author: FUBMAN, PRESIDING Judge

text:
      W. T. Caples v. State.
    No. A-156.
    Opinion Filed October 18, 1909.
    (104 Pac. 493.)
    1. INDICTMENT AND INFORMATION — Sufficiency—.Previous Decisions as Precedents, (a) The omission of the word “the” before the words “State of Oklahoma” in the caption of an information is not fatal to the information.
    (b) It is not necessary that an information should contain the words “in the name and by the authority of the state of Oklahoma.” It is sufficient if it appears from the record of a case that the prosecution was carried on in the name and by the authority of the state. But this court suggests that, as a matter of good pleading, it would be well for indictments and informations to begin with these words.
    (c) This court will give full consideration to all authorities which are founded upon, and supported by, living principles, but it will not recognize or follow any precedents wihioh have outlived their usefulness; when the reason of a rule of law ceases, this court will not enforce such rule.
    2. INDICTMENT* AND INFORMATION — Allegation of Preliminary Examination. It is not necessary for an information charging a felony to allege that the defendant has had a preliminary examination before an officer authorized by law to hear the same, and has been bound over to await final trial thereon, or has waived such examination. If these things have not been done, the defendant can present this question to the court by plea in abatement.
    3. WITNESSES — Homicide—Harmless Errtor — Impeachment—Conviction of Offense — Evidence—Admissibility. (a) If a witness has been improperly impeached, it is not ground for reversal when his testimony does not present anv issue material to the case. Such improper impeachment would constitute harmless error.
    (b) It is improper to ask a witness, for the sole purpose of impeachment, whether he had married a woman with whom he had committed adultery, or with whom he had been indicted, arrested, or imprisoned, prior to conviction for any offense whatever.
    (c) When a defendant, upon a trial for assault with intent to kill, takes the witness stand, and, for the purpose of mitigating the offense, is permitted to testify that he made the assault while smarting- under a sense of wounded honor,, oh account of an insult offered to his wife, it is proper for the state to prove the relations existing between the defendant and his wife, and that the defendant had exposed his wife to such insults, in order that the .iury may understand the true motive of the defendant in making' such assault. Por evidence which was properly admitted for this purpose, see facts stated in the opinion.
    4. TRIAL — Time of Beginning — Change of Venue — Time for Application — Attorney and Client — Duty of Attorney to Court. (a) While jeopardy does not begin until after the jury have been -selected and sworn, yet for all other purposes the trial begins when the jury are called into the box for examination as to their qualifications.
    CM An application for a change of venue comes too late when presented without reasonable notice to the county attorney, and after the jury have been called into the box for examination.
    (c) When an application for a change of venue has been prepared, signed, and verified for over 30 days, and this fact is concealed from the county attorney and the trial court, and the counsel for the defendant obtains repeated postponements of the trial, during this time, under conditions which caused the trial court and countv attorney to believe that the case would be tried at the date of the postponement, and then when the case is finally called for trial, and a motion for a continuance has been overruled, and a jurv has been called into the box for examination, and the trial is thus begun, the application is presented without previous notice to the county attorney, such proceedings will not be approved by this court.
    (d) The court should treat all persons . having business therein with absolute fairness, and such persons, and especially attorneys, must treat the court in .the same manner.
    (e) The proper administration of justice requires the lawyers should be fair and honorable with bpposing counsel, the court, and with their clients. Any deviation from this rule will be condemned by this court, and should not be tolerated by trial courts.
    (f) It is an act of justice to say that the attorneys who appeared for the defendant in this court had no connection with the case in the trial court, and1 are in no manner responsible for what was done bv the counsel who then represented the defendant.
    (Syllabus by the Court.)

      Appeal from District Court, Carter County; Btilwell H. Bussell, Judge.

    W. T. Caples was convicted of assault with intent to kill, and he appeals.
    Affirmed.

      The defendant was convicted in the district court of Carter county of the offense of assault with intent to kill, and his punishment was assessed at confinement in the penitentiary for the period of five years. The facts of the case are sufficiently stated in the opinion. The court instructed the jury as follows:
    “Gentlemen of the Jury:
    “(1) The court instructs you that in this case the defendant, Will Capíes, now on trial before you, is being prosecuted by the state of Oklahoma, upon an information duly and legally presented in this court, charging him on or about the 24th day ot April, 1908, at and rvithin the county of Carter, and state of Oklahoma, and within the jurisdiction of this court, with having committed the crime of assault with intent to kill, in manner and form as follows, to wit: The said Will Capíes did then and there unlawfully, intentionally, wrongfully, and feloniously shoot at one Elmer Finley with a certain firearm, to wit, a pistol, with intent then and there and thereby to kill him, the said Elmer Einlev, contrarjr to the form of the statutes in such case made and provided, etc.
    “(2) The court instructs you that, for a more definite and accurate description of the crime charged against the defendant, you are referred to the indictment, Avhich you will take with you in your retirement.
    “(3) You are instructed that the statutes under which the defendant -is being prosecuted is as follows: ‘Every person who intentionally and wrongfully shoots, shoots at or attempts to shoot at another, with any kind of firearm, air gun or other means whatever, with intent to kill any person, or who commits any assault and battery upon another by means of any deadly weapon, or by such other means or force as is likely to produce death or resisting the execution’ of any legal process, is punishable by imprisonment in the state prison not exceeding ten .years.’
    “(4) To the information read to you, the defendant has entered his plea of not guilty, and you are instructed that under the law the defendant is presumed to be innocent of the offense charged against him, and of every ingredient thereof, until such presumption is overcome by competent evidence to your satisfaction beyond a reasonable doubt, and you are instructed in this connection that it devolves upon the state to prove to your satisfaction beyond a reasonable doubt every material allegation of the information charging the offense against the defendant.

      "(5) The jury are the sole judges of the facts proven and of the credibility of the witnesses, and each of them, and of the weight and value to be given to their testimony, and this rule and instruction applies to each and every witness who has testified in this case. In determining what credit you will give to a witness and the Aveight and value you will attach to his testimony, you will take into consideration the conduct and appearance of the witnesses on the stand, the interest of the witness, if any, in the trial or the result thereof, the motives of the Avitness in testifying, the witness’ relation to, or feeling for or against, the defendant, and give the testimonA^ of each witness such Aveight and value as you may deem right and proper.
    “f(6) Yon are instructed that an assault is any wilful or unlawful attempt or offer, with force or violence, to do a corporal hurt to another.
    “(7) You are instructed that homicide, or attempt to commit a homicide, is justifiable when committed by any person when resisting any attempt to murder such person or commit any felony upon him. Second, when committed in the lawful defense of sucE person, when there is a reasonable ground to apprehend a design-io commit a feknry against such person, or to do him some personal injury, and there is imminent danger of such design being accomplished.
    “(8) Therefore, in this ease, if you believe from the evidence beyond a reasonable doubt that the defendant, W. T. Caples, did on or about the time alleged in the information, in the county of Carter and state of Oklahoma, intentionally and Avrongfully, with a pistol in his hand and held, shoot, at Elmer Finley, Avith said pistol, with intent to kill the said Elmer FinleA', as alleged in said information, then under such circumstances you are instructed that it is your duty to find the defendant guilty, as charged in the information.
    "(9) You are instructed that although you may believe from the eAddence that the defendant’s Avife communicated to him the fact that the witness, Elmer Finley, had made overtures to her to have carnal intercourse with her, in the manner testified to in the evidence before you, and you further believe that this was the reason that prompted the shooting at the said Elmer Finley by the defendant, if you find that he did so shoo't at him, then you are instructed that such communication referred to did not excuse or justify the defendant in shooting at the said Finley, as alleged in the information, and if you find that such communications were tlie reason for such shooting, then you are instructed to find the defendant guilty.
    “(10) You are instructed that in the event you find the defendant guilty as herein charged, you may assess his punishment by imprisonment in the penitentiary for any time not exceeding 10 years.
    “(11) Gentlemen of the jury, the law of the ease of your guidance is found in these instructions, and by which you will be governed, but as to the facts, you are the sole judges of them and of their weight and value; and, without prejudice upon the one hand or sympathy upon the other, let your verdict be found.
    “ S. H. Russell, Judge.”
    The case is regularly before us on appeeal.

      Pruiett '& Sniggs and E. Or. McAdams, for appellant.
    — On sufficiency of information; formal requirements of the Constitution: State v. Campbell (Mo.) 109 S. W. 706; White v. Commonwealth, 6 Binn. (Pa.) 179; Yeager v. Grove, 78 ICy. 278; City of Davenport v. Bird, 34 Iowa, 524; State v. Hosledahl (N. D.) 52 N. W. 315; Jefferson v. State (Tex. App.) 7 S. W. 244; Sainé v. State, 14 Tex. App. 144; Calvert v. State, 8 Tex. App. 538; Gould v. People, 89 Ill. 216; Pams v. People, 76 111. 274;

      Chas. L. Moore, Asst. Atty. Gen., for the State.
   FUBMAN, PRESIDING Judge

(after stating the facts as above). First. In this case we have been favored by able and exhaustive oral arguments and briefs, both by the defendant and the state. The' following assignments of error are relied upon to secure a reversal of the conviction. First, in their brief counsel for the defendant say:

“The first assignment of error relied upon by plaintiff in error is that the court did not have jurisdiction to hear and determine this cause, under and by virtue of the information filed in this cause, for the reason that the information is styled. ‘State of Oklahoma/ Plaintiff, v. W. T. Caples, Defendant, which is and was contrary to the Constitution of the state of Oklahoma, in this, to wit: That said information should have been styled ‘The State of Oklahoma,' Plaintiff, v. W. T. Caples, Defendant, and further that said court did not have jurisdiction to hear and determine said cause, for the reason that said information is fatally defective, and contrary to the Constitution of the state of Oklahoma, in this, to wit: That said prosecution was not carried on in the name and by the authority of the state of Oklahoma, as provided by the Constitution of said state. Section 19, art. 7, of the Constitution of Oklahoma is as follows: ‘The style of all writs 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.” ’ It will be noted from this information that the word ‘the’ is left out before the word ‘state’ in the style of the cause. Second. That it nowhere appears from the information that the prosecution is carried on in the name and by the authority of the state of Oklahoma, as provided by the Constitution of this state. Plaintiff in error contends that this is a fatal error to the information, and that the court was without jurisdiction to proceed with the trial of the cause.”

The information in this ease is as follows:

“In the District Court, in and for Carter County, Oklahoma, “State of Oklahoma, Plaintiff, v. Will Caples, Defendant.
“Information.
“Comes now James H. Mathers, the duly qualified and acting county attorney, in and for Carter county and state of Oklahoma, and on his official oath gives the district court in and for said Carter county and state of Oklahoma to know and be informed that the above did, in Carter county, and in the state of Oklahoma, on the 24th day of April, in the year of our Lord, A. D. 1908, commit the crime of assault with intent to kill in manner and form as follows: The said Will Caples did then and there unlawfully, intentionally, wrongfully, and feloniously shoot at one Elmer Finley with a certain firearm, to wit, a pistol, with intent then and there and thereby to kill him, the said ElmeT Finley, contrary to the form of the statutes in such cases made and provided, and against the peace and dignity of the state of Oklahoma.
“James H. Mathers, County Attorney, Carter Countv.
“State of Oklahoma, Carter County. — ss.: Elmer Finley, being duly sworn, on oath declares that the statements set forth in the above information are true. ElMER FiNXjEY.
“Subscribed and sworn to before me this the 24th day of April, 1908. C. T. YeRNON,
“District Clerk.”

The first contention of counsel for the defendant is that “it. will be noted from' this information that the word The’ is left out before the word ‘state’ in the style of the case/’ and that this constitutes a fatal defect in the information. We cannot agree with this position for two reasons, viz.: First, the caption of the cause is placed on the information for convenience, and for the purpose of ready identification, and constitutes no part of the information itself. It is surplusage, pure and simple, and neither adds to or takes from the charge; second, if it were a necessary part of the information we could not agree with counsel for the defendant. Write two sentences- — one, “The state of Oklahoma,” and the other “State of Oklahoma” — and submit them to the educated and uneducated alike, and the answer would be the same from both sources: That they each have substantially the same meaning. We are required by our statute to construe the laws of Oklahoma liberally, to promote the purposes for which they were enacted, and in furtherance of justice. We heartily indorse this wise provision of law, and propose to carry it out in spirit and in letter. This is in harmony with the Divine law, which declares. “For the letter killeth, but the spirit giveth life.” % Cor. iii, 6. Even without this statute, we would hesitate long before we would apply any narrow technical rule of construction to the Constitution. Constitutional provisions should always receive a broader and more liberal construction than statutes. The rule of construction of a statute is the intention of the Legislature. In construing constitutional provisions the supreme question is, What did the people whose votes adopted and placed the Constitution in force intend? Therefore a common-sense, rather than a technical, construction should be placed upon the language used in ■ a Constitution.

Mr. Cooley, in his work on Constitutional .Limitations (pages 89, 101) says:

“The qbject of construction, as applied to a written Constitution, is to give effect to the intent of the .people in adopting it. When the inquiry is directed to ascertain the mischief designed to be remedied, or the purpose sought to be accomplished by a particular provision, it may be proper to examine the proceedings of the convention which framed the instrument. Where the proceedings clearly point out the purpose of the provision, the aid will be valuable and satisfactory; but where the question is one of abstract meaning, it will be difficult to derive from this source much reliable assistance in interpretation. Every member of such a convention acts upon such motives and reasons as influence him personally, and the motions and debates do not necessarily indicate the purpose of a majority of a convention in adopting a particular clause. It is quite possible for a clause to appear so clear and unambiguous to the members of a convention as to require neither discussion nor illustration, and the few remarks mad.e concerning it in the convention might have a plain tendency to lead directly away from the meaning in the minds of the majority. It ' is equally possible for a part of the members to accept a clause in one sense and a part in another. And even if we were certain we had attained to the meaning of the convention, it is by no means to be allowed a controlling force, especially if that meaning appears not to be the one which the words would most naturally and obviousty convey. For as the Constitution does not derive its force from the convention which framed, but from the people who ratified, it, the intent to be arrived at is that of the people, and it is not to be supposed that they have looked for any dark or abstruse meaning in the words employed, but rather that they have accepted them in the sense most obvious to the common understanding, and ratified the instrument in the belief that that was the sense designed to be conveyed. These proceedings, therefore, are less conclusive of the proper construction of the instrument than are legislative proceedings of the proper construction of a statute, since in the latter case it is the intent of the Legislature we seek, while in the former we are endeavoring to arrive at the intent of the people' through the discussions and deliberations of their representatives. The history of the calling of the convention, the causes which led to it, and the discussions and issues before the people at the time of the election of the delegates will sometimes be quite as instructive and satisfactory as anything to be gathered from the proceedings of the convention.”

The second objection to the information is “that it nowhere appears from the information that the prosecution is carried on in the name and by the authority of the state of Oklahoma.” In some states this is required, but it would be an act of pure assumption of legislative power on the part of this court, to establish such a rule in this state. Section 192, Bunn’s Okla. Const., is as follows:

“The style of all writs 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, in- ' formations, and complaints shall conclude, ‘against the peace and dignity of the state.’ ”

An information is not a writ or process; it is an accusation upon which writs and processes issue. In volume 8, p. 7531, of Words & Phrases Judicially Construed, we find the following:

“Writs and processes of the courts may be divided into two classes: First, those which point out specifically the property or thing to be seized; second, those in which the officer is directed to levy the process upon property of one of the parties to_ the litigation, sufficient to satisfy the demand against, him, without describing any specific property to be thus taken.”

This is supported by a great array of authorities. So this clause of the Constitution clearly does not require an information to begin with “The State of Oklahoma.” It is true that the Constitution requires that “All prosecutions shall he carried on in the name and by the authority of the state of Oklahoma,” but it is nowhere required that this allegation shall appear in the information or indictment. This question was before this, court in the case of Arie v. State, 1 Okla. Cr. 666, 100 Pac. 33, and we there held that, if it appears from the record that the prosecution was actually conducted in the name and by the authority of the state, the object and purpose of the Constitution is accomplished, even though no such allegations appeared in the information or indictment. Suppose that this allegation was in the information,- and the record discloses the fact that the prosecution was conducted by private parties without authority from the state, would the allegation of the information give the court jurisdiction? We do not profess to be infallible, but to our minds it is clear that the purpose of this provision in the Constitution is to protect the people of this state from private prosecution which might degenerate into persecutions, and from prosecutions from any other foreign power save that of the state. And when the record clearly shows that the purpose of the Constitution has been accomplished, this court will hold that is enough. The supreme purpose of this court is to give the people of this state a just and harmonious system of criminal jurisprudence, founded on justice and supported by reason, freed from the mysticism of arbitrary technicalities, and this standard will control our decisions, it matters not what or how many other appellate courts may have decided to the contrary. But we are pleased to know that we are not without support of respectiable authority in our views upon this question.

In State v. Russell, 2 La. Ann. 605, the Supreme Court of Louisiana said:

“The defendant, Edward Bussell, was convicted of manslaughter upon an indictment charging him with murder, and he moved for an arrest of judgment on two grounds: First. That the indictment does not aver, with sufficient certainty, that the deceased died of the mortal blows charged to have been given by the accused; secondly, that the indictment does not purport in its margin, or in the body, to be carried on ‘in the name and by the authority of the state of Louisiana/ and does not conclude ‘against the peace and dignity of the same/ This motion was overruled and sentence pronounced, and the accused has appealed. * * * gecon¿ ground we deem to be equally unteuable. The expressions which it is contended should be used in the indictment occur in the Constitutions of several states of the Union, and the point now presented has been so frequently decided in those states that it can scarcely be considered an open question. It has been repeatedly held to be a sufficient compliance with the constitutional requisition that the prosecution should appear to be conducted in the name of the state, and that a formal averment that it was found by the authority of the state was not essential to the validit}1" .of the indictment. Greeson v. State, 5 How. (Miss.) 36; State v. Johnson, Walk. (Miss.) 392; Allen v. Commonwealth, 2 Bibb (Ky.) 210; State v. Anthony, 1 McCord (S. C.) 285. In the case of State v. Calvin Moore, 8 Rob. (La.) 518, decided by the late Court of Errors and Appeals in Criminal Cases, these words were neither directly nor impliedly held to be essential to the validity of an indictment. The language of the instrument was merely quoted, from which it appeared that it contained the expressions which the defendant intended were required by the Constitution, and consequently that the objection urged was without foundation; but there was no intimation of an opinion that their absence would have been fatal.”

In State v. Kerr, 3 N. D. 525, 58 N. W. 27, the court said:

“It is first urged by plaintiff in error that it does not appear from the indictment that' the prosecution is carried on ‘in' the name and by the authority of the state of North Dakota/ as required by section 97 of the state Constitution. * * * The indictment is presented by ‘the grand jury of the state of North Dakota in and for the county of Griggs/ It thus appears, indirectly but certainly, that the prosecution was carried on in the name and by the authority of the state. That is all that the constitutional provision requires. It is not necessary that such facts should be specifically recited. See State v. Thompson, 4 S. D. 95, 55 N. W. 725, where, under the same constitutional provision, an indictment identical with the one in this case on the point in question was sustained.”

In State v. Thompson, 4 S. D. 99, 55 N. W. 725, the Su-jireme Court said:

“It will be observed that the indictment is entitled ‘State of South Dakota v. Nathaniel E. Thompson’; that it was found and presented to the court by a grand jury of said county, under the sanction and by the authority of the state’s attorney. It would seem therefore to be a prosecution in the name and by the authority of the state, and that the indictment in form purports to bo a prosecution in the name and by the authority of the state. It will be noticed that the Constitution, while providing that the prosecution shall be carried on in the name and by authority of the state, does not provide that it shall be stated in the indictment that it is carried on by authority of the state. If, therefore, the prosecution is in the name of the state, and carried on under the sanction of the proper officer of the state, namely, the state’s attorney, we are of the opinion the constitutional provision is complied with, and that it is not necessary that the indictment shall state that it is found and presented by the authority of the state.”

In Allen v. Commonwealth, 5 Ky. 210, the Supreme Court said:

“The first objection is predicated upon the constitutional requisition ‘that all prosecutions shall be carried on in the name and by the authority of the commonwealth of Kentucky.’ The indictment is in the usual form in the name of the commonwealth, and concludes against its peace and dignity, but does not express to be found by the authority of the commonwealth. Such an expression is, however, wholly unnecessary. At common law, prior to the Devolution, prosecutions were carried on in the name, and by the authority of the king in his political capacity; but the forms of indictment show that it was unnecessary to be expressed to be found by his authority. When we threw off the regal government and adopted the republican form, it became necessary to provide that prosecutions should be carried on in the name and by the authority of the commonwealth; but as under the regal, so under the present form of government, it is equally unnecessary that an indictment should expressly aver by what authority it is found and carried on. This indictment was, as all other indictments must be, carried on by the authority of the commonwealth of Kentucky, and not by the authority of any other power; and that is alone what the Constitution required.”

In Wrocklege v. State, 1 Iowa, 170, the Supreme Court said:

“The first question that is raised by the demurrer is whether this prosecution is conducted in the name and by the authority of the state of Iowa, within the meaning of the Constitution. The style of the indictment is as follows: ‘The State of Iowa, Musca-tine County. In the District Court of said County. May Term, A. D. 1854. The grand jurors of the state of Iowa, within and for the body of the county cf Musca-tine, duly elected, impaneled, charged and sworn, in behalf of said state of Iowa^on their said oaths, present,’ etc. ' The Constitution (article 5, § 6) provides that ‘the style of all process shall be, “the state of Iowa,” and all prosecutions shall be conducted in the name and by the authority of the same.’ It is contended that instead of ‘in behalf of the said state,’ a presentment should be expressed in the indictment to be ‘in the name and by the authority of the state of Iowa.’ While we think the latter the more appropriate style, we are not .prepared to say that it is the only phrase that may be used, or that it is essential to the validity of the indictment. The phrase placed under quotations in this section- of the Constitution, to wit, ‘The State of Iowa,’ constitutes the tech-.nieal, authoritative name of the state. See Harriman v. State, 2 G. Greene (Iowa) 270. It is in the name that all prosecutions must be conducted, and it is by the authority -of the same that they must be conducted. But we do not understand the Constitu-lion by this to mean that it must be expressed in each proceeding, in the conduct of a prosecution, that it is made in the name an cl by the authority of the state of Iowa.”

In State v. Delue, 2 Pin. (Wis) 207, the court said :

“It is insisted that, inasmuch as the Constitution of this state requires (article 7, § 17) that ‘all criminal prosecutions shall be carried on in the name and by the authority of the state/ this indictment is defective in not alleging affirmatively that it is so presented. We do not think that it was designed by this provision to require, either in the caption or in the body of the indictment, an affirmative allegation in the language of the Constitution, although such, perhaps, might be a more formal and appropriate practice. It is doubtful, however, whether this provision of the Constitution is applicable to indictments, which are but the presentments of grand juries, embodying in legal form the result of their inquiries for the information of the court. They are the basis upon which process issues against the offender, and which process may be considered as the first step in the prosecution specified in the Constitution. This process very properly issues in the name and b3r the authority of the state. But the indictment, being but a preliminary proceeding, leading to, rather than constituting, the prosecution, need not bear on its face the evidence of having been found b}r a grand jury acting expressly in the name of the state. It is sufficient, in respect to the point objected to, if the venue be laid in some county within the state, and it be substantially set forth therein, that tire grand jurors are good and lawful men. duty impaneled, charged, and sworn to inquire in and for the body of such county.”

In Savage v. State, 18 Fla. 948, the Supreme Court said:

“The Constitution says all prosecutions shall be conducted in the name and by the authority of the state. It is not required that the indictment on its face shall say in words that it is 'prosecuted in the name and by the authority’ of the state. It merely directs that the state in its name and by its authority shall prosecute, and that no other name or a^ other authority shall control the prosecution. It is sufficient that the court shall recognize the state and its authority, and no other party or authority, in such prosecutions, and that the proceedings are so conducted, and the record show it. The cases cited by counsel for plaintiff in error (Harriman v. State, 2 G. Greene [Iowa] 270, and Lovell v. State, 45 Ind. 550, 551) sustain this view. In the case of the State v. Gleason, 12 Fla. 247, 253, tlie ccnirt did not deem it very material tha.t the information should upon its face express the words of the Constitution, but directed it to be so amended out of caution; the information being deemed the process in quo warranto proceedings. The indictment in form purports to be a prosecution in the name of the state, and the attorney for the state prosecuted for the state. The court recognized no other authority than that of the state, and this is sufficient. The plea tendered To the jurisdiction’ was therefore properly overruled, and the motion to withdraw the plea of not guilty for the purpose of filing such plea was well refused. In fact the plea proposed was not a plea to the jurisdiction.”

In Holt v. State, 47 Ark. 197, 1 S. W. 61, the court said:

“The commencement of the indictment is as follows: "The grand jury of Washington county accuses Charley Washington, John Washington, and Sam Holt of the crime of an assault with a deadly weapon, committed as follows.’ Appellant insists that thif. commencement is insufficient and the _ indictment is fatally defective, because it is not stated in the commencement that the grand jury accused the defendants therein named of the crime charged fin the name and by the authority of the state of Arkansas.’ This is not required or necessary. There is no particular form of indictment prescribed by the statute of this state which is required to be strictN followed.”

In Greeson v. State, 5 How. (Miss.) 36, the court said:

“The first assignment of error was not seriously insisted upon in the argument, and it will be sufficient to observe that the question which it presents has been decided by the Supreme Court of this state, in the case of State v. Johnson, Walk. (Miss.) 395. That court held that it was sufficient if it appeared in the record that the prosecution was in the name of the state, and that a formal statement of the fact that the indictment was found by its authority was not necessary. The only object which our Constitution had, in requiring that all prosecutions should be in the name and by the authority of the state, was to exclude any other or foreign power from the exercise of this authority, and to assert the sovereignty and supremacy-of the state as paramount.”

In Crutz v. State, 4 Ind. 387, the court said:

“It is contended that the judgment should have been arrested for this reason, viz., the indictment does not charge that it was found fin the name and by the authority of the -state.’ This is a mistake. 'A formal statement that an indictment was found by the authority of the state is not necessarjq if it appears from .the record that the prosecution was in the name of the state.’ Wharton’s Crim. Law, 101. The record before us shows that the state is a party, and that the prosecution was carried on in her name and by her authority. This, we think, sufficiently meets the requirements of the Constitution, without any specific allegation in the indictment to that effect. Rev. St. 1852, p. 61.”

We might continue to cite other cases to show that our views are supported by authority, but deem these sufficient. We know that there are respectable authorities holding to the contrary, but this court will not follow any precedents unless we know and approve the reason upon which they are based, it matters not how numerous they may be, or how eminent the court by which they are promulgated. It is our duty to construe the laws of Oklahoma regardless of the law in other states. Now that our criminal jurisprudence is in its formation period, we are determined to do all in our power to place it upon the broad and sure foundation of reason and justice, so that the innocent may find it to be a refuge of defense and protection, and that the guilty may be convicted, and taught that it is an exceedingly serious and dangerous thing to violate the laws of this state, whether they be rich and influential or poor and friendless. They all stand alike and upon an equality before this court. If we place our criminal jurisprudence upon a technical basis, it would become the luxury of the rich, who can always hire able and skilled lawyers to invoke technicalities in their behalf, but what would become of the poor and friendless who cannot sécure these services ? It is the poor and the friendless who cannot secure these services, and who need the strong arm of the law for their defense. By placing our system of criminal jurisprudence upon the basis of reason justice becomes the right of the poor as well as the rich. We will give full consideration to all authorities which are supported by living principles, and will follow them when in harmony with our laws and the conditions existing in Oklahoma. But we must confess to want of respect for precedents which were found in the rubbish of Noah’s Ark, and which have outlived their usefulness, if they ever had any. When the reason for a rule of law ceases, tbe rule should cease also. If this be revolution, then we are and will continue to be revolutionary. The information in this case is free from the objections urged against it, and we approve the action of the trial court in overruling the objections thereto.

Second. In the brief in this case counsel for the defendant says:

“The second assignment of error is that the lower court did not have jurisdiction to hear and determine said cause by reason of the fact that the information' failed to allege- and set out that the plaintiff in error, or the defendant below, had had a preliminary examination before an officer authorized by law to hear the same, or that he had waived said preliminary hearing upon said charge, as alleged in said information.”

This question has been passed upon by this court in the casé of Ketch Canard et al. v. State, 2 Okla. Cr. 505, 103 Pac. 738. Speaking for the court, Judge Owen said:

' “As to the second question, section 26, Bunn’s Constitution of Oklahoma, is as follows: No person shall be prosecuted criminally in courts of record for felony or misdemeanor otherwise than by presentment or indictment or by information. No person shall be prosecuted for a felony by information without having had a preliminary examination before an examining magistrate or having waived such preliminary examination.’ Counsel for defendants urge with much force that the trial court acquires no jurisdiction of a felony charge prosecuted by information, unless the defendant has had a preliminary examining trial, or has waived the same, and that the information must allege one or the other. We agree with counsel that there must be an examination or a waiver, but we do not agree with their contention that it is necessary to plead this examination or waiver in order to give the court jurisdiction. We understand the rules governing prosecutions by information to be identical with those governing prosecutions by indictment. When the information is filed in court by the prosecuting attorney, the presumption of law is that it is legally done; that the examination of the defendant has been had or waived, and consequently the court has jurisdiction of the same 'as when an indictment has been returned by a grand jury in open court. When an indictment is presented by a grand jury in open court, the presumption is that it is legally presented, that the jurors were properly summoned, legally qualified, and competent, and that the required number, at least, concurred in the finding. These facts, though essential to the lawful finding and presentment, are not necessary to be set forth in the indictment. Washburn v. People, 10 Mich. 372. Whether an examination has or has not been had is not a question of pleading, but a question of fact, to be raised by the defendant or not at his option, which fact is always within the knowledge of the defendant. If he claims that this right or privilege has been denied him, and will insist on his right to it, he can and should do so when he is arraigned on the information. The fact that a prisoner has not been given an examination before an examining magistrate before the filing of an information against him is a matter that may be properly pleaded in abatement, or by motion to quash, which is in the nature of a plea in abatement, founded on affidavits or such other proofs as the court may permit. If it were necessary to allege a preliminary hearing, it would be necessary to prove it. Would this not work prejudice to the defendant? Would not proof that the examining magistrate had believed the defendant guilty on examining trial influence the jury against him? Would it not put upon the defendant an additional burden to permit the prosecuting attorney to argue as a circumstance against defendant’s guilt that the examining magistrate who held the examination immediately after the commission of the alleged crime believed the defendant guilty?”

The doctrine announced in this case represents our mature views, and is here reaffirmed.

Third. In the brief in this case counsel for the defendant next say: “The fifth and sixth assignments of error have practically been settled by this court.” These assignments of error are as follows:

“Fifth. The court erred in permitting the state to prove that Mrs. Thompson had been fined in the city court for conducting a house of ill fame. Sixth. The court erred in requiring the defendant'to testify as to the circumstances under which he married his wife, and by requiring the defendant to testify that he was under prosecution at the time he married his wife.”

The record sustains the facts stated in these two assignments of error.

It is also true in Price v. State, 1 Okla. Cr. 358, 98 Pac. 447. This court there said:

“It is error on cross-examination, for the purpose of affecting the credibility of a witness, to ask as to whom he married, for the purpose of showing that he had married a woman with whom he had committed adultery.”

We are still of the same opinion.

It is also true that in Slater v. U. S., 1 Okla. 275, 98 Pac. 110, this court- did say:

“For the purpose of affecting the credibility of a witness he may be asked, on cross-examination, if he had been convicted of a felony or of any crime which involves a want of moral character; but it is improper to ask such witness if he had been indicted, arrested, or imprisoned, "before conviction, for any offense whatever.”

For the reasons given, and upon the authorities quoted in the Slater Case, we have no sort of doubt as to the justice of this rule. If the evidence complained of in this case had been admitted for the purpose of affecting the credibility of the defendant, as a witness, and if it would have had this effect, and have thereby deprived this defendant of any substantial right, we would reverse this conviction. When this court has decided a question, we will see that the decision so rendered is respected and followed by all of the trial courts in the state. Otherwise it would be idle and worse than useless to have an appellate court. But the question arises as to whether or not the rulings of the trial court complained of are contrary to the previous decisions of this court ? A decision must be construed in the light of the facts of the particular case in which it is rendered. A principle of law may be applicable to a given state of facts, and not applicable to another and different state of facts. Evidence may be clearly inadmissible for one purpose, and the same evidence may. be entirely proper for another purpose. This must be determined in the light of reason as applied to the facts of each individual case before the court. There are two reasons why the evidence complained of should not work a reversal in this case:

First, even if improperly admitted, it was harmless error in view of the testimony in the case. It is an undisputed fact, shown by the record, that the defendant fired at the prosecuting witness, at a time when the person so assaulted was not aware of the presence of the defendant, and was not by the least 'act or word manifesting any intention of assaulting or otherwise injuring the defendant. The defendant heard this testimony, and did not contradict a word of it. On the contrary, he confirmed it all as follows :

“Q. When you shot at him the first time, he was pouring-water out of a pitcher, wasn’t he? A. No, sir; lie had poured the pitcher of water out, and had the bowl in his hand and dropped the bowl in the front room and broke it. Q. You followed him up? A. I went through this other room. Q. And you never said a word to him when you shot the first time? A. I never did say a word to him at any time. Q. Did he say anything to 3rou? A. Not a thing in the world. Q. Never said a word? When you went out —when he run out of there you fired again, did you? A. No. Q. Didn’t your pistol snap? Á. When he went in the room? Q. Did your pistol snap? A. Snapped, j-es. It didn’t go off, wouldn’t work. Q. That was when you shot out of the front door? A. I was in the other room when he ran out of the door. I didn’t see him go out of the door. Q. You saw him after he got out of the door? A. I saw him after he got out of the door. I was coming back to this room. Q. As soon as you saw him running, you followed him out ? A. I shot right from there. Q. Aim at him ? A. Yes, sir. Q. Shot to kill, didn’t 3^ou? A. Yes; that is what I shot for; that is what I aimed to do.”

Under this testimony the defendant made the case against him; he was guilty on his own evidence. He testified to no fact upon which he could base a defense or could have been legalty acquitted. Even if he was improperly impeached, it did not deprive him of any substantial right growing out of his testimony. The error, if an3', was therefore harmless.

Second. The defendant has been permitted to testify that the reason why he assaulted and attempted to kill Finley, the prosecuting witness, was because on the night before the assault the said Finley insulted the wife of the defendant by offering her money to have sexual intercourse with him, and that defendant’s wife conveyed this information to him. This evidence was admitted in behalf of the defendant, that it might be considered by the jury for the purpose of mitigating his punishment, if the defendant was found guilty. It was competent for the state to show the true relation existing between the defendant and his wife, in order that they might determine as to whether such an insult, if really offered, did. in truth constitute mitigation. It was doubtless upon this ground that the evidence complained of was admitted. In addition to the evidence complained of it was further proven and was undisputed that the defendant was being prosecuted for statutory rape upon his wife at the time he married her, and that at the time of this offense the defendant and his wife were rooming at the house of a Mrs. Thompson, in Ardmore, the same being a house of ill repute, and that the said Mrs. Thompson and one Sallie Hawkins, an inmate of the house and other inmates, had been fined in the police court of Ardmore for conducting a public place of prostitution; that the wife of the defendant invited Finley to Sallie Hawkins’ room, upstairs, at Mrs. Thompson’s place; that while in this room the wife of defendant sat in the lap of Finley, and kissed him in the presence of Sallie Hawkins and a hack driver named Moorehouse, and then went with Finley into another room, and that when the wife of the defendant parted from Finley she gave no evidence of offended dignity or displeasure. Further statement on this point is unnecessary. These facts were not disputed by any witness.

When a man marries a woman to escape prosecution for her' defilement, and takes his wife into an immoral resort, and absents himself from her and leaves her to come in personal contact with the lecherous libertines who congregate at such places, he has no one but himself to blame if she is improperly approached. When under these circumstances the defendant claims that such an insult constitutes mitigation for attempting to kill the party making it, it is clearly the right of the jury to know the defendant’s action in exposing his wife thereto, as well as all oth¿r facts which would shed any light upon the transaction, in order that they may understand the true motives of the defendant in making the assault, and determine as to whether or not it constituted mitigation or aggravation; whether the assault was the result of wounded honor, or grew out of a desire to establish the reputation of being a dangerous man. The defendant having voluntarily injected this issue into the case, is in no condition to complain at the action of the court in admitting the evidence objected to. Having opened the door of inquiry as to this matter, he cannot in reason and justice demand that it be closed before the state had been heard in reply. Under these conditions he cannot say that the evidence admitted was improper, although under other conditions it would have constituted reversible error. This question has already been passed upon by this court adversely to defendant’s contention in the case of Cannon v. Territory, 1 Okla. Cr. 600, 99 Pac. 622. In the light of the entire record there was no error in the rulings of the trial court on this question.

Fourth. Counsel for the defendant in their brief say:

“The third assignment of error is that the court erred in overruling the motion of the plaintiff in error for a change of venue. The record shows that the plaintiff in error, on the 4th day of December, A. D. 1908, filed his motion for a change of venue in said cause, which was duly sworn to, setting up the fact that he could not get a fair and impartial trial in said county, for the reason that the citizens thereof were prejudiced against him. and said motion was supported by five disinterested citizens of Carter county.”

Section 1, c. 25, Sess. Laws Okla. T. 1903, pp. 220, 221, authorizing a change of venue in criminal cases is as follows:

“Any criminal cause pending in the district court, may at any time before the trial is begun, on the application of the defendant, be removed from the county in which it is pending to some other county in said judicial district, whenever it shall appear in the manner hereinafter provided, that the minds of the inhabitants of the county in which the cause is pending are so prejudiced against the defendant that a fair and impartial trial cannot be had therein. Such order of removal may be made on the application of the defendant by petition, setting forth the facts verified by affidavit, if reasonable notice of the application be given to the county attorney and the truth of the allegations in such petition be supported by the affidavits of at least three creditable persons, who reside in said county. The county attorney may introduce counter affidavits to show that the persons making affidavits in support of the application are not creditable persons and that the change is not necessary, and to examine the witnesses in support of said application in open court in regard to the truth of said application, and if it be made to appear by the affidavits and examination of witnesses, that a fair and impartial trial cannot be had in the county, a change shall be granted and the order made by the court.”

From this it appears that the application for a change of venue must be presented to the court before the trial begins, and that the county attorney must have had reasonable notice thereof. It is therefore necessary, in the light of what actually occurred in the trial, and which will hereafter be stated, to determine as to when a trial begins. The defendant is not placed in jeopardy until the jury are selected and sworn, but this is not decisive of the question as to when the trial begins. Under our practice the trial begins the moment the jury are called into the box to be examined as to their qualifications. The defendant must be personalty present. The court stenographer is present to preserve the questions asked and the answers given, and the rulings of the court upon all objections made thereto. Upon exceptions saved to such rulings they are as much subject to review of this court as exceptions saved to the examination of witnesses as to the facts of the case before the jury. We, therefore, see no escape from the conclusion that the calling of the jury-into the box to be examined upon their voir dire is the beginning of the trial. This is the first step taken. The trial has then begun.

This question has been passed upon by the Supreme Court of the United States in the case of Hopt v. Utah, 110 U. S. 575, 4 Sup. Ct. 203 (28 L. Ed. 262). The Supreme Court said:

“The validity of the judgment is questioned upon the ground that a part of the proceedings in the trial court were conducted in the absence of the defendant. The Criminal Code of Procedure of Utah (section 218) provides that: Tf the indictment is for a felon3r, the defendant must be personalty present at the trial; but if for a misdemeanor, the trial may be had in the absence of the defendant; if, however, his presence is necessary for the purpose of identification, the court may, upon application of the prosecuting attorney, by an order of warrant, require the personal attendance .of the defendant at the trial/ The same Code provides that a juror may be challenged by either party for actual bias; that is, ‘for the existence of a state of mind which leads to a just inference in reference to the case that he will not act with entire 'impartiality/ Sections 239, 241. Such a challenge, if the facts be denied, must be tried by three impartial triers, not on the jury panel, and appointed by the court. Section 246. The juror so challenged ‘may be examined as a witness to prove or disprove the challenge, and must answer every question pertinent to the inquiry/ Section 249. ‘Other witnesses may also be examined on either side, and the rules of evidence applicable to the trial of other issues govern the admission or exclusion of evidence on the trial of the challenge/ Section 250. ‘On the trial of the challenge for actual bias, when the evidence is concluded, the court must instruct the triers that it is their duty to find the challenge true, if in their opinion the evidence warrants the conclusion that the juror has such a bias against the party challenging him as to render him not impartial, and that if from the evidence they believe him free from such bias they must find the challenge not true; that a hypothetical opinion on hearsay or information supposed to be true is of itself no evidence of bias sufficient to disqualify a juror. The court can give no other instruction/ Section 252. ‘The triers must thereupon find the challenge either true or not true, and their decision is final. If they find it true the juror must be excluded/ Section 253. It appears that six jurors were separately challenged by the defendant for actual bias. The grounds of challenge in each case were denied by the district attorney. For each juror triers were appointed, who, being duly sworn, were ‘before proceeding to try the challenge/ instructed as required by section 252 of the Criminal Code, after which, in each case, the triers took the juror from the courtroom into a different room, and tried the ground of challenge out of the presence as well of the court as of the defendant and his counsel. Their findings were returned into court, and the challenge, being found not true, the jurors so challenged resumed their seats among those summoned to try the case. Of the six challenged for actual bias, four were subsequently challenged by the defendant peremptorily. The other two were sworn as trial jurors, one of them, however, after the defendant had exhausted all his peremptory challenges. No objection was made to the triers leav-. ing the courtroom, nor was any exception taken thereto during the trial. The jurors proposed were examined by the triers, without any testimony being offered or produced, either by the prosecution or the defense. It is insisted, in behalf of the defendant, that the action of the court in permitting the trial in his absence of these challenges of jurors was so irregular as to vitiate all the subsequent proceedings. This point is well taken.”

In Hopt’s Case the defendant had been convicted of murder, and sentenced to death. The conviction was reversed upon the ground, among others, that the trial began with the examination of the jurors as to their qualifications, and as the statute required the presence of the defendant during the trial, and as some of.the jurors were examined in the absence of the defendant, he had been deprived of a substantial right, and so the Supreme Court of the United States granted the defendant a new trial. Other authorities could be cited to the same effect; but, as the principle involved is so manifestly just, we will not pursue the discussion further.

The record discloses the following facts with reference to the application for a change of venue: (1) The application was prepared and verified on the 4th day of November, 1908. (2) This case was set down for trial on the 17th day of November, 1908. (3) Upon motion of defendant the case was reset for December 1, 1908. (4) At the instance of the counsel who then represented the defendant the ease was passed until December 4, 1908, to enable him to go to Madill and try a case there. (5) When this ease was called for trial on the 4th day of December, defendant presented a motion for a continuance, which was by the court overruled. (6) That the motion for a change of venue was not filed until after the jury had been called into the box. (7) No notice of the application for a change of venue had been served upon the county attorney. (8) The following occurred when the motion for a change of venue was presented:

“The Court: When did the state’s counsel first.have notice of the motion for change of venue — a change of,venue would be applied for in this case? Mr. Matson (Asst. Co. Atty.) : Since we started into the trial. The Court: How long ago has that been? Mr. Matson: Not over five minutes ago, after the jury were called in this case. The Court: That was the first notice you had of this motion? Mr. Matson: Yes.”

In justice to the distinguished counsel who now represent this defendant we will state that they had no connection with this case until after it had reached this court. Therefore no responsibility •attaches to them for what took place in the trial court. While the court should treat all persons having business therein with absolute fairness, it is also true that such persons, and especially attorneys, should treat the court in the same manner. Unfairness of attorneys, and any attempt to impose upon or take advantage of the confidence of the court, cannot be too strongly condemned. In this case the counsel who represented the defendant should at least have been called upon to explain his conduct and purge himself of contempt. This could .have been done in the absence of the jury, so that the defendant could not have been prejudiced in their minds thereby.

If this motion for a change of venue was prepared in good faith, and verified 30 days before the trial, why was it not presented sooner? Why was it concealed for 30 days from the county attorney and the court ? The action of the attorney who then represented the defendant in requesting this court as a personal favor to pass the case to December 4th in order that he might go to Madill and try another case, amounted to an implied promise that the case would be tried on that date, unless some unforeseen contingency arose in the meantime. It at least expressed an intention and expectancy on the part of counsel that this would be done. But it appears from the record that the motion for a change of venue had been prepared and verified on the 4th day of November, and that this fact was concealed from the county attorney and the court. This court will not tolerate such practice ás this. Justice cannot be enforced by unfairness and deceit. Lawyers should be fair and honorable in their dealings with opposing counsel, the courts, and their ’clients. We approve the action of the trial court in summarily overruling the application for a change of venue, under the conditions upon which it was presented. First, it came too late; second, no notice thereof had been given to the county attorney; third, it is clear that the confidence of the court had been unfairly imposed upon, and that the application for a change of venue was being urged merely for the purpose of getting a continuance. Such applications cannot be made in this manner or be used for this purpose. They must be made in good faith and presented in the manner prescribed by statute.

In Johnson v. State, 1 Okla. Cr. 321, 97 Pac. 1059, this question was elaborately discussed. Among other things this court there said:

“The application for a change of venue is addressed to the sound discretion of the trial judge. He sits both as judge, and jury, and determines all questions of law and fact that arise upon the hearing of the motion. His decision is not subject to review by this court unless an abuse of this discretion is made to appear.”

What was there said, as well as what is herein stated, represents the mature views of this court, and will be adhered to in the future.

The instructions of the court were applicable to the facts of the case. The highest compliment which can be paid them is the fact that the able and critical counsel who represented the defendant in this court did not in any manner attempt to assail them.

We find no error in the record which would permit us to reverse the conviction of the defendant. The judgment of the lower court is therefore in all things affirmed.

DOYLE and OWE3SÍ, Judges, concur.


source: Caselaw Access Project

author: OWEN, Judge

license: Public Domain

text:
      Ex parte Carson Whitehouse.
    No. A-335.
    Opinion Filed October 18, 1909.
    (104 Pac. 372.)
    COURTS — County Superior Courts — Jurisdiction. Section 2 of. the act of the Legislature (Sess. Laws 1909. p. 181. c. 14, art. 7) establishing county superior courts in giving to such court concurrent jurisdiction with the county court in all criminal matters is not in conflict with section 12, art. 7. 'Const. Okla.
    (Syllabus by the Court.)
    Original petition by Carson Whitehouse for writ of habeas corpus.

    Writ denied. ■

      This is an original action bv petition for a writ of habeas corpus to release Carson Whitehouse from imprisonment on-judgment and sentence of the superior court of Pittsburg county. The petitioner was tried in the superior court of Pittsburg county on an information charging him with the crime of unlawful possession of liquor. He was convicted and adjudged to serve a term of 30 days in the county jail of Pittsburg county and to pay a fine of $50.

      J. G. Harley, Wallace Wilkinson, and Guy L. Andrews, for petitioner,
    citing: 11 Cyc. 982, and cases therein cited; Allen v. Board of State Auditors, 122 Mich. 324; Parker v. State ex rel., 133 Ind. 178; State ex rel. v. School Board, 76 Wis. 177; Pov.ell v. Spackman, 7 Idaho, 692; People ex rel. v. Hutchinson, 172 Ill. 486.

      Chas. West, Atty. Gen., and Chas. L. Moore, Asst. Atty. Gen,; for respondent.
   OWEN, Judge

(after stating the facts as above). The petition in this case presents one question only; that is, the jurisdiction of the superior court in criminal cases-. The contention is made that the act (Laws 1909, p. 181, c. 14, art. 7) giving to the superior court concurrent jurisdiction with the county court in all criminal matters is unconstitutional, and that the superior court cannot exercise jurisdiction in criminal cases of which the county court has jurisdiction. That part of the act necessary to copy here is as follows:-

“Section 1. There is hereby created and established in every county in this state havjng a population of thirty thousand (30,000) or more, and having a city therein with eight thousand (8,000) or more, as now or hereafter shown by the last federal census, a court of civil and criminal jurisdiction co-extensive with the county, to be known as the superior court of such county, which shall be a court of record, and the said superior court shall be held in the largest city of such county.
“Section 2. Every such court shall have and exercise concurrent jurisdiction with the district court, in all proceedings, causes or matters, and concurrent jurisdiction with the county court in. all civil and criminal matters, except matters of probate.” •

It is contended that section 2 of this act is in conflict with section 12, art. 7. Const. Okla.; that section 12 gives to the county court exclusive jurisdiction of misdemeanor cases of which justices of the peace have not jurisdiction.

The views of counsel for petitioner have been urged with great force, and, on a casual reading of the Constitution, as printed in Bunn’s Annotated Edition, one may be constrained to take the view as presented by counsel; but a more careful examination of the manuscript copy of the Constitution on file in the office of the Secretary of State will disclose the error. We find on examination of the manuscript copy that the form as to paragraphing and subheads, as appears in Bunn’s Annotated Edition, does not appear in the original copy. In the original copy section 12 appears as one paragraph. We are not to bé understood as criticising the arrangement into paragraphs and subheads by Mr. Bunn, but, in arriving at the conclusions we have in this ease,'we construe this entire section together, and as it appears in the original copy of the Constitution. The section, as it appears in the original manuscript copy, is as follows:

“See. 12. The county court, coextensive with the county, shall have original jurisdiction in all probate matters, and until otherwise provided by law, shall have concurrent jurisdiction with the district court in civil cases in any amount not exceeding one thousand dollars, exclusive of interest: Provided, that the county court shall not have jurisdiction in any action for malicious prosecution, or in any action for divorce or alimony or in any action against officers for misconduct in office, or in actions for slander or libel, or in actions for the specific performance of contracts for the sale of real estate, or in any matter wherein the title or boundaries of land may be in dispute or called in question; nor to order or decree the partition or sale of real estate, not arising under its probate jurisdiction. It shall have such appellate jurisdiction of the judgments of justices of the peace in civil and criminal cases as may be provided by law, or in this Constitution. The county court shall have jurisdiction concurrent with justices of the peace in misdemeanor cases, and exclusive jurisdiction in all misdemeanor cases of which justices of the peace have not jurisdiction. In the absence of the judge of the district court from the county, or in case of his disqualification for any reason, the county court, or judge thereof, shall have power to issue writs of injunction in matters about to be brought or pending in the district court; and to issue writs of injunction, mandamus, and all writs necessary to enforce the jurisdiction of the county courts; and issue writs of habeas corpus in cases where the offense charged is within the jurisdiction of the county court or any other court or tribunal inferior to said court. When the county judge is disqualified'in any case pending in the county court, a judge pro tempore may be selected in the manner provided for the selection of judges' pro tempore in the district court.”

This section must be construed as a whole, and it must be construed together with the other sections of the Constitution, ddio entire Constitution must be construed as a whole, and the language of this section must be construed so as to arrive at the meaning and intention of the framers of the Constitution and the people who adopted it, and at the same time preserve the general purpose and intention of the entire Constitution. It is a cardinal rule in the interpretation of the Constitution that the instrument must be so construed as to give effect to the intention of: the people who adopted it, and this intention is to be sought by a construction of the entire instrument. The whole Constitution is to be examined in order to determine the meaning of any part, and the construction of any one section is to be such as to give effect to the entire instrument, and not to raise any conflict between its parts which can be avoided. And, in construing a statute with reference to the Constitution, the courts will not construe the statute so as to make it conflict with the Constitution, but rather will put such interpretation upon it as will avoid conflict if such construction be possible.

Section 1, art. 7, Const. (section 169, Bunn’s Ann. Ed.), is as follows:

“The judicial power of this state shall be vested in the Senate, sitting as a court of impeachment, a Supreme Court, district courts, county courts, courts of justices of the peace, municipal courts, and such other courts, commissions or boards, inferior to the Supreme Court, as may be established by law.”

This section gives the Legislature the power to establish the superior courts, and the power given is unrestricted. There are no limitations in this section on the jurisdiction to be given to the inferior courts. The question arises: Is the sentence in section 12, art. 7, giving the county court exclusive jurisdiction in all misdemeanor eases of which justices of the peace have not jurisdiction, a limitation on the power of the Legislature as granted in section 1? If we look only to section T2, as it appears in the annotated edition of the Constitution, with its arrangement of paragraphs and sentences, our answer must be in the affirmative, or oven if we look to the section as found in the original manuscript copy,' and be governed strictly by the punctuation and arrangement of sentences, our' answer might be the same. But’ a slight transposition of the sentences will easily authorize a different construction of this section. On careful reading of section 12, as'it appears in the original copy, it will be conceded that that part of the section contained in the proviso, which excepts from the jurisdiction of the county court certain actions, need not be considered in construing that part fixing the jurisdiction. Neither is it necessary to construe that part of the section giving to the judge of the county court the jurisdiction of a district judge in certain cases. Then this section may be construed as though it appeared as follows :

“Sec. 12. The county court, coextensive with the county, shall have original jurisdiction in all probate matters, and until otherwise provided by law, shall have concurrent jurisdiction with the district court in civil cases in any amount not exceeding one thousand dollars, exclusive of interest: it shall have such appellate jurisdiction of the judgments of justices of the peace in civil and criminal cases as may be provided by law, or in this Constitution. The county court shall have jurisdiction concurrent with justices of the peace in misdemeanor cases, and exclusive -jurisdiction in all misdemeanor eases of which justices of the peace have not jiirisdietiou.”

It will be noticed that this section begins with the language, “The county court, coextensive with the county, shall have original jurisdiction in all probate matters, and until otherwise provided by law,” etc. The question arises: Does the phrase, “and until otherwise provided by law” qualify the clause, “the county court shall have jurisdiction concurrent with justices of the peace in misdemeanor cases, and exclusive jurisdiction in all misdemeanor cases of which justices of the peace have not jurisdiction,” or does the phrase “and until otherwise provided by law” qualify only the succeeding clause, “shall have concurrent jurisdiction with the district court in civil eases in any amount not exceeding one thousand dollars^, exclusive of interest”? It will be observed that a colon appears after the word “interest,” and that a period appears between the words “Constitution” and “The,” and.it might be contended that the sentence, “the county court shall have jurisdiction concurrent with justices of the peace in misdemeanor cases, and exclusive jurisdiction in all misdemeanor cases of which justices of the peace have not jurisdiction,” being separated from the rest of the section by the period following the word “Constitution,” that the phrase “until otherwise provided by law” does not qualify or refer to this sentence. If the period between the words “Constitution” and “The” were a semicolon or comma, then there would be no doubt that the phrase “until otherwise provided by law” qualified the sentence in which exclusive jurisdiction is given to the county court. We think the proper construction of this section is to read the' section as though that period were a semicolon. If the constitutional convention had intended to make the “exclusive jurisdiction” permanent in the county court, as was the probate jurisdiction, then the proper order for this sentence was after the phrase giving the original probate jurisdiction to the county court, and preceding the phrase “until otherwise provided by law.” The section would then have read:

“The coupty court, coextensive with the county, shall have original jurisdiction in all probate matters, and shall have^ jurisdiction concurrent with justices of the peace in misdemeanor cases of which justices of the peace have not jurisdiction, and until, otherwise provided by law,? etc.

It is clear to our minds that the intention of this section was to fix permanently in the county court original jurisdiction in all probate matters, and that all other jurisdiction given this court should remain in said court until otherwise provided by law. ■ The authorities are uniform in holding that a court may recur to the public history of the times and conditions of the country in order to get the true meaning of the law as well as the meaning of the particular provisions thereof. This rule was announced in the case of Aldridge v. Williams, 3 How. 24, 11 L. Ed. 469, and has been repeatedly followed by that court as well as other courts of last resort. We feel safe in saying that the members of the constitutional convention in preparing the Constitution and the people in adopting it had-in mind the great volume of probate business in 'this state, especially that portion of the state formerly Indian Territory. They must have realized that as the estates of the minors of the. Five Civilized Tribes, including a disposition of their land came under the direction of the probate courts, that .the time of these courts would necessarily be given almost exclusively to the disposition of probate matters, and by this section intended to provide that when 'this condition arose the Legislature would be authorized under section 1 of article 7, above quoted, to create the necessary courts to relieve the county courts of the jurisdiction other than probate.

. As early as the case of Ogden v. Saunders, 12 Wheat. 267, 6 L. Ed. 606, decided January, 1827, the Supreme Court of the United States held that the derangement of words and even sentences of 'the law might be tolerated in order to arrive at the apparent meaning of the Legislature, to be gathered from other parts and from the entire scope of the lav. In the case of Werckmeister v. Pierce, 63 Fed. 445, the United States Circuit Court held that rearrangement of clauses or parts of sentences is justifiable under the most common circumstances, and is especially justifiable in order that the statute may not be read contrary to its plain purpose and the general public policy. In construing constitutions the same rules must govern that govern in construing statutes. The Constitution is the supreme law of the land, and it differs from an act of the Legislature in having been adopted by the whole people.

In this case it has been urged with considerable force that in using tlie word “exclusive” the intention was to fix the jurisdiction permanently. We are inclined to the view that the word “exclusive” here is used to distinguish between this and the other courts provided for in the Constitution. True the justice of the peace court, as provided for in the Constitution, was not given jurisdiction of the class of misdemeanors referred to in this sentence, but there were other courts created and the jurisdiction fixed. The constitutional convention not only provided for a Supreme Court, district courts, county courts, and justice of the peace courts, but divided1 the jurisdiction between the courts created, and gave to the county court exclusive jurisdiction of this class of misdemeanors. ■ 1

In the case of State v. Jones, 13 Me. 280, the court in construing a' statute giving to the police court of Rockland exclusive jurisdiction said:

“The act establishing the police court of Rockland confers upon it 'exclusive jurisdiction over all such criminal offenses committed within the limits of said city as are cognizable by justices of the peace or trial justices.’ This means exclusive, not as against all courts, but only as against courts of the same grade, as against justices of the peace and trial justices.”

In the case of Cherokee Nation v. Georgia, 5 Pet. 18 (8 L. Ed. 25), Chief Justice Marshall used this language:

“It has been also said that the same words have not necessarily the same meaning attached to them when found in different parts of the same instrument. ■ Their meaning is controlled by the context. This is undoubtedly true. In common language the same word has various meanings; and the peculiar sense in which it is used in any sentence is to be determined by the context.”

Again, the same eminent jurist in the case of United States v. Maurice, Fed. Cas. No. 15,747, in construing the word “which,” used this language:

“I feel no diminution of reverence for the framers of this sacred instrument when I say that some ambiguity of expression has found its way into this clause. If the relative, 'which/ refers to the word ‘appointments/ that word is referred to in a sense rather different from that in which it had been used. It is used to signify the act of placing a man in office, and referred Lo as signifying the office itself. Considering tbis relative as referring to the word “’offices/ which word, if not expressed,, must be understood, it is not perfectly clear whether the words, ‘which’ offices ‘shall be established by law’ are to be construed as ordaining that all offices of the United States shall be established by law, or merely as limiting the previous general words to such offices as shall be established by law. Understood in the first sense, this clause makes a general provision that the President shall nominate, and, by and with the consent of the Senate, appoint to all officers of the United States, with such exceptions only as are made in the Constitution, and that all offices (with the same exceptions) shall be establishhod by law. Understood in the last sense, this general provision comprehends those offices only which might be established by law, leaving it in the power of the executive, or of those who might be intrusted with the execution of the laws, to create, in all cases of legislative omission, such offices as might be deemed necessary for their execution, and after-wards to fill those offices. I do not know whether this question has ever occurred to the, legislative or executive of the United States, nor how it may have been decided. In this ignorance of the course which may have been pursued by the government, I shall adopt the first interpretation, because I think it accords best with the general spirit of the Constitution.”

We are not without authority to ignore the punctuation and to construe the section as we believe it should have been punctuated. It is commonly-stated that “punctuation is no part of the statute,” and that “for the purpose of arriving at the true meaning of the statute courts read with such stops as are manifestly required.” United States v. Lacher 134 U. S. 628, 10 Sup. Ct. 626, (33 L. Ed. 1080); Stephens v. Cherokee Nation, 114 U. S. 480, 19 Sup. Ct. 722, 43 L. Ed. 1041; U. S. v. Oregon R. Co., 164 U. S. 541, 17 Sup. Ct. 165, 41 L. Ed. 541; Ford v. Delta Land Co., 164 U. S. 674, 17 Sup Ct. 230, 41 L. Ed. 590. In the construction of laws punctuation is no criterion of the sense of the Legislature, unless it is in conformity with their intention as appears in the words they use. Punctuation is generally ■ the act of the clerk or printer, which the court will disregard, if, taking the instrument by its four corners, and looking at all its provisions, a judicial construction points to an intention different from what the mere punctuation indicates. This rule was observed in the case of Durousseau v. United States, 6 Cranch, 307, 3 L. Ed. 232., and in the case of In re Irwine, Fed. Cas. No. 7.086.

The case of Hamilton v. Steamboat, 16 Ohio St. 429, seems to be a leading case on the question at issue here. In that case the question arose as to an act of the Legislature which read as follows: “That all steamboats and others watercrafts, of tiventy tons burden and upward, navigating the waters within or bordering upon this state, shall be liable, and such liability shall be a lien thereon, for all debts contracted,” etc. The question was whether the liability attached to all steamboats, or whether it attached to all steamboats of 20 tons burden and uptvard; that is, whether the phrase, “of twenty tons burden and upwards,,” referred to steamboats or to watercrafts only. The court said:

• “ * * * If the Legislature intended the tonnage limitation to apply to steamboats as well as to other watercrafts, why was the word ‘all’ inserted before the word ‘steamboats,’ in the •first line of the amended section?- If that was their meaning, the word is useless, -and its insertion served no purpose; hut, if the word be construed to exempt steamboats from the tonnage limitation applied to other watercrafts, so as to render all steamboats liable to the provisions of the act, without reference to their tonnage, we discover a substantial reason 'why the word was inserted, and that a purpose is thereby subserved in accordance with the policy of the statute, and in harmony with both the original and amended sections. But for the punctuation as it stands there could be little doubt but that this was the meaning of the Legislature. Courts will, however, in the construction of statutes, for the purpose of arriving at the real meaning and intention of the lawmakers, disregard the punctuation, or repunctuate, if need bé, to render the true meaning of the statute. Price v. Price, 10 Ohio St. 316; Bouc. Law. Dic. 347, 402. If the punctuation in the first line followed the word ‘steamboats,’ the purpose for which the word ‘all’ was inserted in the amendments, as well as the true meaning of the section, would be more obvious. * * * It follows that actions against steamboats are not limited to those of twenty tons burden and upward, and that, therefore, it is unnecessary to allege in the proceedings against them, that they are of that tonnage.”

In the ease of United States v. Voorhees (C. C.) 9 Fed. 143, the defendant was on trial for violating, the U. S. Rev. St. 5209 (U. S. Comp. St. 1901, p. 3497), against embezzlement. It was a question whether a criminal intent must be proven in all of the different grades of offenses covered by this statute. McKennan, C. J., in delivering the opinion of the court, used this language:

“If it were not for the punctuation on which the district attorney has laid so much stress, there would be no doubt that the intent mentioned would apply to all the offenses mentioned; but in a criminal case, where much is to be allowed in favor of liberty, it is unsafe to rely on a mere matter of punctuation. If these offenses were separated only by commas, there would be no doubt that the intent with which the section closes would apply to all its divisions. But we think that, as it stands, fhe fair construction of the act, and the latter part of the section which provides that any one who aids or abets an officer in doing any of the acts with like intent shall be similarly punished, must be to make it necessary to allege and prove the intent as to all.”

The punctuation as it appears in the statute and referred to by the court is a semicolon.

In the case of In re Schilling, 53 Fed. 81, 3 C. C. A. 440, Circuit Judge Shipman, writing the opinion of the court, among other things, said:

“It is truly said that punctuation is no part of a statute, and that, therefore, punctuation can be changed in accordance with the obvious intent of the Legislature.”

In the case of Stephens v. Cherokee Nation, 174 U. S. 480, 19 Sup. Ct. 722, 43 L. E.d 1041, supra, the question árese as to the effect of a clause of an act of Congress, and the Supreme Court held that this clause- should be read as though- preceded by a comma, which, in effect, 'gave it a different meaning from that which must be given if the punctuation as it appears in the text be observed. The court, passing on the question, used this language:

“This provision is not altogether clear, and we therefore inquire: What is its true construction? * * * It is true that the provision is somewhat obscure, although, if the comma after the words ‘all citizenship eases’ were omitted, or if a comma were inserted after the words ‘the United States,’ that obscurity, would practically disappear; and the rule is well settled that, for the purpose of arriving at the true meaning of a statute, .courts read with such stops as are manifestly required” — citing Hammock v. Trust Co., 105 U. S. 77, 84, 26 L. Ed. 1111; U. S. v. Lacher, 134 U. S. 624, 628, 10 Sup. Ct. 625, 33 L. Ed. 1080; U. S. v. Oregon & C. R. Co., 164 U. S. 541, 17 Sup. Ct. 165, 41 L. Ed. 541.

In the case of Ewing v. Burnett, 11 Pet. 54 (9 L. Ed. 624), Justice Baldwin, in delivering the opinion of the court, used the following language:

“* * * The court will first take the instrument by its four corners in order to ascertain its true meaning. If that is apparent on judicially, inspecting the whole, the punctuation will not be suffered to change it.” , . ■

In-the case of Cushing v. Worrick, 9 Gray, 385, the Supreme Court of Massachusetts, in construing a statute, used this language :

“It is unnecessary to resort to a draft of the bill as passed to be engrossed, in order to' explain the statute as actually engrossed; for the general rule is that punctuation is no part of a statute.”

The Constitution of -the state of Oklahoma was drafted by men recently elected and fresh from the body of the people, and was adopted by the people themselves. It was adopted for themselves and for their posterity. It was adopted as the framework around which the Legislature, as provided for in its division of powers of the state government) should erect and build a modern system of law) adequate and commensurate with tire interest of the whole people. Constitutions deal in general language and every interpretation of its powers should have a constant reference to the objects for which it was framed and adopted. It is safe to say that the people who adopted this Constitution realized the rapid growth and great increase in population that would follow the advent of the state into the Union, and that enlargement of the judiciary would become absolutely necessary. This is manifest in more instances than one. We find throughout the entire article 1!, which established the judicial departments, the frequen! appearance of the phrase “until otherwise provided by law.” ¥c find in the second section of the article the provision that jurisdiction of the Supreme Court shall extend to all civil cases ai. law and in equity and to all criminal cases “until a Criminal Court of Appeals with exclusive appellate jurisdiction in criminal cases shall be established by law.” In section 5 we find that the sessions of the Supreme Court and the duration thereof shall be fixed by rule of said court “until fixed by the Legislature.” In section 8 we find that the appellate and original jurisdiction of the Supreme Court shall be invoked in the manner prescribed by the law of the territory of Oklahoma “until the Legislature shall otherwise provide by law.” Section 10 fixes the jurisdiction of district courts “until otherwise provided by law.” Section 14 begins with the sentence, “Until otherwise provided by law, the county courts shall have jurisdiction,” etc. Section 16 begins with the sentence, “Until otherwise provided by law, in all cases,” etc. Section 18 begins with the sentence, “The office of justice of the peace is hereby created and, until otherwise provided by law,” etc. Thus it will be seen that almost every section of this article, as well as the section under discussion here, contains the qualifying phrase “until otherwise provided by law.” This is the article of the Constitution dealing exclusively with the judicial department, creating the courts and fixing their jurisdiction. The object of the people who adopted this Constitution was not that the Constitution should be used as an iron-clad'limitation on the powers of the Legislature, but, on the contrary, as we have said, should be used as a fundamental law and framework on which to erect a complete system of jurisprudence and state government. No interpretation of the words in which those powers are granted can be a sound one, which narrows down their meaning so as to defeat their objects. That would be to destroy the spirit of the Constitution, as well as to cramp the letter.

The Legislature in enacting the statute creating the superior court evidently believed the time had come in the growth and development of the state to relieve the county and district courts in the more populous counties of some of the work in exercising the jurisdiction given them in the Constitution. It will be observed that this act creates the superior courts only in counties having a population of 30,000 or more and having a city 'therein of 8,000 or more.

It is the duty of this court to construe the statute as not being in conflict with the Constitution, if that construction can reasonably be arrived at. It is always to be presumed - that the acts of the Legislature were not passed without mature reflection and full consideration of the provisions contained in them, and of the well-settled constitutional provisions. They are not only to be presumed to be constitutional, but the authority of the court to declare them void will only be resorted to in a clear case of conflict. In the case of Ogden v. Saunders, 12 Wheat. 213, 6 L. Ed. 606, supra, the Supreme Court of the United States announced the rule in this language:

“It is but a decent respect due to the wisdom, the integrity, and the patriotism of the legislative body, by which any law is passed, to presume in favor of its validity, until its violation of the Constitution is proved beyond all reasonable doubt. This has always been the language of this court, when that subject has called for its decision; and I know that it expresses the honest sentiments of each and every member of this bench.”

In the case before us we feel that to hold that part' of the act in question giving to the superior court concurrent jurisdiction with the county courts in criminal cases in conflict with the Constitution would be to defeat the purpose and object, not only of the act itself, but the manifest purpose and object, embodied in section 12 of the Constitution. We are therefore of the opinion that that portion of the act conferring jurisdiction on the superior court concurrent with the county court in all criminal matters is not in conflict with the Constitution, and that the superior court had jurisdiction to try the petitioner, and to render the judgment and sentence as appears from the record in this case.

The writ is denied.

EURMAN, Presiding Judge, and DOYLE, Judge, concur.