text:
    W. A. McCauley v. STATE.
    No. A-6040.
    Opinion Filed March 31, 1928.
    (265 Pac. 654.)

      Thos. Norman, for plaintiff in error.
    Edwin Dabney, Atty. Gen., for the State.
   DAVENPORT, J.

The plaintiff in error, W. A. McCauley, hereinafter called defendant, was q'onvicted, and, in accordance with the verdict of the jury sentenced to pay a fine of $50 and cost and 30 days in the county jail, on information charging that he had in his possession a certain still, which said still was then and there fit for and used for the manufacture of intoxicating liquor, to wit, corn whisky. To reverse the judgment, he has appealed, and assigns as errors certain rulings of the court.

The testimony on behalf of the state is, in substance, as follows: John W. Ginn states that he lived in Carter county and was deputy sheriff; that he knew W. A. Mc-Cauley and Opie McCauley; that Allison McCauley lived about 6 or 7 miles northeast of Ardmore; that he went to the McCauley house with a search warrant; they searched the house, but made the principal search in a hog pasture north of the house, close to a tank or pool of water; they found a furnace built out of rocks 2 or 3 feet wide, with an iron rod laid across, all right up on a hill, 12 or 15 feet back toward the house from the furnace four or five barrels and a 75-gallon boiler, a cooling keg, mash in the bottom of all the barrels; these articles found were about 150 yards from the house of the defendant.

On cross-examination, the witness testified that Allison McCauley was a married man, had a wife and children; that he got a search warrant before he went to McCauley’s house, and told the defendant’s wife that he had the search warrant; that the 10-gallon kegs looked like all 10-gallon kegs, the barrels looked like ordinary wooden barrels; the bottom of the barrels were just moist. Then stated that the 75-gallon container had a hole for a cap something like that large ('indicating with his hands) ; there was no cap on the boiler and no coil; he did not see any whisky; did not pay any attention as to whether or not there was a woman’s track around the furnace and barrels; never noticed any hogs.

Hale Dunn also testified to the same facts, and also stated there were a woman’s tracks around the place where they found the men’s tracks. Both witnesses stated these things were in public view, and witness Ginn recalled and testified that hole in the container was about 3' inches in diameter.

The defendant called several witnesses, who testified as to his previous good character. In his own behalf defendant testified that the furnace had been used by his wife while doing her washing to boil clothes; that the barrels found had been used for hauling water; and the boiler mentioned was an old oil tank that he had intended to burn out and fix for use; some of the barrels found were barrels in which he had soaked feed for his hogs. Defendant stated positively that the different things found by the state witnesses had not been used by him to make whisky.

On cross-examination, a witness for the state, Hale Dunn, testified that no one could make whisky with what was found in the defendant W. A. McCauley’s hog lot.

The court instructed the jury, in the latter part of instruction 4y2:

“You are instructed that a still, as the term is used in the statute, is a distilling apparatus which can be used in a state or condition it is for the manufacture of liquor by distillation.”

The first, eighth, and ninth errors are as follows:

“ (1) The court erred in overruling defendant’s motion for a new trial.”
“(8) The verdict is contrary to the law.”
“(9) The verdict is not sustained by the evidence, and is contrary to law and evidence.”

These three errors may be considered together, as they all relate to the sufficiency of the evidence to sustain the verdict. The fact that the barrels and other things testified to by the state witnesses were found in the defendant’s hog pasture is not sufficient themselves to convict the defendant of having in his possession a still which at the time was fit to use for the manufacturing of intoxicating liquor as alleged in the information.

The testimony on behalf of the state discloses that the alleged boiler they found was without a cap, and that there was no worm. In other words, there were several important parts necessary to constitute a still lacking. It may be some of the things found by the officers could be put together and thereby make a still, but the testimony falls far short of proving that a still was found in the possession of the defendant fit for and could be used for distillation of intoxicating liquors. The verdict of the jury is contrary to law, and is not sustained by the testimony. The motion of the defendant for a new trial should have been sustained.

The sixth assignment of error is as follows:

“(6) The court erred in admitting, over the objection and exception of the defendant, evidence of a search and seizure which was wholly incompetent said search having been made of the defendant’s home or premises without a valid search warrant.”

During the trial, the affidavit for the search warrant could not be found, but the defendant in his motion for a new trial sets out what he claims to be the affidavit, and in his brief and argument in support of his sixth assignment of error sets out what he claims to be the affidavit for the search warrant, which affidavit, omitting the caption, is as follows:

“John Ginn, being first duly sworn, on his oath states that W. A. McCauley, in the county and state aforesaid, did on the 7th day of May, 1925, unlawfully have in his possession certain intoxicating liquor and still, and he suspects that the same is situated on the premises where the said W. A. McCauley lives northeast of Ardmore, in violation of law.
“(Signed) John Ginn.”

—and was sworn to before J. W. Butcher, justice of the peace.

The affidavit set forth in defendant’s sixth assignment of error and. in his brief and argument is insufficient to give the court jurisdiction to issue a search warrant for the home and curtelage of the defendant. It does not describe the premises to be searched, nor does it allege that the home of the defendant is a place of public resort, or that it is used for a storage of intoxicating liquors.

Any testimony secured by reason of the search warrant based upon the affidavit set out herein was unlawfully procured, and defendant’s objection to its introduction should have been sustained.

There are other errors assigned, but the view we take of this record we do not deem it necessary to consider them. Under the law, the testimony is insufficient to sustain a conviction.

For the errors indicated, the judgment of the lower court is reversed.

DOYLE, P. J., concurs.

EDWARDS, J., not participating.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    SAM INGRAM et al. v. WORTEN, Judge.
    No. A-6919.
    Opinion Filed April 3, 1928.
    (266 Pac. 488.)
    Leahy, MacDonald, Maxey & Files, Wilson & Duncan, and L. A. Justus, Jr., for petitioners. • ,
    Edwin Dabney, Atty. Gen., Smith C. Matson, Asst. Atty. Gen., and C. K. Templeton, Co. Atty., for respondent.
   PER CURIAM.

Petitioners have filed in this court their verified petition for mandamus, which, omitting formal parts, reads as follows:

“Comes now the relators, Sam Ingram, Harry Buzan, and R. A. Cornell, and respectively show to this court as follows:
“(1) That the defendant, Hon. Jesse J. Worten, is the regularly qualified and acting judge of the district court of the Twenty-Fourth judicial district of the state of Oklahoma, which district is composed of the county of Osage, and which district court is held in the city of Paw-huska, the county seat of Osage county, Okla. That heretofore, to wit, on the 17th day of December 1927, an information was duly and regularly filed in said district court of Osage county, Oklahoma, by the county attorney of said county, charging that these relators, on the 6th day of June, 1923, entered into a conspiracy to get and obtain, knowingly and designedly, by false pretenses, from Osage county, Oklahoma, the sum of $47,288.97 good and lawful money of the United States and the property of the said county of Osage, state of Oklahoma, with the intent then and there of them the said defendants to cheat and defraud the said county of Osage, state of Oklahoma, and that the said relators did thereafter, on the 16th day of August, 1923, and on various other dates and occasions down to and including the 9th day of February, 1927, in pursuance of said agreement and conspiracy and to effect the object thereof, willfully, unlawfully, and felonioúsly take and receive of said moneys of Osage county, state of Oklahoma, different sums of money amounting in the aggregate to the said sum of $47,288.99. A full, true, complete, and correct copy of said information is hereto attached, marked ‘Exhibit A,’ and made a part hereof.
“ (2) That, after the filing of said information, warrants were duly issued for the arrests of these relators, and the sheriff of Osage county, Oklahoma, served said warrants and took these relators into custody, and they thereupon gave bond for their appearance pursuant to the laws of this state, and in due course and on the-day of January, 1928, entered a plea of not guilty to the said information, and that said cause is now pending in said district court before the said Honorable Jesse J. Worten, as district judge thereof, and is set for trial on the docket of that court on March 13, 1928, at 9 o’clock a. m.
“(3) These relators further allege and show to the court that the said Honorable Jesse J. Worten is biased and prejudiced against these relators and each of them, and they cannot have a fair and impartial trial before the said Honorable Jesse J. Worten, and further allege and show that the said Honorable Jesse J. Worten has previously formed a fixed opinion against them concerning the law and facts in this case. That on the 20th day of February, 1928, these relators filed in said case, in the district court of Osage county, Oklahoma, their verified application to disqualify the said Honorable Jesse J. Worten from presiding as trial judge of this cause, and in said application these relators alleged and set forth in detail the various reasons why the said Honorable Jesse J. Worten was biased and prejudiced against them and disqualified to try this case and the reasons why they could not obtain a fair and impartial trial in said cause before him, as district judge of said court. A full, true, complete, and correct copy of said application so filed is hereto attached, marked ‘Exhibit B,’ and made a part hereof as fully as if rewritten herein in full, and these relators show to the court that the allegations and statements contained in said application referred to herein as Exhibit B for identification are true and correct as they verily believe. That on the 20th day of February, 19'28, said application to disqualify said Honorable Jesse J. Worten was by him as judge of said court duly heard, and, on the trial thereof, these relators called the said Honorable Jesse J. Worten as a witness and took his statement in open court on said application. A full, true, complete, and correct copy of said statement hereto attached, marked ‘Exhibit C,’ and made a part hereof as fully as if rewritten herein in full. That on the conclusion of said hearing the said Honorable Jesse J. Worten overruled and denied said application and refused to disqualify and duly entered an order in said court so overruling said application. A full, true, complete, and correct copy of said order is hereto attached, marked ‘Exhibit D,’ and made a part hereof as fully as if rewritten herein in full.
“ (,4) These relators further allege and state that, unless a writ of mandamus issue from this court directed to the said Honorable Jesse J. Worten commanding him to disqualify as the trial judge in said cause, he will on the 13th day of March, 1928, proceed to the trial thereof, although these relators show to the court that he is biased and prejudiced against them and has prejudged their case, and that by reason thereof they will be unable to receive that fair and impartial trial that is guaranteed to them by the Constitution' and laws of this state.
“(5) These relators further show that the Supreme Court of this state, or the Chief Justice thereof, can assign some other duly and regularly elected and qualified district judge of the state, who is not biased and prejudiced against them and before whom they can receive a fair and impartial trial, to try this cause, and that said relators by making this application do not seek delay in the trial of said cause, but are ready to try the same at any time that it may lie assigned for hearing before a fair and impartial judge.
“Wherefore, these relators pray that this court issue a writ of mandamus directed to the defendant, the Honorable Jesse J. Worten, as judge of the district court aforesaid, commanding and directing him to either certify his disqualification as the trial judge in the case of relators above referred to, or to appear in this court on a day and date to be fixed 'by the order of the court to show cause, if any he has, why he should not so disqualify, and that, upon a final hearing thereon, this court issue a peremptory writ of mandamus against said Honorable Jesse J. Worten peremptorily commanding him to disqualify as aforesaid and for such other and further relief as in the premises is just.”

Annexed to the application is a copy of the information, also the findings of fact and the conclusions of law in the case entitled Will H. Chappell v. Harry Buzan, County Treasurer of Osage County, A. B. Ludwick, County Clerk of Osage County, Defendants, and Sam Ingram, Intervener, signed, Jesse J. Worten, district judge; also' transcript of proceedings upon the defendant’s application before Judge Worten to disqualify himself and transcript of his testimony as a witness in said proceeding, on February 20, 1928. In response to the alternative writ, respondent filed his answer on March 2, 1928, which omitting formal parts read as follows:

“Comes now Jesse J. Worten, and, in response to the alternative writ of mandamus, says that he is the judge of the Twenty-Fourth judicial district of the state of Oklahoma, and that as such has overruled the motion to disqualify himself as presiding judge in case No. 1824, wherein the state of Oklahoma prosecutes Sam Ingram, Harry Buzan, and R. A. Correll. As a further answer thereto, the defendant, Jesse J. Worten, says that he is not biased or prejudiced, against any of the defendants in said criminal action, but that, on the contrary, his relations with the defendants in said criminal action have been and are now friendly. The defendant by way of further answer alleges that upon the overruling of the motion to disqualify the defendant in this case announces to counsel that he had no desire to try the case in the event the Chief Justice could assign a trial judge to hear said cause, that he immediately wrote the .Chief Justice of the Supreme Court asking that some judge be assigned to try said cause, and that, in a telephone conversation with the Chief Justice, he had been advised that in all probability another district judge can be secured for the trial of said cause. By wuy of further answer, the defendant alleges and states that there are now pending in the district court of Osage county, Okla., some eight or nine criminal cases in the event a severance is requested, which has been indicated would be requested, together with the three civil cases, wherein the same issues are involved as are involved in the present case, which, if the trial court was disqualified to hear, would entail great inconvenience and cause numerous delays. Wherefore the defendant asks that he be not disqualified.”

On March 2, 1928, all the parties appeared by counsel, and it was agreed that the Chief Justice would be asked to assign a judge to the district court of Osage county for two weeks commencing March 12th and that this cause be continued until after the expiration of such assignment. It now appears that when the case was called it was by agreement of parties continued until April 17, 1928.

On April 2, 1928, said respondent filed an amended response, which reads as follows:

“Comes now Jesse J. Worten, Judge of the district court of the Twenty-Fourth judicial district of the state of Oklahoma, and for answer to the application for a writ of mandamus, requiring the said Jesse J. Worten to disqualify as trial judge in the above-entitled cause, and by way of supplemental response thereto, alleges and states that he is neither biased or prejudiced against either of the plaintiffs above named, but, on the contrary, his relations with said plaintiffs have been and are now, so far as he is concerned, friendly. By way of further response your respondent states that he will not disqualify as trial judge or request the Chief 'Justice of the Supreme Court to assign another district judge to the county of Osage for the purpose of trying said cause unless disqualified by the court.”

All the parties appearing by counsel on this 2nd day of April, said cause was submitted upon the pleadings and proof offered in support of the same.

The transcript of the proceedings upon the application for the respondent to disqualify himself to try this case shows that respondent, called as a witness, testified that, in the case of Will H. Chappell v. Harry Buzan et al., Will H. Chappell talked to him concerning certain items of evidence which were offered in that case, that at the time Chappell was discussing with respondent the advisability of calling a grand jury, and that he had a conversation with Mr. Chappell or with somebody in which the contract in question in this case was discussed, which contract was introduced in evidence in the trial of that case. He was then asked, “And do you not know as a matter of fact that the issues involved in that case were practically the same as the issues that are involved in this case, the issues of fact?” and answered, “I would think that they would 'be quite similar.”

Counsel in their brief say:

“Judge Worten has tried a case against these defendants which involved substantially all the facts charged against them in this case as criminal, has made adverse findings of fact against them which involve the merits of the case about to be tried, and in his adverse findings has expressed in an argumentative way his opinion of the credibility of evidence to be used in the trial of this case both for and against the defendants. These findings of facts and argumentative criticisms of the evidence have been published in full'in at least two newspapers of Osage county and thereby given great publicity in the county from which the trial jurors will be selected. An intelligent examination of the veniremen from among whom the trial jury must be selected will involve their being asked if they have read the published findings and criticisms above referred to, and the jurors selected to try the case will almost necessarily be informed of these damaging statements of the trial judge if Judge Worten is permitted to try the case.”

The law guards with jealous care the rights of a person charged with crime, with equal care the rights of the people as a matter of security and safety to have crime punished.

The Constitution prescribes that “right and justice shall be administered without sale, denial, delay, or prejudice.” Section 6, art. 2, Bill of Rights. By this provision of the Constitution the people have prohibited a judge from trying a cause in which he is prejudiced by or for either party.

In Ex parte Ellis, 3 Okla. Cr. 220, 105 P. 184, 25 L. R. A. (N. S.) 653, Ann. Cas. 1912A, 863, it is said:

“The framers of our Constitution guarded with special care our judiciary and tried to place it above suspicion of unfairness, passion, or prejudice, so that public confidence in our courts would not ibe shaken, and provided that right and justice should be administered without prejudice. By virtue of this constitutional provision, who can doubt or question the absolute and unqualified right of the citizen when called to answer in a court of justice to demand that his trial shall be before an impartial judge and by impartial jurors? Any other doctrine would place the rights of the citizen which were intended to be protected by this constitutional provision at the mercy or control of the court or judge thereof.”

The Code of Criminal Procedure provides:

“No judge of any court of record shall sit in any cause or proceeding in which he may be interested, or in the result of which he may be interested, or when he is related to any party to said cause within the fourth degree of consanguinity or affinity, or in which he has been of counsel for either side, or in which is called in question the validity of any judgment or proceeding in which he was of counsel or interested, or the validity of any instrument or paper prepared or signed by him as counsel or attorney, without the consent of the parties to said action entered of record: Provided, that the disqualifications herein imposed shall not exclude the disqualifications at common law.” Section 2629, C. S. 1,921.

In Ex parte Owens, 37 Okla. Cr. 118, 258 P. 758, it is said:

“Public confidence in the judicial system and courts of justice of the state demands that cases shall be tried by unprejudiced and unbiased judges, and a denial of a change of judge, applied for on the ground of prejudice, will be presumed to be a denial of justice.”

The Supreme Court of the state of Oklahoma, in the case of Son v. Linebaugh, 101 Okla. 291, 225 P. 686, held:

“Where a district judge was instrumental in procuring the institution of ouster proceedings against county officers, and has discussed the merits of such actions with various parties before a trial, and shows by his utterances and actions that he has prejudged the guilt of the defendants, he is disqualified to sit as judge in such actions, or to make an order suspending the defendants from office pending the trial.”

In Dennison v. Christopher, 19 Okla. Cr. 467, 200 P. 783, it is said:

“Moreover, the state has an interest in the standing, integrity, and reputation of its courts, and, when constitutional or statutory provisions forbid a judge from acting officially, his action is regarded as transgressing the public policy of the state. Such prohibitions are plainly intended, not only for the benefit of the parties to a suit, but for the general interests of society, by preserving the purity and impartiality of the courts and fostering the respect and confidence of the people for their decisions. 15 R. C. L. 530.”

Upon the undisputed facts, and for the reasons stated, we are of opinion that respondent, as district judge, is disqualified to conduct the trial of the information, and for this reason the application for a change of judge should be granted.

Respondent having refused to disqualify as judge, the writ of mandamus, as prayed for, is awarded.


author: DOYLE, P. J.

text:
    ERNEST SMITH v. STATE.
    No. A-6233.
    Opinion Filed April 14, 1928.
    (266 Pac. 491.)

      G. L. Bynum, for plaintiff in. error.
    Edwin Dabney, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the ‘State.
   DOYLE, P. J.

Appellant, Ernest Smith, was convicted on a charge that he did have in his possession 11% gallons of corn whisky with intent to sell the same, and his punishment fixed at imprisonment in the county jail for six months and a fine of $500. He has appealed from the judgment rendered upon such conviction.

The only question presented by the record in this case is the sufficiency of the evidence to support the verdict.

C. W. Boots, deputy sheriff, testified that in executing a search warrant he found a still and 11% gallons of corn whisky in the cellar of appellant’s house in Spelter City. This testimony was undisputed.

We deem it sufficient to say that the record shows that the trial was free from error, and the testimony on the part of the state, if credited, as it was, was ample.

The judgment is therefore affirmed.

EDWARDS and DAVENPORT, JJ., concur.


author: DAVENPORT, J.-

text:
    F. J. KLAASSEN v. STATE.
    No. A-5965.
    Opinion Filed April 14, 1928.
    (266 Pac. 495.)
    Ash & Jones, for plaintiff in error.
    Edwin Dabney, Atty. Gen., and Smith 'C. Matson, Asst. Atty. Gen., for the State.
   DAVENPORT, J.-

The plaintiff in error, hereinafter called the defendant, was charged in the county court of Washita county with the crime of manufacturing intoxicating liquor. A trial was had, and defendant was convicted and sentenced to imprisonment in the county jail for 30 days, and to pay a fine of $325. Motion for a new trial was filed, considered, and overruled, and exceptions saved. From the judgment and sentence the defendant has appealed to this court.

The state introduced testimony tending to show: That a still, whisky and barrels of mash were found in the bend of Horseshoe Lake. The testimony showed there was no one at the still when the parties found it, but there was some evidence of cooking having been done near the still. That, when they approached the still, they met a man coming in a northwesterly direction from where the still was located, but it was not the defendant, the defendant in his own behalf testified that he was not the owner of the still, did not know it was in the woods where it was alleged to have 'been found, and had nothing to do with the still whatever; that the coat found at the still was his, but that he had loaned it to' some man previous to the time the still was alleged to have been found. Defendant also called two witnesses who testified as to his previous good character.

The defendant has assigned several errors alleged to have been committed by the trial court, but the only errors we deem necessary to consider are assignments 2 and 5, which are as follows:

“(2) That said judgment of the court is contrary to the evidence, and is not supported by sufficient evidence.”
“(5) The court erred in overruling defendant’s motion for a new trial.”

The errors will be considered together as they relate to the question of the proper trial of his case. It is urged that the cross-examination of the defendant as a Witness in his own behalf was improper and prejudicial. The county attorney on cross-examination asked the defendant the following questions:

“Q. Now, Frank, isn’t it a fact you were over at the still that afternoon? A. No.
“Q. You wasn’t there? A. No.
“Q. Now isn’t it a fact that you and Joe Longley and Jim Webb was running the still when we approached near the still that night? A. No, no.
“Q. You wasn’t there? A. No.
“Q. Now isn’t it a fact that you and the parties I have named, or at least you and Joe'Longley, were at the still when we approached, and, when you heard me coming, didn’t you and Longley go east when you first discovered me? A. I wasn’t there, Mr. Springer.
“Q. Wasn’t you in the room changing your dress? A. No; I was not.
“Q. Didn’t you tell me at one time,.in my office, that when they came you were in the room changing your clothes? A. How was that?
“Q. Didn’t you tell me at one time, in my office, that when they came you were in the room changing your clothes? A. No; I did not.”

It is an abuse of discretion to allow questions to be asked the witness which are manifestly calculated to create prejudice in the minds of the jury against the witness, and, if he be the defendant, to influence them to find against the defendant because of such prejudice. The record shows that the county attorney participated in the search, and it was improper for the county attorney to propound the questions he did to defendant upon cross-examination, unless he followed it up by offering proof tending to show that the defendant was at the still that afternoon or participated with the persons named in running the still when the officers approached the place where the still was found. It is a well-established rule that impeaching questions should not be propounded to a witness unless they are based upon facts that the interrogator intends to present in refutation of adverse answering of questions propounded; such line of questioning should be done good faith, and not for the purpose of prejudicing and arousing suspicion of the jury against the defendant.

It is further urged by the defendant that during the course of the trial the state called Johnny Penner as a witness, by whom the state expected to show that he had been at the still with the defendant, but the witness, when placed on the stand, denied that he had ever been there with the defendant, or that he knew anything about it, and, when the witness stated he had not been at the still, and had not seen the defendant there, the state claimed surprise, and requested the court, after considerable argument had taken place, and testimony had been taken, to excuse the jury, and requested the court to have the witness Penner held for 24 hours, so that an information for perjury could be filed against him. The court, while the witness was on the stand, ordered the witness taken into custody by the sheriff, and the sheriff and his deputies marched the witness Penner out of the courtroom and down the hall, where the jurors had an opportunity to see that the witness had been taken into custody.

In Cosby v. State, 30 Okla. Cr. 294, 236 P. 51, this court in speaking concerning facts similar in effect to facts in this case, says:

“This proceeding could not have resulted otherwise -than to convey to the jury the opinion that the court strongly disapproved of the conduct of the witness, and may have influenced the jury in its verdict. * * * A judge should, therefore, be particularly circumspect in his conduct and in the proceedings before him that no intimation of his opinion of the facts presented or the credibility or character of a witness should be made in their presence. There would seem to be no need for an order to arrest the witness in question in the presence of the jury, and to do so was prejudicial to the rights of plaintiff in error. Reed v. State, 5 Okla. Cr. 365, 114 P. 1114.”

The action of the court in ordering the witness Pen-ner taken into custody and permitting him to be taken from the witness chair out of the courtroom, and down the hall by where the jurors were, was here prejudicial to the defendant, and the action of the court in ordering witness taken into custody by the sheriff may have influenced the verdict of the jury, as the jurors generally regard the presiding judge with great respect, and give much weight to his opinion or views, if by chance they should come to its knowledge.

For the errors pointed out, the case is reversed and remanded.

DOYLE, P. J., concurs.

EDWARDS, J., not participating.


author: DAVENPORT, J.

text:
    ELIJAH BROWN v. STATE.
    No. A-5996.
    Opinion Filed April 14, 1928.
    (266 Pac. 476.)

      Mad'den & Hubbell, for plaintiff in error.
    Edwin Dabney, Atty. Gen., for the State.
   DAVENPORT, J.

The plaintiff in error, Elijah Brown, hereinafter called defendant, was convicted of rape and sentenced to a term of 50 years in the penitentiary. The facts in the case are as follows:

On the 8th day of July, 1925, a complaint was filed before the county judge of Cotton county, charging the defendant in two counts, the first count charging rape in the first degree, and the second count charging incest, a warrant was issued, and defendant was arrested and placed in the county jail. The defendant was taken before the county judge of Cotton county, and the record discloses that a preliminary trial was set for July 13, 1925, and the defendant was remanded to jail to await the preliminary hearing. On July 9, 1925, for some reason not disclosed definitely by the record, the defendant, Elijah Brown, was brought before the county judge, and asked the court to certify his case to the district court without delay; the defendant waiving preliminary hearing upon the charge of rape and incest filed against him as having been' committed on June 23, 1925. His case was immediately certified to the district court by the county judge, and on the same day, July 9, 1925, an information was filed by the county attorney charging the defendant' with rape alleged to have been committed on .the 30th day of June, 1925.

The district judge was called from Lawton to Walters and defendant was taken before the district court immediately after the filing of the information, and before a copy of the information had been served upon him, or a list of the witnesses that were to be used against him, and the district court received a plea of guilty of the defendant and sentenced him to 50 years’ imprisonment at hard labor in the penitentiary at McAlester.

On the 11th day of September, 1925, there was filed in the district court of Cotton county a motion for a new trial, which motion, omitting the caption, is as follows:

“Comes now the above-named defendant, Elijah Brown, and moves the court to vacate, set aside, and hold for naught the judgment rendered herein on the 9th day of July, 1925, and grant the defendant a new trial for the reasons as follows, to wit:
“Newly discovered evidence, material for the party applying, which he could not, with reasonable diligence, and under the circumstances, have discovered and produced at the trial.
“That on the 8th day of July, 1925, said defendant was charged by complaint in the county court of said above-named county and state, before Hon. Lon Morris, county judge, sitting as a magistrate, with having, on or about the 23d day of June, 1925, committed the crime of rape in the first degree, and incest by separate counts therein, which complaint was duly filed on the 8th day of July, 1925, in said court, copy of which is hereto attached, marked Exhibit A and made a part of this motion.
“That thereafter on the 9th day of July, 1925, said defendant was taken before the said Hon. Lon Morris, county judge of Cotton county, state of Oklahoma, waiving preliminary trial, and was by said examining magistrate held to wait the action of the district court without bond.
“That thereafter, on the 9th day of July, 1925, an information was filed in the district court against this defendant, charging that on or about the 30th day of June, 1925, he committed the crime of rape in the first degree. A copy of said information is hereto attached, marked Exhibit B and make a part hereof.
“That on the same date, to wit, July 9, 1925, said defendant was taken before Hon. A. S. Wells, the district judge of the above-named county and state, and entered his plea of guilty, and was by the court sentenced to serve a term of 50 years at hard labor in the state penitentiary at McAIester, Okla.; copies of said judgment and sentence being hereto attached, marked Exhibit C and made a part hereof.
“That said defendant was on the same day, to wit, July 9, 1925, taken to the state penitentiary at McAIester, Okla., by C. 0. Hooper, sheriff of Cotton county, Okla., and by him delivered at said institution on July 10, 1925, a copy of said receipt and acknowledgment of his deliverance to said penitentiary is hereto attached, marked Exhibit D, and made a part hereof.
“Defendant further alleges and shows to the court that on the day of the alleged crime and for considerable time prior thereto, and at the time of entering his plea of guilty and receiving sentence, he was insane to such an extent that he did not have the mental capacity to distinguish between right and wrong, nor to understand the charges which had been preferred against him; that he was not possessed with sufficient mental capacity to ascertain and know the kind or character of crime of which he was charged, and was on the said 23d day of June and 30th day of June, 1925, insane and totally deprived of the power of reason, and incapable of committing the crime of which he was charged or any other crime.
“That upon the date of his arrest, to wit, July 8, 1925, the fact of his insanity and deranged mental condition was called to the attention of the sheriff of Cotton county, Olda., deputy sheriffs and the county attorney of Cotton county, Okla., and was by said county attorney called to the attention of Hon. A. S. Wells, the then district judge of said county, and that his deranged mental condition was so apparent by his appearance and action that the said district judge intimated and expressed some doubt as to his sanity, but neglected to abate said criminal action and inquire into the sanity of the defendant, as required by the law of the state of Oklahoma.
“Defendant further alleges and states that, during the proceedings as herein set out, he was not represented by counsel at any stage of the procedure, ‘ was not informed of his rights given him by the Constitution of the state of Oklahoma, was advised and urged to enter a plea of guilty, by the officers holding him in custody, and that such a course would be the very best to take; and on account of his deranged mental condition, and insanity, he was incapable of exercising his judgment or discretion, and easily influenced and followed the advice of the officers without knowing or without méntal power to understand the nature of the crime charged in said information.
“Defendant further alleges and states that he is innocent of the crime charged.
“Defendant further alleges that, if granted a new trial, he expects to prove by Mrs. E. K. Brown, his wife, who now resides four miles southeast of the town of Temple, in Cotton county, Okla., that he has been insane for a period of three months prior to July '9, 1925, and at intervals during the past 8 years; that 8 years ago the defendant lost his mind and reasoning entirely, and was insane for a period of 2 years; witness will further testify that the defendant is not guilty as charged in the information; that he did not have sexual intercourse with Ethel Fay Brown, his daughter; that she was present at the time the examination was made by Dr. Alexander of Temple, Okla. and that she afterwards made an examination herself, and that the hymen was not broken, nor was there any bruises or lacerations or any evidence whatever of sexual intercourse.
“If granted a new trial, the defendant expects to prove by another witness, Ethel Fay Brown, that he, at no time, had sexual intercourse with, or carnally knew, her.
“Affidavits of said witnesses Mrs. E. K. Brown and Ethel Fay Brown are hereto attached and made a part of this motion and marked Exhibits E and F, respectively.
“Defendant further shows to the court that he has never at any time, had a preliminary trial, nor has he waived the preliminary trial to the crime of rape, charged in said information, as having been committed on or about the 30th day of June, 1925, for the reason that, being insane, he was incapable of committing a crime of any character, or waiving preliminary, answering or pleading to charge, and that the judgment based upon said information is wholly void.
“Defendant further alleges and shows to the court that, by reason of his insanity, lack of knowledge, and understanding, he was unable to discover the evidence as above set out, prior to his arrest, conviction and delivery to the state penitentiary, which all took place within 48 hours; that, by reason of his insanity and depressed mental condition, he was incapable of exercising judgment and discretion, or to distinguish between right and wrong.
“That the evidence as set out herein and by Exhibits E and F is true; and this motion is made in order that substantial justice might be done, that defendant he dealt with in the manner provided by law, and that he be accorded the inalienable rights of a fair, impartial, and public trial as guaranteed by the Constitution and laws of the state of Oklahoma.
“Defendant further states that at the time of the hearing of this motion he expects to offer the affidavits of other witnesses in support of his motion; that defendant has been insane at intervals during the past 8 years, and will offer other evidence oral and documentary, in support thereof.
“Wherefore defendant prays the honorable court to vacate and set aside the purported judgment and sentence heretofore entered and premit him to withdraw his plea of guilty and substitute his plea of not guilty, and grant the defendant a new trial.
“(iSigned) Madden & Hubbell,
“Attorneys for Defendant.
“State of Oklahoma, Cotton county — SS.:
“Walter Hubbell, of lawful age, being first duly sworn upon his oath, states: That he is one of the attorneys for the defendant, Elijah Brown; that the said Elijah Brown is now confined in the state penitentiary at McAlester, Okla., and is absent from Cotton county at this time; that he has read the within and foregoing motion for a new trial, and has investigated the facts surrounding the arrest and conviction of the defendant; and that all of the allegations therein contained are true according to the best information and belief, and this affidavit is made for and on behalf of the defendant, Elijah Brown, and in his absence from Cotton county, Okla. (Signed) Walter Hubbell.
‘^Subscribed and sworn to before me this 11th day of September, 1925.
“(Signed) C. S. Mc'Cuistion, Court Clerk.
“(Seal). E. E. Myers, Deputy.”

This motion was supported by an affidavit of the plaintiff in error in this case, Mrs. E. K. Brown, and Ethel Fay Brown, which said affidavits are as follows :

“Elijah Brown, of lawful age, being first duly sworn on his oath, deposes and says: That he is the defendant above named, who was on the 9th day of July, 1925, sentenced to serve a term of 50 years at hard labor in the state penitentiary at McAlester, Okla., by Hon. A. S. Wells, the then district judge of said county and state, upon a plea of guilty to the crime of rape. Affiant was arrested on the 8th day of July, 1925, was sentenced on the 9th day of July, 1925, and was delivered to the warden of the penitentiary on the 10th day of July, 1925. That affiant is not guilty of the crime charged. That he entered his plea of guilty by virtue of duress, fraud, and undue influence; said acts of fraud, duress and undue influence being as follows, to wit:
“That on the day of defendant’s arrest he was placed in_the county jail of Cotton county, Okla., and was not permitted to see or talk with anyone except the sheriff, deputy sheriffs, and the county attorney. That the sheriff, C. 0. Hooper, deputy sheriff, J. D. Graham, and Toby Morris, county attorney, talked with this affiant numerous times prior to entering his plea. He was told by all of them, ‘We have the dope on you, and every one is against you, even your wife and children are against you and will testify against you at the trial; there is no use for you to fight the case, we will convict you anyway, and if you fight the case you are liable to get the death penalty. With every one against you and your wife and children testifying against you, you haven’t any chance to come clear, and if you will plead guilty we will recommend 25 years.’ Affiant was also advised that there was talk of mob violence against him and it would be the best for him to plead guilty. That affiant told the county attorney that he would like to advise with an attorney before entering his plea, but was advised by the county attorney that he didn’t need one, and that he, the county attorney, could and would advise him how to plead guilty, and that it was unnecessary for him to. have an attorney.
“Affiant further states that the minds of the inhabitants of Cotton county, and the community in which he resided, were highly inflamed and prejudiced against him, and that there were rumors and demonstrations of mob violence in and around his community and other parts of the county. ■ That shortly after he had been advised by the sheriff’s force that there was threatened mob violence, and a short while prior to affiant’s plea of guilty, he heard a man talking in the sheriff’s office, which is in the front part of the jail, and whom he thinks and believes was a deputy sheriff, and that he said, ‘Some of them wanted to come in and get him,’ meaning the affiant, ‘and they may do it yet.’ That defendant was the only person confined in the said jail at that time, and, believing a mob was' forming to lynch him, became frightened and was very anxious to be taken away from Cotton county, and believing his life was in danger by reason of the threatened mob violence, and suffering under the fear of losing his life, and under the false impression that his wife and children were against him, and that he had no chance, and under duress, fear, and coercion, he entered his plea of guilty, knowing and aware of the fact that he was not guilty, in order to escape to a place of safety.
“Affiant further states that representations made by the sheriff, deputy sheriff's, and county attorney, to wit, ‘We have the dope on you, and every one is against you, even your wife and children are against you and will testify against you at the trial; there is no use for you to fight the case, we will convict you anyway, and if you fight the same you are liable to get the death penalty/ were not true. They were made for the sole and only purpose of intimidad ing the defendant and inducing and coercing him to plead guilty, and in the law amounts to a fraud. That the county attorney at the time he told the defendant, ‘We have the dope on you/ knew that he had no competent evidence to corroborate defendant’s plea to the crime of rape in the first degree. The county attorney was informed by Dr. Alexander, of Temple, Okla., who examined Ethel Fay Brown, who it is alleged was raped by this defendant, ‘that he could not swear whether she had been outraged or not, that he was unable to find any evidence of it.’ Said information was given the county attorney before defendant entered his plea and before defendant was told that ‘We have the dope on you.’ That Dr. Alexander made the examination of the said Ethel Fay Brown, upon the request of the county attorney and on behalf of the state of Oklahoma. That at the time said representations were made the county attorney well knew that, if the defendant was guilty of any crime, it was that of assault with intent to commit rape.
“Affiant further states that at the time of entering his plea of guilty he was not aware of any act done by him that would constitute the crime of rape, or any other crime, and his plea of guilty was due to duress, fear, fraud, coercion, and misrepresentation of fact.
“Affiant further states that since his conviction, as aforesaid, evidence has been discovered which not only exonerates him, but which proves that the crime of rape was not in fact committed; that by reason of duress, fear, and fraud, as aforesaid, defendant was prevented from discovering said evidence, by due diligence under the circumstances surrounding this affiant at the time and before his conviction; that said evidence was discovered on July 10, 1925, the day upon which he arrived at £he penitentiary, and was disclosed by an examination of the said Ethel Fay Brown by Mrs. E. K. Brown, her mother; that said examination disclosed no evidence of sexual intercourse; that the hymen was not broken, nor was there any evidence indicating that the crime of rape had 'been attempted.
“Affiant further states that he was prevented from discovering said evidence by reason of misrepresentations, amounting to duress and fraud, and under his fear of mob violence he was incapable of exercising any judgment or discretion. And laboring under the impression that his wife and children were against him, as had been represented, affiant completely lost his power of reason, and was unable by reason thereof, and by coercion, and false representations, to_ procure counsel, and therefore said evidence was lost to him and could not have been, and was not, discovered until after he was confined in the state penitentiary. Further affiant saith not.
“(Signed) E. K. Brown.
“State of Oklahoma, Pittsburg County — SS.:
“Subscribed and sworn to before me this 2d day of September, 1925.
“(Seal.) (Signed) A. G. Haden, Notary Public.
“My commission expires February 11, 1928.”
“Mrs. E. K. Brown, of lawful age, being first duly sworn, states: That I am the wife of the defendant, Elijah Brown; we were married in the state of Alabama, 18 years ago; we have seven children, the oldest one a girl, being 14 years of age; we have resided in Cotton county, Okla., for a period of 4 years; we formerly lived in Heflin, Ala.; my husband is 41 years of age; his mind has been impaired at times during the past 8 years; 8 years ago while we resided at Heflin, Ala., he became mentally unbalanced, and became totally insane and remained so for a period of nearly 2 years, and that since said time he has been mentally deranged during intervals; that during the spring of 1925, commencing during the month of February, 1925, the defendant had been mentally unbalanced, and has gradually grown worse with the coming of hot weather; and long before his arrest I informed my people and his mother of Heflin, Ala., of his insane condition; that for a considerable time prior to the time of my husband’s arrest, he was insane, and did not have the mental capacity to distinguish between right and wrong, or to know what he was doing; he did, on several occasions prior to his arrest, become so deranged that he did not realize the presence of the members of his family; on or about June 1, 1925, he came in the house where affiant and her children were, and without a word, and apparently not conscious of the family’s presence, took the bedclothes and mattress from the bed, and went to the different rooms of the house, taking the clothes from the closets and from the shelves, carefully looking and searching every nook and corner, and continued to search the same shelves and closets time after time, and when affiant asked him what he was looking for, he made no reply, but left the house without saying a word to any one, and without realizing that any other person except himself was present; that on the morning of his arrest, July 8, 1925, he came into affiant’s bedroom in the early morning and there in her presence took her shoes and stockings and hid them; that defendant has, for a long period of time had a very unnatural appearance, he looked wild, was nervous, physically weak, and mentally sick.
“Affiant further states that during their married life, when at himself, defendant has been a good and most considerate husband toward her, and kind and gentle toward the children.
“Affiant further says that at the time her husband was arrested on July 8, 1925, he was standing in the yard holding their two year old girl; that as soon as the officer made known to her that he was under arrest and charged with a serious crime, she immediately made known to him the fact of his insanity, and immediately upon' the arrival of the county attorney and the sheriff of 'Cotton county, Okla., she made known to them that the defendant was insane, and told them of his strange and unusual actions which had taken place over a period of three months last passed; that after defendant was taken to jail she followed, and informed every one with whom she came in contact of the defendant’s insanity, and his mental condition was so apparent by his looks and actions that Toby Morris, the county attorney, remarked to this affiant that he looked and acted like an insane man to him.
“Further affiant states that the defendant is not guilty of ever having sexual intercourse with their daughter Ethel Fay Brown on or about the 23d day of June, or on or about the 30th day of June, 1925, or at any time; that she was present and assisted i)r. 'Alexander of Temple, Okla., in making examination of their daughter; that the child would not submit to an examination, stating that nothing was wrong, that her papa had not done anything1 to her, and, on account of ’her screaming and fighting, affiant and Dr. Alexander were unable to make or ascertain very much, if anything, and the doctor stated, after the attempted examination, that he could not tell anything about her condition, and could not see anything indicating she had been outraged; that, after the doctor went away, affiant pur-suaded her daughter to let her make an examination, which she did, and affiant’s examination disclosed that the hymen was not broken, nor was there any bruises or lacerations, or any evidence whatsoever of sexual intercourse. Further affiant saith not. [Signed] Mrs. E. K. Brown.
“■Subscribed and sworn to before me this 7th day of September, 1925.
[Signed] T. W. Jenses, Notary Public.
“[Seal.]
“My commission expires April 13, 1926.”
“Ethel Fay Brown, after being first duly sworn, states: That she is 11 years of age, and the daughter of Elijah Brown; that Elijah Brown did not have sexual intercourse with me, or carnally know me on or about the 23‘d day of June, 1925, or on or about the 30th day of June, 1925, or at any other time; Dr. Alexander examined me; I told him nothing was wrong, and he didn’t find anything wrong; my father never at any time did anything wrong to me, and I told every one that he did not at the time they took him away.
“[Signed] Ethel Fay Brown.
.“Subscribed and sworn to before me this 7th day of September, 1925.
“[Signed] T. W. Jenses, Notary Public.
“[Seal.]
“My commission expires April 13, 1926.”

The motion was assigned for hearing on December 21, 1925, and Judge W. L. Eagleton, the regular judge of the Fourteenth judicial district, was assigned by the Chief Justice of the Supreme Court to hear the motion. The defendant in the trial called the district clerk, C. S. McCui’stion, and offered the docket showing that in the case of the State v. Elijah Brown, No. 279, the transcript from the county judge sitting as an examining magistrate in his office on the 9th day of July, 1925, was filed, and the information was filed by the county attorney, and the defendant, Elijah Brown, was sentenced to a term of imprisonment of 50 years in the penitentiary at McAlester, for the crime of rape on the same day. The clerk further testified that his recollection was that the defendant was sentenced about 2 or 2:30 in the afternoon, and that Brown’s case was the only matter that was taken up that day; that Judge Wells was called down from Lawton for the purpose of receiving the plea; and that the plea was received and the sentence imposed in the court clerk’s office.

A number of witnesses were called on behalf of the defendant, who testified to the defendant’s peculiar condition and that they believed defendant to be mentally unbalanced at the time he was sentenced and for some time prior thereto.

Judge Lon Morris, county judge of Cotton county, testified that he remembered the occasion of Elijah Brown appearing before him as an examining magistrate; the defendant came to his office in custody of the sheriff; I had information about the case prior to that time; I was informed that he wanted to come in and enter his plea of guilty, which, of course, he could not do in that court; he wanted to waive preliminary and go into the district court without any delay, and from the offense he was charged with I thought there might be a question as to his sanity, and I interrogated him along that line; when he came to the office I asked him if he knew the nature of the offense and the seriousness of the crime, and he said he did; I asked him if he knew the offense was a capital one in which the court might inflict the death penalty, and he said, “Yes;” I asked him why he was coming in without counsel, and he said he did not feel disposed to employ counsel, and I told him the court would furnish him counsel without cost to himself if he wanted a trial.

Further testifying, the county judge said he appeared rather sunburned, a paleness through his sunburn, and having some question in his mind about'his sanity I observed him rather closely. I asked him if he had no defense at all, and he said, “This little girl is not my daughter,” and he seemed to rely on that statement as a defense; I informed him that was no defense, except as to the degree of punishment that might be inflicted; I asked him if he was induced to appear by the county attorney or any one, he said, “No; but the county attorney had suggested he would recommend a penalty of 25 years.” As a matter of fact I had declined to receive the fellow and his plea until I understood from the county attorney that his recommendation would be 25 years. I decided not to delay the matter and let him proceed through that court without counsel.

In response to questions by the county attorney, he gave the following answers:

“Q. Did any one in your presence at any time in the presence of the defendant make a suggestion that they were going to give him the death penalty? A. No.
“Q. Did the defendant in the conversation there, his general demeanor before you, indicate or cause a doubt, to arise in your mind as to his sanity? A. No, sir; I didn’t see anything there, but I did entertain some question.
“Q. You entertained that before you talked with the defendant? A. Yes, sir; before I saw him.”

Witness further testified that after Judge Wells had sentenced the defendant he came to the door of his office, and, while he was talking to Judge Wells, a Mr. Mann came up, who seemed to be somewhat excited, and commenced to tell Judge Wells that he had known the defendant for a number of years, and there must be something wrong, and he must be insane; and Judge Wells was in one of those characteristic poses in which he approached anger, and waved Mr. Mann away — that way — and Mr. Mann said he must be insane. He was confronting me, and I replied, “I thought so too.” Judge Wells did not say anything in response to Mr. Mann.

On cross-examination, among other things, the witness in answering the following questions, gave the following answers:

“Q. Now, from the nature of the offense of the crime charged, you wasn’t thoroughly satisfied as to his mental condition? A. Yes, sir; from my practice and experience a crime of that kind indicates at least a mania.”

Mrs. E. K. Brown, wife of the defendant, was called as a witness and in substance testified that she was at home the day her husband was arrested; that Mr. J. D. Graham informed her that her husband was arrested for a bad thing; that the defendant had been in the field that morning plowing; when Mr. Graham told me my husband had been arrested for a bad thing he did not tell me what it was; I told Mr. Graham my husband’s mind was bad; it had been bad for a great while; he had been acting strange, and not acting right for three or four months; he would act like he was looking for something; he would come in the house and take the bed clothing off the bedstead, and when I asked him what he was looking for he would not say anything and go on not noticing any of us; I visited my husband while he was in jail; the county attorney had been out to my home before I came to see my husband at the jail; I told the county attorney and sheriff that he had been acting strange, and I did not think he was right, and I wanted them to do something for him; Toby Morris stated he looked like a crazy man to him and he believed the man was crazy; that was the first time he came out; I went to see my husband the day he was taken away; it was about 9:8'0; saw him about 30 or 35 minutes; his mental condition at that time was very weak;-he was walking the floor and was so weak he had to catch to the bars; he asked me what he was charged with and I told him it was bothering Ethel, our little girl, and he said he had not done it, and sheriff Hooper said, “My party was ready to go.”

Mr. McDavid came into town and defendant wanted him to get an attorney; wanted me to see Judge Lon Morris and get him to tell him where to find an attorney; at that time I did not know whether the defendant was guilty or not; the sheriff told me the county attorney wanted to see me; in my conversation with the county attorney I told him defendant wanted a lawyer, and he said he wondered what he wanted with a lawyer, and I said he wants one, and wants you to get him one, and he said he don’t need a lawyer.

I was present when Dr. Alexander made the examination of the little girl down there; the examination was made at my house; Dr. Alexander with Sheriff J. D. Graham and Sheriff Hooper were there; Dr. Alexander stated that he did not find nothing and could not make any statement under that circumstance; he did not find nothing; I assisted him in the examination and I afterwards made an examination of the child; I made the examination the next day after I come up here and seen my husband; the examination disclosed nothing; there was not a thing wrong with the child.

On cross-examination by the county attorney, the witness Mrs. E. K. Brown stated: I did not tell you and Mr. J. D. Graham and Mr. C. 0. Hooper that I knew that this had been going on for a long time and was hoping that some time he would quit doing these things to his family and little girl; witness was then interrogated about a letter that had been received by the county attorney and denied that he had written the letter; witness stated further that I told Mr. Hooper and Mr. Graham that my husband was insane, and had been acting insane, when they first came down there; I told you that he was insane before you had said anything when you first come.

Considerable additional testimony on cross-examination was given by Mrs. E. K. Brown of alleged statements that she should have'made to the county attorney, the sheriff, and his deputy. The county attorney was then sworn and testified as to the receiving of a letter purported to have been written by Minnie Brown, route 2, Temple, Okla., and giving evidence that Mrs. Brown had admitted she had Written the letter; witness S. E. Cook was called and testified as to having been present with Mr. Morris, the county attorney, when Mrs. Brown admitted a certain letter had been written by her, in which letter statements were made that the defendant was guilty of the charge filed against him.

Witness J. D. Graham, a deputy sheriff, was called and testified as to the arrest of the defendant and that Mrs. Brown at the time the defendant was arrested stated that Mr. Brown had committed a crime on his little girl, and that Mrs. Brown said I will tell you if you will protect me, and Mr. Hooper assured her that they would protect her, and she stated it was a fact; further on the witness stated that Mrs. Brown admitted that it had been going on for several months, and that the girl on whom their father is alleged to have committed the offense stated that the father had committed the offense alleged.

Mr. Cooper, witness for the state, was called and testified as to statements made by Ethel Fay Brown as to the father having committed the crime, and also Margaret Henderson gave evidence as to what the girl told her about the crime and the method in the commission of the same. There is considerable other testimony of rumors that went around in the neighborhood as to what had been charged against the defendant.

We have set out in this opinion all of the testimony we deem necessary to arrive at a proper and correct decision in this case. The court having heard the evidence in support of the motion for a new trial, and the argument overruled the same, to which ruling of the court the defendant at the time in open court duly excepted and gave notice of appeal, and has assigned the following errors alleged to have been committed by the court in the trial of the case:

“(1) Said court erred in overruling plaintiff in error’s motion for new trial, setting aside the judgment, and permitting plaintiff in error to withdraw his plea of not guilty therefore.
“ (2) That the proceedings had on defendant’s plea and sentence v/as illegal and void.
“(3) That the judgment and sentence was in violation of the defendant’s rights under both the state and federal Constitutions, as guaranteed by sections 2, 6, 9, 17, 19, 20, 21, and 30 of the Bills of Rights, article 2 of the state Constitution, articles 2, 4, 5, 6, 9, and 14 of the Amendments to the Constitution of the United States, and that the defendant has been denied the benefits of counsel and deprived of his liberty without due process of law.”

In the Bill of Rights are these provisions:

“Sec. 7. No person shall be deprived of life, liberty, or property, without due process of law.”
“Sec. 17. No person shall be prosecuted for a felony by information without having had a preliminary examination before an examining magistrate, or having waived such preliminary examination.”
“Sec. 20. In all criminal prosecutions the accused shall have the right to a speedy and public trial by an impartial jury of the county in which the crime shall have been committed: Provided, that the venue may be changed to some other county of the state, on the application of the accused, in such manner as may be prescribed by law. He shall be informed of the nature, and cause of the accusation against him and have a copy thereof, and be confronted with the witnesses against him, and have compulsory process for obtaining witnesses in his behalf. He shall have the right to be heard by himself and counsel; and in capital cases, at least two days before the case is called for trial, he shall be furnished with a list of the witnesses that will be called in chief, to prove the allegations of the indictment or information, together with their post office addresses.”

In the Code of Criminal Procedure are these provisions:

“When the defendant is brought before a magistrate upon an arrest, either with or without a warrant, on a charge of having committed a public offense, the magistrate must immediately inform him of the charge against him, and of his right to the aid of counsel in every stage of the proceedings, and also of his right to waive an examination, before any further proceedings are had.” Section 2484, Comp. Stats. 1921.
“He must also allow to the defendant a reasonable time to send for counsel, and adjourn the examination for that purpose; and must, upon the request of the defendant, require a peace officer to take a message to such counsel in the county or city as the defendant may name. The officer must, without delay, perform that duty, and shall receive fees therefor as upon a service of a subpoenas.” Section 2485, Comp. 'Stats. 1921.
“The magistrate must without a jury, immediately after the appearence of counsel, or if none appear and the defendant require the aid of counsel, after waiting a reasonable time therefor, proceed to examine the case,” Section 2486, Comp. Stats. 1921.
“At the examination the magistrate must, in the first place, read to the defendant the complaint on file before him. He must also, after the commencement of the prosecution, issue subpoenas for any witnesses required by the prosecutor or the defendant.” Section 2490, Comp. Stats. 1921.
“When the indictment or information is filed, the defendant must be arraigned thereon before the court in which it is_ filed, if triable therein; if not, before the court to which it is removed or transmitted.” Section 2577, Comp. Stats. 1921.
“If the defendant appear for arraignment, without counsel, he must be informed by the court that it is his right to have counsel before being arraigned, and must be asked if he desire the aid of counsel. If he desires, and is unable to employ counsel, the court must assign counsel to defend him.” 'Section 2590, Comp. Stats. 1921.
“If, on the arraignment, the defendant requires it, he must be allowed until the next day, or such further time may be allowed him as the court may deem reasonable, to answer the indictment or information.” Section 2595, Comp. Stats. 1921.
“The court may, at any time before judgment, upon a plea of guilty, permit it to be withdraw, and a plea of not guilty substituted.” Section 2621, Comp. Stats. 1921.
“If the defendant refuse to answer the indictment or information by demurrer or plea, a plea of not guilty must be entered.” Section 2627, Comp. Stats. 1921.
“After a plea or verdict of guilty, * * * the court must appoint a time for pronouncing judgment.”
“The time appointed must be at least two days after the verdict, if the court intend to remain in session so long; or, if not, at as remote a time as can reasonably be allowed.” Sections 2759, 2760.
“When the defendant appears for judgment, he must be informed by the court, or by the clerk under its direction, of the nature of the indictment or information, and his plea and the verdict, if any thereon, and must be asked whether he has any legal cause to show why judgment should not be pronounced against him.” Section 2768.
“If no sufficient cause be alleged or appear to the court why judgment should not be pronounced it must thereupon be rendered.” Section 2770.
“An appeal to the Criminal Court of Appeals may be taken by the defendant, as a matter of right, from any judgment against him; and upon the appeal, any decision of the court, or intermediate order made in the progress of the case may be reviewed.” Section 2805.

It will be observed from the record in this case that the defendant was charged with a grave offense, and that he was taken before a county judge sitting as an examining magistrate, on the 9th day of July, 1925, waived preliminary, and the record was certified to the district court; information filed by the county attorney and the district judge was called from Lawton to Walters to impose a sentence upon the defendant all on the same day.

The defendant in his argument contends that he was deprived of his constitutional rights, in that he was not advised by the court fully as to his right to have counsel represent him, nor was he advised that at least two days before he could be called upon to enter his plea or placed upon trial he was entitled to be furnished a copy of the information and a list of the witnesses to be used against him, and that, if he desired counsel and was unable to employ the same, he would be furnished counsel without cost at the expense of the state.

Under our laws every person accused of a felony is entitled to the aid of counsel at every stage of the proceedings, whether imprisoned or admitted to bail, and the refusal of opportunity to procure such counsel amounts to a deprivation of the rights essential to his safety. Polk v. State, 26 Okla. Cr. 283, 224 P. 194; Sutton v. State, 35 Okla. Cr. 263, 250 P. 930.

In Polk v. State, supra it was held:

“The law favors trials on the merits; and, if the discretion of the trial court is abused in refusing to vacate and set aside judgment and sentence of life imprisonment, pronounced upon a plea of guilty, and grant a new trial, the judgment on appeal will be reversed.” McConnell v. State, 18 Okla. Cr. 688, 197 P. 521; Heath v. State, 23 Okla. Cr. 382, 214 P. 1091.

In Polk v. State, supra, the court further says:

“Under our laws every person accused of felony is entitled to aid of counsel at every stage of the preceedings, whether imprisoned or admitted to bail, and refusal of opportunity to procure such counsel amounts to a deprivation of a right essential to his safety.”

It is true that under our law a person prosecuted for a crime may waive the rights guaranteed to him by the Constitution. This court is called upon to say whether or not, under the facts shown in this case, the defendant did or did not waive such rights. The constitutional right of the defendant to be heard by counsel is not limited to the trial, but the provision contemplates the right of the accused to consult with counsel at every stage of the proceedings.

The information in this case charged an offense for which the punishment prescribed by the statute is death, or imprisonment in the penitentiary for 15 years to life. If the defendant had been represented by counsel learned in the law before arraignment, he would have been advised that he had a right to be tried by a jury, and the jury, should he be found guilty, would have a right to fix his punishment at any time in the penitentiary from 15 years to life, or to fix the death penalty; that he could not be compelled to give evidence against himself. He would have been advised that, if he pleaded guilty, the court would be authorized to find him guilty without hearing any other evidence. He would also have been advised that his plea of guilty would waive his right to have a jury exercise its discretion as to the punishment to be imposed on him. He would also have been advised of his right to have furnished him a copy of the information, and a list of the witnesses for the state, together with their psot office addresses, at least two days before being called on to plead to the information. Goben v. State, 20 Okla. Cr. 220, 201 P. 812, and cases cited.

In Sutton v. State, supra, this court, in construing the second paragraph of section 20 of the Bills of Rights, states:

“That, in a capital case, the defendant does not have to demand a list of the witnesses, together with their post office addresses; that the Constitution makes that demand for him, and, unless he waive it, he cannot be legally put upon trial until that demand has been complied with.” Spess v. State, 13 Okla. Cr. 277, 164 P. 131; Goben v. State, 20 Okla. Cr. 220, 201 P. 812; Polk v. State, supra.

In a criminal action the defendant has a right to plead guilty and the effect of such a plea is to authorize a judgment and conviction, and the imposing of the punishment prescribed by law. The plea should always be voluntarily made, and the party charged at the time should be competent to know the consequences and should not be induced by fear, persuasion, promise or ignorance. In some states pleas of guilty, where one is charged with a capital offense, is not received. In others a jury must be impaneled in capital cases to assess the punishment. It is not disputed that many constitutional guaranties may be waived by a person accused of crime, who goes into court represented by counsel and being fully advised of all of his rights. However, it is not clearly shown by the record in this case that the_defendant did waive any of his constitutional or statutory rights except so far as his plea of guilty waived his right to be tried by a jury.

This court is of the opinion the constitutional right to be represented by counsel in capital cases, to be furnished a list of witnesses together with their post office addresses at least two days before the case is called for trial, and a copy of the information, are essential to due process of law granted to a citizen by section 7 of the Bill of Rights. We hold that a conviction had by a denial of the defendant’s constitutional rights amount to a denial of due process of law.

It is argued by the Attorney General that, if this case is reversed and remanded for a new trial, the defendant must go free, for the reason that the girl upon whom the crime had been committed, and her mother, have since the conviction of the defendant changed their attitude in the case and that they would now testify that the crime alleged against the defendant had not been committed. This court must examine the record before it and not consider what the result of another trial may be.

The defendant argues that the testimony offered by him in support of his motion for a new trial, and to set aside and vacate the judgment show that no offense had been committed and that he was denied his constitutional rights.

For the reasons hereinabove stated, we are of the opinion the court erred in overruling the motion of the defendant for a new trial, and to set aside and vacate the judgment, and that the judgment and conviction in this .case is void for want of due process of law;

The judgment is accordingly reversed, and the cause remanded to the court below for further proceedings consistent with this opinion; The warden of the penitentiary will surrender the defendant, Elijah Brown, into the custody of the sheriff of Cotton county, who will keep him in custody until discharged therefrom according to law.

DOYLE, P. J., concur.

EDWARDS, J., not participating.


text:
    OTIS GREEN v. STATE.
    No. A-6185.
    Opinion Filed April 14, 1928.
    (266 Pac. 512.)
    Eaton & Cavanaugh, for plaintiff in error.
    Edwin Dabney, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   DAVENPORT, J.

The plaintiff in error, hereinafter called the defendant, was convicted, and in accordance with the verdict of the jury sentenced to pay a fine of $500 and serve a sentence of 5 months in the county jail, on an information charging that the defendant unlawfully and wrongfully had in his possession certain intoxicating liquors, to wit, 8 gallons corn whisky, with the intention on the part of him of selling, bartering, giving away, and otherwise disposing of the same, in violation of the provisions of section 3605, Rev. Laws 1910.

To reverse the judgment the defendant has appealed to this court and has assigned as errors certain rulings of the court and misconduct on behalf of the county attorney in his argument.

The testimony on behalf of the state is, in substance, as follows: George Bowman testified that he knew the defendant, Otis Green; that he saw the defendant on or about the 7th day of July, 1925, at what was called the “Hog Ranch,” northeast, of Beggs; they found some whisky close to his residence where he lives and south of the house something like a quarter of a mile. On cross-examination, the witness testified:

That defendant was not near the whisky when it was found; that the whisky was out in the timber; there were eight or nine gallons in a keg; there were footprints leading off from it toward the defendant’s gate; the whisky and the tracks were not on the defendant’s premises; we had a search warrant, but we did not search the premises where defendant lived; we used the search warrant on what was called the “Hog Ranch;” the whisky we found was something like a quarter of a mile from defendant’s house; it was covered up with brush; the defendant told me this whisky did not belong to him; I would not swear it was his whisky; it was not on defendant’s premises, but the tracks cam© from the gate; we followed the tracks to the whisky, but we did not measure the tracks; I have known the defendant 25 years; I got some direct information that the whisky was there; I don’t know the names, not these oil men; I don’t care to tell their names, it is not necessary.

Adam Le Wallen testified:

That he was at defendant’s home the day preceding the arrest; the defendant was at home; I did not see anything at his house in the way of intoxicating liquors; they had a keg in the woods about a quarter of a mile south from his house; the keg was setting on the ground with a limb and tow sacks thrown over it; my brother and Mr. Green were with me; I suppose Mr. Green was in charge of the keg; he took us out there; we all took a drink; Green opening up the keg, and then I drank, and then one of my brothers drank; when we went there we helped him fix his car, and he asked us if we wanted a drink, and then took us up there.

On cross-examination the witness stated that:

From the time we left we knew we were going to get a drink of whisky; we did not know where it was; I had not seen the whisky before; I do not like to tell much about what we were there for; we were there the night before; we came by and got old man Hill and stopped at my place and taken some whisky and went ovqr and pulled a drunk; I figured he did not get in, and I went over to see; old man Hill and several others were there the night before we put on the drunk; it was not my whisky; Green had it, he rode in the car with it; he brought it from home, I suppose.

In response to a question, the witness gave the following answer:

“Q. You own a still? A. I let him have it, it was a gasoline drum, it was not a whisky drum.”

I had only been over to where the whisky was one trip; Ote Green and my brother was along; Ote Green did not say whose whisky it was.

Oscar Le Wallen, a witness for the state, testified in substance to the same facts as Adam Le Wallen. Fred Garrison also testified that he had received information as to what there was out near defendant’s home; the whis-ky was not in the inclosure of the defendant, but was about a quarter of a mile from the house.

The defendant as a witness in his own behalf stated:

That he found the whisky out there the day before Le Wallen and his brother came over, and he took them over to where it was and they took a drink; when the Le Wallens came to my place I told them there was some whisky over there, and they went over there, and we had a drink; I did not know to whom it belonged.

On cross-examination, defendant stated:

I didn’t get any drum from Le Wallen; I got the whis-ky we drank the night before out of that keg; I found the keg two days before we went over there; nobody was drunk at my place at any time; I don’t know how the whisky came to be where it was.

On redirect examination, the defendant stated:

I have lived out there about 20 years.

The foregoing is, in substance, all the material evidence introduced by both the state and defendant. In addition to the usual assignment of errors, that the verdict is contrary to the law and evidence, and the overruling of motion for a new trial, it is argued that the court erred in admitting incompetent evidence and in permitting the county attorney, in closing the argument to the jury, to make prejudicial statements of matters outside of the record, and of such a character as would arouse the passion and prejudice of the jury against the defendant. The county attorney stating:

“Gentlemen of the jury, if the courts were allowed under the laws of this state to instruct a verdict of guilty in criminal cases, this is one case the court would be justified in doing so.”

This statement was objected to by the defendant, and the court sustained the objection. Further in the argument the county attorney made this statement:

“Bring the Le Wallen boy to the stand. He told that he let him have a gasoline drum. I. want counsel to tell me how he knew it. This, defendant told him or somebody else told him. I want him to tell me how he knew it.”

This statement was objected to by the defendant, and by the court overruled. Counsel for the defendant then stated:

“The defendant excepts to the remarks of the county attorney as highly prejudicial; I object to the remarks and argument of the county attorney upon the proposition that somebody must have told the defendant’s counsel that the witness Le Wallen furnished a drum, or else he would not have known it.”
By the Court: Overruled.
By Mr. Eaton: Exceptions.

County Attorney ((proceeding) : This is just as much in the record as it can be. I know you were not deaf when you cross-examined him.

By Mr. Eaton: To which the defendant excepts as highly prejudicial.

The Court: Overruled.

Mr. Eaton: Defendant excepts.

County Attorney (proceeding) : I say let him tell how he knew about it. Here is what happened. Eaton’s client or somebody told him he got the drum from Le Wal-len and made this whisky.

Mr. Eaton: To which remark the defendant now excepts as highly prejudicial.
Mr. Eaton: Exceptions.

'County Attorney (proceeding) : Gentlemen of the jury, you know counsel is entitled to argue the testimony and the law. You know a man has to get this information somewhere. If Joe dreamed it—

Mr. Eaton: I object to that as highly prejudicial.
The Court: Overruled.
Mr. Eaton: Exceptions.

The county attorney further in his argument made the following .statement:

“The officers told you there had been complaint made to them by the people; that the oil field workers, the men working on the leases, had been getting drunk; that the men for whom they were working objected; they wanted their men to work; they had a right to make their men work and earn honest dollars.”
Mr. Eaton: in this case. I object to that not based on any evidence
County Attorney: Gentlemen of the jury, I have been trying cases for a long time. I haven’t much sense, but I have a memory. I will go with any lawyer, I don’t care who he is, to the record as to what it is. > I never go out of the record.
Mr. Eaton: We object to this based on no' evidence offered here, highly prejudicial to the defendant.

A careful reading of all the evidence contained in the record in this case fails to disclose any evidence showing the statement contained in the county attorney’s closing argument:

“That the oil field workers, the men working on the leases, were getting drunk. That the men for whom they were Working objected. They wanted their men to work. They had a right to make their men work and earn honest dollars.”

The record further discloses that, when the objections were interposed to the argument herein set forth by the county attorney, counsel for the defendant objected on the ground that it was not based on any evidence in the case, and that the county attorney in presenting it to the jury boasted of the time he had been trying lawsuits, stating “I haven’t much sense, but I have a memory,” and again asserting in the presence of the jury, “That I never go out of the record.”

In the case of Vickers v. United States, 1 Okla. Cr. 452, 98 P. 467, this court said:

“A public prosecutor is presumed to act impartially in the interest only of justice. If he lays aside the impartiality that should characterize his official action, to become a heated partisan, and by vituperation of the prisoner, and appeals to prejudice, seeks to procure a conviction at all hazards, he ceases to properly represent the public interest, which demands no victim, and seeks no conviction through-the aid of passion, sympathy, or resentment. The only way to secure fair trials is to set aside the verdicts so procured.”

In the case of Dunmore v. State, 115 Ala. 69, 22 So. 541, the Supreme Court of Alabama said:

“Counsel may not in argument to the jury, state as matter of fact, that of which there is no evidence. Such statement is not within the latitude of discussion the law accords to counsel, and is in itself of evil tendency.” .

This court has passed upon similar questions several times. Ludlam v. State, 29 Okla. Cr; 420, 234 P. 778; Goodwin v. State, 30 Okla. Cr. 433, 236 P. 636.

The remarks of the county attorney complained of in this case are wholly unauthorized and highly improper, and the overruling by the court of defendant’s objection thereto was prejudicial to the substantial rights of the defendant.

The record has been carefully examined, and there is no evidence to warrant the facts stated by the county attorney, and yet the county attorney told the jurors that the statement of facts and deductions made by him therefrom were proper matters for its consideration.

For the reasons stated, we think the defendant did not have a fair and impartial trial. The judgment of the lower court is reversed.

DOYLE, P. J., concurs.

EDWARDS, J., not participating.


text:
    JUNE TYLER et al. v. STATE.
    No. A-6232.
    Opinion Filed April 16, 1928.
    (266 Pac. 516.)

      Chapman & Chapman, for plaintiffs in error.
    Edwin Dabney, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   DOYLE, P. J.

The plaintiffs in error June Tyler and Sain Tyler were convicted on an information which charged that they committed an assault and battery upon the person of one H. A. Server, by means and use of a deadly weapon with intent to do bodily harm. The jury fixed the punishment of June Tyler at imprisonment in the penitentiary for a term of two years and the punishment of Sam Tyler at imprisonment in the penitentiary for a term of one year. Motion for new trial was duly filed and overruled and judgment rendered in accordance with the verdict. From the judgment they appeal.

The first error assigned is that the verdict is contrary to law and is not supported by' the evidence.

H. A. Server testified that he was sitting in a car waiting for.his wife to come out of church in Earlsboro and Sam Tyler walked up to him with two half pints of whisky in his pockets and a big rock in his hand, and said, “I hear you found my mash and told it,” and he answered, “Yes; I told it;” and Sam grabbed him with one hand and hit him with the rock, and said, “I am going to murder you;” witness tried to get his knife out and it fell and Sam grabbed the knife; that witness started away and went about half a block and spoke to' Mr. Ingram; that Sam followed him, and witness stopped, picked up a rock, and threw it at Sam, thei* Sam threw a rock at him, and they started to fight, then June Tyler ran up with a big long knife in his hand and stabbed witness in the back five or six times.

Joe Ingram, a disinterested white witness and merchant at Earlsboro, testified that he noticed Henry Server sitting in the car and Sam Tyler walked up to the car, but he could not hear what was said; that Sam Tyler commenced to beat Server with his fist or something and they scuffled a minute or two, then Sam Tyler got back out of the car and picked up a rock and acted like he was going to hit Server with it; witness told him not to hit him; Server then got out of the car on the opposite side from where Sam was; witness then started his car, and Server called to him, and he stopped his car7 Server said, “I want some protection; I want the law;” Sam Tyler was following Server with a knife in his hand; .Server picked up a rock and threw it at Sam Tyler, then they started to fight and went down with Sain underneath; about that time June Tyler came up with a knife in his hand, and cut Server, striking him in the back, and then witness, with Arthur Harris and others, separated them.

As a witness in his own behalf, Sam Tyler testified as follows;

I walked up to the car, and said: “Server, why do you go and tell people I got mash around here? You know I ain’t got nothing like that aroundj” and he say, “Yes; I seen it;” and, “If you don’t like it, what are you going to do about it?” I said, “Well, that is all right;” and he started out of the car and going into his pocket; I grabbed him and held him there a few minutes and turned him loose, and he got out of the car with his knife open, so I just backed off from the car, and he came around the car with his knife in his hand and started up town "raising sand.” I started up town with my hands in my pocket, and he says, "Don’t you come up here.” When I got up 8 or 10' feet from him, he threw a rock at me and struck me on the arm, and he lunged with this knife; I grabbed the hand in which his knife was, and he fell on top of me, and I twisted the knife out of his hand; I didn’t know that he was cut until the law came there; I dsjn’t see how I could have cut him; I had the knife; I done got his knife and I gave it to the jailer.”

As a witness in his own behalf, June Tyler testified as follows:

‘T was sitting across the street and saw Server throw a rock; the people were running up, so I ran across the street to see what was the trouble, and when I got up there Server was on top; about that time they got up; I got as close as here to the table from them; I didn’t have no knife and I didn’t cut Server.”

It appears that the complaining witness and the defendants are colored persons and counsel for the defendants contend that the proof merely shows a row or difficulty among some colored persons, brought about by the acts of the complaining witness.

The testimony of Ingram, a disinterested white witness, a merchant at Earlsboro, if believed by the jury, is sufficient to warrant the conviction. The jury has said by its verdict that it believed this witness for the state, so it would be improper for this court to pass upon the weight of the evidence and to declare in effect that the testimony supporting the verdict was untrue.

The Attorney General in his brief states:

"Counsel for the defendants suggest that, if this court does not think these judgments should be reversed, then the sentence of June Tyler should be modified by making his sentence one year, the same as that given Sam Tyler”

—and concludes that the state has no serious objection to said modification.

Considering all the circumstances in the case, this court has come to the conclusion that the sentence of the defendant June Tyler is excessive, and should be modified to imprisonment in the penitentiary for a term of one year.

The judgment as to June Tyler, as so modified, is affirmed, and the judgment as to 'Sam Tyler is affirmed.

EDWARDS and DAVENPORT, JJ., concur.


author: RICHARDSON", Judge.

text:
    W. H. STACK and H. STERMER v. STATE.
    No. A-229.
    Opinion Filed May 24, 1910.
    (109 Pac. 126.)
    1. APPEAL — Service of Copy of Information, An assignment of error to. the effect that the court erred in not causing a copy of the information to be served on the defendant, is not available on appeal where the record fails to show that the defendant did not have a copy of the information, or that he ever made a demand therefor.
    2. SAME. An assignment of, error to the effect that the court erred in not causing a copy of the information to be served on the defendant, is not available, if the defendant was at large, could have seen the original information on proper application, and could' have taken a copy thereof, if he desired.
    3. APPEAL — Exceptions—Necessity. Errors to which no exceptions were taken below, and not fundamental in character, will not be considered on appeal.
    4. APPEAL — Briefs—Waiver of Errors. Assignments of error not noticed in pla-'ntiff in error’s brief pr oral argument, will be treated as abandoned.
    5. INTOXICATING LIQUORS — Illegal Sale — Liability of Employer. An employer engaged in the unlawful 'business of selling liquor is criminally liable for a sale made by his employee in the course of the employer’s business, whether such employer be present and consenting to the particular sale or not.
    6. SAME — Purchase for Entrapment. The state is not precluded • from prosecuting a violation of the prohibition law because the purchase of the liquor was made by an informee, at the instance of the sheriff, and for.the purpose of instituting a prosecution.
    (Syllabus by the Court.)

      Appeal from the County Court of Comanche County; James H. Wolverton, Judge.

    W. H. Stack and H. Stermer were jointly tried and convicted of the offense of selling intoxicating liquor, and they appeal.
    Affirmed.

      Bay & Cunningham, for plaintiffs in error.

      Fred 8. Caldwell, for the State.
   RICHARDSON", Judge.

The assignments of error in this court are, that the court below erred in overruling the motion of plaintiffs in error for a new trial; that the court erred in overruling their motion in arrest of judgment; that the court erred in entering judgment and. sentence against them upon the information and testimony in said cause; and that the court erred in not causing a copy of the information in said cause to be furnished to. plaintiffs in error prior to the trial.

As to the last assignment, it is sufficient, to say that the record nowhere discloses that plaintiffs in error did not have a copy of the information, or that they ever made a demand for a copy thereof. It appears from the.record that they were at large; and for aught the record shows they could have seen the original information upon application, .and could have taken a copy there,of if they desired. This assignment appears to have been an afterthought, and was not raised in the lower cort. It is therefore not available here.

The motion in arrest of judgment was based upon two grounds: first, because the court had ho jurisdiction to try the cause; and second, because the law under which plaintiffs in error were being prosecuted was in conflict with the Constitution of •the United States.. What matter essential to the court’s jurisdic-ion was lacking, and what particular portion of the federal Constitution the law in question contravened, plaintiffs in error have not essayed to tell us, and we shall not hazard a guess.

.The first .and third assignments may be considered together, and are based upon the contention that the verdict was contrary to the law and the evidence, and that the court erred in giving certain instructions to the jury. As to the alleged error in the instructions, it is sufficient to say that the record shows no exception to any of the instructions given, and the instructions now complained of are not of that character which the 8ourt would consider where no exception to them was saved below. Moreover, no error in the instructions has been pointed out in plaintiffs in error’s brief, and therefore if exceptions had been saved, we should treat them as abandoned.

We have examined the evidence, and find .it amply sufficient to support the verdict. -It contains the direct testimony of one witness to the effect that he bought liquor from Stermer in Stack’s place of business. There is plenty of evidence in the record to the effect that Stermer was working for Stack, and that the latter was running a saloon in the city of Lawton; that he was engaged in that business before statehood, and had continued in the business ever since; that his place of business was frequented by a drinking class; that people continually brought liquor out of his place of business and were often seen to leave there in an intoxicated condition. The evidence was amply sufficient for the jury to have, found that Stermer was working for Stack, and .that he was Stack’s agent in the sale of this whisky, and that said sale was made in the course of Stack’s business.

It is also contended that the officers of the state procured this offense to be committed, in that they directed the prosecuting witness to go to the defendant’s place of business and purchase the liquor in question for the purpose of predicating this prosecution thereon, and that therefore the state is precluded from maintaining this prosecution. Such is not the law. De Graff v. State, 2 Okla. Cr. 519, 103 Pac. 538; Caveness v. State, 3 Okla. Cr. 729, 109 Pac. 125.

The judgment of the county court is affirmed.

FUBMAN, Presiding Judge, and DOYLE, Judge, concur.


text:
    WILLIE CRAWFORD v. STATE.
    No. A-183.
    Opinion Filed May 24, 1910.
    (109 Pac. 1114.)
    . Appeal from Olcfuskee County Court; T. T. Doyle, Judge.

    William Crawford was convicted of the offense of selling liquor. I-Iis punishment was assessed at a fine of $100 and imprisonment in the county jail for a period of 60 days, and he appeals.
    Appeal dismissed.

      C. T. Huddleston, for plaintiff in error.

      Fred 8. Caldwell, for the State.
   PER CURIAM.

The state has filed a motion to dismiss the appeal herein for the reason.that no notice of appeal was served upon the county judge or the clerk of the county court as provided by statute. The record before us shows service of such notice upon the county attorney, but does not show such service upon the county judge or «the clerk of the county court. The motion to dismiss is therefore sustained. The clerk of this court is ordered to issue a mandate directing the county court of Ok-fuskee county to enforce its judgment and sentence herein.