author: BAKER, Judge

text:
    J. M. Bilton v. Territory.
    No. 2156,
    Okla. T.
    Opinion Filed January 13, 1909.
    (99 Pac. 163.)
    1. TRIAL — Separation of Jury. Section 5519, Wfilson’s Rev. & Ann. St. 1903, requires that when the case is finally submitted to the jury, one or more officers must be sworn to keep them together until they have agreed upon a verdict and to return them into court when they have so agreed, or when ordered by the court. Held, that this section imperatively requires that upon the final submission of the case to the jury, they cannot be permitted to separate, and if permitted to separate, such separation vitiates the verdict, notwithstanding no affirmative evidence of prejudice is offered.
    2. NEW TRIAL — Misconduct of Juror — Use of Liquors. The use of intoxicating liquor as a beverage by a juror during tho trial 'and consideration of a capital case will vitiate a verdict of guilty, and entitle the accused to a new trial.
    3. HOMICIDE — “Dying Declarations" — Condition of Declarant. In order to render dying declarations admissible, it must be shown that the declarant' was not only in artículo mortis, but under the sense of impending death, without hope of recovery, at the time such declarations were made.
    4. SAME — Sense of Impending Death. Contradictory statements as te expectations of impending death may prevent the admission of a statement as a dying declaration.
    5. CRIMINAL LA-W* — -Appeal—Estoppel to Allege Error — Invited Error. The accused will not be heard to complain that evidence offered in support of a dying declaration was heard by the court in the absence of the jury, when such absence was requested by the accused.
    6. HOMICIDE — Dying Declarations — Admissibility — Presumptions. The court in a -prosecution for homicide, in which dying declarations are sought to be introduced in evidence, will not presume in the absence of evidence that a man who has been injured, though seriously, must necessarily feel that he is about to die, and on such presumption admit his declaration.
    7. SAME — Sense of Impending Death. It is error for the trial court to admit in evidence as a dying declaration a paper writing in the following words and figures: “Mr. P. A. Cox came from Cornish about 8 o'clock p. m. Saturday the 17th of June, 1905, walked out in fron+ of the hotel and was talking to Miss Emma Martin, and telling her he was tired of this, and asked her to tell D. S. Huffman he wanted to drop this; about this time J. M. Bilton stepped out of his place of business and said he was tired of it too, and called him a son of a bitch, raised his' sixshooter and fired, the ball striking me in the breast. I had no gun at all. I made no attempt to- hurt him at all, but told him to go away and let me alone. I am of the opinion I am not going to get -well” — unless competent evidence independent of such declaration is offered in -support thereof, showing that at the time said declaration was made the declarant had given up all hope of recovery.
    8. SAME — Admissibility — Credibility. When dying declarations are offered in evidence, it becomes the duty of the trial court to first determine whether the declarant was in extremis, and whether he had lost all hope of recovery at the time the declaration was made; and, if such declaration is admitted as competent, it is then for the jury to pass upon its credibility.
    9. TRIAL — Instructions—Evidence “Evenly Balanced.” The accused in a murder case having put in evidence his general reputation as a peaceable, law-abiding citizen in the community where he resides, it is error for the trial court to instruct the jury that, if ■ the evidence independent of the testimony in reference to character is found to be evenly balanced, then evidence 'of character would be sufficient to turn the scale in favor of the accused.
    10. CRIMINAL LAW — Evidence—Sufficiency. In a criminal case, if the evidence is equally balanced, the accused is entitled to a verdict of acquittal.
    11. TRIAL — Argument of Counsel. The trial court ought to confine counsel strictly within the facts of the case, and, if counsel persistently go outside of the record in their argument or statements to the jury, then the court should punish them; and, if they should obtain their verdict by this means, then the court should set such verdict aside.
    12. CRIMINAL LAW — Appeal—Presentation and Reservation of Grounds of Review — Objections—Argument of Counsel. When the prosecuting attorney goes outside of the record and makes improper -remarks, calculated to prejudice the rights of the accused, it is the duty of counsel of the aceused to promptly interpose an objection to such remarks, and move the court to withdraw them from the consideration of the jury and instruct the jury not to consider such remarks. In this ease, if this court believes that the remarks of the county-attorney complained of materially aided in bringing about the verdict, we will set the verdict aside on account of such remarks,
    (Syllabus by the Court.)

      Error from District Court, Comanche County, Oklahoma Territory; F. E. Gillette, Judge.

    J. M. Bilton was convicted of manslaughter in the first degree, and he brings error.
    Reversed.
    On the 12th day of March, 1906, during the regular term of the district court of the county of Comanche, territory of Oklahoma, the grand jury duly found and returned into said court an indictment against J. M. Bilton, charging that on the 17th day of June, 1905, the said Bilton did kill and murder one P. A. Cox. The accused was arrested, arraigned, and pleaded not guilty. On the 23d day of October, 1906, he was put on his trial on said indictment, which resulted in his conviction of manslaughter in the first degree, and was, by said court, duly sentenced to serve a term of 10 years in the territorial prison at Lansing, Kan. It is from this verdict, and the judgment of the court thereon and the action of said court in refusing a new trial, that the accused appeals this case to this court.

      Hudson & Key, Bridges & Vertrecs, and Stillwell H. Russell, for plaintiff in error.—
    On question of separation of jury: State v. Nelson, (Kan.) 70 Pac. 633; McLain v. State, 10 Yerger, 241, 31 Am. Dec. 573; Commonwealth v. McCall, 1 Va. Cas. 271; Nomague v. People, 12 Am. Dec. 15Peiffer v. Commonwealth, 15 Pa. St. 468 ,53 Am. Dec. 605.
    On question of jury’s use of intoxicating liquor: State v. Bullard,' 16 N. H. 139; State v. Baidy, 17 Iowa, 39; People v. Douglass, 4 Cowen 26, 15 Am. Dec. 332; Jones v. State, 13 Tex. 168; Telham v. Page, 6 Ark. 535; Gregg, v. McDaniel, 4 Harr. (Del.) 367; People v. Gray, 61 Cal. 164; Proffatt on Jury Trial, 398.
    On admissibility of dying declaration: Wharton on Homicide, p. 1003; Whitaker v. State, 79 Ga. p. 87, 3 S. E. 403; Titus v. State, 117 Ala. 16, 23 So. 77; Smith v. Com. 113 Ky. 19, 67 S. W. 32. 40 Am. St. Rp. 405; 2 Russ. Cr. 753; 1 Greenl. Ev., Sec. 123 ; 1 Phil. Ev. 289; People v. Robinson, 2 Park, Crim. Rep. 246; Robbms v. State,-8 Ohio St. 131, Smith v. State, '9 Humph, 9; Woodcock’s Case, 1 Leach, 503; People v. Hodgdon, 55 Cal. 72, 36 Am. Rep. 30.

      W. O. Cromwell, Thomas R Clift, Charles West, Atty. Gen., and W. C. Reeves, Asst. Atty. Gen., for .the Territory.—
    On separation of the jury: Thompson & Merriam on Juries, page 370; State v. Cucuel, 31 N. J. L. 249; State v. Bell, 70 Mo. 633; Crockett v. State, 52 Wis. 211; State v. Bowman, 45 Iowa, 418; State v. Conway, 23 Minn. 291; People v. Bonney, 19 Cal. 426; Marzen v. People, 190 111. 81; State v. Williams, 149 Mo. 496; Payne v. State, 66 Ark. 545.
    On use of intoxicants by jury-: Thompson & Merriam on Juries, page 458; Wood v. State, 34 Ark. 341; Pratt v. State, 56 Ind. 179; Davis v. People, 19 111. 74; Roman v. State, 41 Wis. 312; State v. West, 69 Mo. 401; Russell v. State, 53 Wis. 367; People v. Bemmerly, 98 Cal. 299; People v. Leary, 105 Cal. 386; Larimer v. Kelley, 13 Kan. 78; People v. Saisome, 98 Cal. 235; State v. Tatlozv, 23 Kan. 80; Perry v. Barley, 12 Kan. 537:
    On admissibility of dying declaration: Wharton on Homicide, p. 1000; Mattox v. U. S. 146 U. S. 140; People v. Dobbins, 138 Cal. 694; People v. Lem Deo, 132 Cal. 199; State v. Aldrich, 50 Kan. 666; State v. Furney, 41 Kan. 115; Archibald v. State,-122 Ind. 122; People v. Vernon, 35 Cal. 49; Plammil v. State, 90 Ala. 576; State v. Wilson, 121 Mo. 434; State v. Walton, 92 Iowa, 455; Stark v. State, 137 Ala. 9; Commonwealth v. Thompson, 159 Mass. 56; Nezvberry v. State, 68 Ark. 355; State v. Ah Lee, 7 Or. 237.
   BAKER, Judge

(after stating the facts as above). The errors complained of by the accused, as shown by his petition in error herein, are as follows:

(1) Said court erred in overruling the motion of the accused for a new trial.

(2) Said court erred in overruling the motion of the accused for a new trial on the grounds of newly discovered evidence.

(3) Said court erred in admitting evidence offered on the part of the territory of Oklahoma.

(4) Said court erred in refusing and ruling out competent and legal evidence offered on the part of the accused.

(5) Said court misdirected the jury in matters of law.

(6) Said court erred in the decisions of questions of law arising during the course of the trial.

(7) Said court erred in admitting in evidence the purported “dying declaration” of the deceased, P. A. Cox.

(8) Said court erred in giving general instructions numbered 3, 11, 14, 18, 20, 24, and 27.

(9) Said court erred in refusing to give special instructions requested by accused, numbered 1, 2, 3, 4, 5, 6. 7, 8, 9, 10, 10%, 11. 12, 13, and 14.

(10) Said court erred in granting a continuance to the territory of Oklahoma.

(11) Said court erred in not withdrawing from the jury certain statements made bjr the county attorney.

(12) Said court committed other errors appearing in the record to the prejudice of the substantial rights of the accused.

Elaborate well-prepared briefs were filed on both sides, citing more than 200 cases, all of which were duly examined and carefully read by this court.

The first assignment of error, being predicated upon the overruling of the motion for a new trial, necessarily involves a consideration of all the grounds urged by the accused for a new trial in the court below. The motion for a new trial sets up, in substance, that the jury separated without leave of the court after retiring to deliberate on their verdict and before delivering the same into open court; that the jury was guilty of misconduct, by which a fair and due consideration of this case was presented. From an examination of the evidence in support of cie first and second grounds alleged for a new trial we find the affidavits of R. E. Dishman, T. A. Lewis, Alvin Campbell, and the accused. The substance of these affidavits is that, at different times during the introduction of testimony and the consideration of their verdict the jury was permitted without leave of the court ■to intermingle with the guests of the hotel at which the jury was being entertained, unattended at times by a sworn officer or bailiff, and at such times were in a position to hear any comments or statements that might have been made by other guests at said hotel; that the jury in a body, accompanied by a sworn officer, attended a public entertainment at the opera house, and were guilty of misconduct prejudicial to the rights of the accused by drinking whiskey in the washroom at the hotel and in a certain saloon. Eleven of the jurors who sat in this case were called by the territory, and they each testified upon the hearing of the motion for a new trial; the substance of their testimony being that the Juror Horton left the other jurors, unattended by a sworn officer, and went alone to a closet in the rear of the lot upon which the hotel at which the jury in this case were being entertained was located; that on their way from the hotel to the courthouse Jurors Thompson and Curtis left the remainder of the panel on the street and went into a saloon and drank whiskey; that Juror Nelson went to his office for his mail, but while doing so was near the bailiff in charge of said jury. The testimony of the jurors also shows that from necessity the jury was obliged to mingle to some extent promiscuously with the guests and frequenters of the hotel where said jury ate and slept, by reason of the smallness of the lobby, washroom and dining room of said hotel; also, that they sat about the stove in the lobby of said hotel, and intermingled with guests and others. The undisputed testimony shows that some three or four of the jurors drank whiskey out of a bottle in the washroom at the hotel, and two drank whiskey at a saloon during the time they were hearing this case and deliberating upon their verdict; also, that the jury attended a public entertainment at the opera house in a body, attended by a sworn officer.

The question, therefore, arises: Was the conduct of the jury such as to vitiate its verdict?

In an early and very instructive case upon this subject found in Commonwealth v. John McCaul, 1 Va. Cas. 271, McCaul was indicted on the charge of larceny. The evidence in said case shows that a juror separated from the jury against the wishes of the officer in charge, went to his hotel, ate his dinner, and, returning, resumed his place in the jury box, and another juroi visited his sick child, the officer of the court accompanying remaining at the foot of the stairs, while the juror went up stairs to see his sick child and family. The trial resulted in a verdict of guilty. McCaul prosecuted error on the sole ground of the separation of the said jurors. Neither of the said jurors were separated more than 20 minutes. No evidence was offered to show that any one had talked to or attempted to tamper with or influence said jurors. The jurors themselves filed affidavits in which they stated that they had not talked with any one concerning the case on trial, and did not hear the case mentioned in any way. The “general court of Virginia” in this case held that notwithstanding the evidence conclusively showed that the jurors had not in any manner been tampered with, or influenced against the accused in this case, but by reason of their separation from the jury, said court held that it was harmful and prejudicial error, and a new trial was ordered.

It is not the opinion of the court in the case at bar that the jurors were tampered with, influenced, or prejudiced against the accused; but in our opinion it is an abuse of the discretion of the trial court in a capital'case to permit the jury to be separated after they had been sworn to try the case, unless such separation is necessary and expressly permitted by the trial court. In any criminal case it is error to permit the jury to separate after the case has been submitted to them, and before they have reached a verdict. The object intended to be gained by preventing the separation of the jury is to safeguard in every possible way the purity of the stream of justice; to prevent it from in any manner being polluted by influences other than those which are produced by the legal evidence and the law governing the case. Such a course is both a protection to the interests of the state in bringing to justice one who may have committed a crime and safeguards the rights of the accused on trial for. his life. It will be conceded by all interested in the administration of justice that one accused of crime is to be convicted or acquitted only upon' the evidence given in his presence; that the minds of those who are to decide questions involving life and liberty are free from prejudgment; that in the course of the trial no impression ought to operate on their minds, except that which is derived from the testimony presented to them in open court and the law as given them in charge by the court; that the minds of the jurors shall be free from prejudice and bias, either for or against the prosecution or the accused before the trial begins, and shall continue impartial until they have delivered themselves of their verdict. This can be guarded only by preventing the separation of the jury, and the prudence and care of the trial court and the officers thereof. Such a course of procedure will free the minds of the public as well as the parties directly interested in the trial of the case from the slightest suspicion that the stream of justice is not in all respects pure and free from contamination. Absolute impartiality and fairness in the trial of criminal cases should be desired by all concerned. Preventing thte separation of the jury offers the best means to prevent undue and unlawful influences. To keep the jury from separating may at times be difficult of accomplishment, but the trial court should make proper provision therefor, and the rule against the separation of jurors in capital cases should in no manner be relaxed. We find some conflict in the decisions upon" this subject. Many able courts differ with us. On the other hand, we find many well-considered cases supporting the rule herein laid down.

The Supreme Court of Tennessee in the case of McLain v. State, 10 Yerg. 241, 31 Am. Dec. 573, holds:

“Separation of the jury on trial of a criminal case, caused by absenting themselves of some of the jurors from the remainder of the jury, after it had retired from court for the night, for the space of fifteen or twenty minutes, without their being in charge of an officer, will vitiate the verdict of conviction in the case and entitle the prisoner to a new trial without its being required of him to show in addition to these facts that the jurors were, after their separation, tampered with.”

The Pennsylvania Supreme Court in the case of Peiffer v. Commonwealth, 15 Pa. 468, 53 Am. Dec. 605, holds:

“Separation of a jury in a capital case before they have been discharged is of substantial purport, and the disobedience thereof will invalidate the verdict. Separation of the jury on an indictment for murder after they have been impaneled and sworn, although' with defendant’s consent, invalidates their verdict, and the prisoner will be held to answer another indictment.”

State v. Sherbourne, Dud. (Ga.) 28, and numerous cases therein cited; Nomaque v. People, Breese (Ill.) 145, 12 Am. Dec. 157; People v. Douglass, 4 Cow. (N. Y.) 26, 15 Am. Dec. 332; State v. Baldy, 17 Iowa, 39; State v. Nelson, 65 Kan. 689, 70 Pac. 633; State v. Prescott, 7 N. H. 287; Williams v. State, 45 Ala. 57; Jumnpertz v. People, 21 Ill. 375; People v. Thornton, 74 Cal. 482, 16 Pac. 244. Most of the cases cited by the territory in this case on this subject hold that the separation of a jury for a short time will not vitiate a verdict, where the juror so separated from the others is attended by a sworn officer, and where the facts show affirmatively that no improper influence upon the minds of the jurors has taken place; but the great weight of authorities in capital cases favor the doctrine that, if the jury separates without being attended by a sworn officer such separation vitiates the verdict, notwithstanding no affirmative evidence of improper influence has been adduced. The mischief is found in the danger that might result from separation, and the great trouble in being able to prove the improper influence which might result from improper separation. The juror who was influenced will be loath to admit it, and those guilty of producing such influence will deny their guilt; and the accused is therefore left without a remedy to free himself from the results of an improper verdict.

This brings us to the remaining question affecting the conduct of the jury in this case, which is based upon the charge that some of the jurors during the trial drank intoxicating liquor. The evidence with respect to this charge is conclusive. Eleven of the' jurors were called as witnesses on this subject. Seven of them testified that whiskey was drunk by some of the jurors from a bottle and at a saloon; and their evidence is uncontradicted. The higher courts have often been appealed to in cases involving this question; and while there is conflict of opinion, and the decisions quite equally divided, we think this is a propei time and a proper case in which to reflect the opinion of this court on this question. And, while we do not say the evidence in this case shows that a sufficient amount of liquor was drunk to affect the minds of any one of the jurors, we desire to express our disapproval of jurors drinking intoxicating liquor during the trial of a capital case. Every court, especially in the trial of a capital offense, should inquire whether, in the conduct of the jury, that prudence and circumspection has been observed which becomes them on such solemn occasion, as that which commits to their hands the life of a fellow creature. We believe it will not be contended that the use of intoxicants by the jury during the performance of their duty will aid them in bringing about the furtherance of justice. No good results can be claimed for it, but much harm may result. It is the duty of thte trial court in the interest of the purity of its verdicts, and the rights of both the state and the accused, to have each verdict freed from any influence or consideration other than the evidence and the law; and juries or jurors should not be permitted while considering a criminal case to drink intoxicating liquors as a beverage, and, when the testimony shows that liquor was used as a beverage by the jury during its consideration of a capital case, such conduct of the jury should vitiate the verdict and entitle the accused to a new trial, regardless of affirmative proof of the effect the intoxicants had upon the mind of the juror.

The Supreme Court of Texas in Jones v State, 13 Tex. 168, 62 Am. Dec. 550, in an opinion handed down by Judge Lipscomb, says:

“The drinking of ardent spirits [whiskey] of their own procurement after they had retired to consider of their verdict vitiates their verdict, and is good cause for a new trial.”

The Supreme Court of New Hampshire in the case of State v Bullard, 16 N. H. 139, says :

“If in the trial of a criminal case spirits be furnished any of the jurors while deliberating on the verdict, such verdict, if against the prisoner, will be set aside.”

The same court in the case of Leighton v. Sargent, 31 N. H. 119, 64 Am. Dec. 323, says:

“The use of brandy as a beverage by jurors while in the jury room after retiring to make up their verdict will furnish a sufficient cause for setting aside the verdict and granting a new trial, although the quantity drunk be small, and no suspicions are entertained by other jurors that the jurors who partook of it are under any influence from spirituous, liquors, and the liquor is furnished by the attending officer at the request of a juror complaining of illness.”

In the State of Iowa v. Baldy, 17 Iowa, 39, the court says:

“When a juror after retiring to consider upon the verdict left the jury room in charge of the'sheriff, and went to a grocery store where he procured and drunk a glass of ale or lager beer; after which he returned to the jury room and participated in finding the verdict, held, that the misconduct of 'the juror constituted sufficient ground to set the verdict aside and grant a new trial.”

In the case of People v. Douglass, supra, Judge Woodworth, speaking for a majority of the court, said: “The mere drinking of spirituous liquors by the jurors is enough to set aside the verdict.” People v. Gray, 61 Cal. 164, 44 Am. Rep. 549. The Supreme Court of Delaware in Gregg v. McDaniel, 4 Har. 367, a civil case, on motion after argument, set the verdict aside and granted a new trial on the ground that intoxicating liquor had been introduced into the jury room and used- pending their deliberations, citing a number of cases.

The next assignment of error grows out of the admission in evidence of the alleged “dying declaration” of P. A. Cox, for the slaying of whom the accused is on trial, which is in the following words:

“Mr. P. A. Cox came from Cornish about 8 o’clock p. m. Saturday the 17th of June, 1905, walked out in front of the hotel and was talking to Miss Emma Martin, and telling her he was tired of this, and asked her to tell D. S. Huffman he wanted to drop this; and about this time J. M. Bilton stepped out of his place of business and said he was tired of it too, and called him a.‘damn son of bitch/ raised 'his six-shooter and fired, the ball' Striking me in the breast. I had no gun at all. I made no attempt to hurt him at all, but told him to go away and let me alone. I am of the opinion I am not going to get well. T. R. Martin, Miss Emma Martin, Ernest Lester, Bill Morris, and W. C. Haywood were sitting in front of the hotel. P. A. Cox. Witnesses: T. R. Martin. J. W. Horn.”

It will be observed by the reading of the paper writing offered as a “dying declarafion” in this case that the declarant 'states: “I am of the opinion I am not going to get well.” We are therefore led to inquire what is, in this connection, meant by the word “opinion.” Sir Mathew Hale’s definition of the word is:

“Opinion is when the assent of the understanding is so tai gained by the evidence of probability that it rather inclines to one persuasion than to another, yet not without a mixture of uncertainty or doubt.”

The evidence offered in support of the dying declaration-herein does not show that the declarant intended to give the word “opinion,” as used by him in this connection, a meaning different from that ordinarily given and understood. Hence the use of the word “opinion,” as used in said- dying declaration, is expressive of uncertainty and doubt, and produces in our minds the conviction that the declarant had not lost all hope of recovery. At the request of the accused, the court heard the testimony in support of the admissibility of the above quoted writing in the absence of the jury. To the admission of said paper as a “dying declaration” the accused excepted, and urges that the court erred in admitting the same. The question, therefore, presents itself to this court: ’ Was the paper above quoted a “dying declaration” ?

Wigmore, in his excellent work on Evidence (section 1438) ; says:

“All courts have agreed, with more or less difference of language, that the approach of death produces a state of mind in which the utterances of the dying person are to be taken as freed from all ordinary motives to misstate. The great dramatist expressed the common feeling long before it was sanctioned by judicial opinion. In the following passages will be found the now classical sentences of the earlier English judges, as well as the later ones pointing out clearly how the situation supplies a circumstantial guarantee of accuracy equivalent to that of •the tests of oath and cross-examination.”

The admissibility of dying declarations is based entirely upon the fact that they are made in extremis, when the person making them is at the point of death, and when every hope of this world is gone, when every motive of falsehood is silenced, and the mind is induced by the most powerful considerations to speak the truth. A situation so solemn and so awful is considered by the law as creating an obligation equal to that which is created by a positive oath administered in a court of justice. In other words, when the person making the declaration has lost all hope of recovery, he is in the same practical state as if called on in the court of justice under sanction of an oath, and his declarations as to the cause of his death are considered equal to an oath.

Judge Ray, in the case of Morgan v. State, 31 Ind. 199 (referring to dying declarations), says:

“As this class of evidence forms an exception to the general rule; as there can be no cross-examination of the declarant; as the accused cannot often meet his accuser face to face; and there must of necessity exist great danger of abuse — it must clearly appear that the statements offered in evidence have been made under a full realization that the solemn hour of death has come.”

In other words, to render a dying declaration admissible in evidence, it must have been made when the declarant was not only in extremis, but also had abandoned all hope of living. It will be observed that in the declaration in this case the language is used: “I am of the opinion I am not going to get well.” The paper in this case alleged to be a dying declaration, and admitted in evidence as such in the court below, on its face is not a dying declaration. It appears from the declaration itself that the declarant had not abandoned all hope of recovery. Therefore the court below erred in the admission of said declaration in evidence. In this view we are supported by the well-established rule. But, in looking into the record' in this case, we find the testimony taken in support of the alleged dying declaration discloses the fact that the declarant had been told that the bullet which afterwards caused his death had, in fact, not penetrated his body; that he was not told by his physician and surgeon that he was about to die. On the contrary, after the alleged declaration was made, he sent to Comanche for additional medical aid; thus showing that he had hope of recovery, and was not in articulo mortis.

The following authorities clearly sustain our view: 1 Greenl. on Ev., § 123; 1 Phil. Ev. 289; 2 Wig. on Ev., commencing at section 1430 on page 1798, and subsequent sections; People v. Robinson, 2 Parker Cr. R. (N. Y.) 246; Robbins v. State, 8 Ohio St. 131; Whar. on Hom. 1003; Whitaker v. State, 79 Ga. 87, 3 S. E. 403; Titus v. State, 117 Ala. 16, 23 S. E. 77; Smith v. Commonwealth, 113 Ky. 19, 67 S. W. 32; State v. Johnson, 118 Mo. 491, 24 S. W. 229, 40 Am. St. Rep. 405; State v. Medicott, 9 Kan. 257; State v. Knoll, 69 Kan. 767, 77 Pac. 580; State v. Draper, 65 Mo. 335, 27 Am. Rep. 287; Leiber v. Commonwealth, 9 Bush (Ky.) 11; Starr v. Commonwealth, 97 Ky. 193, 30 S. W. 397: State v. Shelton, 47 N. C. 360, 64 Am. Dec. 587; Nelson v. State, 7 Humph, (Tenn.) 542; Hackett v. People, 54 Barb. (N. Y.) 370; Reynolds v. State, 68 Ala. 502; State v.Baldwin, 79 Iowa, 714, 45 N. W. 297; Montgomery v. State, 80 Ind. 338, 41 Am. Rep. 815 ; 10 A. & E. Enc. Law (2d Ed.)376; State v. Chambers, 87 Mo. 406; People v. Hodgdon, 55 Cal. 72, 36 Am. Rep. 30.

The next assignment of error inviting our attention is the assignment predicated upon the court’s refusal to grant a new trial on the grounds of newly discovered evidence. It appears from the record in this case that one J. W. Horn was a subscribing witness to the alleged “dying declaration.” This fact was known to the accused before the trial. The accused by his counsel, as shown by the record, had called upon Horn several times, requesting him to make a statement to them concerning his knowledge of the physical condition of the declarant at the time of'the making of the alleged dying declaration, and statements, if any, made by declarant at the time, but that, by reason of his friendship for declarant, and hostility toward the accused, said Horn refused to make any statement on the subject until after the accused was convicted, and then, for the first time, he made to counsel of the accused statements in the form of an affidavit filed 'in support of said motion. In his affidavit Horn says, in substance: That the reason he did not disclose the evidence set out in his affidavit before the trial was, because the deceased was his close personal friend, and that he was unfriendly to the accused, but notwithstanding he was many times approached by the counsel 'for the accused, and asked to state all he knew about the "dying declaration” and statements made by the declarant at the time the same was made; that he had replied each time that he knew nothing; that he was present at the bedside of the deceased when there was reduced to writing a statement called the “dying declaration” of Cox, and which statement was used by the prosecution in the trial of this case; that he signed said statement as a witness; that at the time the statement was drawn, and at the time it was signed by Cox, and by affiant as a witness, Cox made the following statement:

“I do not believe that I-am going to die. That ‘son of a bitch’ can’t kill me, but I will sign anything that will help to break the ‘son of- a bitch’s’ neck in case I do die.”

This affidavit stands in the record uncontradicted. The affidavits of counsel for the accused in support of the motion for a new trial on the grounds of newly discovered evidence show an unusual amount of diligence in attempting to secure the testimony of Horn at the trial of the accused; and show, further, that neither the accused nor his counsel knew of the facts set forth in Horn’s affidavit until informed thereof by said Horn after the trial below. The newly discovered evidence is not cumulative; and, while it contradicts to some extent the alleged “dying declaration,” it is in the opinion of this court very material, and might, if offered at the trial, have produced a different verdict.

Another assignment of error is predicated upon the charge of the court to the jury contained in instruction No. 27,' at' page 196 of the record, in which the court instructed the jury in the following words:

<£The court instructs the jury that the defendant having put in evidence his general reputation as a peaceable, law abiding citizen in the community where he resides, such evidence is admissible under the law to be considered by the jury as a circumstance in this case, such evidence is permitted as bearing upon the question of defendant’s guilt or innocence, upon the theory that a person who has heretofore always borne a good reputation as a peaceable citizen, and would not probably be guilty of the crime charged in the indictment herein. The court further instructs the jury that, if from all the evidence in this case they are satisfied beyond a reasonable doubt of the guilt of the defendant under the evidence and the instructions of the court, then it is your duty to find him guilty, notwithstanding the fact that heretofore, and at the time of the commission of the crime charged, the accused had borne a very good reputation as a peaceable citizen. If the evidence independent of the testimony in reference to good character is found to be evenly balanced, then the evidence of good character would be sufficient to turn the scale in his favor. The weight of such testimony, and the extent to which you will rely thereon, is a circumstance in this case, and what, if any, evidence in behalf of the prosecution is overcome thereby, is left wholly to your sound judgment in the consideration of all the evidence in the case.”

This instruction was excepted to by the accused. The above quoted instruction is, in effect, this: That, if the. jury found the evidence equally balanced, the defendant would not be entitled to a verdict of acquittal. This is not the law in criminal cases. If the evidence is equally balanced, the defendant as a matter of right is entitled to a verdict of acquittal, though his character and reputation may always have been as black as the hinges of Hades. The charge as given is clearly erroneous. We deem it unnecessary to cite authorities in support of our opinion respecting said charge.

Counsel for the accused in argument complained also that the court below heard the testimony offered in support of the competency of the alleged “dying declaration” in the absence of the jury, contending that the jury should have heard all the evidence offered on the trial of this case. The record, however, discloses that-the accused requested that said evidence be taken in the absence of the jury. He therefore cannot now be heard to complain.

The accused complains of the conduct of the county attorney during the trial of this case in the court below, in this: That he made remarks prejudicial to the accused in both his opening statement and closing argument to the jury, which were not sustained by the record, We have lead the record in this connection, and find that the remarks of the county attorney are clearly outside of the record,' and should, therefore, not have • been made. We cannot see, however, that the remarks were prejudicial to the accused. The trial court should have instructed the jury to have disregarded said remarks, which he probabfy would have done if he had been requested to do so by the accused. The record shows no such request, but shows that the accused objected and excepted to the same. The county attorney in the discharge of his duty should always be fair with the accused. No good purpose can be accomplished by any other course.

This court in the case of Buck v. Territory of Oklahoma, (decided at the present term of this court) ante, p. — , 98 Pac. 1017, held:

“When the prosecuting attorney goes; out of the record and makes improper remarks, calculated to prejudice the rights of the defendant, it is the duty of counsel for defense to promptly interpose an objection to such remarks and move the court to withdraw them from the consideration of the jury, and to instruct the jury not to consider such remarks. It is too late to interpose objections to improper remarks of the prosecuting attorney in his argument to the jury, after the argument has closed, unless the remarks were of such a character that their withdrawal from the consideration of the jury would not cure the error committed in their utterance.”

Also in the case of Vickers v. United States, 98 Pac. 467, this court held:

“Where the language used by the assistant United States attorney in his opening statement is calculated to prejudice the accused, and proper objection is made and overruled by the court, and exception taken, the question will be reviewed by this court, but not otherwise. Where the assistant United States attorney in his argument to the jury went outside of the record, and appealed to the passions and prejudices of the jury, and objection was made and overruled, the strength of. the testimony against the defendant will be considered, and, if the improper statements may have determined the verdict, a new trial will be granted.”

It is the opinion of this court that for the various errors found herein the judgment of the court below should be, and the same is hereby, reversed, the cause remanded, and a new trial ordered.

FURMAN, Presiding Judge, and DOYLE, Judge., concur.


source: Caselaw Access Project

author: FURMAN, Presiding Judge,

license: Public Domain

text:
    Al Douglas v. Territory.
    No. 2155,
    Okla. T.
    Opinion Filed January 13, 1909.
    (98 Pac. 1023.)
    1. INSTRUCTIONS — Oral Statements by Court. Oral statements, made by the court to the jury with reference to the form of their verdict, which do not contain directions or “instructions” upon some question of law involved in the trial, or comment on the evidence do not come within the statute requiring instructions to the jury to bv, reduced to writing unless waived by the defendant.
    2. INSTRUCTIONS — Reasonable Doubt. The phrase "beyond a reasonable doubt,” used In the statute in establishing the measure of proof necessary to warrant a conviction in a' criminal case, is not a technical term, and needs no explanation from the courts in instructing juries. An instruction on this subject, in the language of the statute’ is all that the court is required to give. It is a dangerous thing for the courts to attempt to go further.
    3. APPEAL — Review—Assignments of Error — Homicide—Instructions, (a) Wlhen counsel fail in their briefs to point wherein the defendant has been injured by an instruction given, this court will not consider an assignment of error based upon such ground,, unless the error is fundamental.
    (b) It is the duty of the trial court to give instructions applicable to the testimony of a defendant, and- based upon the hypothesis that it is1 true; and, when such an instruction is given, the defendant cannot be heard to complain.
    (c) In this case the defendant was a peace officer. His testimony was to the effect that a difficulty was in progress when he commanded the deceased to drop his pistol, whereupon the deceased turned upon defendant, presented his pistol towards the defendant, and threatened to kill him, when the defendant fired the fatal shot. See opinion, for instructions properly given applicable to this testimony.
    (Syllabus by the Court.)

      Appeal from District Court, Comanche County; F. E. Gillette, J%idge.

    A1 Douglas was convicted of manslaughter, and appeals.
    Affirmed.
    On the 9th day of March, 1906, A1 Douglas, hereinafter called defendant, was indicted by the grand jury of Comanche county for the offense of murder, alleged to have been committed on the 4th-day of November, 1905. Defendant was arraigned, and pleaded not guilty. On the 19th day of October, 1906, the defendant was found guilty by the jury of manslaughter in the second degree. .The defendant filed a motion for a new trial, which was overruled by the court, to which defendant excepted. The defendant was sentenced by the court to 27 months’ imprisonment in the territorial prison at Lansing, Kan. The defendant brought the case by appeal to the Supreme Court of Oklahoma Territory. Upon the admission of Oklahoma to statehood, under the provisions of the enabling act and the Constitution, the case was transferred to the Supreme Court of Oklahoma. As directed by statute, the Supreme Court transferred the case to this court, upon its creation.

      Al Jennings, Me. Elhoes & Ferris, and Hudson & Key, for plaintiff in error.—
    On question of supplementing written charge to jury with oral statements: Thompson on Trials, § 2375; People v. Payne, 8 Cal. 341; Ray v. Woofers, 19 Ill. 82; Townsend v. Chapin
      (Ind.) 8 Black 328; United States v. Ter. of Utah, 104 U. S. 631; Stone v. Cooper, 45 Mo. 64; Gile v. People, 1 Colo. 60.

      W. 0. Cromwell, Atty. Gen., and Thomas Clift, Special Asst., for the Territory.—
    On right of court to add oral statements to.written charge: 11 Encyc. PL & Pr. 259; Boggs v. United States, 10 Okla. 424; Potter v. State, 15 Kan. 303; Currin v. Clark, 90 N. C. 355; Bradley v. Waddell, 96 Ind. 175; Illinois Central Ry. Co. v. Wheeler, 149 111. 525; People v. Bonney, 19 Cal. 427.
   FURMAN, Presiding Judge,

(after stating the facts as above). First. Defendant complains that the trial court gave oral instructions to the jury without the consent of the defendant or his counsel. The record shows that, after the conclusion of the argument in the case, the court handed to the jury the forms of verdict applicable to the issue in the case, and said to them:

“Gentlemen of the jury, the court hands you five forms of verdict, any one of which will be sufficient for your verdict in this case; but, if you find the defendant guilty of murder, you will’ write in your verdict whether the punishment shall be bv death or by life imprisonment at hard labor in the territorial penitentiary, as explained to you by the instructions.”

We cannot agree with the contention of counsel that this language constituted any part of the instructions to the jury as to the principles of law applicable to the case. It did not attempt to modify, explain, add to, or take from the written instructions given to the jury. The following authorities, if any are needed, sustain this view of the question:

“Charging a jury is stating the precise principles of law applicable to the case immediately in question.” (Bouvier’s Law Dictionary.)
“In conclusion it may be stated that nothing short of a positive direction as to the law applicable to the case will be construed an instruction within the meaning of the statute.” (11 Ency. PL & Prac. p. 259.)
“An exposition of the principles of law applicable to a case or some branch or phase of a case which the jury are bound to apply in order to render a verdict establishing the rights of the parties in accordance with the facts proven,” is the definition given by the Supreme Court of Indiana of what it takes to constitute an instruction. Lehman v. Hawks et al., 121 Ind. 541, 23 N. E. 670.
“A direction to the jury to reject evidence as to the form of the verdict, or the like, is not an instruction within the meaning of the statute.” (Bradway v. Waddell, 95 Ind. 175.)
“The mere fact that an oral ccommunication has passed from the court to the jury is not of itself proof that the statute has been disregarded. But the' court may properly make oral statements to the jury in reference to the form of the verdict, the manner in which'the trial has been conducted, the behavior of the jury, or counsel, or parties, or any other oral statement which is not fairly and strictly a direction or instruction upon some question or rule of law involved in or applicable to the trial, or a comment upon the evidence.” (State v. Potter, 15 Kan. 303.)

The Supreme Court of Oklahoma has passed upon the proposition here presented in the case of Boggs v. United States, 10 Okla. 424, 63 Pac. 969, 65 Pac. 927, wherein the jury were unable to agree upon a verdict, and upon order of the court were returned to the court room and a certain conversation had between the court and the jurors, portions of which the plaintiff in error, Boggs, claimed were oral instructions. The court said:

“It will be seen that in the remarks'of the trial judge to the jury no independent proposition of law was given, no comment on the evidence was made, the whole tenor of the conversation was as to the form of the verdict the jury could return. The remarks of the court were all directed to the answer to the inquiry as to whether they could return a verdict different from the forms furnished, and was an explanation as to the form of verdict they might or ought to return. And as to all questions of law, he refers the jury to the written instructions previously given, with the remark, T think they are plain.’ It is our duty to presume that the jury were men of reason and of ordinary intelligence, and that they were capable of understanding ordinary, plain English language; and, this being so, when the court said to them, Tf you read the instructions, I think they are plain,’ it will not be presumed that they understood that the remarks were to be taken as a new or different statement of the law than that contained in the written charge, but they would certainly understand that he was referring them, for the law of the case, to the written instructions. We take the rule to be well settled that an oral direction to the jury as to the form or character of the verdict they may return is not such an instruction as is contemplated by the statute requiring all instructions to be in writing. * * *”

There was, therefore, no error in the action and ruling of the trial court in this matter.

Second. The court instructed the jury in the language of the statute upon th'e subject of reasonable doubt. The court went further, and attempted to explain the meaning of the words “reasonable doubt.” To this there is no exception in the record. We will therefore not consider the explanatory instruction given. But counsel excepted upon the ground that it should have explained more fully what it took to constitute a reasonable doubt. In the case of Wm. P. Price v. State, (decided at the October term of this court) ante, p. — , 98 Pac. 447, it was held that it was a dangerous practice for courts to attempt to explain the meaning of the term “reasonable doubt,” and that case was reversed partly on account of errors committed in such an attempt. All that a defendant has a right to demand upon this subject is an instruction in the language of the statute. The phrase “reasonable doubt” is not a technical term. It is generally understood in the common affairs of life, and needs no explanation from the court in instructing the jury. The court, having given the instruction directed by the statute, did not err in refusing to give the instruction requested by the defendant. For a full presentation of our views upon this subject, see Price v. State, supra.

Third. The defendant complains at the action of the trial court in refusing to give the following special. instruction requested by defendant:

Gentlemen of the jury, the court further instructs you: That the defendant has proven that he was a deputy city marshal of the town of Frederick, Okla., at the time he killed deceased, Stoneback. A deputy city marshal may, without warrant arrest one who commits a breach of the peace in his presence, or who by boisterous conduct, accompanied by violent words or actions, indicates a purpose to commit such breach, and such officer, acting under circumstances authorizing an arrest, may use all the force necessary in overcoming resistance and defending himself against violence from the person sought to be arrested; and, if in doing so he takes life, it is justifiable, being in pursuance of public justice.’ The above instruction was asked by the defendant and refused by the court, because sufficiently covered in general instructions., Defendant excepts; exception allowed by the court. F. E. Gillette, Judge.”

Counsel for the defendant in their brief, did not attempt to point out wherein the defendant was injured by the refusal of the court to give this instruction. This is a matter that must be made to appear to this court in counsel’s brief, and upon their failure to do this, this court will not assume that the refusal to give the special instruction was prejudicial, unless the error committed is fundamental.

In the case of Carter & Bro. v. Missouri Mineral Mining & Lumber Co., 6 Okla. 11, 41 Pac. 356, Judge Dale said:

“Counsel in their briefs fail to point out wherein the court below erred in the action taken. Therefore appellant’s contention cannot be favorably considered on the record before us.”

This announces a sound rule of law. We have repeatedly called attention to the necessity of a full presentation in the briefs of counsel of the grounds upon which they rely for a reversal. It is one thing to allege that an instruction is erroneous, and entirely another thing to point out the specific ground of the objection relied on. It is too much to expect that this court shall brief, as well as decide, cases. But, as our opinions have not yet been printed and generally circulated among the members of the bar, we will waive this matter, and go into the question fully.

The trial court instructed the jury as follows:

“You are instructed, gentlemen of the jury, that if you find from the evidence that at the time and place stated in the indictment the defendant was a peace officer in the city of Frederick in said county and territory, and was at the time deputized to act as such in said city, you are advised and instructed that as such officer he had a right to command the peace and to arrest without warrant any person in the act of committing a breach of the peace in his presence; and, if you further find from the evidence that the deceased was in the act of committing a breach of the peace, and the defendant was in the act of arresting him or commanding the peace, and as such officer used any language indicative of such purpose, and that the deceased thereupon made a violent demonstration towards the defendant of such character as to raise in the mind of a reasonably prudent man and officer that his own life was then in jeopardy by reason of the acts of the deceased, then such person or officer would thereupon be justified in using all the force necessary to overcome such threatened danger, even to the extent of taking life if such were to him apparently necessary, and it would be justifiable.”

It will be seen that the instruction given substantially differs from that requested only in that it uses the language “and as such officer used any language indicative of such purpose, and that the deceased thereupon made a violent demonstration towards the defendant.” etc. While there is no evidence in the record of malice on the part of the defendant toward the deceased, yet the testimony of the prosecution fairly presented the issue of an unnecessary and reckless killing. The testimony on the part of the defendant presented the issue of justifiable homicide; as stated in the instruction given. The defendant himself testified that before the shooting he repeatedly called on the deceased to drop his pistol. His exact language is, “I had been hollering to him to drop it. I told him two or three times to drop that gun, and he wheeled arund and had it up this way [indicating], and says, ‘Damn you, I will shoot you!’ and I shot him.” The instruction was in strict compliance-with the testimony of the defendant. The effect of his testimony was that he used language indicative of a purpose to command the peace, and that on account of this language the deceased turned upon him in a threatening manner, and that he then fired the fatal shot. This was a part of his case, and he cannot be heard to complain at the instruction which was given, as it was applicable to his own testimony. The jury were correctly instructed as to both issues in the case. They heard the evidence and saw the witnesses. They were in a much better condition to determine the truth of this matter than is this court. They rejected the testimony of the defendant and accepted that of' the territory. This they had the, right to do.

As there is ample evidence in the record to sustain the verdict of the jury, and as it appears that the defendant has been fairly tried, and found guilty, we are without the rightful power to disturb the verdict, and the judgment is therefore affirmed.

BAKER and DOYLE, Judges, concur.


author: FURMAN, Presiding Judge

text:
    Willie Harjo v. United States.
    No. 781,
    Ind. T.
    Opinion Filed January 13, 1909.
    (98 Pac. 1021.)
    1. CONTEMPT — Misconduct in Summoning Talesmen. If any office!’, whose duty it shall be to summon a jury or to select and summon talesmen, when the regular panel of jurors has been exhausted, shall be guilty of unlawful, partial, or improper .conduct in selecting or summoning such jurors or talesmen, lie commits an act of gross contempt of court, and should be severely punished for such conduct.
    2. JURY — Summoning—Impartiality of Officer. It is the duty of the, officer who summons jurors, or who selects and summons talesmen, to use his best efforts to secure men o-f intelligence, courage, and good moral character, but in doing this he should act with entire Impartiality between the prosecution and the defendant.
    3. TRIAL — Withdrawing Case from Jury — Misconduct of Officer. When a motion is made, supported by affidavit, to withdrayj a case from the , consideration of, and to discharge, a jury, on account of improper action of the officer who selected and summoned the jury, or the talesmen,'and such motion is made as soon as the facts' sta*ed therein come to the knowledge of the defendant or his counsel, and the matters of fact therein stated are not denied under oath, they will be taken as confessed, and will be construed most strongly against the prosecution and in favor of the defendant.
    4. JURY — Challenge to the Array. A challenge to the array or panel will lie for bias, partiality, or irregular action of the summoning officer.
    5. APPEAL — Reversal. When the record shows that a conviction has been fairly obtained, this court will not consider technical errors which do not affect the substantial rights of the defendant. But we will not allow any judgment of conviction to stand when the record shows that unfair means were resorted to in order to obtain it.
    (Syllabus by the Court.)

      Appeal from the United States Court for the Western District of the Indian Territory; Louis Sulzbacher, Judge. '
    Willie Harjo was convicted of murder, and he appeals.
    Reversed.
    On the 14th day of April, 1905, Willie Harjo, hereinafter called defendant, was indicted in the United States Court for the Western District of the Indian Territory, sitting at Wewoka, for the offense of murder. The defendant was arraigned and pleaded not guilty. The defendant was placed on trial on said indictment, and on the nth day of April, 1906, was, by the jury found guilty of murder without capital punishment. Defendant filed a motion, for a new trial, which, being overruled, defendant excepted. This case was carried by appeal to the United States Court of Appeals of the Indian Territory. Upon the admission of the state of Oklahoma into the Union under the enabling act (Act June 16, 1906, c. 3335, 34 Stat. 267) and the Constitution, the case was transferred to the Supreme Court of Oklahoma, Upon the creation of the Criminal Court of Appeals, the casé was transferred to this court as directed by the statute.

      Crump & Rogers and W. I. Crump, for appellant.

      William M. Mellette, for the United States.
   FURMAN, Presiding Judge

(after stating the facts as above). After two witnesses had been introduced on behalf of the prosecution, the defendant filed a motion, supported by affidavit, to withdraw the case from the jury, and that the jury be discharged from the further consideration of the case, upon the ground that, after the regular panel of jurors had been exhausted, the deputy marshal, who was ordered tcS summon tales-men to complete the panel, was guilty of impropér conduct in summoning said talesmen, by discriminating against the defendant in refusing to summon men to serve as jurors who were acquainted with George Crump, one of the attorneys for the defendant. It appears from the record that before summoning a talesman, the deputy marshal would ask him if he was acquainted with George Crump, and then press the inquiry as to the extent of the acquaintance; and, if it appeared that the party interrogated was well acquainted with the said Crump, the deputy marshal would say, “That is all,” and would pass on to other persons, without summoning such person as a talesman. It further appears that this motion was filed as soon as the information upon which -it was based came to the knowledge of defendant and his counsel. There was no reply to, or denial of, the statements of fact contained in the motion and in the affidavit filed in support thereof. Here is a direct charge of improper conduct, and discrimination against the defendant, on the part of an officer of the court. This charge is supported by affidavit. If the charge was untrue, it was the duty of the prosecution to reply to it. Failing to do this, we are bound to consider the facts stated as confessed.

This case originated in that section of the state which then constituted Indian Territory. Section 1057, Carter’s Ind. T. Ann. St. 1899, which was placed in force in that territory by act of Congress, is as follows:

“Every person whose duty it shall be to select or summon jurors, in any court, or before any officer who shall be guilty of any unlawful, partial, or improper conduct, in selecting or summoning any juror, shall be deemed guilty of a misdemeanor and on conviction, shall be fined in any sum not less than one hundred dollars.”

It will not be denied that it was improper, and clearly indicated partiality, for the officer who was charged with the duty of selecting and summoning the talesmen to attempt to exclude from the jury those who were acquainted with counsel for the defense. To tolerate such conduct would be to permit such an officer, charged with the duty of selecting and summoning tales-men, to amend the statute, and create a new ground for challenge for actual bias, viz., that of being acquainted with counsel for the defendant, while acquaintance with the prosecuting attorney would not be a disqualification. It is the duty of an officer selecting and summoning talesmen to use his best judgment in securing men of intelligence, courage, and good moral character. But in doing this he shquld act with entire impartiality. It was to secure this result that the statute above quoted was enacted. There being no denial of the motion and affidavit filed by the defendant, we are required to construe the statements there made most strongly against the officer, and in favor of the defendant. From this standpoint the officer was guilty of gross contempt of court, as well as a violation of a penal statute, and should have been required to make a satisfactory explanation, or have been severely dealt with. Courts cannot be too careful in rigidly suppressing everything which indicates the least bias or partiality in the selection, summoning, or taking care of jurors. Anything which gives the least odor of unfairness in the selection, summoning, or control of a jury will taint their verdict, and constitute a ground for reversal. Trial by jury means much more than a trial by 12 men. It not only means that the 12 men must possess the qualifications prescribed by law, but it also means that they must have been selected and summoned by impartial and disinterested officers.

The justice of this position is so manifest that it is not deemed necessary to cite many authorities in its support, but we will give a few.

“A challenge to the arary or panel will also lie for the bias, partiality, or irregular action of the summoning officer.” (Ency. P1. & Prac. vol. 12, p. 421, and authorities there cited.)
“It is essential to the fair and impartial administration of justice that the jury shall be selected and summoned by officers having no interest in the matters to be decided by them. An officer is not qualified to act in summoning a jury if he is interested in the event of the action, although not a party of record. When a jury is summoned by an officer who is disqualified for such reasons as are above stated, it is ground for challenge to the array.” (24 Cyc. p. 226, and authorities there cited.)

The weight of authority goes even further than is stated in the above quotations, and holds that, if the' officer who selects and summons the jury allows one who is interested in the case pending to suggest names or point out persons to be summoned, although the officer himself may not be otherwise objectionable, yet such conduct is ground for challenge to the array.

The motion to withdraw this case from the consideration of the jury, and discharge the jury was made at the earliest possible moment after the facts came to the knowledge of defendant and his counsel. It was therefore in time. It is the supreme purpose of this court to see that every person charged with crime shall receive, as near as possible, a fair trial. No trial which is not fair comes within the definition of “due process of law.” When the record shows that a conviction has been fairly had, then this court will not consider technical errors which do not affect the substantial rights of the defendant. But we will not allow any judgment of conviction to stand when the record shows that unfair means were resorted to in order to obtain it. It is true that the defendant ill this case is an ignorant Indian, who cannot speak or understand the English language. So much the greater reason why the trial court should have been vigilant in guarding his right to a fair trial.

There are other questions presented in this record, but we will confine our decision to the question presented alone, in order that we may emphasize the idea that trials must be fair, or 'convictions will not be sustained by this court. We are determined that every person in Oklahoma, regardless of race or nationality or social position or poverty, can rely upon the absolute fairness of the courts of the state.

For the error in overruling defendant’s motion to withdraw this case from the consideration of, and to discharge,' the jury, the judgment is reversed. _ ,

BAKER and DOYLE, Judges, concur.


text:
      Ex parte C. H. Watson.
    No. A53.
    Opinion Filed January 21, 1909.
    (99 Pac. 161.)
    1. BAIL — Capital Offense — Illness. On application to the Criminal Court of Appeals for bail by writ of habeas corpus after commitment for a capital offense by a justice of the peace, when it is made clearly to appear, by the testimony of competent, reputable physicians who have examined the -physical condition of the prisoner at the time the application is made, that there is strong ground for the opinion that continued confinément would cause the disease from which the prisoner is then suffering' to terminate fatally, he should be released on bail.
    2. SAME. It is good cause for admitting to bail a prisoner confined to jail for a capital offense that such prisoner is then suffering with pneumonia and other ailments, caused by his imprisonment and likely to be aggravated by the continuance of such confinement, and that it will probably terminate fatally. .
    (Syllabus by the Court.)
    Original petition by C. H. Watson for a writ of habeas corpus to be directed to A. S. Hamilton, sheriff of Bryan county.
    Petitioner admitted to bail.
    The plaintiff alleges, in his amended petition for a writ of habeas corpus, substantially: That he is imprisoned and restrained of his liberty by the defendant, A. S. Hamilton, sheriff of Bryan county, Okla., in the county jail in the city of Durant; that he is not committed or detained by virtue of the final judgment or order of any competent tribunal of civil or criminal jurisdiction, or by virtue of an execution issued upon such judgment or order; that the cause or pretense of such confinement is that he has been charged with the crime of murder; that a preliminary examination -was had before A. Neely, a justice of the peace in and for said county, and said justice of the peace, hearing the testimony introduced, committed the plaintiff to said jail without bond. The plaintiff further states that he is not guilty of any offense; that the evidence against him is not sufficient to show that the presumption of guilt is great, and that the proof of his guilt is not evident; that the proof m the case cannot show his guilt is evident, or the presumption of his guilt of the crime of murder great, and that his confinement in said jail is illegal; that he is charged with killing Wesley Crabtree; that the shooting was in his necessary self-defense; that the jail of said county is a very small structure; that there are no sanitary arrangments in said jail, and that the same is overcrowded with prisoners, and is poorly heated, lighted, and ventilated; that since his confinement in said jail everything that could be done for his comfort was done by the respondent and his jailer, but that by reason of the condition of said jail very little could be done for him; that he was incarcerated in said jail on the 24th. day of August, 1908, and since his incarceration as aforesaid he has lost his health by reason of the conditions existing in said jail and his confinement therein, and has suffered fiom severe attacks of cramps, diarrhoea, and acute indigestion, brought on by reason of his confinement as aforesaid; that he has suffered much from malaria, and is now actually suffering from a severe attack of pneumonia, contracted since his confinement in said jaii; and that he believes his physical ailments have been brought on by reason of his said confinement, and that if his confinement be continued in said jail for as much as 10 days or more a fatal result will ensue; that if he should be released from said jail his health would probably be restored. The affidavits of Dr. James Shuler, county physician of said county, Dr. J. B. Smith, Dr. G. M. Rushing, and Dr. A. S. Hagood were filed in support of plaintiffs petition; and at the time of the filing of the petition herein by the plaintiff there was no jurisdictional officer in said county who was authorized by law to grant a writ of habeas corpus.

    The petition prays” for a writ of habeas corpus, and that the defendant bring the plaintiff before this court in pursuance of the statute, to be dealt with as provided by law, and that, if it should be found by this court that the petitioner is not entitled to be released and discharged, the court make an order admitting him to bail.
    On this petition a writ of habeas corpus was issued. For his return to the writ the defendant filed his answer in substance: That the plaintiff is in his custody as such sheriff, is confined in said county jail of said county, and that he is confined and restrained in said jail by reason of a commitment issued by A. Neely, a justice of the peace of said county; that he holds the plaintiff as such prisoner by virtue of said writ of commitment issued by said justice of the peace as aforesaid; and that the defendant is now holding plaintiff as the duly qualified and acting sheriff of said county of Bryan, in the state of Oklahoma, under and by virtue of said commitment.
    By agreement of counsel this case was heard in this court upon the record of the testimony introduced at the preliminary examination before said A. Neely, justice of the peace within and for the county of Bryan, state of Oklahoma; and by like agreement the presence of the plaintiff and defendant in this court is waived.

      Utterback & Hayes and C. E. McPherren, for plaintiff.

      Charles West, Atty. Gen., and W. C. Reeves, Asst. Atty. Gen., for defendant.
   BAKER, Judge

(after stating the facts as'above). The question before this court is: Is the plaintiff entitled to bail upon the testimony as shown by the transcript of the testimony adduced at the preliminary examination before said committing magistrate under section 8, art. 2 (Bunn’s Ed. § 17), of the Bill of Rights of the state of Oklahoma? which reads:

“All persons shall be bailable by sufficient sureties, except for capital offenses when the proof of guilt is evident, or the presumption thereof is great.”

The question involved in this case has been fully decided by the Supreme Court of this state in a well-considered case and able written opinion, written by Mr. Justice Kane, in the case of In re Thomas, 20 Okla. 167, 93 Pac., which we quote and approve, commencing at page 980. Said court held:

“Primarily a person charged with a capital offense cannot demand bail as a matter of right, since, upon ascertaining the character of the charge against the accused, the next question would be as to the degree of proof and the nature of the presumption of guilt. Upon an application to the Supreme Court for bail, by writ of habeas corpus, after commitment for a capital offense by a justice of the peace, the burden is upon the petitioner to show that he is illegally deprived of his liberty — citing Ex parte Hannock, 78 Ala. 414; Ex parte Rhear, 77 Ala. 92; Ex parte Vaughn, 44 Ala. 417. On this question there is little conflict in the authorities. Alabama, California, Florida, Indiana, Nevada, New Jersey, New York, Utah, and Wyoming all support the proposition. Texas seems to be the only state placing the burden of proof upon the state to show that the offense is a capital one and that the proof is evident; but even there the doctrine of the text prevailed until it was upset in the case of Ex parte Bud Newman, 38 Tex. Cr. R. 164, 41 S. W. 628, 70 Am. St. Rep. 740. We believe that, with the burden of proof on the petitioners, if, after hearing the whole evidence introduced on the application for bail, it is insufficient to generate in the mind of the court a reasonable doubt whether the accused committed the act charged, and in doing so they were guilty of a capital offense, bail should be refused. But ,we do not wish to be understood as laying this down as a hard and fast rule, to which there may be no exceptions. There may be exceptional circumstances, such as the serious and probably fatal injury to health, or unusual and protracted delay upon the, part of the state in bringing the prisoner to trial, that may warrant the court hearing all the evidence to admit to bail, when the proof of guilt is evident or the presumption thereof is great. The admission to bail, however, under these circumstances, is not a constitutional right, but a matter resting on the sound judicial discretion of the trial judge, who should not grant it save under extraordinary circumstances.”

The undisputed proof in this case shows that the petitioner is now suffering with pneumonia and other ailments, and that by reason of bad condition of the county jail of Bryan county, it being poorly heated, lighted, and ventilated, and having no sanitary provisions or regulations, the continued confinement of the petitioner therein would endanger his health, and perhaps his life. While this court is expressing no opinion, and does not comment, upon the evidence respecting the guilt'or innocence of the plaintiff of the crime charged against him, we will only say that, following the rule laid down in the case of In re Thomas et al. supra, and in the opinion of the case of United States v. Jones, 3 Wash. (C. C. ) 224, Fed. Cas. No. 15,495, in which the court held: “Where an application for bail showed that the prisoner’s health was bad, his complaint pulmonary, and that, in the opinion of his physician, confinement during the summer might so far increase his disorder as to render it ultimately dangerous, the court said: ‘The humanity of our laws, not less than the feelings of the court, favor the liberation of a prisoner upon bail under such circumstances. It is not necessary, in our view of the subject, that the danger which may arise from his confinement should be either immediate or certain. If, in the opinion of a skillful physician, the nature of his disorder is such that the confinement must be injurious and may be fatal, we think he ought to be bailed.’ Bail should not be granted on the ground of bad health, unless it be rendered probable by testimony that confinement has produced, or is likely to produce, fatal or serious results.” Ex parte Pattison, 56 Miss. 161; Lester v. State, 33 Ga. 192; U. S. v. Kie (Alaska) 4 W. C. Rep. 553; Ex parte Meador (Tex. Cr. App. 1892) 20 S. W. 371; Com. v. Semmes, 11 Leigh (Va.) 666; Archer’s Case, 6 Grat. (Va.) 705 — that the right to give bail is herein granted the petitioner for the sole reason that he is now suffering from pneumonia and other physical ailments, and that his continued confinement in said jail will greatly injure his health and probably result in his death; and this court fixes the amount of bail herein at the sum of $10,000. which is fixed at the above-stated amount upon proof showing the plaintiff to be financially unable to furnish bail in a larger sum. .

It is therefore ordered by this court that a mandate issue to the proper authorities of Bryan county, Okla., admitting plaintiff to bail in the sum aforesaid.

FURMAN, Presiding Judge, and DOYLE, Judge, concur.