text:
    Ex parte WALTER I. DAVIS.
    No. A-5283.
    Opinion Filed March 17, 1925.
    (234 Pac. 228.)
    (Syllabus.)
    Bail — One Accused of Robbery with Firearms Held Entitled to BaiL Petitioner, charged with robbery with firearms, was held and committed without bail on a preliminary examination. Evidence examined, and held sufficient to show that petitioner is entitled to be admitted to bail as a matter of legal right.
    Application of Walter I. Davis for writ of habeas corpus to be admitted to bail.
    Bail allowed.

      Pryor, Stokes & Carver, for petitioner.
    The Attorney General, for the State.
   DOYLE, J.

In this case petitioner, Walter I. Davis, by his attorneys filed and presented to this court a petition alleging that he is unlawfully imprisoned in the county jail of Seminole county by Blanch Doyle, sheriff of said county; that having been charged with the crime of robbery by firearms, and after waiving preliminary examination was committed without bail to answer to the ¡district court of Seminole county, an application for bail was made to the district judge of said county. Petitioner alleges that he is not guilty of the crime charged, and that the proof of guilt is not evident, nor the presumption thereof great.

Attached to said petition is a transcript of the testimony taken upon the hearing before Judge Crump, presiding judge of said district court, on the application of the petitioner for bail. Upon a' consideration of the evidence and the argument of counsel it was adjudged and ordered that petitioner be admitted to bail in the’ sum of $20,000. On September 22, 1924, an application to reduce the amount of the bail so fixed was made on the ground that petitioner has been unable to give bond in the amount fixed, and further showing that the jail in Seminole county is unsanitary and his further confinement is likely to prove injurious to petitioner’s health.

Upon a consideration of the proof, the amount heretofore fixed was reduced to $10,000, said bond to be conditioned as by law provided, same to be approved by the-court clerk of Seminole county, and upon approval of the-same said court clerk shall notify the sheriff of said county, who shall discharge said petitioner from custody-

MATSON, P. J., and BESSEY, J„, concur.


source: Caselaw Access Project

author: DOYLE, J.

license: Public Domain

text:
    Ex parte C. P. OFFUTT.
    No. A-4493.
    Opinion Filed March 18, 1925.
    (234 Pac. 222.)
    (Syllabus.)
    1. Extradition — Governor to be Furnished, Before Issuing Warrant, with Clopy of Indictment Found or Affidavit Made Before Magistrate in Demanding State Charging Fugitive with Crime. The federal statute (U. S. Oomp. St. § 10126) relative to interstate extradition makes it essential to the right to arrest an alleged fugitive from justice, under a warrant of the executive of the state where he is found, that such executive shall be furnished, before issuing his warrant with a copy of an indictment found or an affidavit made before a magistrate in the demanding state, charging the fugitive with crime committed by him in such state.
    2. Habeas Corpus — Inquiry as to Whether Person Detained on Extradition Warrant is Substantially Charged with Crimea The question as to whether the person demanded and detained on an extradition warrant is substantially charged with a crime is a question of law, which on the face of the papers is open to inquiry on writ of habeas corpus.
    3. Extradition — -Warrant for Extradition Based on Insufficient Affidavit, Complaint, or Information. Unless the affidavit, complaint, or information charges the person sought with the commission of a crime, it is fatally defective, and a warrant for his extradition is unauthorized.
    4. Forgery — -Instrument Signed as Agent for Maker not Subject of Forgiery. An instrument, showing on its face that the person who executed it signed it as agent for the maker, cannot be the subject of forgery.
    5. Habeas Corpus — Inquiry as to Good Faith of Prosecution in Extradition Cases. In extraditon cases, the question of the good faith of the prosecution is always open to inquiry on habeas corpus.
    Petition of G. P. Offubt for writ of habeas corpus.
    Writ allowed.
    Lillard & Edwards, for petitioner.
    The Attorney General and N. W. Gore, Asst. Atty. Gen., for respondents.
   DOYLE, J.

The petition for writ of habeas corpus shows that the cause of restraint as alleged is by virtue of an executive warrant, issued by the Governor of the State of Oklahoma on a requisition made by the Governor of the State of Ohio. Petitioner avers that he was not granted an opportunity to be heard before the Governor of this state upon said application for a requisition, and that no legal charge has been filed against petitioner in the state of Ohio, which would authorize his restraint, and further avers that he is not now and has never been a fugitive from the state of Ohio. The writ issued to respondents W. J. Clark, chief of police of .Oklahoma City, and C. E. Martin, agent of the state of Ohio.

Respondents admit by answer that they have petitioner in their custody by virtue of an executive warrant issued by the Governor of this state authorizing and empowering respondent C. E. Martin, as agent of the state of Ohio, to take and transport and deliver said petitioner to the authorities of the county of Sioto in the state of Ohio, in order that he may be fried there on a charge of forgery.

Upon a hearing upon the petition the evidence showed that an affidavit charging forgery of the name of a firm in Cincinnati, Ohio, to a check for $12, which check was signed by petitioner, as the agent of said firm, was filed by the county attorney of Sioto county, in a court of that county.

Petitioner, C. P. Offutt, testified that he was a resident of Oklahoma county, and had lived here practically all his life; that he had been and was employed by the firm whose name he signed as agent, to a check in payment of expense incurred in such employment; that the prosecution was not instituted in good faith, but is the result of a controversy existing between petitioner and his employer concerning settlement of certain claims against him, as shown by his correspondence with said firm.

Respondent Martin produced the original instrument, signed by petitioner, upon which the charge of forgery was based, and it was signed by petitioner as the agent of the principal. Thereupon the Attorney General conceded that the same was insufficient upon which to predicate a charge of forgery.

In State v. Taylor, 46 La. Ann. 1332, 16 So. 190, 25 L. R. A. 591, 49 Am. St. Rep. 351, it was held by the Supreme Court of Indiana:

“An instrument showing on its face that the person who executed it signed as agent for the maker cannot be the subject of forgery, although such agent acted without authority.”

In People v. Bendit, 111 Cal. 274, 43 P. 901, 31 L. R. A. 831, 52 Am. St. Rep. 186, the Supreme Court of California held:

“To constitute forgery, there must be the making of a writing which falsely purports to be the writing of another. A false statement of fact in the body of the instrument, or a false assertion of authority to write another’s name, or to sign his name as agent, by which a person is deceived and defrauded, is not forgery. To make it such there must be a design to pass as the genuine writing of another person, that which is not his writing.”

In Compton v. State of Alabama, 214 U. S. 1, 29 S. Ct. 605, 53 L. Ed. 885, 16 Ann. Cas. 1098, it was held:

“The federal statute relative to interstate extradition. * * * makes it essential to the right to arrest an alleged fugitive from justice, under a warrant of the executive of the state where he is found, that such executive shall be furnished, before issuing his warrant, with a copy of an indictment found or an affidavit made before a magistrate in the demanding state, charging the fugitive with crime committed by him in such state.”

Roberts v. Reilly, 116 U. S. 80, 6 S. Ct. 291, 29 L. Ed. 544, is to the effect that the papers must make it appear that the person demanded is substantially charged with a crime against the laws of the state, from whose justice he is alleged to have fled, by an indictment or an affidavit certified by the Governor as authentic.

In People v. Brady, 56 N. Y. 186, it was held that unless the affidavit charges the person sought with the commission of a crime, it is fatally defective, and a warrant for his rendition is unauthorized.

Ex parte Morgan (D. C.) 20 F. 298, is to the effect that the affidavit must be so explicit and certain that if it is laid before a magistrate it would justify him in committing the accused to answer the charge.

In Ex parte Thomas, 53 Tex. Cr. R. 37, 108 S. W. 663, it was held that—

“An executive warrant in extradition proceedings which fails to name the offense alleged to have been committed in the foreign state, and is neither accompanied by an indictment nor a complaint disclosing the nature of the offense, is fatally defective.”

It was the opinion of the court that under the statute requiring the Governor to certify the authenticity of the complaint on which he demands extradition, and the failure to furnish the Governor of this state with a copy of the affidavit made before a magistrate in the demanding state, the requisition papers were insufficient upon which to base the issuance of the executive warrant in this state.

In Ex parte Wildman, 14 Okla. Cr. 150, 168 P. 246, this court held that—

“The question as to whether the person demanded and detained on an extradition warrant is substantially charged with a crime is a question of law, which on the face of the papers is open to inquiry on writ of habeas corpus.”

In the present case it was the opinion of the court that the affidavit or complaint produced in evidence on the hearing was wholly insufficient to charge petitioner with the commission of the crime of forgery, and that for this reason a warrant for his extradition was unauthorized.

In every extradition case the question of the good faith of the prosecution is always open to inquiry on habeas corpusi.

In People ex rel. Wegener v. Magerstadt, 12 Am. Cr. Rep. 382, it is said:

“It never was intended that the act of Congress, passed to carry out this provision of the Constitution, should be used to set in motion the machinery of the executive departments of two states at the instance of a private person, to enable such person to gratify his malice, or to aid him in enforcing the collection of a debt.”

For the reasons stated, it was adjudged and ordered that the writ be allowed and petitioner be discharged from custody.

MATSON, P. J., and BESSEY, J., concur.


author: DOY)LE,. J.

text:
    Ex parte WILLIAM WEATHERS.
    No. A-5282.
    Opinion Filed March 18, 1925.
    (234 Pac. 219.)
    (Syllabus.)
    1. Habeas Corpus — Burden on One Committed on Charge of Murder to Show Bight to Bail. Upon an application for bail after commitment upon a charge of murder, on the ground that the proof of guilt is not evident nor the presumption thereof great, and upon a consideration of the evidence, it is held, that the petitioner is not entitled to bail as a matter of strict legal right.

      2. Habeas Corpus — Discussion of Facts or Law by Court of Appeals, in Refusing Bail for Capital Offense, Avoided. In order that it may not prejudice the rights of a defendant in a capital case upon his final trial, this court will not ordinarily, in re-, fusing an application for bail, discuss either the facts or the law of the case.
    Petition of William Weathers for habeas corpus to be admitted to bail.
    Writ denied.
    Joe M. Adams, for petitioner.
    The Attorney General and N. W. Gore, Asst, Atty. Gen., for respondent.
   DOY)LE,. J.

The petition filed on behalf of William Weathers, September 2, 1924, shows that he was committed by a justice of the peace of Pottawatomie county, after a preliminary examination and without bail, to answer to the district court of that county upon a charge of murder, alleged to have been committed on August 12, 1924, by shooting David Hudson. An application for bail was made to the district court of said county and the same was denied.

On the application to this court a rule to show cause why the writ should not be awarded as prayed for issued, returnable September 6, 1924. The hearing on said application was had on the 11th day of September, 1924, at which time the cause was submitted on the transcript of the testimony taken on the hearing had in the district court of said county.

After a careful examination and consideration of the evidence upon which the application for bail was submitted, it was the opinion of the court that petitioner is not entitled to bail as a strict legal right. The determination and conclusion of the court in this case is based upon a settled rule that upon an application for bail by writ of habeas corpus, after commitment, for a capital offense by an examining magistrate, the burden is upon petitioner to show facts sufficient to entitle him to bail, when those facts do not appear from the evidence adduced on the part of the prosecution. Ex parte Johnson, 1 Okla. Cr. 414, 98 P. 461; Ex parte Dykes, 6 Okla. Cr. 162, 117 P. 724; Ex parte Mullins, 18 Okla. Cr. 478, 196 P. 145; Ex parte Holden, — Okla. Cr. —, 171 P. 925.

It is unnecessary to enter into a discussion of the facts in this case, and we shall adhere to the rule that in denying an application for bail neither the facts nor the law in such case will ordinarily be discussed by the court, lest it prejudice the rights of the defendant on his final trial.

It was accordingly adjudged and ordered that the writ be denied and that bail be refused.

MATSON, P. J., and BESSEY, J., concur.


text:
    Ex parte W. A. MUNGER.
    No. A-5486.
    Opinion Filed March 18, 1925.
    (234 Pac. 219.)
    (Syllabus.)
    1. .Time of Trial — Legal Bight to Speedy and Impartial Trial by a Jury. Every person held on a criminal charge has the legal right to demand a speedy and impartial trial by jury.
    2. Same — Constitutional Requirement of "Speedy Trial” Construed. A “speedy trial” within the meaning of the constitutional provision (article 2, § 20), means a trial before the end of the second term of court after indictment found or information filed, unless the delay shall happen on defendant’s application (Comp. Stats. 1921, § 2913). Any delay caused by the operation of rules of law does not work prejudice to the constitutional right of the accused in that regard.
    3. Same — Delay in Trial Caused by Discharge of Jury Because of Exhaustion of Court Funds not Violation of Constitutional Right to Speedy Trial. In this case an information charging robbery by the use of firearms was filed December 31, 1924; the cause was at the February term set for trial March 6, 1925; February 26th the jury was discharged because the court funds had become exhausted; March 7, 1925, defendant filed motion to dismiss the prosecution on the ground that he was denied his constitutional right to a speedy trial. Held, that the motion to dismiss was properly overruled; that petitioner’s constitutional right to a speedy trial was not violated, in that the February term will not expire until the first Monday in October, 1925.
    Application of W. A. Munger for writ' of habeas corpus to W. F. Gillespey, Sheriff of Nowata County.
    Writ denied.
    C. F. Gowdy, for petitioner.
    Thei Attorney General and Chas. Hill Johns, Asst. Atty. Gen., for respondent.
   DOYLE, J.

As cause for granting the writ the petitioner alleges that he is unlawfully restrained and illegally deprived of his liberty by W. F. Gillespey, sheriff of Nowata county; that the cause of petitioner’s said restraint and detention is that by information filed in the district court of Nowata county, December 31, 1924, petitioner W. A. Munger and Leonard Mayfield were jointly charged with the commission of robbery with firearms alleged to have been committed in said county November 30, 1924; that he is not guilty of the charge for which he is being held; that he was arrested on the 12th day of December, 1924, in Kansas City, Mo., and voluntarily, without requisition, came to 'Oklahoma, where he expected to be given a speedy trial; that on the 13th day of February, 1925, his case was set for trial on March 6, 1925; that on the 26th day of February the said assignment, without his knowledge and without his consent, was stricken; that over the objections of petitioner the jury which was in attendance in said court and before whom this defendant was to be tried under the assignment made February 13th was discharged, and no other jury has been called, and the court had no intention of calling another •jury before whom this petitioner can be tried within a reasonable length of time; that he is away from home and among strangers, and is unable to make bond, and without trial this defendant has been confined in jail since December 12, 1924, and will be required to remain in jail until released — all of which is unlawful and unconstitutional.

That on the 7th day of March, 1925, he applied to the district court, of Nowata county with a motion that he be discharged, and the court, after Hearing the evidence and being fully advised in the premises, found that petitioner is not entitled to his discharge, but the court made a finding of facts so that the matter could be reviewed by the criminal Court of Appeals. A certified copy of the findings by the judge of said district court is hereto attached and submitted in support of this petition.

The findings of fact by the district court of Nowata county are substantially the same as alleged in the petition.

The court further finds that on February 26, 1925, the jury in said district court was finally discharged, because the funds for holding such court had become exhausted; that no more funds will be available for the holding of a jury term of court in said county until after July, 1925, unless the excise board shall provide additional funds, and, so far as this court knows or has been informed, no effort has been made to procure additional funds; that no witnesses were subpoenaed in any criminal cases set for trial March 6th, including the case of the defendant, Munger.

The Attorney General interposed a demurrer to the petition on the ground that the facts stated do not entitle petitioner to the relief prayed for.

It is the policy of the law that persons charged with crime shall have a speedy, as well as a fair and impartial trial. To that end it is provided in the Bill of Rights that—

“Right and justice shall be administered without sale, denial, delay, or prejudice.” Const, art. 2, § 6.

And further that—

“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.” Const, art. 2, § 20.

Our procedure criminal provides:

“If a defendant, prosecuted for a public offense, whose trial has not been postponed upon his application, is not brought to trial at the next term of court in which the indictment or information is triable after it is filed, the court must order the prosecution to be dismissed, unless good cause to the contrary be shown.” Section 2913, Comp. Stats. 1921.

Two regular terms of the district court are required by law to be held each year in Nowata county; one beginning on the first Monday in February, and one beginning on the first Monday of October.

The provision of procedure criminal above quoted is intended as a legislative declaration of what is and of what is not a reasonable and proper delay in bringing an accused person to trial in respect to his constitutional rights aforesaid.

The authorities uniformly hold that such statutes are enacted for the purpose of enforcing the constitutional right to a speedy trial, and that they constitute a legislative construction or definition of thei constitutional provision. Ex rel. Eubanks v. Cale, 4 Okla. Cr. 25, 109 P. 736.

By this provision of the Code of Criminal Procedure an absolute right is conferred upon a defendant indicted for or charged by information with a public offense, whose trial has not been postponed upon his application to have the case dismissed, unless tried before the end of the second term of the court after indictment found or information filed, unless good cause to the contrary be shown-

The statute is for the purpose of carrying into effect the constitutional guaranty of a speedy trial., Here there was no laches or delays on the part of the state in the spirit and intention of the statute, because the present term of court in Nowata county does not expire until the first Monday in October, this year; this being the next term of court following the filing of the information in this case.

Upon the record before us no sufficient cause is shown for the issuing of the writ, and it is denied.

BESSEY, P. J., and EDWARDS, J., concur.


author: PER CURIAM.

text:
    FRANK McGIVENS v. STATE.
    No. A-4896.
    Opinion Filed March 19, 1925.
    (234 Pac. 218.)
    Appeal from District Court, Noble County; Claude Duval, Judge.
    Frank McGivens was convicted of stealing a Ford car, and he appeals.
    Appeal dismissed and remanded.
    H. A. Johnson, for plaintiff in error.
    The Attorney General, for the State.
   PER CURIAM.

In the information in this case Frank McGivens was charged with the theft of one Ford automobile, touring car, the personal property of Dave Petit of the value of $400, alleged to have been committed November 2, 1921. On the trial the jury returned a verdict, finding the defendant guilty and fixing his punishment at imprisonment in the penitentiary for a term of five years. From the judgment rendered on the verdict, May 28, 1923, an appeal was taken by filing in this court on October 25, 1923, petition in error with case-made. No su-persedeas bond was given pending his appeal, and plaintiff in error was committed to the penitentiary.

When the case was called for final submission, it was submitted on the record and 10 days allowed to file brief. March 16, 1925, counsel for plaintiff in error filed motion to dismiss the appeal as follows:

“Comes now the plaintiff in error, and in view of the fact that he has been serving time since his trial, and has now nearly served his time, he hereby asks this honorable court to dismiss his appeal in the above entitled and numbered cause.”

The motion to dismiss the appeal is sustained, the appeal dismissed, and the case remanded to the trial court.


author: BESSEY, P. J.

text:
    HOWARD PITZER v. STATE.
    No. A-4809.
    Opinion Filed March 21, 1925.
    (234 Pac. 222.)
    (Syllabus.)
    Appeal and Error — Weight of Evidence and Credibility of Witnesses as Questions for Jury, Rattier than Appellate Court. The weight of the evidence and the credibility of the witnesses are questions solely for the jury, not a matter to be determined by this court on appeal, where there is substantial evidence tending to show defendant’s guilt.
    Appeal from County Court, Cimarron County; E. B. McMahan, Judge.

      Howard Pitzer was Convicted of having illegal possession of intoxicating liquor, and hei appeals.
    Affirmed.
    I. E. Hill, for plaintiff in error.
   BESSEY, P. J.

Howard Pitzer, plaintiff in error, here referred to as the defendant was by verdict of a jury found guilty of the illegal possession of a quantity of whisky, with the penalty assessed at a fine of $200 and confinement in the county jail for a period of 60 days.

The evidence on the part of the state shows that the sheriff, a constable, and other peace officers went in the nighttime to the home of the defendant, with a search .warrant authorizing them to search the premises; that in executing the search warrant they found an elaborate whisky still and some mash in the process of fermentation, in a dugout and underground passageway near the defendant’s residence; that, while the officers were waiting for a truck to convey the still and apparatus seized, they heard some one open a window of the house and pour out some liquid upon the ground; afterwards they found the containers which had been thrown out of the window, and upon examination of the ground thereabouts they found two wet places giving off the odor of whisky.

Defendant claims that portions of this distilling apparatus were out of order, and that the outfit, at the time of the raid, and for some time prior thereto, was in such condition that it could not be used for making whisky. Defendant admitted that he had a small quantity of whisky, but claimed that he had it for his own use and the use of his family, and that he had no intention of disposing of it contrary to law.

It will be seen, without going into further detail, that the evidence on the part of the state, including the physical facts and circumstances shown, reasonably tends to show that the defendant was in possession of whisky with intent to violate the law. The evidence in conflict with the state’s showing may not have been believed by the jury. The weight of the evidence and the credibility of the witnesses, under circumstances like these, are questions solely for the jury, not a matter to be determined by this court on appeal.

The sufficiency of the evidence is the only question raised by defendant’s brief.

The judgment of the trial court is affirmed.

DOYLE and EDWARDS, JJ., concur.


text:
    HOMER HART v. STATE.
    No. A-4998.
    Opinion Filed March 21, 1925.
    (233 Pac. 1095.)
    (Syllabus.)
    1. Arraignment and.Pleas — Permission to Withdraw Plea of Guilty and Substitute Plea of not Guilty Discretionary. The granting or denying of permission to withdraw a plea of guilty and to substitute a plea of not guilty is a matter within the sound discretion of the trial court.
    2. Same — When Court Should be Indulgent in Permitting Plea to be Withdrawn^ When there is reason to believe that the plea of guilty has been entered through inadvertence, or without deliberation, or ignorantly, and mainly from the hope that the punishment to which the defendant would otherwise be exposed may thereby be mitigated, the court should be indulgent in permitting the plea to be withdrawn.
    Appeal from Superior Court, Okmulgee County; J. H. Swan. Judge.
    Homer Hart was convicted of unlawfully transporting intoxicating liquor, and he appeals.
    Reversed.
    D. E. Ashmore and Don Cameron, for plaintiff in error.

      The Attorney General and G. B. Fulton, Asst. Atty. Gen., for the State.
   DOYLE, J.

This appeal is from the judgment of conviction and sentence of confinement in the county jail for 90 days and a fine of $250 rendered upon a. plea of guilty to a charge of unlawfully transporting intoxicating liquor. The Attorney General filed the following confession of error in this case.

“The record discloses that an agreement was entered into by and between plaintiff in error and the county attorney’s office to the effect that, if plaintiff in error would plead guilty to the crime charged, that the punishment to be imposed in said cause would be a fine of $50, and 30 days in jail. At this time plaintiff in error was without the aid of counsel.
“Plaintiff in error pleaded guilty to said charge, expecting to receive said punishment agreed upon, and appeared before the superior court upon November 6, 1923, for sentence. The court sentenced plaintiff in error to a fine of $250 and a term of '90 days in jail. On said sentence day, Div J. G. McKinney, of Henryetta, was sworn and testified that plaintiff in error was unable to be present on that date, and accordingly the sentence day was set for Friday, November 9, 1923. On Friday, November 9, 1923, Dr. G. Y. McKinney was sworn, and testified that plaintiff in error was physically unable to be present on that date, and by reason of his physical condition would be unable to attend court before November 21, 1923, and accordingly sentence day was set for that date.
“On said date, November 21, 1923, plaintiff in error appeared before the court and requested permission to withdraw his plea of guilty and file a pleia of not guilty. This request was refused by the court, to which plaintiff in error excepted, and from which action by the court he has appealed.
“Therefore the only question involved is this question, and the only assignment urged by plaintiff in error, is a matter of law involving the question as to whether or not plaintiff in error could withdraw a plea of guilty and enter a plea of not guilty before the court passed final judgment and sentence.
“Section 2621, Compiled Oklahoma Statutes, 1921, provides as follows: ‘The court may, at any time before judgment, upon a plea of guilty, permit it to be withdrawn, and a plea of not guilty substituted.’
“This statute has been construed by this court in the case of Jenkins v. State, 6 Okla. Cr. 516, 120 P. 298, wherein the court said: ‘A motion in a misdemeanor case to withdraw a plea of guilty and to substitute therefor a plea of not guilty is addressed to the sound discretion of the court. Consequently its decision will not be disturbed, unless an abuse of discretion appears.’
“In the body of the opinion the court said: ‘In respect to the question of discretion, courts have distinguished between the higher and lower grades of crime, and construing this section of the statute in a felony case, and especially in a capital case, ^if the defendant had entered a plea of guilty without the benefit of counsel, or was influenced to enter such plea, either by his counsel, or by the prosecution, or by act of the court, he should be accorded the right of trial by jury, by permitting him at any time before judgment to withdraw his plea of guilty and substitute therefor a plea of not guilty. In such cases the refusal of a trial court to permit this to be done would be considered an abuse of judicial discretion.’
“In the case at bar, at the time plaintiff in error decided to enter a plea of guilty, he was without the aid of counsel, and was influenced in so doing by the prosecution.
“We therefore respectfully submit to this honorable court that the proceedings in this case were adverse to the rule of this court, and in view of the argument made by the counsel for plaintiff in error, and the comments upon same made by the court at the time, we respectfully submit this confession of error;.”

The uniform holding of this court in construing section 2621 has been that the granting or denying of permission to withdraw a plea of guilty, either before or after judgment, and to substitute a plea of not guilty, is a matter within the sound discretion of the trial court. Polk v. State, 26 Okla. Cr. 283, 224 P. 194; Mullen v. State, 28 Okla. Cr. 218, 230 P. 285.

In our opinion the defendant should have been permitted, under all the circumstances, to withdraw his plea of guilty when he applied for leave to do so. There is nothing to show that the motion was not made in good faith, or that the entry of the plea and the motion to withdrawn it was intended for delay.

A defendant should not be allowed to trifle with the court by deliberately entering a plea of guilty one day, and capriciously withdrawning it on the day set for pronouncing judgment, but where there is reason to believe that the plea has been entered through inadvertence and without due deliberation, or ignorantly, and mainly from the hope that the punishment may be thereby mitigated, the court should be indulgent in permitting the plea to be withdrawn.

For the reasons stated, the judgment of the trial court is< reversed.

BESSEY, P. J„ and EDWARDS, J.., concur.


text:
    DAN METZ v. STATE.
    No. A-4684.
    Opinion Filed March 21, 1925.
    (233 Pac. 1099.)
    (Syllabus.)
    1. Appeal and Error — Attempted Impeachment of Witness — Substantial Error. There was no substantial error committed in the attempted impeachment of a witness for the accused.

      2. (New Trial — Refusal of New Trial Because of Statement by , State’s Witness after Trial not Error. The court committed no error in refusing a new trial because a witness for the state, after the trial, stated that his testimony at the trial might have been incorrect in relation to incidents of minor importance.
    3. Appeal and Error — Examination of Whole Record to Determine When Judgment Rendered. This court will examine the whole record to determine whether a judgment in the trial court was made and entered during the term.
    Appeal from County Court, Caddo County; R. L. Lawrence, Judge.
    Dan Metz was convicted of the illegal transportation of intoxicating liquor, and he appeals.
    Affirmed.
    Morgan & Osmond, for plaintiff in error.
    . The Attorney General and C. H.' Johns, Asst. Atty. Gen., for the State.
   BESSEY, P. J.

Plaintiff in error, Dan Metz, for convenience herein referred .tb as th'e defendant, was by information charged with the unlawful transportation of one-half gallon of whisky from a point unknown within the state of Oklahoma to a designated place in a building in Anadarko. After'trial to a jury, in which he was found guilty, the court rendered judgment on the verdict, fixing the defendant’s punishment at confinement in the county jail for a period of 60 days and to pay a fine of $100.

Defendant complains of certain alleged incompetent testimony admitted over his objection to his prejudice. The matters complained of were brought out on cross-examination of a witness for the defendant, in which the state sought to impeach the testimony of said witness. One of the questions propounded to him was, “At that time you owned a still, did you not?” The witness denied that- he owned a still, but admitted that he had purchased from a mail order house a copper vessel which could be converted into a cooker and. used as a part. of a still if the other necessary appliances were attached; witness denied, however, that he had so used it, or that he had ever made any whisky.

The latitude given the county attorney in his cross-examination of this witness may have been excessive. However that may be, the state was bound by the answer of the witness, and under the circumstances the attempt to impeach the witness was harmless.

It is next urged that the evidence is insufficient to support the verdict. If the evidence of two of the state’s witnesses is to be believed, defendant is guilty. As this court has so often held, where the evidence is conflicting the weight of the evidence and the credibility of the witnesses are considerations for the jury.

It is claimed that the court erred in refusing to grant a new trial for the reason that one of the state’s witnesses made statements after the trial to the effect that he might have been mistaken about some of the incidents related in his testimony. An examination of the record discloses that the incidents about which he was in doubt were of little consequence, such as would not likely affect the verdict on a retrial of the cause.

The defendant claims that the journal entry of the judgment shows that it was rendered at the January term of the court; that the January term, by operation of law, had expired, and that the court was therefore without jurisdiction to render the judgment. An examination of the whole record satisfies this court that the statement in the journal entry was inadvertently made and is merely a clerical error. Other portions of the record show that the trial began, that the evidence was heard, the verdict rendered, the judgment pronounced at the April term of court.

The judgment of the trial court is affirmed.

DOYLE and EDWARDS, JJ., concur.


text:
    TOM LUDLAM v. STATE.
    No. A-4769.
    Opinion Filed March 24, 1925.
    (234 Pac. 778.)
    (Syllabus.)
    1. Trial — When Remarks by Trial Prejudicial. A remark by the trial judge is ground for a reversal, if, considered as a statement, it indicates to the jury the opinion of the judge upon a fact prejudicial to the defendant.
    2. Trial — Improper Argument — 'Comment on Facts not in Evidence —Error Intensified by Approval of Judge. It is highly improper for the prosecuting attorney in his argument to comment upon facts not in evidence as true, and the approval of the trial court intensifies the effect of such improper remarks.
    Appeal from County Court, Le Flore County; D. C. McCurtain, Judge.
    Tom Ludlam was convicted of pointing a gun at another and hei appeals.
    Reversed.
    Neal & Neal, for plaintiff in error.
    The Attorney General, for the State.
   DOYLE, J.

The information in this case charges that in Le Flore county, on or about the 15th day of February, 1923, Tom Ludlam “did then and there willfully, wrongfully, and unlawfully point a deadly weapon, to wit, a long-barrel gun, the exact kind and description of which is unknown to the county attorney, at J. M. Wilkerson, contrary to/’ etc. On the trial the jury returned a verdict, finding defendant guilty as charged in the Information and fixing his punishment at imprisonment in the county jail for three months and a fine of $250. He has appealed from the judgment rendered on the verdict.

The sole witness for the state, J.. M. Wilkerson, testified:

“I live here in Poteau. I was deputy sheriff. The defendant, Tom Ludlam, lives right down on the divide. I was called down where he lives by the dip inspector. I dipped this defendant’s cattle, and drove them to Muse, and lotted them in Mr. Brown’s lot. About 12:30 at night the defendant came down there and told Mr. Brown he wanted his cattle. Mr. Brown said., T will go and wake the sheriff up;’ then came in and woke me up. I went out on the porch, and told Mr. Ludlam to pay the expense for the dipping; then he could take them back with him. He had a Winchester, or shotgun, I could not tell which. I turned and went back into the house, and he went and turned the cattle out.”

He was then asked:

“Q. Was the gun pointed at you? A. Yes, sir.”

The state rested, and the defendant moved for a directed Verdict in the form of a demurrer to the evidence, which was overruled. Exception reserved.

On the part of the defense the county clerk was sworn, and produced records showing who were the duly appointed and qualified deputy sheriffs of Le Flore county on the 15th day of February, 1923, which list did not include the name of the prosecuting witness. The defendant then offered to prove by this witness:

“That no such man as J. M. Wilkerson has ever been authorized as a deputy sheriff, or appointed with the consent and the approval of the county commissioners of Le Flore county.
“By the Court: Refused, for the reason that under the law the sheriff may appoint fee deputies without the concurrence or approval of said county commissioners, or any previous authorization of said appointment; the only requirement being that said fee deputies enter into bond to the sheriff. (Exceptions reserved.)”

During his argument to the jury the county attorney was allowed by the court, over the objections of the defendant, to use the following argument:

“J. M. Wilkerson, when he seized this property, was a deputy sheriff, covered with the authority of the people of Le Flore county, and stood in this position with all the people of this county, and this defendant was more derelict than otherwise on account of the fact that he took and pointed a gun at the said Wilkerson, for the puropse of taking from him the property lawfully held by Wilkerson.”

Under the statute, on the refusal or failure of the owner to dip cattle believed to be affected or infected with a contagious or infectious disease, the sheriff, upon complaint made to him, may take such cattle into custody, subject to quarantine regulations, until he shall receive orders from the live stock inspector to return the cattle to the owner, and before such cattle shall be returned there shall be paid to the sheriff all costs and expenses of taking, holding, or disinfecting. Sections 3682 and 3683, Comp. Stats. 19211.

Conceding that said sections are constitutional (Stine v. Lewis, 33 Okla. 609, 127 P. 396), however, the owners of such cattle cannot be deprived of their title, nor the right of possession, by proceedings which did not give them opportunity to have their rights adjudged, and of which proceeding they had no-notice, and to which they were not partes. Crane v. State, 5 Okla. Cr. 560, 115 P. 622. In this country there is no royal road to the condemnation or confiscation of the man’s property, irrespective of his interest and his right to be heard; here the law proceeds upon inquiry, hears before it condemns, and renders judgment only after trial.

The defendant was entitled as a' right to have the question of his guilt determined solely upon competent evidence placed before the jury. There was no evidence offered tending to show a previous complaint to the sheriff, or that the sheriff ordered or directed the prosecuting witness to take the defendant’s cattle into custody. The remarks of the court in rejecting evidence offered to show that the prosecuting witness had never been appointed or authorized as a deputy sheriff were improper as misstating the law. Section 5895.

In Jordan v. Neer, 34 Okla. 400, 125 Pac. 1117, it was held that:

“To constitute color of office, such as will render an officer’s sureties liable for his wrongful acts, something else must be shown besides the fact that in doing the act complained of the officer claimed to be acting in an official capacity.”

It is hardly necessary to say that the remarks of the county attorney were, under the evidence in the case, wholly unauthorized and highly improper, and that the overruling by the court of the defendant’s objections thereto was error prejudicial to the substantial rights of the defendant. There was, as we have seen, no evidence to warrant the facts stated by the county attorney, and yet the court by its rulings told the jury that both the statement of facts and the deduction made by the county attorney therefrom were proper matters for this consideration.

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

BESSEY, P. J., concurs.

EDWARDS, J., absent.


author: DO'YiLE, J.

text:
    EDWIN CADOREE v. STATE.
    No. A-4810.
    Opinion Filed March 24, 1925.
    (234 Pac. 648.)
    (Syllabus.)
    (Appeal: and Error — Appeal in Misdemeanor Case not Taken Within 120 days Dismissed. Procedure Oriminal (section 2808, Comp. Stats. 1921) provides that: “In misdemeanor cases the appeal must be taken within sixty days after the judgment is rendered: provided, however, that the trial court or judge may, for good cause shown, extend the time in which such appeal may be taken not exceeding sixty days.” Held, when an appeal in a misdemeanor case is not taken within the 120 days prescribed by the statute, the appeal will be dismissed, because this court is without jurisdiction to review the judgment.
    Appeal from County Court, Okmulgee County; W. A. Barnett, Judge.
    Edwin Cadoree was convicted of manufacturing intoxicating liquor, and he appeals.
    Appeal dismissed.
    Harland A. Carter and E,. M. Carter, for plaintiff in error.
    'George F. Short, Atty. Gen., and G. B. Fulton, Asst.
    . Atty. Gen., for the State.
   DO'YiLE, J.

Plaintiff in error, Edwin Cadoree, was convicted on an information charging him with manufacturing intoxicating liquors, to wit, eight gallons of whisky. In accordance with the verdict of the jury he was on April 21, 1928, sentenced to be confined in the county jail for six months and to pay a fine of $500. From the judgment an appeal was attempted to be taken by filing in this court on August 20, 1928, a petition in error, with case-made. The Attorney General has filed a motion to dismiss the appeal, for the reason that it was not filed within the statutory limit of 120 days. The record discloses that the appeal was lodged in this court 121 days after the rendition of the judgment.

Section 2808, Comp. Stats. of Oklahoma, 1921, provides :

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

By numerous decisions of this court it is held that it has no jurisdiction to entertain an appeal from a judgment of conviction for a misdemeanor filed therein later than the one hundred and twentieth day after the rendition of the judgment, and an appeal filed after that time will be dismissed.

An examination of the record discloses that the motion to dismiss is well taken. That appeal herein is therefore dismissed.

BESSEY, P. J., and EDWARDS, J., concur.


text:
    JACK HOLT et al. v. STATE.
    No. A-4842.
    Opinion Filed March 25, 1925.
    (234 Pac. 368.)
    (Syllabus.)
    Intoxicating Liquors — Unlawful Transportation — Evidence Sufficient. In a prosecution for unlawfully transporting intoxicating liquor, evidence held to warrant a conviction.
    Appeal from County Court, Muskogee County; W. W. Cotton, Judge.
    Jack Holt and C. Huff were convicted of unlawfully transporting intoxicating liquor, and they appeal.
    Affirmed
    M. D. Hartsell, for plaintiff in error.

      . George F. Short, Atty. Gen., and N. W. Gore, Asst. Atty. Gen., for the State.
   DOYLE, J.

The information in this case charges that the defendants, Jack Holt and C. Huff, in Muskogee county, on the 31st day of May, 1923, did knowingly and unlawfully transport intoxicating liquor, to wit, seven gallons of corn whisky, from a point on the public highway three miles east of Oktaha, to another point in Muskogee county three and one-half miles east of Oktaha, on the Oktaha-Keefton road. On the trial the jury returned a verdict, finding the defendants guilty as charged in the information and, failing to agree as to the punishment, left the same to the court. Motion for new trial was duly filed and overruled. The court sentenced each defendant -to be confined for 90 days in the county jail and to pay a fine of $250. They have appealed from the judgment and assigned as error the insufficiency of the information to charge an offense and the insufficiency of the evidence to sustain the verdict. The information is sufficient.

The state relied for this conviction upon- the testimony of two witnesses. Otto Bales, deputy sheriff, testified that he saw the defendants traveling in a Ford car; they were having some car trouble and had stopped, and he told Mr. Brown that it was whisky in the car; they stopped and found a three-gallon jug and a one-gallon jug and a five-gallon gasoline tank, and there was seven gallons or corn whisky in the jugs.

Jim Brown, deputy sheriff, testified that the defendant Holt was driving with the defendant Huff in the seat beside him; that they traveled about three-quarters of a mile on the Oktaha-Keefton road before they stopped; that all three jugs in the car were full of corn whisky— about seven gallons all together.

The state rested, and the defendants moved for a directed verdict, which was overruled. The defendants did not testify.

The evidence is sufficient to sustain the verdict, and the instructions fairly state the law applicable to the case. The judgment of the lower court is accordingly affirmed.

BESSEY-, P. J., concurs.

EDWARDS, J., absent.


text:
    BILL REYNOLDS et al. v. STATE.
    No. A-4851.
    Opinion Filed March 25, 1925.
    (234 Pac. 656.)
    (Syllabus.)
    1. Appeal and Error — If Evidence Justifies Conviction, Verdict not Disturbed. Where evidence is sufficient, if believed by the jury, to justify a conviction, the verdict will not be disturbed.

      2. Intoxicating Liquors — Unlawful Transportation — Evidence Sufficient. In a prosecution for transporting intoxicating liquor, evidence held to sustain a conviction.
    Appeal from County Court, MeCurtain County; T. G. Carr, Judge.
    Bill Reynolds, Monroe Van Winkle, and William Boss were convicted of unlawfully transporting intoxicating liquor, and they appeal.
    Affirmed.
    H. P. Hosey, for plaintiff in error.
    The Attorney General, for the State.
   DOYLE, J.

The information in this case charges that the defendants, Bill Reynolds, Monroe Van Winkle, and William Boss, on or about the 5th day of April, 1923, unlawfully transported about one-half gallon of whisky from Broken Bow, to another point in McCurtain county near Coal Springs. The jury returned verdict finding each defendant guilty as charged in the information and fixing the punishment of each at confinement in the county jail for 80 days and a fine of $50. From the judgments rendered on the verdict they appeal, and assign as error that the verdicts are contrary to law because they are not sustained by sufficient evidence.

The testimony of four witnesses for the state supports the allegations of the information. Lon Miller, deputy sheriff, testified that he first saw the defendants at Broken Bow, about 8 o’clock Sunday afternoon; all three were in a single-seated Ford roadster car; that with two other officers he tried to stop them in Broken Bow, and they sped away, and the officers followed them in a car on the Idabel road and overtook them a mile south of Holly creek; that the defendant Bill Reynolds poured whisky out after the defendant’s car stopped. John Sage, Bill Calfee, and Paul Thorn testified in substance to the same facts as did the witness Miller.

Plaintiffs in error all testified as witnesses and denied having any whisky in the car, and denied that any one in their car poured any whisky out.

It is the province of the jury in a criminal case to try the issue joined by a plea of not guilty, and, if the evidence of the state uncontradicted will support a conviction, this court will not ordinarily interfere with the verdict against the defendant. The jury’s function is to determine on which side of the controversy the truth lies, where testimony as to material facts is in direct conflict and irreconcilable.

We are of opinion that under the evidence in this case the jury were fully warranted in finding all of the defendants guilty in manner and form as charged in the information.

No reversible error having been shown, the judgment of the lower court will be affirmed.

BESSEY, P. J., concurs.

EDWARDS, J., absent.


text:
    T. A. JACKSON v. STATE.
    No. A-4578.
    Opinion Filed Dec. 22, 1924.
    Rehearing Denied March 26, 1925.
    (234 Pac. 228.)
    (Syllabus.)
    1. Assault and Battery — Assault with Intent to Do Bodily Harm— Evidence Sufficient. In a prosecution for assault with intent to do bodily harm, by shooting another with a rifle, record reviewed and held that the defendant had a fair trial, and was properly convicted.
    2. Evidence — Any Statement of Accused, Relative to Offense, Admissible. Any statement of the defendant, relative to the offense for which he is being tried, is admissible.
    Appeal from District Court, Jefferson County; Cham Jones, Judge.
    T. A. Jackson was convicted of shooting another with intent to do bodily harm, and he appeals.
    Affirmed.
    Bridges & Vertrees and E. B. Anderson, for plaintiff in error.
    George F. Short, Atty. Gen., and Leon S. Hirsh, Asst. Atty. Gen., for the State.
   DOYLE, J.

Plaintiff in error, T. A. Jackson, was convicted on a charge of shooting one Henry Kennedy, with intent to do bodily harm, and his punishment fixed at imprisonment in the penitentiary for the term of one year and one day. He has appealed from the judgment rendered upon such conviction. The errors assigned are based on the rulings of the court in the admission of alleged irrelevant, incompetent and immaterial evidence, and in refusing to give certain requested instructions, and question the sufficiency of the evidence to support the verdict.

It appears that the defendant, Jackson, and Henry Kennedy were near neighbors, in the town of Ryan; Clifford Jackson, son of the defendant and his wife roomed at the house of Kennedy; this son had two colts which he had kept for three or four days in Kennedy’s back lot; Kennedy and this son had had some trouble, the nature of which does not apear, and Kennedy turned the colts out of his back lot; the next morning the defendant came across the street and entered Kennedy’s dooryard, carrying a 22-caliber target rifle; Kennedy came out of his house through a back door and picked up a stick an inch thick and two and one-half feet long, and walked around the house towards the defendant; tne defendant asked Kennedy if he had turned out the colts; Kennedy answered that he had, the defendant demanded that they be put back; Kennedy answered that he would not; the defendant ordered Kennedy to go back into the house; Kennedy’s wife stepped between them; defendant waived her aside, and as she stepped aside he shot Kennedy, the bullet lodged in the scrotum.

Henry Kennedy testified that the defendant came across the street from his place carrying a 22-caliber rifle, and walked up to the front porch and asked him if he turned the colts out; he told him he did; the defendant asked him to put them back, and he told him to he would not; the defendant told him to get back into the house; then his wife ran between them, and asked the defendant not to shoot; the defendant told her to step back and, when she did, shot him; that they were 20 feet apart when the shot was fired. Mrs. Kennedy testified that she saw the defendant come into the yard carrying a rifle; that she went out and asked the defendant to put up the gun, and he said, “'Step back; don’t come a step further,” and then shot her husband. Reuben Starks testified that he saw Kennedy and Jackson standing by Kennedy’s house, and Mm Kennedy came out and said something to Jackson, then Jackson raised his gun, and he hollered at him not to shoot; Jackson motioned to Mrs. Kennedy to stand back, and when she did he fired; that Kennedy ran up and grabbed the gun and he separated them; that they were about 20 feet apart when the shot was fired. Ola Starks testified that she saw Jackson standing near the front porch and Kennedy was standing near the kitchen window; that Mrs. Kennedy stepped in between Jackson and Kennedy; that as she stepped out of the way Jackson shot Kennedy. Mrs. Dotty West testified that she saw Jackson and Kennedy facing each other, 15 or 20 feet apart; that Mrs. Kennedy was begging Jackson not to shoot; Jackson motioned to her with the gun to get back, and as she did so he shot Kennedy.

The foregoing is the substance of the material testimony upon which the conviction is based.

For the defense, Lena Jackson, wife of the defendant, testified that she did not see the shooting, but saw Kennedy a few minutes before the shot was fired, coming towards her husband with a club. Fred Jackson, son of the defendant, testified that his age was 14 years, that he was standing 10 feet away when the shot was fired, and Kennedy was 2 or 3 feet from his father when he shot him. The defendant did not testify.

Some exceptions were taken during the course of the trial to the admission of evidence. The defendant objected to the state proving by the county court reporter certain statements made by the defendant at the preliminary hearing. Upon the admission of this testimony, error is assigned. It is a well-settled rule that any statements of the defendant relevant to the offense for which he is being tried is admissible. We have examined the other exceptions, and we are satisfied that none of them were well taken.

It is established practice under our statute (section 2822, Comp. Stat. 1921) that a new trial shall not be awarded for an error not prejudicial to the defendant, and technical errors or defects which do not affect the substantal rights of the defendant are to be disregarded.

Taken a a whole, the instructions of the court to the jury were more favorable to the defendant than he had any right to expect. There is no question as to the defendant’s guilt, and the verdict was as favorable to him as the law and testimony warranted.

The judgment of the lower court is accordingly affirmed.

MATSON, P. J., and BESSEY, J., concur.


text:
    BRUCE GOFORTH v. STATE.
    No. A-4666.
    Opinion Filed March 28, 1925.
    (234 Pac. 651.)
    (Syllabus.)
    Intoxicating: Liquors — Unlawful Manufacture — Evidence Sufficient. Evidence examined, and held sufficient to sustain the verdict.
    Appeal from County Court, Pawnee County; L. N. Kimrey, Judge.

      Bruce Goforth was convicted of manufacturing whis-ky, and sentenced to pay a fine of $50 and serve 30 days in the county jail, and he appeals.
    Affirmed.
    Taylor & Taylor and P. D. Mitchell, for plaintiff in error.
    The Attorney General and Chas. Hill Johns, Asst. Atty. Gen., for the State.
   BESSEY, P. J.

The only question involved in this appeal is the sufficiency of the evidence. The record shows that the defendant, Bruce Goforth, his father, and his brother-in-law were jointly charged with making whisky contrary to law. The defendant and his father lived on adjoining farms in the black-jack or scrub oak country; there were but 17 acres of tillable land on the father’s farm, on which cotton had been grown. A still and a large quantity of whisky was found near the father’s house, on or near the premises, under his control, in the underbrush there abounding. A well-beaten path led from the house to where the still and whisky were found. The defendant’s brother-in-law lived in Lincoln county, some miles away. All three men were in the vicinity of the father’s house at the time the seizure of the still and whisky was made by the officers.

There were separate verdicts of guilty as to the father and this defendant, and a verdict of not guilty as to the brother-in-law. A new trial was granted the father by the court below on technical grounds, and this defendant alone appeals. The positive testimony of the officers, in connection with the circumstances shown, indicates that the father and son were jointly implicated in making this whisky. It would serve no good purpose to recite the details further. Although some of the evidence was circumstantial, the evidence as a whole was sufficient to support the verdict.

The judgment of the trial court is affirmed.

DOYLE and EDWARDS, JJ., concur.


text:
    ANNIE MILLER v. STATE.
    No. A-4708.
    Opinion Filed March 28, 1925.
    (234 Pac. 650.)
    (Syllabus.)
    X. Evidence — Evidence as to Sales of liquor Near Time of Illegal Possession Admissible.. Where one is charged with the possession of a specified quantity of intoxicating liquor, with the intent illegally to dispose of the same, evidence of sales or attempted sales at or near the time may be shown to establish the illegal intent, but not extending to remote transactions extending over a period of years.
    2. Intoxicating Liquors — Character of On© Charged with Illegal . Possession not Subject to Attach Until Put in Issue by Him. The character or reputation of one charged with the offense of illegal possession of a specified quantity of intoxicating liquor cannot be attacked until after the accused puts his character in issue.
    Appeal from County Court, Pittsburg County; S. F. Brown, Judge.
    Annie Miller was convicted of illegal possession of intoxicating liquor, and she appeals.
    Reversed and remanded.
    Counts & Counts, for plaintiff in error.
   BESSEY, P. J.

Annie Miller, plaintiff in error, here referred to as the defendant, was convicted of the illegal possession of about 30 gallons of Choc beer, found by peace officers in her residence in Pittsburg county. The jury fixed defendant’s punishment at a fine of $50 and to serve 90 days in the county jail.

The defendant was a Polander, whose husband had been killed in a mine explosion some time prior to this time. She . was the mother of 8 children, some of whom were old enough to work for wages and contribute to her own and the younger children’s support. Defendant and her witnesses claimed that this beer was made for her own use and for the use of the older members of the family who worked; that it was not, in fact, intoxicating; and that she had no intention or purpose of selling or otherwise disposing of it in violation of law.

There was no evidence on the part of the state tending to show an illegal purpose, save and except the possession of this quantity of Choc beer. Neither was there any direct evidence upon the alcoholic content of the beer or of its intoxicating properties, except that the three officers who made the seizure state that they tasted the beer before it was destroyed, and that in their opinion it was intoxicating; one of them said it was his opinion that one might drink a half-gallon to a gallon before becoming intoxicated.

Before the defendant put her character or reputation in issue, the court, over the objections of the defendant, in order to show intent to sell, permitted evidence to be introduced relating to three other distinct transactions, and inferentially other transactions, covering a period of three years. This was error. The defendant should have been tried for one specific offense and was not bound to defend her conduct generally over a period of years. From the record it is impossible to tell whether the jury concurred as to her guilt on any particular transactions, or whether a conviction was had on these transactions cumulatively and as a whole.

Because of the unsatisfactory proof of alcoholic content, the introduction of evidence concerning other separate transactions, and the attack upos the defendant’s character and reputation before she put the same in issue, the judgment of the trial court is reversed and the cause remanded.

DOYLE and EDWARDS, JJ., concur.


author: DOYTLE, J.

text:
    GUS KEY v. STATE.
    No. A-4798.
    Opinion Filed March 28, 1925.
    (234 Pac. 791.)
    (Syllabus.)
    1. Intoxicating liquors — Not Necessary for Information Charging Possession with Intent to Kill to Allege Intent to Sell for use as Beverage. In an information for possession of intoxicating liquor, to wit, Jamaica ginger, with intent to sell, barter, and otherwise furnish the same to others, it is not necessary to allege an intent to sell the same to others for the purpose of being used as a beverage.
    2. Same — Information Need not Negative Statutory Exceptions. An information for possession of intoxicating liquors, to wit, Jamaica ginger, need not negative the exceptions contained in section 7002, Comp. Stats. 1921, but such exceptions may be shown by the defendant as matters of defense.
    3. Same — Instruction Ignoring Element of Intent of Possession Erroneous. On a trial for possession of intoxicating liquor, to wit, Jamaica ginger, with intent to sell the same, it is error for the court to instruct that: “If you believe from the evidence beyond a reasonable doubt that defendant did have possession of Jamaica 'ginger you will find him guilty.”
    4. Same — Refusal to Instruct on Necessity for Unlawful Intent Erroneous. In such a case it is error for the trial court to fail and refuse to instruct that there must be coupled with such possession an unlawful' intent to sell or otherwise dispose of such compound contrary to law.
    Appeal from County Court, Carter County; M. F. Winfrey, Judge.
    Gus Key was convicted of unlawful possession of intoxicating liquor, and he appeals.
    Reversed.
    Smith C. Matson, for plaintiff in error.

      George F. Short, Atty. Gen., and G. B. Fulton, Asst. Atty. Gen., for the State.
   DOYTLE, J.

This appeal is from a judgment and sentence of confinement in jail for six months and a fine of $50.

The information filed in the county court of 'Carter county, February 1, 1922, charges that on the 31st day of January, 1922, Gus Key, did “willfully and unlawfully have in his possession certain intoxicating liquors, to wit, four gallons of Jamaica ginger, with the willful and unlawful intent then and there to give, sell, barter, and otherwise furnish the same to others, contrary to,” etc. To this information the defendant demurred upon the ground that the facts stated do not constitute a public offense. The demurrer was overruled.

The first contention made by counsel for the defendant is as to the sufficiency of the information. The argument is made that:

“Jamaica ginger is a drug or medicine listed in the United States Pharmacopoeia. It may be lawfully disposed of in this state by sale the same as other medicines, or compounds having an alcoholic base of more than one-half of 1 per centum. Jamaica ginger is not per se a beverage or what is commonly termed ‘an intoxicating liquor’; that it belongs to that class of medicated compounds, which must not be sold for purposes not legitimate, to wit, to be used as a beverage. Dutton v. State, 21 Okla. Cr. 186, 205, P. 940. This being true, it was necessary, in order to charge an offense, to go further than a mere allegation, that defendant had possession of this Jamaica ginger with the willful and unlawful intent to sell the same to others. Defendant could have sold Jamaica ginger ‘to others’ lawfully, so that it was necessary in order to state an offense, either to allege that defendant intended to sell the same to others, ‘in violation of the prohibitory laws of the state,’ or else to allege that defendant ‘intended to sell the same to others for the purpose of being used as a beverage’; that without either of said allegations the information fails to state an offense.”

The rule is well settled that where exceptions are contained in separate clauses or provisions of a penal statue they may be omitted in the indictment or information, and may be shown by the defendant as matters of defense. Smythe v. State, 2 Okla. Cr. 286, 101 P. 611, 139 Am. St. Rep. 918. Tested by this rule the information was sufficient.

In order to present other questions raised, wé will briefly state the evidence.

The defendant was the proprietor of the Diamond A drug store, on Main street, in the city of Ardmore: on the date alleged Charley Hathcock, a policeman, and Tom Smith, a deputy sheriff, in executing a search warrant found about four gallons of Jamaica ginger in the defendant’s drug store,

Charley Hathcock testified:

“We had a search warrant and ‘made a raid’ on defendant’s drug store, and got about'four gallons of Jamaica ginger; that the stuff was found behind the prescription case.”
“Q. Do you know whether or not, along about that time, that Mr. Key, through the Diamond A drug store was making any sales of Jamaica ginger for beverage purposes? A. I would not swear that he was; that was the reputation of the place.”

Tom Smith testified in substance to the same facts. He was then asked a question and answered as follows:

“Q. Mr. Smith, do you know anything about how much Jamaica ginger was being sold by the Diamond A drug store at that time? A. No, sir; I don’t.”

Dr. E. M. Edwards testified that he was pathologist at the Hardy Sanitarium; that he made an analysis of some Jamaica ginger brought to him by Mr. Hathcock; that its contents were “alcohol 58 per cent, and 14 per cent. solids>. the balance water dilution.” . .

Against the defendant’s objection W. K. Shackelford testified that he was proprietor of the City Drug Store in the city of Ardmore, and over the defendant’s objections was permitted to testify as follows:

“Q. How much Jamaica ginger a month, for instance,' will the average druggist use in Ardmore in making prescriptions? A. I don’t know how much they use; We. don’t use any.
“Q. You don’t handle it at all in your drug store for any purpose? A. We may have a quarter of a pound of fluid extract.”

C. O. Adcock testified that he was proprietor of the' Adcock Pharmacy. Over the defendant’s objection he was permitted to testify as follows:

“Q. Do you, in your drug business, use any Jamaica ginger at all? A. No, sir; I don’t handle it.
Q. Do you know about how much Jamaica ginger one would use for medical purposes in Ardmore? A. I don’t know; I never used any.”

The state rested and the defendant moved for a directs ed verdict in the form of a demurrer to the evidence, which, was overruled and exception allowed.

On the part of the defense, E. C. London testified that he was sheriff, and that on order of the federal authorities the four gallons of Jamaica ginger was returned to Mr. Key. Mr. Hodge, county attorney, objected to testimony on the part of the defendant to show that the “stuff” was turned back to Mr. Key, and asked the court to instruct the jury to disregard this testimony.

By the Court: “That would not be a defense to this prosecution.”

The defendant requested the court in writing to instruct the jury that they must find that the defendant intended to use the Jamaica ginger in violation of the law. Refused.

The following were all the instructions given by the court:

“This is the case of the State of Oklahoma versus Gus Key, charged with unlawful possession of Jamaica ginger in the manner and form as follows (omitting the information) : If you believe from the evidence beyond a reasonable doubt that the defendant Gus Key, did in Carter county, Okla., on or about the 31st day of January, 1922, have possession of Jamaica ginger, you will find the defendant guilty and fix his punishment at a fine of not less than $50 nor more than $500, and not less than 30 days or more than 6 months in the county jail. If you have a reasonable doubt as to the defendant’s being proven to be guilty, you should acquit him and so say by your verdict. Three-fourths of your number can return a verdict by all five signing it, if all agree on a verdict one can sign as foreman.”

We deem it unnecessary to review the exceptions taken to the rulings of the court during the progress of the trial further than to say that the court erred in admitting the testimony of the witnesses Shackelford and Adcock. Their testimony was clearly incompetent. It was eliciting the mere; opinion of a witness as to how a drug store business should be carried on. It might be properly styled indirect opinion evidence for argumentative purposes only.

The instructions given by the court are fundamentally deficient. Possession alone of intoxicating liquor is not a crime against the laws of this state, much less the possession alone of medicated alcoholic compound in a drug store; there must be coupled with such possession an unlawful intent to convey, sell, or otherwise furnish the same in violation of the prohibition ordinance and laws of the state. While the statute makes the possession of more than one quart of spirituous liquor in one’s place of business “prima facie evidence of an intent to violate the law,” this phase of the case was not submitted to the jury, as the trial court refused to give the defendant’s requested instruction based on his theory of defense in rebuttal of any such presumption, if any, arising from the quantity of the compound, possessed. The court not only failed to instruct the jury on this theory of defense, but the instructions given make evidence of possession conclusive proof of guilt.

In Caffee v. State, 11 Okla. Cr. 485, 148 P. 680, it was held that under the statute declaring that the keeping in excess of a certain amount of intoxicating liquors shall be “prima facie evidence of an intention to convey, sell, or otherwise dispose of such liquors,” evidence of such possession is sufficient to establish the unlawful intent, unless rebutted or the contrary proved, yet it does not make it obligatory upon the jury to convict after the presentation of such proof, but such evidence is competent and sufficient to justify a jury in finding the defendant guilty, provided it does in effect satisfy them of his guilt beyond a reasonable doubt.

All persons are by our laws entitled to a trial in accordance with the rules of law. Our conclusion is that in this case the defendant did not have that fair trial to which he was entitled under the law.

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

BESSEY, P. J., concurs.

EDWABDS, J., absent.


author: DOYLE, Judge,

text:
    Victoria Hayes v. State.
    No. 84.
    Opinion Filed September 21, 1909.
    (103 Pac. 1061.)
    1. INDICTMENT AND INFORMATION — Finding by Grand Jury-Offense Antedating Statehood. Article 5 of the amendments to the Constitution of the United Staies, providing that “no person shall be held to answer for a capital or otherwise infamous crime, unless on a presentment or indictment of a grand jury,” guarantees to a defendant charged with the commission of a felony in Oklahoma Territory prior to statehood an unalterable right to be accused by indictment through the intervention of a grand jury found with the concurrence of at least 12 of its members.
    2. GRAND JURY — Grand Jurors — Number Needed to Concur. The act of criminal procedure (Wilson’s Rev. & Ann. St. 1903, sec. 5349), provided that “an indictment cannot be found without the concurrence of at least twelve grand jurors.” Held, that this provision applies to all offenses committed in Oklahoma Territory prior to statehood, and an investigation and finding by a less number than 12 grand jurors is not an indictment, but an accusation made by an unauthorized body of men, and is therefore a nullity.
    3. INDICTMENT AND INFORMATION — Motion to Set Aside. Where a defendant files a motion to set aside an indictment on the grounds that it is not found by a legal grand jury, and that no witnesses appeared before and no evidence of any kind was presented to the grand jury which returned the indictment, and that the court had no jurisdiction of the defendant, and makes application to the trial court to set a day for the taking of testimony in support of said motion as prescribed by section 5399, Wilson’s Rev. & Ann. St. 1903, held, that it is reversible error for the court to refuse such application, and to summarily overrule said motion.
    (Syllabus by the Court.)

      Error from, District Court, Oklahoma County; Joseph Q. Dowe, Judge.

      Victoria Hayes was convicted of assault with intent to kill, and appealed.. Case transferred to the Criminal'Court of Appeals.
    Béversed.
    Victoria Hayes, plaintiff in error (hereinafter designated defendant), was indicted for the crime of assault with intent to kill one A. M. Jones, alleged to have been committed on the 5th day of November, 1907. On the 16th day of December, 1907, the grand jury returned an indictment charging defendant with the crime of assault with intent to kill. On the 18th day of December, 1907, another indictment was returned against defendant for the same offense. On the 7th day of January, 1908, the court charged ihe grand jury as follows-: ■ • ■ ;
    “Gentlemen of the grand jury, at the time you were impaneled as a grand jury of this court the court in its charge to you instructed you that any nine of you concurring in any given case might return an indictment. Since then a question has arisen as to whether that part of the charge to the' grand jury was correct as applied to crimes or offenses committed prior to the admission of Oklahoma into the Union as a state. * * ■ * You are now instructed that as applied to all crimes which were committed prior to the 16th day of November, 1907, prior to the admission of Oklahoma into the .Union as a state, that it will require the unanimous concurrence of you 12 gentlemen to return an indictment against any person charged with crime, and investigated before you. * * * As several of the indictments which were returned by you were returned into open court while only 11 of you were present, one of yóu being absent because of sidkness, it is believed that you would best discharge your duties as grand jurors by again considering all these cases where the crimes charged against the parties are alleged to have been committed prior to the 16th day of November, 1907, and, if you unanimously concur in finding an indictment in any of these cases, that as to such you may return a new indictment into court.”
    On the same day there was returned in open court another indictment against defendant for the same offense. On the 21st day of January, 1908, the defendant moved the court to set aside this indictment. The motion to set aside is as follows:
    “Comes now the defendant, Victoria' Hayes, and moves the court to set aside and hold for naught the indictment against her in the above-entitled cause, and, for grounds thereof, alleges and says: That the alleged grand jury which found said indictment was not drawn, impaneled, summoned, and composed as provided by law, and was not a legal grand jury, in this, to wit: First. That prior to the. 16th day of November, .A. D. 1907, B. F. Bur-well, judge of the district court of the territory of Oklahoma, under and by virtue of authority vested in him by act of Congress, for the purpose of drawing and impaneling grand and petit jurors for said territorial court, ordered and directed William Cross, Frank Merrell, and Ed. S. Vaught, jury commissioners appointed by him, the said B. F. Burwell, to select 300 and-names and place the same in the jury box as provided by,said act of Congress for jury purposes, and, in obedience to said order, the said commissioners selected said names and placed them in said jury box as provided by law; -that since said names were placed in said jury box the said territory was changed from a territorial form of government to that of a state form of government, and no successor was designated under said Constitution to the said B. F. Burwell or the said Ed. S. Vaught, who was then clerk of said court; that since the 16th day of November, 1907, Hathaway Harper was qualified, and is the acting clerk of the Thirteenth judicial district of the state of Oklahoma, and this defendant is informed and believes was the proper person to act as one of the jury commissioners in selecting said jury, and not Ed. S. Vaught, clerk of the territorial and United States District Court; that this defendant is informed and believes that the aforesaid indictment was found against him by a grand jury selected by William Cross, Frank Merrell, and Ed. S. Vaught, commissioners who were appointed by B. F. Burwell as aforesaid, and who took their oath of office prior to the 16th day of November, 1907, and under a territorial form of government. Second. That heretofore, on the - day of December, the grand jury in and for said county returned an indictment against this defendant for the same alleged offense, which said indictment was dismissed or set aside; that no witnesses or evidence of any kind appeared before or was presented to the grand jury which returned and presented to this court the indictment herein. Third. This defendant, not waiving her former objections to said indictment, alleges and says that this court nor the grand jury as aforesaid who found a true bill against the defendant has jurisdiction of this defendant or of the offense alleged to have been committed prior to the 16th day of Novem-her, 190?1, when the Constitution of the state became effective. Pruiett, Cardwell & Sniggs, Attorneys for Defendant.”
    To enable the defendant to make proof of the matter set up as grounds for setting aside the indictment, the defendant ou the same day filed her application in said court setting out aud alleging that she was indicted in said district court, and setting out a copy of her motion to set aside the indictment, and alleging tha; she was acting in good faith, and praying for an order to examine witnesses in support thereof, and for an order fixing a day for the taking of testimony in support of said motion. This application was duly verified. Thereafter, and on the same day, the court denied the application of the defendant for an order to take testimony in support of her motion, and overruled the motion to set aside the indictment. .
    Thereupon said cause was tried to a jury, and a verdict returned, finding defendant guilty of the crime charged. Motion for new trial and in arrest of judgment were duly filed on the ground “that the court erred in overruling the motion to quash and set aside the indictment heretofore filed, and which was at the time excepted to ,by the defendant.” These motions were overruled, and exceptions allowed, and the court sentenced defendant to serve a term of two years at hard labor in the state penitentiary. The defendant appealed to the Supreme Court of Oklahoma, and said cause was transferred by the Supreme Court to the Criminal Court of Appeals, as by law provided, and is now before this court for review.

      Pruiett, Cwrdwell & Sniggs and Crump, Rodgers <£• Harris, for plaintiff in error.

      Charles West, Atty. Gen., and Charles L. Moore, Asst. Atty. • Gen., for the State.
    No copies of briefs reached the reporter.
   DOYLE, Judge,

(after stating the facts as above.) The act of criminal procedure provides (section- 5398, Wilson’s Rev. & Ann. St. 1903) that a defendant “may, in answer to the arraignment, either move the court to set aside the indictment, or may demur or plead thereto." And provides that (section 5399, Wilson’s Tlev. & Ann. St. 1903) :

“The indictment must be set aside by the court, in which the defendant is arraigned, and upon his motion in either of the following cases: First. When it is not found, indorsed, presented or filed, as prescribed by .the statutes of the territory, or when the grand jury is not drawn and impanelled as provided by law, and that fact is known to the defendant at or before the time the jury is sworn to try the cause. Second. When the names of the witnesses examined before the grand jury are not made 'to appear on some part of the indictment, as provided in section 5352, as amended in this act. Third. When a person is permitted to be present during the session of a grand jury while the vote on the finding of the indictment is being taken, or when it is shown that after the grand jury was first impanelled any member or members thereof, were discharged and their places filled by persons not regularly drawn from the jury list, as provided by this act, and that they were admitted into the grand jury or took part in their deliberations, or that the grand jury was not impanelled anew as a whole body in open court. To enable the defendant to make proof of the matter set up as grounds for setting aside the indictment, the defendant may file his application before any court of record in the county, setting out and alleging that he is indicted in the district court, naming it, and setting out a copy of his motion to set aside the indictment, and alleging, all undei oath that he is acting in good faith, and praying for an order to examine witnesses in support thereof. The court shall thereupon issue subpoenas to compel any or all witnesses desired to appear before him at the time named, and shall compel the witnesses Co testify fully in regard to the matter and reduce the examination to writing, and certify to the same, and it may be used to support the motion. The mover shall pay the costs of the proceeding. He shall notify the county attorney at least two clear days before he proceeds, of the time and place of taking such testimony, and the county attorney may be present and cross-examine the witnesses and if. need be the case in the district court must be adjourned for that purpose. All witnesses, including grand jurors, shall be bound to answer fully, and shall not be answerable for the testimony so given in any way, except for the crime of perjury committed in giving such evidence. When a grand juror has been fully examined as to his qualifications to sit, and has answered under oath that he is qualified, and has been received by the court and permitted to act, his ineompeteney shall not thereafter be shown as a ground of objection to any indictment returned by that grand jury.”

And provides that (section 5339, Wilson’s Rev. & Ann. St. 1903) :

i; “The grand jury may not receive hearsay or secondary evidence.”

And provides that (section 5349, Wilson’s Rev. & Ann. St. 1903) :

“An indictment cannot be found without the concurrence of at least twelve grand jurors.”

The contention on the part of the defendant is that under these provisions of the act of criminal procedure she was entitled to a hearing on her application to take testimony in support of her motion to set aside the indictment, and that said motion should have been sustained. The motion filed raised the issue:

“That the indictment ivas not found'by competent authority, and that there was no legal or competent evidence before the grand jury that returned said indictment.”

The crime is charged to have been committed before statehood. Under the fifth amendment of the Constitution of the United States, and the laws of the territory of Oklahoma, the defendant could only be prosecuted by indictment found upon the concurrence of at least 12 grand jurors, otherwise there would be a denial to the defendant of a substantial right. Before any person can be lawfully tried for an offense, he must be accused thereof according to law. This principle so essential- to liberty and good government ¡protects all alike from the ¡oppression of political power and the plottings of private malice. The proposition presented in this case involves, irrespective of her guilt or innocence, the lawful rights of the defendant, and in its decision the lawful rights of every citizen. It is apparent from the record that there were less than 12 grand jurors present when the witnesses appeared and the investigation of the charge was made. This number did not constitute a legal grand jury for the purpose of investigating offenses committed in Oklahoma Territory before statehood. There must be present 12 grand jurors at least, because .the con-eurrence of that number was absolutely necessary to put the defendant on her trial. The defendant expected to prove these facts, in support of her motion.

At common law an indictment is invalid where it is found and returned by a grand jury .not legally constituted or where there was no legal or competent evidence before the grand jury upon which it was based, and this invalidity might be shown on a plea in abatement. Sir Edward Coke defines an indictment to be (Co. Litt. 126) :

"An accusation found by an inquest of twelve or more upon their oath."

Sir Matthew Hale (2 P. C. 161) saj's that:

"If there be 13 or more of the grand inquest, a presentment by less than 12 ought not to be.”

And Sir William Blackstone (volume 4, Com. 306) says:

"But to find a bill there must be at least 12 of the jury agree.”

Ordinarily where a charge has been investigated, and an indictment returned, where the case for any reason is resubmitted, a re-examination of the witnesses before the same grand jury is unnecessary, but if it appears, as in this case, that the grand jury that made the original investigation was not legally constituted, a re-examination of the witnesses before a lawful grand jury becomes necessary. It appears that upon the corrected charge of the court being given, as shown in the record, the grand jury, then composed of 12 grand jurors, retired, and then pro forma, Avithout further investigation, returned the indictment upon which the defendant Avas tried. We believe that the motion to set aside and the application to take testimony was sufficient to secure to defendant her right to show that the indictment was found in violation of her constitutional rights, and was therefore void, and that she was about to be tried without due process of law.

The case of Royce v. Territory of Oklahoma, 5 Okla. 61, 47 Pac. 1083, is precisely in point on this question. Justice Tarsnéy, delivering the opinion of the court, says:

“These proAdsions simply declare and codify the rules of the common laAv under Avhich no indictment was valid, unless found and based upon legal and competent evidence; that its invalidity in this respect might be brought to the attention of the court by a plea in abatement, and that the facts to sustain said plea might be shown by the testimony of witnesses; and that the defendant was of right entitled to a trial of the matters so set up and relied upon in his plea in abatement. It is true that at the common law a motion to quash or a plea in abatement was an appeal to the discretion of the judge, and that matters of judicial discretion can-pot ordinarily be reviewed upon appeal; but that proposition is not involved in the ease at bar. Here the court below refused to exercise that discretion by refusing to set a day for hearing of the matters set 'up in the motion, and by refusing to summon or hear witnesses in that behalf, and by summarily overruling the application and motion. We think this was substantial error against the rights of the defendant. He could only be legally put upon trial upon a valid indictment. To the validity of such indictment it was essential that it should have been found by a grand jury upon legal and competent evidence tending to sustain the offense charged. The defendant sought to avail himself of the rights guaranteed to him, both by the common law and the statute, by showing that such indictment was found without any legal or competent evidence, showing the commission of the crime charged. * * * We think the motion and application to take testimony presented a right to be heard upon the motion showing the invalidity of the indictment, that jt was a substantial right of the defendant to be allowed to establish the facts stated in such motion, for the purpose of showing that he was about to be tried without due process of law, and that the court belowq while in determining said motion, after hearing the evidence thereon, would exercise a judicial discretion, not ordinarily reviewable. It had no discretion to refuse to hear said motion or to refuse the application to take testimony to sustain the facts stated in such motion, and that such refusal was error, reversible by this court. The importance of the proposition involved may be appreciated, when it is considered that the. defendant had no other way to have the question presented to the attention of -the court or considered by it; as, under our statutes, it could not be presented either upon a motion for a new trial or upon a motion in arrest of judgment. Hence, if it be not substantial error for a trial court to summarily overrule a motion to set aside and quash an indictment, based upon the grounds stated in this motion,, and to arbitrarily refuse to comply with the statutes and permit the defendant to produce evidence showing its invalidity, then the constitutional right of one accused of crime may be taken from him, and he may be held to answer to a capital or otherwise infamous crime without a presentment or indictment of a grand jury. The Constitution in guaranteeing this right to persons accused of crime did not mean a mere form of indictment, but meant a valid indictment, found and presented in accordance with the ancient and just rules and safeguards of law provided for the organization, action, and conduct of grand juries.”

Tn the case of Mahaffey v. Territory of Oklahoma, 11 Okla. 213, 66 Pac. 342, the defendant filed a motion to set aside the indictment, together with his application to take testimony in support of said motion. The court refused to set a day to permit the defendant to introduce evidence in support of such motion, and overruled the motion. Held that:

“The defendant having brought himself within the provisions of the statute, we think it was error for the court not to fix a day for allowing the defendant to introduce evidence in support of said motion to set aside said indictment.”

In the cases of Robinson v. Territory, 16 Okla. 241, 85 Pac. 451, and Shivers v. Territory, 13 Okla. 466, 74 Pac. 899, the Territorial Supreme Court construing section 5399, Wilson’s Rev. & Ann. St. 1903, held, “that these are the only causes for which an indictment may be set aside on motion.” And in the Shivers Case the court say that:

“In so far as the cases of Royce v. Territory and Mahaffey v. Territory, supra, are in conflict herewith, the same are overruled.”

We cannot believe that the holding of the court in these cases >is sound, or that they declare the correct rule.

The act of criminal procedure further provides that the procedure, practice, and pleadings in criminal actions, not specifically provided for, shall be in accordance with the procedure, practice, and pleadings of the common law. There can be no doubt, it seems to us, that this provision extends the causes for which an indictment may be set aside. The rule enunciated in the case of Royce v. Territory, supra, meets the approval of this court. It is sound in principle and well supported by authority. It asserts the right and dut}"- of the court to exercise a salutary supervision over the proceedings of a grand jury, and recognizes the undoubted right of a defendant to secure a lawful grand jury.

In Low’s Case, 4 Me. 453 (16 Am. Dec. 271), Preble, judge, says:

“That the facts, if true, must present a case, not of technical or possible or hypothetical, but of manifest and undeniable, wrong to the defendant, such as putting him to trial on an indictment not found by 12 jurors, and which is therefore no indictment, but an accusation made by an unauthorized body of men.”

In State v. Symonds, 36 Me. 128, the court held:

“If, on motion in writing in the nature of a plea in abatement it appears that, in finding a bill of indictment, there could not have been a concurrence of so many as twelve lawful grand jurors, the accused cannot lawfully be required to plead to the indictment, or be put upon trial.”

In United States v. Coolidge, 2 Gall. 364, Fed. Gas. No. 14,858, Judge Story received the affidavit of a witness to prove that he was not in fact sworn when examined before a grand jury, saying:

“It is of the highest importance that the institution be preserved in its purity, and that no citizen be tried until he has been regularly accused by the proper tribunal.”

In United States v. Farrington (D. C.) 5 Fed. 343, Wallace, judge, said:

“It is not the province of the court to sit in review of the investigations of a grand jury as upon the review of a trial when error is alleged; but in extreme cases, when the court can see that the finding of a grand jury is based upon such utterly insufficient evidence, or such palpably incompetent evidence as to indicate that the indictment resulted from prejudice, or was found in willful disregard of the rights of the accused, the court should interfere, and quash the indictment. Very respectable authorities intimate that an indictment should be quashed when it appears -that it vras found by the grand jury without adequate evidence to support it, or when the grand jury permitted the rules of evidence to be violated. Dodd’s Case, 1 Leach, C. L. 184; People v. Restenblatt, 1 Abb. Frac. (N. Y.) 268.”

In Stale v. Grady, 12 Mo. App. 361, Lewis, presiding judge, said:

“All the authorities agree that a motion to quash the indictment, such as was attempted in this case, is the proper and only method for reaching the defects here complained of. The defendant was entitled to substantiate his complaint if he could by the proofs which the court refused to bear. For error in this refusal the judgment must be reversed and the cause remanded.”

In Sparrenberger v. State, 53 Ala. 481, 25 Am. Ben. 643, the court said:

“On a motion to quash or to strike from.the .files addressed to the court with reasonable diligence, after the facts have been discovered, supported by evidence leaving no reasonable doubt on the mind of the court that the indictment was not the finding of ■twelve of the grand jury, or that it was found without the evidence of witnesses before them, .or legal documentary evidence, truth, and justice, the preservation of the verity, and dignity of its own records, the protection of the citizen and constitutional guaranty demand that the court should expunge the spurious paper.”

There is no lack of other authorities to the like effect. Defendant’s motion to set aside the indictment, and her application to take testimony in support thereof, being in proper form, presented a right to offer the proof in support of said motion, and a right to be heard 'thereon. It was error for the court to deny defendant’s application and to summarily overrule the motion to set aside without a hearing.

We deem it unnecessary to consider the other assignments of error.

For the reasons stated, the judgment of the court below is hereby reversed, and the cause remanded, with instructions to proceed in accordance with the views herein expressed.

FUBMAN, Presiding Judge, and OWEN, Judge, concur.