There is no contention made that the evidence did not support the verdict, or--that the verdict was excessive. The judgment against the defendants was rendered by the court. TJnder the Arkansas procedure the court must render the judgment in the amount fixed by the jury. Under the Oklahoma procedure, in force at that time, the court determines the amount of the fine, and the mere fact that he followed the suggestion of the jury in this ease certainly did not prejudice the rights of the defendants. The same question here was presented to this court in the case of Chandler v. State, ante, p. 254, 105 Pac. 375, and the holding in that case is in harmony with our views here expressed.

The judgment of the lower court is affirmed.

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