author: DOYRE, J.

text:
    BILL NUTT v. STATE.
    No. A-1056.
    Opinion Filed November 18, 1912.
    (128 Pac. 165.)
    1. HOMICIDE — Evidence. In ’ a prosecution for murder, the evidence is held to support the verdict, and that no reversible error was committed on the trial.
    2. HOMICIDE — Self-Defense—“Justifiable Homicide.” To constitute the defense of “justification” where a homicide has been committed, the apprehension of danger must be founded on sufficient circumstances, real or apparent, to authorize the opinion that the felonious design then existed.
    3. TKIAL — Instructions. Where the instructions of the court considered as a whole fully and fairly present the law of the case and are not inconsistent, they are without error.
    (Syllabus by the Court.)

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

    Bill Nutt was convicted of murder, and appeals.
    Affirmed.

      Galbraith & McKeozvn, J. B. Champion, and Crawford & Bolen, for plaintiff in error.

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

The plaintiff in error was charged, by information filed in the district court of Pontotoc county on August 14, 1909, with the crime of murder, committed July 20, 1909, upon the body of T. E. Morrow. Having entered a plea of not guilty, his trial resulted in a verdict of the jury finding him guilty of murder and assessing his punishment at imprisonment in the penitentiary for life at hard • labor. On September 29, 1910, a motion for a new trial was overruled, and judgment and sentence was pronounced and entered in accordance with the verdict. From this judgment the defendant prosecuted an appeal by filing in this court on March 27, 1911, his petition in error with case-made.

T. F. Morrow, the deceased, was foreman for a sewer construction company in the city of Ada, coming to work there a few weeks before his death, and during that time he was stopping at the Byrd Hotel. On July 20th, about 7 o’clock, while he was standing in front of the counter in the hotel office, talking to the defendant’s wife, she being behind the counter, the defendant approached and shot him three times with a large caliber pistol, killing him almost instantly. The principal eyewitnesses of the assault were Mrs. Sue Rains, L. E. Rains, and Charles Goodwin.

Mrs. Sue Rains testified that she lived in Ada on July 20, 1909; that she had known Mr. T. F. Morrow for about three or four days before he was killed; that for that length of time she and her husband had been running the Byrd Hotel; that at the time the killing took place she was sitting in the dining room at the table; that she was not eating; that the building faced the east; that there are two sets of double windows on the front of the building; that right by one of these windows was a typewriter; that just a minute or two previous to the killing she saw Mrs. Nutt, wife of the defendant, sitting at the typewriter; that she saw Mr. Morrow come up to where she was, and she turned ai'ound and faced him and flicked a piece of paper or something in his face, and he brushed it back in her face, and they then stepped out of sight; that they seemed to be in a good humor; were laughing; that there were double doors between the dining room and the office; that she could see through these rooms into the parlor and could see part of the office; that she never saw Mr. Nutt until the shooting; that the shooting took place about four or five minutes after she saw them standing at the typewriter; that Nutt had a pistol in his hand when she saw him; that she did not see Mr. Morrow until after the first shot was fired; that when Nutt shot again Morrow’s arms were hanging by his side; that her son, who was sitting at the dining table, got up and went towards the door and told him not to come in there, and Morrow then turned towards the parlor door. “I believe the third shot was fired before my son told him not to come into the dining room. I did not see Mr. Morrow except “when the second shot was fired.”

Charles Goodwin testified: That he lived at Stratford. Did not know Mr. Morrow. Knew Bill Nutt when he saw him. Was at the hotel on the evening of July 19th. Stayed there the night before the killing. Had been back to the hotel probably an hour before the killing took place and was sitting on the porch in front of the hotel facing the lobby of the hotel. Morrow was out there talking just a short time before the killing. Saw Mrs. Nutt there. She was standing in the northeast door. She stayed there two or three minutes—

“There was another lady, I think Miss Burns, that was discussing some statement with her about giving away something; I think it was the Grand Leader. Morrow was in conversation with her, and asked her, ‘What is that you are giving away this evening?' and she says, ‘You think you are awfully darn smart.’ She turned and walked back into the lobby and went over to the typewriter right at the window. Morrow stayed in his seat beside me for a few minutes, and then he got up and asked me to go to town with him. He was in his shirt sleeves and got up and went into the building in the southeast door, and got his coat and came back to the counter, and Mrs. Nutt was behind the counter. Before that, while she was sitting at the typewriter, Morrow had said to her, ‘You had better look out, you will be walking on that thing directly,’ and she said, ‘What is that to you,’ or something like that. Mrs. Nutt was behind the counter when the shooting'took place; Morrow was on the out-ride of the counter. The counter was between them. The defendant appeared at the door that leads into the lobby. He was at the door when I first saw him. He said ‘damn’ something, and the report of the gun drowned .the rest of the sentence. Morrow was standing right there with his arms against the counter. It was all done in a flash. He had his right side to the man shooting and held his arms in a crouching position and walked slowly away from him with his right side towards the defendant. During this time, the defendant was shooting him; moving on to him; held his gun out, walking right towards him. There was a greater interval between the first and second shots than between the second and third. The first shot was fired by Nutt while he was standing in the door. After he fired that he came right on, following the way the man moved. Morrow was standing just about to go into the dining door when the last shot was fired, and Nutt was within three feet of him.”

D. E. Rains testified: That he had been running the Byrd Hotel two or three days at the time of this killing. That he was eating his supper in the dining room, and the shooting attracted his attention. He heard three shots fired. He jumped up, looked around, and saw the defendant coming towards Mr. Morrow, who was going in a kind of stooping position with his ha'nds down to his side with nothing in them towards the dining room door, and “I told him not to come through the door. The defendant had his gun up, and as Mr. Morrow turned he fell against the side of the wall, and the defendant, who was then within five feet of him, fired the third shot. Mr. Morrow staggered and fell and died almost instantly.”

Dr. T. W. Hartman testified: That he was called to the Byrd Hotel on the 20th day of July, 1909, and found the man Morrow dead. ‘ Made an examination of his body. That he had three bullet wounds, all of them entering on the right side. The first one was 2J4 inches below the point of the shoulder, and the second one ojá inches below, passed through the arm and entered the thoracic cavity and was lost in the lungs. The next one entered 9J4 inches below the point of the shoulder and passed through the arm and went through the body on a level and came out about 5 inches posterior to the. left nipple. It was the only bullet to penetrate the entire body. Two of these wounds were necessarily fatal, the lower two.

Harry Parks testified that the width of the counter at the Byrd Plotel was 30 inches, height about 4 feet, with six feet space between the counter and the wall behind it.

On behalf' of the defendant, W. H. Brinlee testified that he heard Mr. Morrow and somebody else talking while Mr. Nutt and his wife were passing, and Mr. Morrow remarked that this fellow Nutt had the name of being a pretty bad man, but “I am going to accomplish my desire with that Indian woman if I have to kill him.” That this was three or four days prior to the killing, and that he told the defendant what Morrow had said about the middle of the afternoon before he killed him that night. On cross-examination the witness testified that he had sold ,a good deal of whisky during the Indian Territory days, and was convicted for selling since statehood.

W. R. Royal testified: That he heard a conversation between Mr. Morrow and another gentleman, and the other gentleman said to Mr. Morrow: “You had better let that woman alone. They tell me that Bill Nutt will shoot a fellow.” And Mr. Morrow said: “That fellow ain’t nothing but a big wind. If he was to draw a gun on me, I would take it away from him and wear it out on his head.” That this was two or three days before the killing.

Luke Jenkins testified that he was in the Byrd Hotel one night and Mr. Morrow tried to break into Mrs. Nutt’s room; that he told him that Bill would shoot him; and that he said that he could shoot some himself. Cross-examination showed that witness was running a joint; had been convicted of a violation of the quarantine law, .and that he was up in the hotel to see a woman that night.

J. D. Morris testified that he heard Mr. Morrow say:

“ T never did have intercourse with a damn Indian. Don’t guess he knew I was Indian. He said: ‘I’ve got one on the string.’ I said, ‘Who is it?’ He said, ‘A woman around here at the Byrd Hotel.’ He said, ‘It’s Bill Nutt’s wife.’ ”

Bone Hardin testified that he was acquainted with the deceased—

“Rode with him the day of the killing. He was in the hack with me and said that he was going up there and f-old lady Nutt, and I told him that Bill Nutt would kill him, and I went and told Bill.”

Mrs. Nutt testified: That she was the wife of the defendant. That she had been staying at the Byrd Hotel about two weeks prior to the killing. That when Mr. Morrow had been there three or four days he asked her why she did not keep her room open at night—

“He said: ‘Why don’t you leave your room door open ? You are not like most women at hotels.’ I said I wasn’t in the habit of leaving my door open at night. I got up one morning and walked around that porch, and he was inside his room there, and he come up and said, ‘Who are you looking for ?’ ánd I said, ‘Nobody, particular,’ and he said, T guess you are looking for that thing that wears the umbrella hat.’ Had reference to my husband. He said. ‘Come inside here/ and I said, ‘I won't cío it/ and I turned around and went down. Another time he said, ‘Follow me upstairs.’ One night somebody tried to get in my room, knocked on the door and then kicked on the door, and 1 heard Luke Jenkins speak outside to some one. I told whoever it was to get away from my door. The evening before the killing 1 was upstairs going to my room, and he jerked me into his room and onto the bed, and I told him if he -did not let me go I would call Mr. Parks, and he told me not to holloa for Mr. Parks. He had his hand on my neck. I got up and went down the back stairs to where Bill was in the barn. I was crying. I told Bill I could not stay up there, and he told me to go back up to the hotel and stay there with Nannie. I tried to get a room elsewhere. On the night of the killing I ate at the Byrd with Nannie Burns. Saw deceased in dining room. I was talking to Nannie about one of the hands on our place, and said, ‘Pie is always wanting something,’ and Nannie said, ‘I guess you gave it to him/ and Mr. Morrow said, ‘If you got anything to give away to-day, I will take it.’ He came around and put his arms around me that way, and says: ‘Got anything to give away? If you have, I will take it.’ I jumped up from the table and walked on out into the lobby and told N annie, ‘Let’s go.’ Pie walked out on the sidewalk. He sat there a minute, and I got up and got an envelope and sat down at the typewriter, and Mr. Morrow came up and said: ‘You better let that thing alone. You will be walking on it directly.’ And I said, ‘None of your business if I do.’ Just before that we were standing in the door, and Nannie said, T will go and see if Lewis has come,’ and Mr. Morrow holloaed and said, ‘Giving anything away to-night ?’ and I said, ‘You think you are awful darn smart/ and that is when I went to the typewriter. He come and grabbed that paper out of my hand and hit me in the face with it, and I turned and walked over to the desk, and he walked right up by me, right beside me, and he says to me, ‘Are you going with me?’ and I said: ‘No, Mr. Morrow; I am not going with you. Don’t you know you are going to get into trouble. I am another man’s wife.’ He said: T don’t want to hear that. That is not what I want to talk about at all.’ I was just telling him about the way he was doing and begged him not to do me no such way, and he said that he did not want to hear about it. I told him I would tell Bill, and he said he was not afraid of him. While he was standing there, he put his arms around me that way. We were both leaning over the counter, and he just throwed his arm around my neck, and as he threw his arm around my neck I looked up and seen Bill, and I said, ‘There’s Bill now/ and he just dropped.his arm down that way and reached back this way, and Bill commenced shooting. Bill was standing in that door that leads upstairs. He shot three times. The shots were fired just as quick as they could be.”

Mi's. Nutt further testified that a day or two before she went to live at the hotel her husband, the defendant, did not run her down the street with a six-shooter and abuse her and accuse her of having.been too intimate with other men.

The defendant testified on his own behalf: That he was in the livery business at Ada. Was not acquainted with T. F. Morrow, the deceased, but had seen him around the hotel several times — and quoting from the transcript:

“My wife first told me about him making advances towards her two or three days before the killing. She told me that we would have to get another place; that fellow kept after her all the time. I told her that: ‘If necessary we could go then, but maybe you are mistaken. Beat the thing off the best you can, and we will try to make other arrangements.’ The evening before the killing she came to the barn, and said, ‘That man is fooling with me again.’ And I said, ‘Don’t tell me that,’ and she said, ‘Well, I don’t want to get in’trouble, if we can avoid it.’ She said he had jerked her into his room that evening, and I said: ‘That is all right; if you don’t want to go back, you can stay here.’ She went on back to the hotel. After a while, I went down to Duke Jenkins’ joint, and he asked me for his gun, and I told him it was up at my room and offered him mine, and he said he did not want it. After that I went up to the hotel to see my wife. This man Morrow and my wife were standing at the desk, and as I walked in she threw his arm off her neck like that, his left arm, just as the door slammed. She said, ‘There is Bill,’ and when she said that he threw his hand back just like that, and I shot him as fast as I could. When I saw that, I just went to pieces. I did not move out of my tracks. Afterwards, I surrendered to the officers.”

On cross-examination witness testified as follows:

“Q. Bill, what did you kill that man for ? A. I killed him to protect my family, exactly what I did. Q. That is what you did it for? A. That’s it. Q. Is that all you killed him for? A. Exactly what I done. To protect my family. Q. Then you didn’t kill him because he put his hand behind him? A. I thought he would kill me if I did not kill him, and he was with my family.”

On behalf of the state, in rebuttal, Walter Goyne testified:

“When I heard the shooting I ran to the hotel and met the defendant and said to him, ‘Bill, what is this trouble about?’ and he said: ‘Well, I will tell you. I went in there in the hotel, and there was a man had his arms around my wife, and I killed the son of a bitch’- — or something like that.”

R. M. Roddie testified that he lived in Ada and never saw T. F. Morrow except the night he was killed; that he was at the Byrd Hotel five or ten minutes after and had a conversation with Mrs. Nutt immediately after arriving there, in substance as follows :

“I said, ‘Mrs. Nutt, how did this happen?’ and she replied: 'Mr. Morrow came in to get his coat, and said, “You all going to the show to-night?” And as I started to reply Bill came in that door and drawed his gun, and said, “What in the hell are you all doing ther.e?” and begun to shoot, and I begged him not to.’ I asked her what Bill shot him for, and she replied, ‘Nothing at all.’ She said Mr. Morrow had not mistreated her.”

Mrs. L. E. Rains testified: That she heard Mrs. Nutt say after the shooting that Nutt killed Morrow on account of jealousy; that Nutt thought that Morrow had his arm around her and he did not; that he was reaching for a match. That she never noticed any improper conduct on the part of Morrow towards Mrs. Nutt. That Mr. Morrow never came around but what she was there and was always butting in and saying something to embarrass him. “Sunday evening was the first time I met Mr. Morrow, and we were talking in the hotel lobby. Mrs. Nutt came up and sat down, and Mr. Morrow said something about it being very warm, and she said, ‘I guess you drink too much whisky,’ and it seemed to embarrass him very much.”

Eizzie Ellington testified that her room had been next door to Mrs. Nutt’s, and she overheard a conversation between Bill Nutt and his wife in which he told her that she should not treat Morrow or Fitzgerald that way; she said she would about do as she pleased, and he said he would put them out of the way, or something of the kind, and she then told him he was not game enough. She further testified that either the morning of the killing, or a morning or two before that, Mrs. Nutt called’ Mr. Morrow into her room; that she waited table for supper that night and waited on Mr. Morrow and saw him when he left the dining room; that she did not see him go by the table where Mrs. Nutt was eating and put his arms around her.

Harry Parks testified that while he was running the Byrd Plot el, in July, Mrs. Nutt came there and asked him about a room for three or four days, telling him that she and Bill had separated, and that he suggested to her that she go to some private house, and she said that she was afraid, of Bill and wanted to be around where people were in the daytime. “Bill Nutt did not board there. I ran the hotel up to within three days of the killing.”

Mrs. Harry Parks testified: That she and her husband had been running the Byrd Hotel prior to July 16, that she was acquainted with Morrow and Fitzgerald, that Mrs. Nutt would invariably stop these men and talk to them.' — ■

“It was quite frequently; I had to notice it. They did not force conversation on her and never did act ungentlemanly towards her. It was the conduct of Mrs. Nutt that attracted her attention. Nutt was not boarding there. Three days before Mrs. Nutt came to the hotel I saw Bill Nutt running her down the street with a six-shooter.”

W. H. Nettles testified that the next day after Mr. Morrow was killed he took a statement from Mrs. Nutt as follows:

“When I first saw Mr. Nutt a,t the shooting he was standing in the cut-off just in front of the stairway of the office. He was just standing there, and I didn’t see any six-shooter. I guess he stood there a couple of minutes. He spoke to Morrow, and said: What are you people doing there? What are you talking to my wife for ?’ And as soon as he said this he shot.”

Mrs. Sue Rains testified that Mrs. Nutt seemed to push herself around on Mr. Morrow so much as to be taken notice of. “I had heard these little things, and of course I noticed it. She always seemed to love to be around him.”

The petition assigns 35 specifications of error, only five of which are presented in the brief. It is the duty of this court to consider all assignments of error properly made and presented; but it is a well-established rule that assignments of error not argued orally or presented in the brief are to be considered as abandoned.

The assignments of error relied upon for a reversal of the judgment as presented in the brief relate solely to instructions given and instructions requested and refused. It appears that there was some evidence which in the opinion of the trial court made it necessary to instruct the jury upon the law of self-defense. The defendant’s counsel in their brief say: “Self-defense being in reality the only defense, even staggered at under the evidence;” and contend that the court erred in two of the instructions given bearing upon this question. These two assignments can well be disposed of by saying that there was no evidence tending to establish a case of justifiable homicide in self-defense. It is true that the defendant’s wife did testify that, when she said, “There is Bill now,” the deceased “dropped his arm down and reached back,” and the defendant on his own behalf testified that when she said that the deceased “threw his hand back.” It is also true that the defendant testified that “I killed him to protect my family, exactly what I did.”

Under the undisputed evidence, and under the defendant’s own admissions, there was no real or apparent necessity for taking the life of Morrow in order to save his own life or prevent great bodily injury.

Counsel cite the cases of Price v. State, 1 Okla. Cr. 358, 98 Pac. 447, and Floyd, v. State, 5 Okla. Cr. 65, 113 Pac. 212. In these cases instructions were held to be erroneous because they were held to destroy the right of the defendant to act upon the appearance of danger. The instructions given in this case do not destroy that right, because the court clearly instructed the jury if the defendant did believe “that he was in danger of losing his life or of receiving great bodily harm he would be justifiable.” This certainly gave the defendant the benefit of the danger as it appeared to him at the time, and it was entirely different from the instructions as given in the two cases above referred to and relied upon for a reversal of this judgment.

The court further instructed the jury on the right of the accused to defend his wife as follows:

' “Homicide is also justifiable when committed in the lawful defense of such person, or of his or her husband, wife, parent, child, master, mistress, or servant, when there is a reasonable ground to apprehend a design to commit a felony, or to do some great personal injury, and imminent danger of such design being accomplished.”

And further instructed as follows:

“The defendant pleads that he shot and killed the deceased in the lawful defense of his wife, and in this connection you are instructed that he would be justifiable in so doing, if there was reasonable grounds to apprehend a design to commit a felony or to do her some great personal injury, and imminent danger of such design being accomplished. But before he would be justified, it must appear that the killing was necessary to prevent the immediate commission of such felony, or that the killing was absolutely necessary to prevent great bodily injury being immediately inflicted on the wife of the defendant; that is, as it reasonably appeared to defendant at the time viewed from his standpoint. Homicide in defense of the chastity of the wife to be justifiable must be to prevent an impending violation thereof, and reasonably necessary to prevent, and not a past offense or a future attempt. If you find that the defendant shot and killed the deceased, T. F. Morrow, in his necessary self-defense, or in the lawful defense of his wife as above defined to you, you will acquit him.”

This is the defense sought to be made out by the evidence, and no complaint is made of these instructions. They correctly and fully state the law upon that subject. The defendant had the benefit of both defenses in this case, and with all that the jury found that the homicide was neither in his own necessary self-defense nor -in defense of his wife.

The charge of the court, considered as a whole, was sufficiently favorable to the defendant, and there was no error in refusing the instructions requested. This court has repeatedly held that instructions are to be considered as a whole, and, when so considered, if they fully and fairly present the law of the case to the jury and are not inconsistent, they are without error.

It seems from the evidence that the murder of Morrow was prompted by a spirit of wanton jealous rage induced by seeing him talking with the defendant’s wife, and that it was a cruel, cold-blooded, and deliberate murder. The verdict of guilty was unquestionably right.

We have examined the other assignments and failed to find they, or any of them, are well taken, and we have found nothing in the record demanding a reversal of the judgmnt of conviction.

Wherefore the judgment of the district court of Pontotoc county is in all things affirmed.

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


source: Caselaw Access Project

author: FURMAN, P. J.

license: Public Domain

text:
    T. C. BOWES v. STATE.
    No. A-1584.
    Opinion Filed November 18, 1912.
    (127 Pac. 883.)
    1. INDICTMENT AND INFORMATION — Obstructing Justice — Statutes — Suppressing Evidence — Construction of Accusation — Penal Statutes — Following Language of Statute, (a) If a witness bas been summoned or served with a subpoena to attend court and testify in any cause pending therein, any person wh<v willfully prevents or dissuades such person from .obeying such subpoena is guilty of a felony.
    (b) When a doubt exists as to whether an information ox indictment charges a felony or misdemeanor, the defendant should be given the benefit of the doubt, and the offense charged should be held to be a misdemeanor.
    (c) Any person who maliciously, by any deceit or fraud, ox by use of any threat, menace, or violence, intentionally prevents any party to an action or proceeding from procuring the attendance of a witness therein, when said witness has not been served or summoned with a subpoena, is guilty of a misdemeanor.
    (d) The rule of common law that penal statutes are to be strictly construed is not in force in this state; but penal statutes must be construed liberally according to the fair import of their terms, for the purpose of effecting the objects for which they were enacted, and to promote justice.
    (e) It is not necessary for an indictment or information to use the words in the statute in defining an offense, but other words conveying the same meaning may be used.
    (f) An indictment or information is sufficient if the act or omission charged as the offense is clearly and distinctly set forth in ordinary and concise language, and in such a manner as to enable a person of common understanding to know what is intended.

      2. INTOXICATING- LIQUORS — Criminal Prosecutions — Punishment. The court has the power to render a judgment providing for the imprisonment of a defendant until a fine assessed against him for a violation of the jn-ohibitory liquor law of the state has been paid.
    3. PARTIES TO OFPENSES — “Principals”—Evidence—Acts and Declarations of Conspirators, (a) All persons who are concerned in the commission of an offense are guilty as “principals,” and should be prosecuted and convicted as such.
    (b) Where two or more persons engage in a conspiracy to commit an offense, any statement made by one of such conspirators in pursuance of such conspiracy, and before the completion thereof, is competent evidence against his co-conspirators, although they may not have been present when such statements were made. This is equally true as to any acts done by co conspirators.
    (Syllabus by the Court.)
    Appeal, from Custer County Court; J. C. McKnight, Judge.

    T. C. Bowes was convicted of suppressing evidence, and his punishment assessed at a fine of $250, and he appeals.
    Affirmed.
    The information in this case is as follows:
    “State of Oklahoma, Plaintiff, v. T. C. Bowes, Defendant
    “In the name and by the authority of the state of Oklahoma, now comes E. J. Lindley, county attorney in and for the county and state aforesaid, and gives the court to know and be informed that heretofore, and for a long time prior to the information herein, one P. S. Brooks was, and still is, a material witness for the state in an action pending in this court wherein the state of Oklahoma is plaintiff and T. C. Bowes is defendant, charging the said T. C.. Bowes with the crime of selling intoxicating liquor within the state of Oklahoma to the said P. S. Brooks; that on the 26th day of April, 1911, the 8th day of May, 1911, was duly set as the day of the trial of the said action, and that thereafter, on the 3d day of May, 1911, the day of trial was continued by agreement to the 18th day of May, 1911, to which day the said P. S. Brooks was duly subpoenaed in due course of law to appear and give evidence for the state in said action; that the said T. C. -Bowes, late of Custer county, Oklahoma, on or about the 27th day of April, 1911, at and within said county and state, well knowing the premises, and knowing that the said P. S. Brooks would be subpoenaed to attend as a witness in said action as aforesaid, and devising to obstruct the course of justice in said county court of Custer county, Oklahoma, and maliciously intending to prevent the attendance of the said P. S. Brooks as aforesaid, did then and there willfully, unlawfully, and designedly and unjustly use means, two wit, hired, employed, and induced the said P. S. Brooks, by giving him certain money and paying his expenses, to leave the jurisdiction of the said court, thereby to hinder and prevent the said P. S. Brooks from appearing before the said court when and where the said T. C. Bowes was held for trial, contrary to the form of the statutes in such case made and provided, and against the peace and dignity of the state of Oklahoma.
    “E. J. LiNduey, County Attorney.
    “State of Oklahoma, County of Custer' — ss.:
    “Personally appeared P. S. Brooks, who first being duly sworn on his oath says that the statement contained in the above information is true. P. S. Beooks.
    “Subscribed and sworn to before me this 18th day of May, 1911.
    “J. C. McKNIGI-it, County Judge. [Seal.]”
    Statement of the Evidence.
    W. E. Armstrong testified for the state that he was clerk ot the county court of Custer county, Okla.; that in the months of April and May, 1911, a criminal prosecution was pending in said court against appellant, T. C. Bowes, for a violation of the prohibitory liquor law; and that P. S. Brooks was a witness for the state in said cause.
    P. S. Brooks testified that he resided in Custer county, Okla.; that he was the prosecuting witness against appellant, Bowes, in a case pending in the county court of Custer county, wherein appellant was charged with violating the prohibitory liquor law; that in March, 1911, appellant came to an old house, about a quarter of a mile from the residence of the father of witness; that one Joe Winters came to the house of the father of witness in a buggy; and that witness went with the said Winters to the old house where appellant was and there saw appellant. Witness then testified as follows:
    “Q. I believe you stated, Mr. Brooks, that the defendant, Bowes, came out of the house? A. Yes, sir. Q. Did you get out of the buggy? A. Yes, sir. Q. Did -Winters get out of the buggy? A. I think so. Q. Did you have any conversation with the defendant at-that time? A. I did. Q. Tell the jury what he said. A. Pie said he came up to see me, and he wanted to see if there was any way of getting shut of my evidence in a case he had pending in court, and he made me a proposition. Q. Go ahead and tell the jury all about it. A. He said he would pay a man to cultivate my crop, and would pay my expenses if I would get out of the way of the court until his trial came up. He said maybe if, when he went to trial, then he could beat his case, or something to that effect. Q. When was that? A. It was about the 20th day of March, as near as I can remember. Q. Did you talk to him very long? A. I don’t suppose we were there over 30 minutes. Q. Where did you go after that, Slim? A. I went up to my father’s hpuse. Q. Where did the defendant go ? A. They got in the buggy, and I supposed they went home. Q. Who do you mean by ’they’? A. Winters and Bowes. Q. Well, now, was this the only time you talked to the defendant up there? A. Yes, sir. Q. Did the defendant make any other remark at that time? A. He told me that he would have Joe Shive to watch the docket when his case was set for trial, and he would let me know before I got subpoenaed. Q. Did he say anything to Winters when he drove up there? A. I don’t know. Q. Did Winters say anything to him? A. Not that I remember of; but he may have. Q. State whether or not they had anything to drink. A. Yes, sir. (Objected to as immaterial. By the Court: He has answered.) Q. Was there any conversation had about the drinking? A. No, sir; not that I remember of. Q. Now telhthe jury, Mr. Brooks, when and where you saw the defendant next. A. I saw him in Clinton next. Q. In Clinton? Do you remember the time? A. On the 27th day of April, I think. Q. Were you in Clinton on the 27th day of April? A. Yes, sir. Q. What were you doing in Clinton on that date ? A. I went to leave the country, to get on the train. Q. Did you go for your pay down there? A. Yes, sir. Q. Well, how did you happen to go on the 27th of April, instead of some other day? A. Well, Joe Winters came to my house on the 25th of April— (Objected to any statement on the part of Joe Winters, unless made in the presence of the defendant, or the defendant is in some way connected to it, as incompetent, irrelevant, and immaterial, and prejudiciál to the rights of the defendant, or unless it is shown that Joe Winters is authorized to'represent the defendant. By the Court: Overruled. By the Defendant: Give us an exception.) A. Joe Winters came to my house on the 25th of April— (Object to anything that Joe Winters said. By the Court: Overruled. By the Defendant: .Exceptions.) Q. Did you have a conversation with Winters on that occasion? A. Yes, sir; and on the 27th I went to Clinton. Q. Now, tell the jury what occurred in Clinton on the 27th of April. First, what time did you get down there? A. It was in the afternoon; something like 2 o’clock in the afternoon. Q. What did you do down there on the 27th, Mr. Brooks ? A. I stayed'there that evening and that night. Q. Did you see the defendant there that time? A. Yes, sir. Q. Who was with him? A. I don’t remember that any one was with him. I seen him around in the town; just seen him walking around over the town. Q. Did you have any conversation with the defendant about— on the afternoon of the 27th of April? A. I couldn’t say that I did. Q. The 27th of April? A. I might have spoke to him. That night I had a conversation with him. Q. Tell the jury all the circumstances of that conversation and what it was. A. Well, that night, about 7:30 that evening, I was aiming to go away on that 8 o’clock train East when — • Do you want me to tell what hefsaid? A. Yes; what he said, and where, and all the circumstances. A. That evening, about 7:30 or 7 o’clock, I got some money from Joe Winters. * * * I got $17 from Joe Winters that night, and there was $33 to come yet; and when I got the rest I was to leave on the 8 o’clock train. Q. Did you see Bowes, this defendant, about the time you got the money? A. Yes, sir. Q. Tell the jury where Bowes was. A. I was, as near as Í remember, I was sitting about the Oklahoma State Bank, talking to Joe Winters, and he said he would get the money for me. * * * I was talking to Winters, and he went and got the money and gave it to me. Q. Where did he get it? A. I don’t know. He went and talked to Bowes, and came back and gave me the money. Q. Did you see Winters go to Bowes ? A. I did. Q. Where was he? A. He was standing just a little east of the Oklahoma State Bank. Q. State whether or not Bowes went into the bank? A. Not that night he didn’t. Q. How long did Bowes and Winters talk together, did you say? A. Possibly five minutes. Q. Did Winters come back to you from Bowes? A. He did. Q. State whether or not he gave you the money at that time? A. He gave me the $17, and said that was all he could get. * * * Q. Did you say anything at all to Bowes on the evening of the 27th of April? A. Yes, sir; I talked to him, and he said he would get the rest of the money in the morning. Q. That was after you had the $17? A. Yes, sir. Q. You say Bowes told you after that that he would get the balance of it in the morning? A. Yes, sir; I had to stay all night. I didn’t get away on the 8 o’clock train. Q. I will ask you to state, Brooks, why you didn’t leave on the evening of the 27th of April? A. Because I didn’t get all the money that Bowes was to get up for me. Q. State what day of the week the 27th of April was on? A. I think it was on Thursday. Q. Now, Mr. Brooks, state if you transacted any business in Clinton on the afternoon of the 27th of April? * * * By the County Attorney: Tell the jury what business transaction you had? A. By the Witness: I bought a suit of clothes. Q. Where did you buy them? A. I bought them of Max Weisenbarger. He run a store just west of the First State Bank. Q. You say you bought a suit of clothes there? A. Yes, sir. Q. About what time of the day was it you bought the suit of clothes of Max? A. Along about 4 o’clock' — somewhere along, there — I went in and got them, and told him I would pay for them after awhile; but I didn’t get the clothes until next morning. Q. You bought them in the afternoon, and didn’t get them until the next morning? A. Yes, sir. Q. What was the reason you didn’t get them in the afternoon? A. I didn’t have all the money. Q. You didn’t have the money that afternoon? A. No, sir; I had $17 at that time. Q. Was the store closed at that time? A. I think the store closed at 7 o’clock, and Max took the clothes to the hotel with him, and said I could get them there. Q. State whether or not the defendant, Bowes, had anything to do with the payment of that suit of clothes ? A. Not that I know'of. Q. Did you see this defendant on the evening of the 27th in the store? A. No, sir; I didn’t. Q. Did you see him attempting to cash a check? * * * A. I heard he was trying to get a check cashed that evening about 8 o’clock. Q. By the Defendant: You say you heard of his trying to get a check cashed? A. I heard him ask a party or two. Q. By the County Attorney: Did you see the check? A. I seen a piece of paper in his hand. Q. Did he tell you what he was going to do with the check? A. I couldn’t say. Q. He didn’t give you a check? A. No, sir. Q. You say this was on the evening of the 27th of April? A. Yes, sir; I think so. Q. Were you in Clinton on the next day? A. Yes, sir; I stayed there all that night. Q. Did you see the defendant on Friday morning, the 28th? A. Yes, sir. Q. Did you talk to him that next morning? A. I spoke to him; said a word or two to him; and he said, ‘Joe Winters will see you.’ Q. He met you on the street? A. Yes, sir; about 9 o’clock I saw him go into Tom Nance’s bank, him and Winters, and then Winters went on toward the depot, and I met Bowes, and he said Winters will see me. Q. Then, just as you were passing, he made that remark? A. Yes, sir. Q. Where had they come from before that? A. Bowes came out of the bank. I saw them meet about the bank. Q. What did you do then? A. I went on to the first wagon yard east of the bank. I went in there and seen Winters. Q. What transaction took place there between you and Winters? * * * A. Joe Winters give me $33 in money, and I give him a note for $50. Q. Where did you go from there after you left the wagon yard? A. I went back up to the store and got my clothes, and went down to the junction north of Clinton and got on an east-bound train. Q. What train? A. On the Rock Island east. Q. Where did you go? A. I went to Oklahoma City. Q. Was that on'the noon train? A. Yes, sir. Q. Now, you say Winters give you $33 on the morning of the 28th, and Si1? on the evening of the 27th of April? A. Yes, sir, Q. You stated you gave your note to Winters for $50? A. Yes, sir. Q. What was your understanding? What was you to do with the note, with relation to the payment of the note? A. I wasn’t to pay it. Q. You wasn’t to pay it? A. No, sir. Q. What was to be done with it ? A. After Bowes’ trial was over, it was to be destroyed. Q. State, if you know, why the note was given; whether or not it was just given as a subterfuge or a blind? * * * Q. When you left the wagon yard, when you stated you signed the note and got the $33, which way did you go uptown? A. I went up' the west_way. Q. From the time you got the $33 until you left town, did you see the defendant? A. Yes, sir. Q. Did he say anything to you? A. Yes, sir. Q. What did he say to you? A. He said, 'Don’t let Wesley Cole see you get on the train,’ and I told him I would go to the junction and get on. Q. You met him on the street? A. Yes, sir. Q. Tell the jury your trip and rounds? A. Well, I went to Oklahoma City and stayed there until the next morning, and I went to Norman and went out to where my sister lives. That was on Saturday. Well, on Sunday I came back up to Oklahoma City and stayed there all night Sunday night, and on Monday morning I came home from Oklahoma City. Q. What day of the month was that? A. About the 30th, I reckon. Q. You say you returned home on Monday? A. Yes, sir. Q. Following the Friday you had gone away? A. Yes, sir.”
    This witness further testified that he was arrested for trying to evade the service of a subpoena and placed in jail, charged with this offense, and that this subpoena was served on him in the Custer county jail.
    J. FI. Redwine testified for the state that he resided near the home of B. F. Brooks, the father of the witness P. S. Brooks ; that some time in March Joe Winters came out to the house of Mr. Brooks, and'when he left the house of B. F. Brooks the witness P. S. Brooks was in the buggy with him.

      B. S'. Brooks testified that he was the father of the witness P. S. Brooks; that some time in March Joe Winters came to his house and stayed there about 30 minutes; that when he left P. S. Brooks got in the buggy and drove off with him.
    Jim Bland testified for the state: That some time in the month of March he saw Joe Winters and appellant, Bowes, in the buggy out in the neighborhood of Mr. B. F. Brooks’. They said they had been out to see Mr. B. F. Brooks.
    Max Weisenbarger testified for the state: That he worked in a clothing store, in the town of Clinton, belonging to Hass Bros. That P. S. Brooks, the state’s witness, had purchased a suit of clothes from witness one afternoon, but did not pay for them. That witness took the clothes to the hotel, and waited and waited, and next morning witness Brooks came and paid for the suit. At the same time appellant, T. C. Bowes, attempted to get witness to cash a check for him, which witness could not do. The check was for something like $30, $32, or $33. Appellant told witness that if he could get the check cashed he could take the money out for the suit.
    W. F. Cabaniss testified for the state that he was acquainted with appellant and also with P. S. Brooks; that early in the spring he saw witness P. S. Brooks; that at the same time he saw Winters in Clinton, and Winters told witness that if he saw Bowes to tell him that he (Winters) wanted to see him.
    Del Clark testified for the state that he was deputy sheriff of 'Custer county, Okla.; that he had a subpoena for the witness P. S. Brooks in the early part of May; that he learned that said Brooks had gone to the eastern part of the state; that witness went looking for Brooks, and found him later and placed him in jail, when the subpoena was served upon him by the sheriff.
    Joe Winters testified for the defendant that -he resided in Clinton; that he knew appellant and also knew P. S. Brooks. Witness then testified as follows:
    “A. Well, I went to Mr. Brooks’ house, the old gentleman, to see about making a farm loan. Slim told me that his father was going to make a farm loan, and he said he thought that I could loan him the money. I went to see the old gentleman about it. Prior to this, though, in connection with this .case, I saw Slim over here in town long before there was any trial, and he sent word by me to Bowes that he wasn’t going to appear against him. That is how I happened to get mixed up in this deal at all. I told Dee that, and he said: 'Some time when I am going out in there, I want to take a ride with you.’ And this time I see him, and I said to him, T am going out west;’ and we went out there to the west, and when, before we got out there, when Dee found out where I was going he said, ‘I am not going up to the house,’ as he didn’t want to see Brooks. Well, there is an old house — I used to own the farm — there is an old house this side of where the old gentleman lives, and Dee said: T will get out here, and you can go on over and see the old man Brooks, and I will wait here at this old house and be here when you come back.’ Well, I went on over to see the old man Brooks, and we talked to Brooks, and this bootlegging business came up, and Severe said, T haven’t got it in for Dee.’ Well, he left while I was there, and went up to some kind of an old disc up in a field. Anyway, I finished my business with the old man. I made arrangements whereby I could get a loan through. He wanted $4,000.’ I made arrangements afterwards and approved a $3j200 loan on the half section; but he needed $4,000. As I drove back to where Dee was, he drove back, and rode over with me to see Dee. They got together and got to talking there, kind of laughing about the case, and Slim said to Dee-: T haven’t got it in for your fellows. I havén’t it in for you. I am sorry I done it; but I had to do it.’ He said, T am not going to appear against you.’ He said, 'I am sorry it come up.’ That is all there is to it. I didn’t know when’ it was set for trial; and, in fact, it wasn’t set for a month after-wards. So we came on bade, and then I went back out there two or three times, and I took Mr. Richardson out there one time to' see Brooks. Well, Slim came to me one day and said he wanted some money. (The state will object to any statements made by Brooks to this witness. By the Court: Sustained.) Q. What did Brooks say, if anything, about getting this $50? A. He said he wanted to go away, and wanted to get some clothes. He said’ he wanted to get the money of me, and I told him that I didn’t’ have the money to loan, but if he couldn’t get it anywhere else I would let him have it. Q. Was there anything said by you to Brooks, with reference to this Bowes case, in making the'loan? A. No, sir. Q. Where was he at the time he made this $50 loan'?’ A. I think the first day was here in Arapaho. I told him if he couldn’t get it I wou-ld let him have it. Q. When was it that you made the loan ? A. I gave it to him a part at one time and a part at another time. Q. You heard the testimony of Brooks that it was to never be paid back? A. Yes, sir. Q. Is that true? A. No, sir. Q. What, if anything, was said by him at the time this note was made with reference to commission? A. It was understood by Brooks that if I got the loan through that I would make it right with him. It was a good deal, and we loan people have a rule that we will treat a fellow right if he throws any deal our way. Q. I will have you look at that note, Mr. Winters, and state what it is. A. That is a note for $50. Q. Is that the note given by Brooks to you ? A. Yes, sir. Q. Was there anything in reference to Brooks leaving the state said to the note ? A. I don’t know a thing about it. You heard him testify that at that time that you said you didn’t care whether he left the state or not. A. I said that. I told him — well, I don’t remember saying that, but that was my sentiments. Q. In all your transaction with Severe Brooks, did it have any connections with Bowes, or anything to do with the Bowes case? A. It did not. (At this time the defendant offered in evidence a note, signed by P. S. Brooks, which note is marked ‘Exhibit A’ by the stenographer, and is read to the jury. Said note is in words and figures as follows: ‘Exhibit A. W. F. A. $50.00. Clinton, Okla., Apr. 17, 11. On Sept. 1, 1911, I, we, or either of us promise to pay to the order of J. A. Winters fifty dollars $50.00) at the First State Bank, Clinton, Oklahoma, with interest at the rate of 10 per cent, per annum from date, payable semiannually. Interest, if not paid when due, to be added to the principal, and draw the same rate of interest. And 10 per cent, on the amount due as attorney’s fees, if placed in the hands of an attorney for collection after maturity. The sureties or indorsers hereby waive protest, and notice of protest, and nonpayment of this note at maturity. P. S. Brooks, Sec.-, Twp.-, R.-. P. O.-.’) Q. State to the jury how it came that you give him a part of the money at one time and a part of it another time? A. I didn’t have the amount at the first time. Q. Do you remember what you paid him the first time? A. I don’t know; something like $15', $16, or possibly $17. I think he stated $17. Q. Did you give him any of the money for Bowes? A. No. sir. Q. Was there any-connection between you and Bowes? A. There was not. Q. This deal between you and Brooks was a bona fide transaction? A. Yes, sir. Q. You give him this $50 as an accommodation only? A. Yes, sir; I give it to him in cash.”
    Appellant testified in his own behalf as follows:
    "Q. Did you see the prosecuting witness, Brooks, while out there? A. Yes, sir. Q. Did you have a conversation with him with reference to the case in the court? A. Yes, sir. Q. What did he say about it ? A. He said he was sorry he had done what he did, and he wasn’t going to appear against me. He said he was forced to do what he did. Q. Did he say by whom? A. No, sir. Q. Did you begin the conversation, or did he begin it? A. He,did. Q. Did you go clear up to the home of Brooks? A. No, sir. Q. Why didn’t you want to go ? A. I had heard that he was there, and I didn’t want to mix with him. Q. How did you hear it? A. There was some boys- coming around a big canyon, and we met them and asked them if we could get through, and they said we would have to go around; for they had just seen Severe Brooks go around that way that morning, and he said we would have to go around. Q. He said he wasn’t going to appear against you? A. Yes, sir. Q. He said he was forced to do what he had done? A. Yes, sir. Q. What was said, if anything, with reference to his leaving the state? A. He never said anything to me about it. Q. You heard him testify with reference to you hiring him a hand and paying his expenses to leave the state. Was there any conversation like that passed? A. No, sir. Q. He told you he wasn’t going to appear against you? A. Yes, sir. Q. Now, Mr. Bowes, you heard his testimony with reference to a transaction with you and Winters'that just left the stand? A. Yes, sir. Q. Did you, directly or indirectly, pay any one money to cause Brooks to leave the state, or the jurisdiction of the court? (At this time the state moves the court to strike the question from the record, for the reason it is leading. By the Court: Overruled.) A. I never did. Q. How long have you known Brooks, Mr. Bowes? A. Ten or twelve years, I guess. Q. How long have you known Winters? A. About the same time. Q. Now, Mr. Bowes, you heard the testimony of this sheeny that testified, Max Weisenbarger ? A. Yes, sir. Q. Do you know what he does in Clinton? A. Yes, sir. Q. What? A. He works in a clothing store in Clinton. Q. Just as a clerk? A. I think so. Q. Did you hear him testify in reference to you wanting him to cash a check? A. Yes, sir. Q. Was that true or not? A. I never give him any check. O. Were you in his store on the night of the 27th day of April? A. No, sir. Q. I believe you testified you never paid Brooks any money, either directly or indirectly, to leave the state? A. No, sir; I never did.”

      George T. Webster and W. J. Lackey, for appellant,

      Smith C. Matson, Asst. Atty. Gen., for the State.
   FURMAN, P. J.

(after stating the facts as above). First. In their brief counsel for appellant contend that, if the facts alleged in the information against appellant constitute an offense, it is a felony of which the county court of Custer county did not have jurisdiction. With this contention we cannot agree.

Section 2195, Comp. Laws 1909, is as follows:

“Every person who willfully prevents or dissuades any person who has been duly summoned or subpoenaed as a witness from attending pursuant to the command of the summons or subpoena is guilty of a felony.”

From this it is seen that, in order to make the acts charged in the information a felony, it is necessary that the witness who was so prevented or dissuaded from attending court must have been duly summoned or subpoenaed as a witness at the time the acts complained of were committed. At first sight there is an apparent obscurity in the information as to when the witness was subpoenaed; but upon a careful reading of the entire information we think that it sufficiently appears that the witness was not served with a subpoena until after the acts charged were alleged to have been committed. There can be no question but that the acts charged in the information constitute an offense; and where a doubt exists as to whether or not the information charges a felony or misdemeanor, the defendant should be given the benefit of the doubt, and the information should be held good for a misdemeanor.

Section 2213, Comp. Laws 1909, is as follows:

“Section 2213. Suppressing Evidence. — Every person who maliciously practices any deceit or fraud, or uses any threat, menace or violence, with intent to prevent any party to an action or proceeding from obtaining or producing therein any book, paper, or other matter or thing which might be evidence, or from procuring the attendance or testimony of any witness therein, or with intent to prevent any person having in his possession any book, paper, or other matter or thing which might be evidence in such suit or proceeding, or prevent any person being cognizant of any fact material thereto from producing or disclosing the same, is guilty of a misdemeanor.”

It is true the information is not a model, yet we think it sufficiently informed, the appellant of the fact that he was charged with having maliciously attempted to prevent the state from procuring the attendance of P. S. Brooks as a witness against appellant in a case then pending in the county court of Custer county, wherein appellant was charged with a violation of the prohibitory liquor law.

Section 2027, Comp. Laws 1909, is as follows:

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

In construing section 2213, we must therefore disregard the common-law rule that penal statutes are to be strictly construed, and give section 2213 such a construction as will enable it to effect the objects for which it was enacted, and to promote justice. Under this rule of construction, we think that the acts charged in the information bring the offense within section 2213.

Section 6703, Comp. Laws 1909, is as follows:

“Words used in a statute to define a public offense need not be strictly pursued in the indictment; but other words conveying the same meaning may be used.”

Paragraph 6 of section 6704, Comp. Laws 1909, with reference to indictments, is as follows:

“6. That the act or omission charged as the offense is clearly and distinctly set forth in ordinary and concise language, without repetition, and in such a manner as to enable a person of common understanding to know what is intended.”

Applying these statutory provisions to the information, we think that a person of common understanding would know from reading this information that is was intended to charge that appellant maliciously — that is, with intent to injure the state — hired, induced, and employed the said P. S. Brooks, by giving him a certain sum of money and paying his expenses, to leave the jurisdiction of the court, and did thereby hinder and prevent the said P. S. Brooks from appearing before said court and giving his testimony in behalf of the state in a prosecution then pending against appellant in the county court of Custer county, as described in the information. We think this substantially charged the offense under section 2213.

Second. The next contention of counsel for appellant is that under the verdict rendered by the jury only a civil judgment for money could be rendered against appellant, and that the court erred in rendering a judgment that the defendant be imprisoned for nonpayment of the fine. There is no merit in this contention, and the court did not err in the judgment rendered, providing for the imprisonment of appellant until the fine was paid. See Ex parte Bowes, ante, 127 Pac. 20.

Third. If human testimony is worth anything, the evidence in this case conclusively establishes the guilt of appellant of the offense charged. If every man who endeavors to induce witnesses to evade the service of process or disobey procsss which has been served were vigorously prosecuted and convicted, the administration of justice in Oklahoma would be much more certain and expeditious.

We find no error in the record prejudicial to appellant. We think, however, that the trial court erred in not permitting the state to prove all that was said and done by J. A. Winters, who was evidently acting in connection with appellant in the commission of this crime. Under the law he is just as guilty as appellant. Section 2045, Comp. Laws 1909, is as follows:

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

Any statements he may have made with reference to this matter during the continuance of the conspiracy between himself and the appellant to commit the crime charged, either to the state's witness P. S. Brooks or any other person, were competent evidence against the appellant, although the appellant might not have been present and heard the conversation. See James Holmes v. State, 6 Okla. Cr. 541, 117 Pac. 651.

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

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


text:
    E. L. LUNDY v. STATE.
    No. A-1497.
    Opinion Filed November 18, 1912.
    (127 Pac. 707.)
    APPEAL — Time of Taking — Extension. “Where the time provided by law or fixed by the trial court for making and serving a case-made or for perfecting an appeal has expired, the court has no power to extend such time, and any such attempted older is a nullity.
    (Syllabus by the Court.)

      Appeal from Kingfisher County Court; John Graham, Judge.

    E. L. Lundy was convicted of violating the prohibitory law, and appeals.
    Dismissed.

      Daniel W. Lewis, for appellant.

      Smith C. Matson, Asst. Atty. Gen., for the State.
   FURMAN, P. J.

Judgment was rendered in this case on the 29th day of July, 1911. At said time the appellant was allowed 40 days within which to make and serve his case-made, and 60 days within which to perfect his appeal to this court. Thereafter, on September 27th, an order was made by said court granting the appellant 40 days’ additional time in which to make and serve his case-made, and also 40 days’ additional ■time in which to perfect his appeal to this court. Thereafter, on the 7th day of November, 1911, the court granted appellant 20 days’ additional time in which to perfect his appeal to this court. The case-made was filed in this court on the 25th day of November, 1911.

The 40 days granted appellant on the 29th day of July, 1911, to prepare and serve his case-made expired on the 7th day of September. The attempt to extend this time was not made until 20 clays later. The order attempting to extend the time was therefore void; for that which has expired cannot be extended, neither can that which is dead be restored to life. But even if this were not true, and the order extending the time was valid, yet the case-made was not served until the 11th day of November, 1911, which was 94 days after the judgment, and the extension, even if valid, would only have given the appellant 80 days from judgment to prepare and serve his case-made. The extension of time for perfecting the appeal by filing case-made in this court, made on September 27th, was in time; but the additional time granted expired on the 6th day of November, 1911. The attempt to extend this time by an order of the court, made on the 7th day of November, was 19 days after the time legally allowed by the trial court to perfect the appeal had expired.

The appeal must therefore be dismissed.

DOYLE, J., concurs; ARMSTRONG, J., absent, and not participating.


text:
    C. B. HOUSER v. STATE.
    No. A-1493.
    Opinion Filed November 18, 1912.
    (127 Pac. 706.)
    APPEAL — Misdemeanor—Time of Taking. The time in which an appeal must be perfected in misdemeanor cases is regulated by days, and not by months. An order extending the time for talcing such an appeal for four months is a nullity.
    (Syllabus by the Court.)

      Appeal from Blaine County Court; George W. Ferguson, Judge.

    H. B. Houser was convicted of violating the prohibitory law, and appeals.
    Dismissed.
    7. 77. Lookabaugh, for appellant.

      Smith C. Matson, Asst. Atty. Gen., for the State.
   FURMAN, P. J.

It appears ’from the record that the judgment in this case was rendered against the appellant in the county court of Blaine county on the 26th day of July, 1911, from which appellant appealed. But the appeal was not perfected by filing the transcript of the record in this court until the 25th day of November, 1911.

On the 27th day of September, 1911, the county court of Blaine county entered an order granting 4 months from date of judgment in which the appellant might prepare and file his case-made in this court. This order is without warrant or authority of law. Section 6948, Comp. Laws 1909, regulates this matter as follows:

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

The time in which an appeal must be perfected in misdemeanor cases is regulated by the statute by days, and not by months. In this particular .case 122 days had elapsed after the rendition of judgment before the appeal was perfected. As the 120 days had elapsed in which this should have been done, this court failed to acquire jurisdiction of this cause, and therefore the appeal must be dismissed. If an appellant can perfect his appeal 2 days after the time has expired, he might take 2 months or 2 years afterwards to perfect the appeal. The time for perfecting an appeal is a limitation on the right.

DOYLE, J., concurs; ARMSTRONG, J., absent, and not participating.