author: FURMAN, PRESIDING Judge,

text:
    CHARLES HAST v. TERRITORY.
    No. 1502,
    Okla. T.
    Opinion Filed March 7, 1911.
    (114 Pac. 261.)
    1. RAPE — Female Under 18 of Previous Chaste Character — Sufficiency of Indictment. Where an indictment charges a defendant with having- had sexual intercourse with a female under the age of 18 years, not the wife of the perpetrator, and of previous chaste and virtuous character, it sufficiently charges an offense under the second paragraph of section 2353 of 'Snyder’s Comp. Laws of Oklahoma 1909.
    2. TRIAL — Necessity for Arraignment — Appeal—Case-Made—Correction. (a) Where the record shows that a defendant was present and represented by counsel and aided and assisted in the selection of the jury and the cross-examination of witnesses for the state and introduced evidence in his own behalf, and the issues of the case were properly submitted to the jury by the court, it is immaterial as to whether or not the record shows that the defendant was formally arraigned.
    (b) It is the duty of the trial court before approving the case-made to incorporate in the case-made a statement as to any matter which may ■ have occurred in open court during the trial and of which the trial judge has knowledge, which should be shown by the case-made, and which may have been omitted by counsel in making up such case-made.
    3. RAPE — Female Under 18 of “Previous Chaste Character” — Admissibility of Evidence — General Reputation. When a defendant is on trial for having had sexual intercourse with a female under 18 years of age, not the wife of the defendant, and of previous chaste and virtuous character, the defendant cannot attack the character of such female for virtue and chastity by proof of her general reputation, but he is permitted to prove, if he can, any specific act indicating a want of chastity or virtue upon the part of such female. The real issue in such a case is not the reputation of such 'female, but it is as to whether as a matter of fact she was chaste and virtuous prior to such intercourse.
    4. RAPE — Sufficiency of Evidence. For evidence which fully sustains the verdict of the jury in convicting a defendant for having sexual intercourse with a female under 18 years of age and of previous chaste and virtuous character, see testimony stated in the opinion.
    (Syllabus by the Court.)

      Appeal from District Court, Pottawatomie Cownip; B. P. Burwell, Judge.

    Charles Hast was convicted of rape, and he appeals.
    Reformed and affirmed.
    See, also, 3 Okla. Cr. 339, 105 Pac. 1118.
    Appellant was convicted for the oifense of rape in the district court of Pottawatomie county, and his punishment was assessed at confinement in the penitentiary for the period of six years. This conviction took place in the territorial court in 1903. Defendant prosecuted an appeal to the Supreme Court of Oklahoma Territory; but the case was not disposed of by that court prior to the incoming of statehood. This case was transferred to the Supreme Court of Oklahoma. Upon the creation of this court the case was transferred by the Supreme Court to the Criminal Court of Appeals of Oklahoma. Prior to this transfer, however, the record had been returned to the district court of Pottawatomie county by order of the Supreme Court for the purpose of making some corrections therein, and by some means said record became lost and has only recently been found. This explanation is deemed proper to explain the long delay in deciding this case. Affirmed.
    The following are the instructions given:
    “Gentlemen of the jury, the Court instructs you as follows:
    “This is a prosecution by indictment by the territory of Oklahoma against the defendant, Charles Hast, for the crime of rape, as fully set out and charged in the indictment.
    “To this indictment the defendant has pleaded not guilty; and it is your duty to determine from the evidence, under the instructions of the court, as to whether the defendant is guilty or innocent of the crime of which he stands charged.
    “It is incumbent upon the territory to prove each material fact necessary to constitute the guilt of the defendant of the crime charged, and to prove each material allegation of the indictment beyond a reasonable doubt. Nothing can be presumed or taken by implication against the defendant.
    “A Reasonable doubt' is that state of the case which, after a full, fair and, impartial consideration of all the evidence, leaves the minds of the jurors in that condition that they cannot say that they feel an abiding conviction to a moral certainty of the truth of the charge'; that is, to a certainty that convinces and directs the understanding and satisfies the reason and judgment of those who are bound to act conscientiously upon it.
    “ ‘Rape’ is an act of sexual intercourse accomplished with a female not the wife of the perpetrator, where the female is over the age of 16 years and under the age of 18 years and of previous chaste and virtuous character; and rape committed upon a female between the ages of 16 and 18 years, even though the sexual intercourse is with the consent of the female, is rape in the second degree. And in this case the court instructs you that if you find from the evidence beyond a reasonable doubt that the defendant, within this county and territory, did, unlawfully, wilfully, and feloniously, have sexual intercourse with the prosecuting witness, as charged in the incontinent, and that prior to the time charged against the defendant (the prosecuting witness was of previous chaste and virtuous character), and was at the time under /18 years of age, then and in that event you should find the defendant guilty of rape in the second degree; and in this connection the court instructs you that under the law a female of previous chaste and virtuous character is one who has never had sexual intercourse with a man or a,male person,, and if you should entertain a reasonable doubt as to whether the defendant had sexual intercourse with the prosecuting witness as charged in the indictment, or as to whether the prosecuting witness had had sexual intercourse with some other male person prior to the time that the defendant had intercourse with her, if you find that he had sexual intercourse with her as charged in the indictment, then and in that event you should acquit him. But it is for you to determine the guilt or innocence of the defendant in this case in the light of all the facts and circumstances appearing upon the trial.
    “You are further instructed that, while one can be convicted upon the testimony of a prosecuting witness in a case of this kind, yet, unless the testimony of the prosecutrix is corroborated by evidence which is clear and satisfactory, it is the duty of the jury to receive the testimony of such prosecuting witness with great caution; and, in any event, the jury should be fully satisfied, by the degree of evidence stated in these instructions, that the defendant is guilty of the crime charged against him, before returning a verdict to that effect. However, it is for the jury to say, in the light of all the evidence, as to whether the story detailed by the prosecuting witness is reasonable or unreasonable, and as to whether it bad been corroborated by the testimony of other creditable witnesses. Hake up the consideration of this case with an honest determination to arrive at the truth of the matter submitted to you, for, if the defendant is guilty, and his guilt established by the evidence, and to the degree stated in these instructions, you should have the courage of your honest convictions, and so find But, on the other hand, so long as you entertain a reasonable doubt of the guilt of the defendant, you should decline to find him guilty. What the law demands is that you consider all of the testimony introduced upon the trial, and discuss it as honest conscientious men, and if possible return a verdict which will speak the truth.
    “You are the sole judges of-the weight of the evidence and the credibility of the witnesses, and the law is that, when two or more witnesses testify directly opposite to each other, you are not bound to regard the weight of evidence as evenly balanced; but, in determining the weight and credit that should be given to the testimony of any witness, you may take into consideration his or her appearance upon the stand, his,or her interest in the result of the action, and, together with all of the other facts and circumstances appearing upon the trial, determine the weight and credit that should be given to the testimony of any witness, and give credit accordingly.
    “You are further instructed that, if you find and believe that any witness has wilfully testified falsely relative to any material matter in issue, you may disregard all the testimony of such witness, except in so far as it may be corroborated by the testimony of other creditable witnesses, or by that of another creditable witness, or by some other fact or circumstance appearing upon the trial.
    “You should consider these instructions all together; you have no right to consider any part or parts of them to the exclusion of other portions thereof.
    “When you shall have retired to your jury room, you must select one of your number as a foreman, and, when you shall have agreed upon a verdict, he will sign it as such, and you will all return with it into court. Unless you all agree, no verdict can be found. Forms of verdict will be handed you by the court.”

      L. Q. Pitmwn, for appellant.

      P. G. Simons, Atty. Gen., for the Territory.
   FURMAN, PRESIDING Judge,

(after stating the facts as above). First. The charging part of the indictment is as follows:

“Charlés Hast, late of Pottawatomie county and within the jurisdiction of this court, did unlawfully, wilfully, and feloniously have sexual intercourse with one Etta .Hindman; she, the said Etta Hindman, being then and there an unmarried female under the age of 18 years, not the wife of the defendant, and of previous chaste and virtuous character.”

Counsel for appellant- demurred to the indictment because it-omitted to charge that the prosecuting witness was over the age of 16 years and under the age of 18 years. This indictment was based on section 2353, Snyder’s Comp. Laws of Okla. 1909, the portion of which relating to this offense is as follows:

“Rape is an act of sexual intercourse accomplished with a female, not the wife of the perpetrator, under -either of the following circumstances: (1) Where the female is under the age of sixteen years. (2) Where the female is over the age of sixteen years and under the age of eighteen, and of previous chaste and virtuous character.”

The first section of the statute makes the offense complete when sexual intercourse is had with a female under 16 years of age without regard to the consent of the female and without reference to force or violence on the part of the defendant or resistance upon her part. If any man in Oklahoma has sexual intercourse with a female, not the wife of the perpetrator, who is under the age of 16 years, such act of sexual intercourse constitutes rape, and no defense can be made to the act. The second section of the statute, when the female with whom such intercourse is had is over 16 years of age and under 18 years of age, does not constitute rape, unless the state proves that she was of previous chaste and virtuous character. When this is proven, the act is rape even” if the female consents to such intercourse. This statute does not apply to any one who has sexual intercourse with a harlot over the age of 16 years, but only punishes Mm who would despoil the innocent of her virtue; provided the woman with whom such intercourse is had is under the age of 18 years. The indictment charges the offense under the second section of the statute defining rape. Under this indictment the defendant could not have been convicted under the first section of the statute. We do not see how the defendant could have been injured by the failure of the indictment to allege that the female was over the age of 16 years. Any person of common understanding would know from this indictment what offense was intended to be charged. This being the case, the indictment is sufficient under paragraph 6 of section 6704, Snyder’s Comp. Laws of Okla. 1909. It is only when the indictment charges that she is under the age of 16 years that sexual intercourse constitutes rape without reference to the question of force or violence or the consent of the female or the question of her previous chaste and virtuous character. The trial court therefore did not err in overruling the demurrer to the indictment. Upon the trial of this cause it was proven that the injured female was over 16 years of age and under 18 years of age at the time of the alleged commission of this offense.

Second. The appellant contends that a new trial should be granted him because the record fails to affirmatively show that he entered a plea to the indictment, and cites a number of authorities in support of this contention. The record, however, shows that the appellant was present and represented by counsel and aided and assisted in the selection of the jury in the case and in the cross-examination of the witnesses for the state and the introduction of evidence in his own behalf, and that the issues in the case were properly submitted to the jury by the court, and the instructions of the court to the jury, which are a part of iftie record by our statute, state that the defendant had pleaded not guilty to the charge against him. Under these conditions, it' is immaterial as to whether or not the record affirmatively shows that the defendant was arraigned. See Sam Wood v. State, 4 Okla. Cr. 436, 112 Pac. 11. But, even if this was not the case, we find that, when the case-made was presented to the court the trial judge, before approving the same, made the following, correction th'erein:

“The foregoing case-made is corrected as follows: At the time the defendant’s case was called for trial, and before the trial began, .the defendant, being present in person in court and being represented by counsel, entered a plea of not guilty to tbe indictment in this case, having heretofore been duly arraigned, and the indictment having been read to- him by the clerk of the district court.”

Counsel for appellant contend that the court erred in inserting the above explanation in the case-made. We cannot agree with this contention. For a correction of the case-made by statement by the trial judge, see Simmons v. State, 4 Okla. Cr. 490, 112 Pac. 35. When a defendant is arraigned, it is done in the presence of the court. It is only when it is desired to make matters of which the court has no personal knowledge a part of the record that it is permissible to introduce affidavits or testimony as to the existence of such matters. In the case of Cochran v. State, 4 Okla. Cr. 379, 111 Pac. 974, this court said:

“Matters occurring in open court in the course of a trial of which the judge must have knowledge cannot be incorporated m the record by affidavits, but must be made a part of the case-made by proper recitals duly .certified to by-the trial judge.” '

Third. Counsel for appellant attempted to prove a want of virtue and chastity upon the part of the prosecuting witness by evidence of her general reputation in the neighborhood in which she resided. The court at the time stated to counsel for appellant that he could prove any specific act indicating a want of chastity or virtue upon the part of the prosecuting witness, but that testimony of her general reputation was not admissible. Appellant excepted to the ruling of the court. We have heretofore passed upon fhis precise question. In the case of Marshall v. Terr., 2 Okla. Cr. 148, 101 Pac. 144, Special Judge Fulton, speaking for this court, said ':

“On the question of previous chaste and virtuous character, in one sense ‘character’ is what a person really is; it is that real condition that constitutes character. In another sense, ‘character/ such as is capable of being measured and determined from reputation, is that which a person is supposed or is estimated to be. 5 Am. & Eng. Enc. of Law (2d. Ed.) p. 852, and cases .cited. In cases of seduction, the previous chaste character of the woman seduced is one of the essential elements of the offense. IJnder statutes like our own, it has been held to require the injured female should be actually chaste, and not merely have a good reputation in that respect. This should be so because it is a protection and shield to 'the pure and virtuous woman. She' may be falsely accused, as many men and women are in this day. That a false condition should license the libertine to take advantage of a chaste female would be revolting; such law would fall short of being righteous and just. The law does not uphold the work of the scandal monger, or character assassin. The following cases uphold this conclusion: ‘One of the essential elements of the crime in this class is that the female assaulted must have been of previous chaste and virtuous character. This law is for the protection of the girl of tender age and immature judgment who is pure, chaste, and virtuous. A male person who indulges in sexual intercourse with such female not his wife is classed by the law alongside of one who forcibly ravishes the female over 16' years of age. Elements of force, violence, or resistance do not enter into this particular class of rape.' Young v. Territory, 8 Okla. 525, 58 Pac. 724. ‘The statute provides that in the prosecution of the seduction of an unmarried woman like the present no conviction can be had if on the trial it is proved that such woman was at the time of the alleged offense unchaste. This means actually unchaste. * * * The female must not only be unmarried, but chaste'in fact, when seduced.’ Hussey v. State, 86 Ala. 34, 5 South. 484; Kenyon v. People, 26 N. Y. 203, 84 Am. Dec. 177. Bishop, Statutory Crimes (2d. Ed.) § 639, reads: ‘The seventh and ninth charges requested by defendant were, under this principle' properly refused. The word “character” used in this charge is ambiguous in meaning, and may be construed to refer to the reputation of the prosecutrix. It is therefore misleading, inasmuch as evidence of bad reputation for chastity was inadmissible to prove a want of actual virtue.’ Bishop, Statutory Crimes (2d Ed.) § 639. In the case of Lyons v. State, 52 Ind. 426, which was a prosecution for abduction of a female for the purpose of prostitution, under statutes making it an offense to so abduct a female of previous chaste character, the court said: ‘On the trial the defendant proposed to prove acts of illicit sexual intercourse on the part of the prosecuting witness prior to the alleged abduction. The court rejected the evidence. We think this was error. In such a case the female must be of previous chaste character. This has been held to mean that she shall possess actual personal virtue in distinction from a good reputation. A single act of illicit connection may therefore be shown on behalf of the defendant.’ In the case of Smith v. Commonwealth, 32 S. W. 137, 17 Ky. Law Rep. 541, the defendant was indicted and convicted of the crime of seduction under promise of marriage; the seduction being founded on the fact of the previous chaste character of the female. The court said: ‘Without an extensive discussion of the testimony, it is apparent that some instruction should have been given with reference to the character qf the woman whose virtue is said to have been lost by the act of the defendant. If at the time of his promise of marriage she was a lewd woman, and shortly prior she had had sexual intercourse with others, this verdict should not stand, and instruction to that effect should have been given/

“Under a statute providing for the punishment of the seduction of an unmarried woman of previous chaste character, the court held: ‘That character referred to moral qualities, and- not to reputation, and evidence of reputation was not admissible upon the issue of character, but only to impeach or corroborate testimony in regard to particular acts of unchastity.' State v. Prizer, 49 Iowa, 531, 31 Am. Rep. 155. Under another statute, which provides ‘that any man who under promise of marriage seduces any unmarried female of previous chaste character, shall be guilty of a misdemeanor/ it was said that: ‘By the terms “chaste character” the Legislature could only have meant personal qualities that make up the real character, and not public reputation, which is the estimate of character formed by the public. It could not have been intended to substitute reputation for character in this its primary and true sense.' Kenyon v. People, 26 N. Y. 203, 84 Am. Dec. 177. In the case of Andre v. State, 5 Iowa, 389, 68 Am. Dec. 708, the court held as follows: ‘Character in seduction statutes prescribing that the woman be of previous chaste character, such statute is for the protection of the pure-minded, for the innocent in heart, who may have been led astray, seduced from the paths of rectitude; and the jury are the sole judges in a case which comes within this description. * * * Character signifies that which a person really is, -in distinction from that which she may be reputed to be.' In State v. Sutherland, 30 Iowa, 571, it was said: ‘In order to determine the character of the female for chastity, it is proper to extend the inquiry, not only to the fact whether she has had previous sexual intercourse, Out whether she is pure and chaste in character in her acts and habits of life/

. “From the foregoing authorities it is apparent that it is not the general reputation of the female that she is chaste and virtu-ons that is taken as the standard character. On the contrary, it is a condition actually existing that she is in fact chaste and virtuous. If the law presumes that the female is chaste and virtuous, this presumption merely authorizes the jury to assume at the outset that she was of such character. That the female .was of a previous chaste and virtuous character is an issuable fact; and any evidence tending to overthrow the presumption of chastity is admissible, not evidence of general reputation, but any evidence that tends to establish a condition, such as above described, that amounts to character. A situation, inclination, and opportunity to engage in illicit intercourse is pertinent and admissible. The state should be required to establish the required chaste and virtuous character. This may be done by satisfactory explaining, in harmony with virtue and chastity, all apparent compromising circumstances or facts throwing suspicion on her actual character, as well in addition showing her general good reputation.”

In addition to the authorities above cited, an admirable brief has been filed in this case on the part of the state, from which we make the following quotations:

“The first case to which I desire to call the attention of the court is Kenyon v. People, 26 N. Y. 203-209, incl. [84. Am. Dec. 177]. This was a prosecution upon an indictment for seduction under promise of marriage. The third paragraph of the syllabus in this case reads as follows: ‘Evidence of the general reputation of the girl’s want of chastity is inadmissible. Previous chaste character in this statute means actual personal virtue, not reputation; and can be impeached only by specific proof of lewdness/ On page 205 [of 26 N. Y., 84 Am. Dec. 177] the court says: ‘The prisoner offered to prove that the character of the prosecutrix for chastity was, by general reputation among her neighbors, bad; which offer was objected to. The court excluded the evidence, and the prisoner’s counsel excepted.’ On page 207 [of 26 N. Y., 84 Am. Dec. 177], in the opinion of the court, we find the following: ‘The defendant 'offered to prove on the trial that the character for chastity of the witness and prosecutrix was, by general reputation among her neighbors, bad. This was excluded, and I think properly. Evidence that a female is by reputation unchaste, is not competent by way of impeachment. * * * Nor can “character,” as the term is used in the statute under which the prisoner was convicted, be .proved by reputation. The statute is: “Any man who shall, under promise of marriage, seduce and have illicit connection with an unmarried female of previous chaste character, shall be guilty of a misdemeanor,” etc. “Character,” as here used, means actual personal virtue, and not reputation. The female must be unmarried and chaste in fact when seduced. By the terms chaste character,” the Legislature could only have meant personal qualities that make up the real character, and not public reputation, which is the estimate of character formed by the public. It could not have intended to substitute reputation for character, in this, its primary and true sense. The accused may, by proof of specific acts of lewdness on the part of the female, and not otherwise, show that she was in fact unchaste/

“I next cite Carpenter v. People, 8 Barb. [N. Y.] 603. The first paragraph of the syllabus reads as follows: ‘The words “previous chaste character,” as used in the act of March 20, 1848, to punish abduction as a crime, mean actual personal virtue in a femaJe, and to sustain the indictment it is necessary that she should have been chaste and pure in conduct and principle up to the time of the commission of the offense or the commencement of the acts on the part of the accused which resulted in the abduction of the female/ At the bottom of page 607 and on 608, we find the following in the opinion of the court: ‘With respect to the character which the female must possess in order to constitute the statute offense by the individual taking her away, the court below advised the jury that the term “previous chaste character,” in the act did not relate to or mean actual virtue; that if the female was known as a person of chaste character and reputation at the time of the abduction, though it should turn out at the trial that she had, several years previous to the alleged abduction, been guilty of a single instance of unchaste intercourse, it would constitute no defense. In this part of the charge, and particularly wherein th'e jury were 'instructed that the term “previous chaste character” did not relate to or mean actual personal virtue, we think the court erred. “Character” is defined by Webster to be “the peculiar qualities impressed by nature or habit on a person which distinguishes him from others; these constitute real character, and the qualities he is supposed to possess constitute his estimated character or reputation.”'

“The next case I will cite is Polk v. State, 40 Ark. 482, 486 [48 Am. Rep. 17]. The fourth paragraph of the syllabus in this case reads as follows: ‘Character of prosecutrix for chastity. In every prosecution for seduction, the character of the seduced ■ is involved, though not expressed in the statute. And this character is not her general reputation in the community, but the possession of actual personal chastity, and may be impeached by proof of particular instances of incontinence occurring before the seduction/ In the opinion of the court they say: 'In every prosecution for seduction, the character of the seduced female is involved in the issue. And “character” means, in this connection, not her general reputation in the community, but the possession of actual personal chastity. Now, Lizzie Autry made oath that she had never had unlawful commerce with any man except the defendant, and only on two occasions with him. The defendant offered to prove by Hudson, one of the state’s own witnesses; by White, to whom s’e had formerly been engaged; and by several other witnesses — that she was not a virtuous woman at the time of her alleged seduction, and interrogated these witnesses as to specific acts of criminal conversation with her. But the court refused to permit the examination to proceed in this direction. The evidence wais competent. All the cases agree that upon a trial for seduction the girl’s chastity may be impeached by particular instances of incontinence occurring before the defendant’s intimacy with her. This is in fact the best proof upon the subject. Some courts go so far as to hold that it is the only legitimate proof and exclude evidence of general reputation’' — citing authorities.

“In People v. Clark, 33 Mich. 117, I quote from the opinion of the court: 'In most of the states their statutes make the seduction of a woman of “previous chaste character” an indictable offense, while here are no such words, nor any of like import, in ours; and the courts have held that the words “previous chaste character” mean that she was possessed of actual personal virtue in distinction to a good reputation, and that a single act of illicit connection may therefore be shown on behalf of the defendant.’

“In People v. Brewer, 27 Mich. 134, the court says: 'It does not therefore become necessary for us to consider whether the woman’s reputation at the time or previous to the alleged offense could be proved or not, as it is manifest that her reputation in that regard would be injuriously affected by the offense itself, when made known, so that, if a bad reputation could be made use of by the defendant, the very crime would become the means of protecting the criminal, and, the more injurious the seduction, the more certain would be the immunity from punishment/ '

“In examining these authorities, I suggest to the court to bear in mind that some of the states hold that the proof of previous chaste character is in some jurisdictions supplied by the general presumption of law that all females are of chaste character until the contrarji is made to appear, while others have adopted the rule that the previous chaste character of the female, being an essential element of the offense charged, must be proven affirmatively by the state, the 'same as any other ingredient of the offense. The latter rule has been adopted by this territory, and I am satisfied that it is the correct one. The presumption of innocence is the strongest presumption known to the law and extends to each and' every element of a crime charged, and I do not believe that the rule adhered to by some of the courts is correct, wherein they permit the presumption of chastity to furnish proof of one element of the offense charged, thereby allowing one presumption to overcome another. And I only mention this matter that the court may bear it in mind in distinguishing the conflict of authorities upon the proposition involved in this case.

“The next case I cite is Zabriskie v. State, 43 N. J. Law, 645, 646 [39 Am. Rep. 610] : “The New York cases hold the words “previous chaste character” in the statute of that state to mean actual personal virtue, and not reputation, which is the estimate of character formed by the public. There is a distinction between actual personal virtue and “good repute for chastity,” as used in our statute. The former may be _ preserved, while the latter is impaired by indiscreet conduct. It does not necessarily follow that they are coexistent. Therefore, if presumption is permitted tc dispense with the necessity for proof, the fact of her good repute, as well as her personal chastity, must be presumed.’

“The case above cited is one of the strongest decisions which I have read and adopts the rule that the state must affirmatively prove the good character of the prosecuting witness. But it will be observed that the language of the statute of New Jersey makes it indictable to seduce a female of good repute for chastity, and Ihe court will bear this distinction in mind in examining this case, as I concede that, where the statute uses the expression ‘good repute for chastity/ evidence of her reputation would be competent, but where, on the contrarji, the statute uses the expression ‘previous chaste and virtuous character/ or ‘previous chastity/ then it excludes the question of reputation and confines the issues to the actual personal chastity of the prosecutrix.

“The case of State v. Prizer, 49 Iowa, 532 [31 Am. Rep. 155], is one of the most vigorous opinions upon this subject found in the books. I will quote liber ally from the opinion of the court as it is very much in point. It reads as follows: “The statute under which defendant was convicted prescribes ■ punishment for seducing and debauching "any unmarried woman of previous chaste character.-” The word "character,” as' here used, refers, not to her reputation, but to her real moral qualities. The language of a prior decision of this court aptly expresses the true meaning of the word, viz.:' “We think the statute intended-to use the term ‘character in its accurate sense, and as signifying that which the person really is in distinction from that which she may be reported to be:” Andre v. State, 5 Iowa, 389-394 [68 Am. Dec. 708]. The crime of seduction is committed when a really chaste 'woman is induced, by means which may overcome the virtuous, to Submit to the embrace of her temptor. To determine whether the crime has been committed, the true character of the woman must be ascertained. It must be known whether she be really chaste or otherwise. The reputation of a man or woman does not always accord with the true character of the individual. The good and pure are often traduced by bad men and women and suffer in reputation by reports invented and circulated through motives having their origin in envy, malevolence, and hate. The reputation of a woman is especially exposed to such assaults, and consequent^, having its origin in falsehood and imagination, has no limit to its circulation, and the unfortunate subject of the slander will usually hear no voice from her own sex lifted up in her defense. A direct and confidently asserted charge of impurity is usually accepted by womankind as evidence of want of virtue, and often the poor suffering victim of.slander is driven from society 'by the good and pure of her own sex without evidence of guilt. This sad truth- is familiar to all. It is strange indeed that the heart of woman, so tender toward the afflicted, so full of charity, so forgiving and always prompting the deeds of kindness, should be closed to the victims of slander among'her own sex. It may be that the inexorable laws of society which punish the slandered ■woman tend to protect and preserve virtue by presenting the most powerful motives for its practices, while they often inflict the most Cruel injustice. The law, however, can recognize no such rules. It will aim in each case to administer justice and will protect virtue against the assaults of the slanderer, though the victim be a woman. It will not permit the lewd and vicious by falsehoods to destroy the reputation of a woman and ¡then to seek protection against the penalties it provides for the overthrow of her virtue Under the slanders their malevolence created. But this result Would be reached should the rule advocated by defendant’s counsel be followed in cases of this kind. It cannot be recognized by the Courts.’ ”

Fourth. Counsel for appellant contends that the verdict of the jury is not supported toy the testimony. To this contention we Cannot agree.

The prosecuting witness testified that the defendant visited her, and then proceeded as follows:

“Q. Did you have a conversation with him there in the buggy, Etta ? A. Yes, sir. Q. Did he say anything with reference to the subject of love? A. Yes, sir. Mr. Carrelton: Objected to as leading. (Overruled. Exception.) Q. State what he said, Etta, to you? A. Why, he said— Well, he first began telling me what he had, and what he owned. Q. Was that in the way of property? A. Yes, sir. Q. Well, what did he say? Mr. Taylor: We object to that as incompetent. (Overruled. Exception by the defendant.) The Court: Go right ahead and tell what he said. A. He said that he owned a farm out there north of McLoud, and he owned some property there in McLoud, he said, and then he said that he was going to sell his store, his secondhand store down there that he was running, and put up a hotel; he was going to put up a two-story building, he said, and have a hotel in the lower part and beds in the upper part. Q. Well, now, just tell the jury what he said to you with reference to love. Just tell what he said about loving you, if anything. -A. Why, he said he loved me. He said he always would until I gave him some reason not to love me. Q. What did .you say to him Etta? Did you tell him that you loved him? A. Yes, sir. Q. What did he say with reference to the subject of marriage, if-anything? A. Why, he said — he asked me if I would marry him. Q. And what did you tell him? A. I told him I would when I got older. Q. Now, what else did he say to you, Etta, with -reference to having intercourse with you, if anything? A. Why, he just said — I don’t know whether I could tell it like he said it pr not. The Court: Well, just tell as near as you can how he said it. A. He asked me if I would let him have some, and I told him I didn’t want to; that I didn’t think that would be right; and he said I ought to be as good to him -as he was to me. He said he would not think none the less of me, and that he 'thought so much of me. Q. Well, what did he do then? A. Why, he taken his hat off Land put it on my head, and put Ms arms abound me. Q. Did he kiss you? A. Yes, sir. Q. Well, what else did he do then, Etta? Just tell the jury what else he did then. The Court: Just go ahead and tell about it. A. Well, he told me to slip down to the edge of the seat. Q. Well, what did he do then? A. He got up and got down in- front of me. Q. Did he get on his knees ? A- Yes, sir. Q. And at this time were you sitting in the buggy ? A. Yes, .sir. Q. On the seat ? A. Yes, sir. .Q. Did you slip down to the edge of the seat? A. Yes, sir. Q. Then what did he do with reference to your clothes? A. Well, he pulled my clothes up. tQ. Well, what did he do then, Etta? Just' tell* the jury what he did then: A. Well, he had intercourse with me. Q. Was it painful to you, Etta? A. Yes, sir. Mr. Taylor: That is leading; we object to it. (No ruling.) Q. Was that the first time that he had had intercourse with you, Etta? A. Yes, sir. Q. Had.you had intercourse with anybody before that? A. No, sir. Q. Have you had intercourse .with him since? A. Yes, sir. Q. Now, you say that this was at your father’s home in a buggy ? A. Yes, sir. Q. How long did you stay in the buggy after he had had intercourse with you? A. We stayed in there a good while— an hour, I guess, after that. Q. Did you tell your father about this right at the time? A. No, sir. Q. When did you tell him about it ? A. I told him about it— Mr. Taylor: , That is objected to. (Overruled. Exception.) Q. When did you tell him about it, Etta? A. It was in September that I told him. Q. What caused you to tell him then? A. Well, I thought I would have to tell it some time, and that I may as well tell it at one time as .another. Q. Why did you think you would have to tell it some time? A. Well, I knowed they would find it out. Q_ How? A. I don’t know. The Court: Do you mean that yon Avere pregnant with child ? A. Yes, sir. The , Court: Are you pregnant now, Etta? A. Yes, sir. Q. Now, when was the next time that Mr. Hast had intercourse with you ? A. It was in June after that. Q. When was the next time ? A. It was along the first of June, the 9th I think.it was. Q. Where was it? A. It was at his storehouse in MeLoud. Q. Was it downstairs or upstairs? A. Upstairs. Q. How come you to go up there, Etta? A. Why he told me to come up there. I went to get a sewing machine from him, and he says, ‘All (right, come upstairs.’ Q. Now, at this second time, were you laying down or standing up ? A. Standing up. Q. How long have you been pregnant, Etta? A. Well, it will soon be seven months. Q. You are seven months gone in the family way ? A. Yes, sir. Q. Etta, before this time, was your character good? A. Yes, sir. (Objected to as incompetent. Sustained.) Q'. Etta, when did you say,your mother died? (Objected to as a repetition.) The Court: She answered that. Q. Well, I am just coming to another subject. Witness: It was the 7th of .July, 1903. Q. Where did you .go after she died, if any place? A. Why, I went over to my aunt’s— (Objected to as incompetent, irrelevant, and immaterial.) Q. Who went with you? A. Mr. Hast and my sister, Laura. Q. Did he drive you over there? A. Yes, sir. Q. Did he drive you back? A. Yes, sir. Q. Who else was with you besides Mr. Hast, your sister? A. Lau-ra was with me; yes, sir. Q. State what Mr. Hast did coming on the way back from your aunt’s .to your home? A. Why he kissed me, was all he done. Q. Who did the driving, Etta? A. Laura. Q. What did he say with.reference to your going to be married at that time? Mr. Taylor: Objected to as incompetent and-leading. (Overruled. Exception.) Why, he made Laura mad because he kissed me, and she was going to tell papa, and he told her that it didn’t make any difference, that we was engaged. Q. Now, in what county and territory, Etta, did Mr. Hast have intercourse with you ? A. In Pottawatomie , county and the territory of Oklahoma. The Court: Had intercourse with you after that? A. Yes, sir. Q. Etta, who is the father of that child that is now in your .body ? A. Charlie Hast. Q. That is all. Just one other question: Are you married, Etta? A. No, sir. Q. Are you the wife of Charlie Hast? A. No, sir. The Court: Wore you his wife at the time you first had intercourse with him? A. No, sir. The Court: Never have been married to anybody? A. No, sir.”

E. W. Hindman, a witness for the state, testified as follows:

“Q. Are you acquainted with.Etta Hindman? A. Yes, sir. Q. Is she related to you; if so, in what way? A. She is my daughter. Q.'How old was she on the 17th of last May? A. The 17th of May, she tos 16 years and a half. Q. When was she 17 years old? A. She was 17 the 17th day of last October. Q. Mr. Hindman, are you acquainted with Charlie Hast? A. Yes, sir. Q. Have you had any conversation with him since he was arrested charged with raping your daughter? A. Yes, sir. Q. Tell the jury when that was? A. Well, it was the next Sunday after he was first turned loose from jail. He eame out on Friday, and,I seen him at McLoud on Saturday, and he asked me to go down to his store, that he wanted to talk with me, and I told him that I was in a big hurry, and that my daughter, was sick and I could not go, and I went home, and the next morning, bright and early, he came to my house and brought Mr. Carreiton with him. Q. Who is Mr. Carreiton? A. There he is. Q. Where does he live? A. At McLoud, I suppose, he has got an office there. Q. What is his profession? A. He is a lawyer. Q. Was Mr. Carreiton present when you had this conversation there at the house? A. He was,present most of the time. Q. In that conversation what did Mr. Hast say to you? A. Well, he told me that he came out there to do what was right about it, and that he was going to make me a proposition, and that he thought a right one; that was, he said he would take my daughter and marry her and treat her as a lady and as his wife and make me and my children all proud of it, I if I would consent to it. Q. What did he say was the cause of the lawyer being there with him, if anything? A. He never said at all; he never.said what was the cause of his bringing him along there. Q. Well, what did he say with reference to the fact that if you could agree Mr. Carreiton could draw up the papers? ' Mr. Carreiton: Objected to efs leading and suggestive. (Overruled. Defendants excepts.) Q. Just tell the jury what he said about the lawyer being present, if anything. A. Well, he said that he had Mr. Carreiton, his lawyer, with him, and he would have to pay him for running the case for him, and that he had brought him out there with him to see if we could not come to some agreement, and get the thing settled up right without going to law about.it. Q. That is since he has been arrested on this charge? A. Yes, sir; that was on the day week after he was arrested. Q. Is your wife living or dead? A. No, sir; she is dead. Q. When did she die? A. She died the 6th of July last, along about midnight, in the night. Q. On this trip that Mr. Hast made out there, what did he say, if anything, with reference to a thousand dollars? A. Why, I told him that I would not give up to him marrying her under any consideration — • (Objected to as incompetent. Overruled. Exception.) I told him that I would not give up under any consideration at all whatever, and he said then, 'Well/ he says, 'if you won't give up/ he says 'I can take this thousand dollars and pay it to the’lawyers, but’ he says, T would rather give it to you and your daughter’ — • Etta, he called her — ■ ‘than to give it to the lawyers.’ Mr. Freeling: I believe that is all.”

Laura Iiindman, a witness for the state, testified as follows:

“A. We went over to the Kickapoo, four miles northwest of Mc-Loud, to my aunt’s. Q. Wlio went with you? A. Etta and Mr. liasl. Q. How long did you stop over there? 'A. We stayed over there all night and all day the next 'day, and went home that night. Q. Who drove? A. I drove — I drove coming back. Q. Where were you sitting in the buggy? A. I was sitting in the middle. Q. Who was in the buggy with you? A. Well, me and Etta and Mr. Hast. Q. Whose team were you driving? A. I don’t know whose it was. He had it rented, I think. I don’t know whose it was. Q. State what you saw Mr. Hast and your sister do, if anything, coming back? A. I seen him put his arm sort of round her shoulder, and I told him to take his hand down, and he said it wasn’t any use; they were engaged. Q. Did vou see him kiss her? A. Yes, sir. Q. And when was that? A. That night when we was coming from Aunt Margaret’s. Q. .What month was that? A. It was in July. Q. Is that Etta Hindman here your sister? A. Yes, sir. Mr. Freeling: I believe that is all."

Appellant took the witness stand in his own behalf and admitted that after he was arrested he did go to the father of the prosecuting witness and offer to marry her, and that his offer of marriage was declined. He denies that he seduced the prosecuting witness, but admits that he knew she was pregnant with child at the time he offered to marry her. It is inconceivable that an innocent and .intelligent man would voluntarily offer to marry a woman, when he knew that she was pregnant with child by some unknown man, for the purpose of preventing a trial which would give him an opportunity to vindicate his innocence. An innocent man with the least spark of manhood and honor would have de-mandéd, and not have sought to avoid, a trial.

The defendant introduced a number of witnesses who testified to acts tending to prove a want of chastity and virtue on the part of the prosecuting witness. The jury saw all of these witnesses and beard tbeir testimony and was in a much better position to determine as to who was telling the truth than we are.

No exceptions were taken to the instructions of the court, and indeed none could have been, for they are an admirable exposition of the law of the case. The only error in the instructions is that they seem to indicate that the jury must find that the prosecuting witness had been corroborated. This is not necessary. See Reeves v. Territory, 2 Okla. Cr. 351, 101 Pac. 1039.

The offense of which the defendant has been convicted is the blackest in the catalogue of crimes. It is a much graver crime than that of rape by force. A rape fiend is generally carried away by the sudden irresistible impulse of the strongest passion to which man is heir. As soon as the crime is committed, he may deeply regret it. It is true that he has committed a fearful outrage upon the body of his victim; but her soul remains pure, and she may still be a loving mother, a trusted wife, and an honored member of society. None of these things can exist in a ease of seduction. The seducer acts with the utmost deliberation. He coolly lays siege to the citadell of his victim’s heart, and, by all manner of flattery, promises, and protestations of love, he gains her affections and subjects her will to his. This is not the work of a moment, but it extends over, days and weeks and maybe months of time. The appellant was over 20 years the senior of this unsuspecting country girl. He was a man of experience and property. She was a mere child. There was no blacker and more deadly treachery in the heart of Judas Iscariot when he betrayed the Savior of mankind with a kiss, than there is in the heart of the seducer, when in the sacred name of love-he violates the body and crushes the soul of his unfortunate and trusting victim, merely to gratify his base animal passion. She is as powerless in his hands as a sparrow in the talons of a hawk; as a lamb in the bloody jaws of a wolf. He not only outrages her body, but he — ■

“Ne’er can give her back again
That which he has taken away,
The brightest jewel woman wears
Throughout her little day.
The brightest and the only one
Which from the cluster riven
Shuts out forever woman’s heart
From all its hopes of heaven.”

No punishment can be too great for the seducer. Under the Mosaic law, the penalty of death was inflicted for this offense. The seducer was taken beyond the gates of the city and stoned to death. If this was The law now, there would not be so much impurity in our country. Which is worse, to ldll the body and let the soul live, or to kill the soul and let the body live? One is phj'sical death, the other spiritual assassination. The courts and juries of this state cannot be too vigilant in protecting the innocent girls of our country, against the wiles and machinations of such incarnate fiends in human form. The virtue of our girls is the most sacred thing this side of Heaven. The man who boasts that he can take a thousand dollars and beat a prosecution for seduction as appellant did had better leave this state if he desires to preserve his liberty. Of course, no one should be convicted upon suspicion; but where a defendant has been found guilty of this infamous and detestable offense, after having had a fair' and impartial trial, and the evidence clearly shows his guilt — as it does in this case— it would be a crime against society and treason to virtue to set the verdict aside.

The Beporter will insert the instructions of the court to the jury just after the statement of the case.

The judgment of the lower court is amended and reformed so as to provide for the confinement of the appellant in the penitentiary of Oklahoma, situated at McAlester, for the period of six years from the date of his reception therein, and said judgment is in all things affirmed.

ABMSTBONG and DOYLE, Judges, concur.


source: Caselaw Access Project

author: DO'YLE, Judge.

license: Public Domain

text:
    WARREN TAYLOR v. STATE. GEORGE ODOM v. STATE. WALTER LONG v. STATE. GEORGE LUCAS v. STATE.
    Nos. A-413, A-414, A-415, A-416.
    Opinion Filed March 7, 1911.
    (114 Pac. 628.)
    1. TRANSFER OF CAUSES — Misdemeanors—Transfer of Indictments. The statute providing for the transfer of indictments charging misdemeanors from the district to an inferior court (section 550, Snyder’s Sts.) provides that: “The judge of such court shall immediately, or as soon as convenient, make an order transferring the same to such inferior court as may have jurisdiction to try the offense therein charged, stating in such order the cause transferred, and to what court transferred.” Section 551, Snyder’s Sts., provides:. “It shall he the duty of the clerk of the district court, without delay, to deliver the indictment in all cases transferred, together with all the papers relating to each case, to the proper court or justice of the peace, as directed in the order of transfer; and he shall accompany each case with a certified copy of all the proceedings taken therein in the district court, and also with a bill of the costs that have accrued therein in the district court.” This act prescribes no particular form of certificate to such transfer, and a substantial compliance with the provisions of the act is all that is required in such proceedings.
    2. TRIAL — Instructions—Time of Committing Offense. It is error for the court to instruct the jury that if the testimony shows the commission of the offense charged, at any time prior to the trial, they may find the defendant guilty. An instruction as to the time must be confined to the time extending back from the filing of the accusation within the time fixed by the statute of limitations.
    (Syllabus by the Court.)

      Appeals from McIntosh County Court; Frank W. Bushing, Judge.

    Warren Taylor, George Odom, Walter Long, and George Lucfs were each .separately indicted for violations of the prohibition law, and from convictions they appeal.
    Eeversed and remanded.

      De Boos Bailey, J. F. Wywrid, J. B. Lucas, and Chas A. Moon, for plaintiffs in error.

      Smith C. Matson, Asst. Atty. Gen., for the State.
   DO'YLE, Judge.

By indictments presented in the district court of McIntosh county plaintiffs in error in each of the aboye entitled and numbered eases were each charged with violations of the prohibition law. The indictments in these cases, together with about 50 more indictments wherein defendants were charged with violations of the prohibition law, were found and presented in the district court at the June, 1909, term of said court, and upon proper motions were transferred to the county court. Motions to set aside and quash said indictments were made in the county court, for the reason, among others, that the transfer from the district court to the county court does not contain a certified copy of the proceedings in said district court. The motions were overruled.

An examination of the record and transcript shows that the transfer of said indictments from the district to the county court was made in substantial compliance with the requirements of the statute, and' there was no error in overruling the motions to quash and set aside. The demurrers as filed in each case were also properly- overruled by the court.

In each of said cases appealed to this court the court instructed the jury as follows:

“If you believe from the testimony that the defendant did in McIntosh county, Okla. on said date or any other day or date since the 17th day of November, 1907, sell, barter, give away, or otherwise furnish spirituous, vinous, fermented, and malt liquors, compound, imitation, or substitute therefor, it is your duty to find defendant guilty, if the -evidence shows beyond a reasonable doubt that said selling, bartering, giving away, and otherwise furnishing said liquors constituted the offense charged in the indictment in this case. Excepted to by defendant. Overruled. Frank W. Rushing, County Judge."

The indictments in these cases were found and presented in the month of June, 1909, and the trials were had in the month of August of the same year. An instruction that the jury might convict upon proof of the commission of the offense at any time prior to the trial is erroneous, as it would warrant a conviction upon- proof of an offense subsequent to tbe finding and presenting of the indictment.

It is held by this court in the case of Banks v. State, 2 Okla. Cr. 339, 101 Pac. 610, that:

“The law is that a conviction could be had upon proof of a sale made at any time prior to the filing of the information and within the statute of limitations. Indictments and informations must be based upon facts and not upon prophecies. It has always been held that time is not the essence of criminal offenses, and is only material in connection with the statute of limitations. The prosecution in any criminal case is therefore not bound by the date of the alleged offense, as stated in the information or indictment, but may prove the commission of the offense at any time prior to the institution of the prosecution and within the limitation prescribed by the statute applicable ■ to the offense charged. The court therefore erred in this instruction.”

See, also, Fletcher v. State, 2 Okla. Cr. 300, 101 Pac. 599, 23 L. R. A. (N. S.) 581, and Mitchell v. State, 2 Okla. Cr. 442, 101 Pac. 1100. In the case of G. A. Johnson v. State, ante, 113 Pac. 997 (decided at this term), Presiding Judge Furman used the following language:

“It requires neither argument nor citation of authorities to sustain the proposition that the guilt of the defendant must be complete at the time when the accusation is filed against him, and that no one can be lawfully convicted of an offense which was committed subsequent to the filing of the prosecution against him. Indictments and informations are based upon past occurrences, and not upon future contingencies which may or may not happen. * * * It matters not how anxious the members of this court may be to see the laws enforced and the judgments of the lower, courts sustained, we cannot ignore the flagrant disregard of the most elementary principles of law and justice which are presented in the record before us.”

For the error indicated, the judgment in each of the above entitled and numbered causes is hereby reversed, and the causes are remanded to the county court of McIntosh county, with directions to grant new trials.


author: ARMSTRONG, Judge.

text:
    ANDY BAKER v. STATE.
    No. A-339.
    Opinion Filed March 7, 1911.
    (113 Pac. 991.)
    1. COURTS — Record—Adjournment. Where a court of record in this state convenes on the dates prescribed by the statute, and adjourns to some subsequent date, it is necessary for the record to affirmatively show that the court was properly convened, and an order made and entered in the journal adjourning- it to such subsequent date.
    2. COURTS — Jurisdiction—Record—Judgment Entered at Unauthorized Term. Where the regular time for the convening of the county court is fixed by law as the first Monday in July, and the record -fails to show that the court convened until the' second Monday in August, the judgments of the court rendered at such subsequent sitting are void.
    (Syllabus by the Court.)

      Appeal from Stephens County Cowrt; W. H. Admire, Judge.

    Andy Baker was convicted of selling intoxicating liquor, and appeals.
    Reversed.

      E. E. Monis, for appellant.

      Smith C. Matson, Asst. Atty. Gen., for tbe State.
   ARMSTRONG, Judge.

Tbe plaintiff in error, Andy Baker, was tried in the county court of Stephens county on the 3d day of August, 1909, and convicted, on a charge of selling intoxicating liquor. The appeal is regularly perfected.

There are a number of assignments of error, only one of which we deem it necessary to discuss, which is to the effect that the court was without jurisdiction to try the cause by reason of the lapse of the July term of the court. The record shows that the July term of the county court of Stephens county was convened on the 2nd day of August, 1909. There is nothing to show that the court convened as required by law on the first Monday in July, and adjourned over to the second day of August; but, on the contrary, it appears that the court convened originally on the second day of August. Under our statute, the regular terms of the county court in the several counties begin 'on the first Monday in January, April, July, and October, of each year, but they may be adjourned to some other date by proper order of the court. It is necessary for the record to affirmatively show, when the same is certified to as complete, that the court convened on the regular date and adjourned to some subsequent date in order to validate its judgments had at such subsequent term. The record in this case is certified to as complete. The trial judge was called upon by this court to amend the case-made so as to show the convening of the court on the date fixed by law and the adjournment to the 2nd of August, but he advised that his records show no such order. This defect in the record is fatal and the judgment of the trial court will have to be reversed and a new trial awarded.

FURMAN, PRESIDING Judge, and DOYLE, Judge, concur.


text:
    MATT LOWRY v. STATE.
    No. A-194.
    Opinion Filed March 7, 1911.
    (113 Pac. 992.)
    1. INTOXICATING LIQUORS — Possession of Whisky — Evidence. When a person is charged with having whisky in his possession for the unlawful purpose of selling same, the proof should conform to the charge.
    2. INTOXICATING LIQUORS — Possession—Evidence —Sufficiency. Proof held to be insufficient to sustain the prosecution for having unlawful possession of whisky for the purpose of sale, but sufficient to- sustain a charge for the unlawful' sale thereof.
    (Syllabus by the Court.)

      Appeal from Kiowa Qovmty Court; J. W. Mansell, Judge.

    Matt Lowry was convicted of having liquor in his possession, and brings error.
    Reversed and remanded.

      Thos. W. Conner, for plaintiff in error.

      Smith C. Matson, Asst. Atty. Gen., for the State.
   ARMSTRONG, Judge.

The appellant, Matt Lowry, was convicted on the 12th day of November, 1908, in the county court of Kiowa county, on a charge of having liquor in his possession for the unlawful purpose of selling the same. He filed motions for new trial and in arrest of judgment, both of which were overruled, and he excepted.

The record in this case shows that the appellant sold whisky in small quantities to three different persons, on three different dates, each time selling all that the proof showed he had; but there is nothing in the record to show whether he had any quantity of whisky in his possession, other than that which witnesses say they purchased from him, and there is nothing to show whether he procured that from other persons or from a supply in his possession. Proof of sales of intoxicating liquor are sufficient to convict a person on a charge of selling whisky; but proof of sales, standing alone, is not .sufficient to sustain a verdict for having unlawful possession of whisky for the purpose of sale. When it is shown that all defendant had was sold, the unlawful possession in such eases is merged into the sale.

The appellant in this case should have been prosecuted for selling whisky in three different cases. The proof in the record is wholly insufficient to sustain this charge. The court below should have arrested the judgment, and permitted the county attorney to proceed against the appellant for selling intoxicating liquor, rather than for having unlawful possession of same.

The judgment is reversed, and the case remanded, with directions to the court below to sustain the motion in arrest of judgment and permit the county attorney to proceed against the appellant for the unlawful sale of whisky.

FURMAN, PRESIDING Judge, and DOYLE, Judge, concur.


author: PER CURIAM.

text:
    WILL CLARK v. STATE.
    No. A-417.
    Opinion Filed March 7, 1911.
    (113 Pac. 992.)
    WITNESSES — Indorsement of Names on Information. Under section 6644, Siwder’s Comp. Laws 1909, it is error for the court in a misdemeanor prosecution to permit a witness to give testimony in chief in behalf of the state, over the defendant’s objection, if the witness’ name has not been indorsed on the information.
    (Syllabus by the Court.)

      Appeal from McIntosh County Court; FranJc W. Rushing, Judge.

    Will Clark was convicted of violating the prohibition law, and brings error.
    Reversed and remanded.

      De Boos Bailey, J. B. Wyand, J. B. Lucas, and Chas. A. Moon, for plaintiff in error.

      Smith C. Matson, Asst. Atty. Gen., for the State.
   PER CURIAM.

Will Clark, plaintiff in error, was -tried and convicted upon an information charging a violation of the prohibition law, and sentenced to pay a fine of $50 and be confined in the county jail for a period of 30 days. The judgment and sentence was entered on August 11, 1909. An appeal was taken by filing in this court on November 8, 1909, a petition in error with case-made attached.

Numerous errors are assigned, but it is only necessary to notice one. The state introduced but two witnesses. One, W. A. Chelton, was called by the state as a witness in chief. The defendant interposed an objection to his testifying, for the reason that his name had not been indorsed upon the information as a witness. The court overruled the objection, and an exception was taken. The testimony of the witness was very damaging to the defendant. The statute (section 6644, Snyder’s Comp. Laws 1909) requires the county attorney to indorse the names of witnesses known to him upon the information before the trial.

This statute was construed in the case of Steen et al. v. State, 4 Okla. Cr. 309, 111 Pac. 1097, where it was held by this court, speaking through Judge Richardson, that:

“Under this statute it is the duty of the county attorney, before he hies the information, to indorse thereon the names of all persons whom he knows or has reason to believe will be called by the state as witnesses to testify in.the case in chief; and if subsequently the names of other witnesses to be used to prove the case in chief become known to him,- leave of court should be obtained to place their names on the information, and this should be done and the indorsement made as early as possible before the trial begins. Where, however, after the trial is begun, the county attorney learns of other witnesses in chief whom he did not known of before, upon a proper showing of that fact made to the court, leave to indorse their names even while the trial is in progress, and to permit them to testify, may be granted by the court in the exercise of its discretion. This is held by the courts in a majority of the states having a similar statute, and is conceded to be correct by plaintiffs in error in this case. State v. Cook, 30 Kan. 82, 1 Pac. 32; State v. Berkley, 109 Mo. 665, 19 S. W. 192; State v. Doyle, 107 Mo. 36, 17 S. W. 751; State v. Schnepel, 23 Mont. 523, 59 Pac. 927; Rauschkolb v. State, 46 Neb. 658, 65 N. W. 776; State v. Reed, 53 Kan. 767, 37 Pac. 174, 42 Am. St. Rep. 322; State v. Price, 55 Kan. 606, 40 Pac. 1000; State v. Reno, 41 Kan. 674, 21 Pac. 803; State v. Dowd, 39 Kan. 412, 18 Pac. 483; State v. Taylor, 36 Kan. 329, 13 Pac. 550; Hyde v. Territory, 8 Okla. 69, 56 Pac. 851; Cochran et al. v. United States, 14 Okla. 108, 76 Pac. 672.”

An examination of the information as shown in the record discloses that the name of the witness W. A. Chelton was never indorsed thereon. The court, therefore, erred in overruling the objection.

For the error indicated, the judgment is reversed, and the cause remanded, with direction to grant a new trial.


text:
    M. W. MASK v. STATE.
    No. A-208.
    Opinion Filed March 7, 1911.
    (113 Pac. 995.)
    1. ' NEW TRIAL — Disqualification, of Jurors. Where a juror qualifies on his voir dire and states that he has no .bias or prejudice against the defendant and has no opinion as to his guilt or in-nocenoe, and after the trial it is shown beyond contradiction that the juror had discussed the case during the progress of the trial, expressing an opinion adverse to defendant before all the testimony had been introduced, and had expressed an opinion prior to the trial as to the merits of the case, all of which was unknown to the defendant or his counsel until after the rendition of the verdict, the defendant is entitled to a new trial.
    2. NEW TRIAL — Impartial Jury. Persons charged with violations of the criminal law are entitled to a trial before a fair and impartial jury, and, if a juror has prejudged the guilt of the defendant before hearing the sworn testimony, it cannot be said that the defendant has had a trial before a fair and impartial jury.
    (Syllabus by the Court.)

      Appeal from Kiowa County Court; J. W. Mansell, Judgie.

    M. W. Mask was convicted of selling whisky and appeals.
    Reversed and remanded.

      Ernest M. Bradley, for appellant.

      Smith 0. Matson, Asst. Atty. Gen., for the State.
   ARMSTRONG, Judge.

The appellant was tried in Kiowa county on the 6th day of June, 1909, at a regular term of the county court, and convicted for selling whisky. Iiis appeal has been properly perfected.

The only error we deem it necessary to - discuss in this record is that in appellant's first assignment, which is ’as follows:

. “That one J. R. Griffiths, a juror in the trial of said cause, was disqualified to sit on the jury in the court below. That said disqualification of said juror was not known to either the defendant below, or to his attorney of record, until after the trial of the defendant; and a new trial should have been granted because of the flagrant misconduct of said juror.”

In appellant’s motion for a new trial, he complained of the disqualification of -this juror and urged that as a ground for a new hearing. Two witnesses, Parker and Garvey, were sworn, aud also counsel for the appellant, and testified on this motion. The following extract is taken from the testimony of Parker:

“Q. What conversation did you have with him (referring to the juror Griffiths) ? A. I was sitting in the rear end of the pool hall, and Mr. Griffiths came up, and I says, 'Are you working today?’ He says, No, I just got on the jury.’ I says, 'What jury?’ He says, 'Buck Mask.’ I says, '"What you going to do about it?’ He says, We’ll stick him, I guess.’ That’s about all.”

The juror Griffiths was afterward put on, and the following is taken from his testimony:

“Q. Mr. Griffiths, state what that conversation was, will you, you had (referring to the conversation had with the witness Parker) ? A. Tes, I had not talked of the case since then. As well as I can remember, I walked in, and Mr. Parker was sitting by the stove; and he, knowing I was on the jury, I reckon, asked me what they were going to do. No, I believe the way it come up, he asked me if I was working. I told him I was on the jury. Told him it was the Buck Mask case. He says, 'What you going to do with Buck?’ I says, T guess they’ll stick him.’”

This conversation occurred after the jury had been impaneled and during the progress of the trial, before the testimony was completed. It appears to have been during the noon recess; the jury having been permitted to separate for their noon meal. The record further shows that this witness had talked of the case ¡orior to the impaneling of the jury. We take the following from the testimony of the witness Garvey:

“Q. What conversation, if any, did you have with J. R. Griffiths, the carpenter, before the trial of this case? A. Well, we was working up there on the Thompson house and Mr. Freeman. They was talking about bootlegging cases. He said he had been summoned on the jury, and Mr. Freeman said, T would stick every one of ’em,’ and Mr. Griffiths says, 'Yes, I would stick ’em too.’ Talking about the Buck Mask case, and I think Mr. Griffiths said they had better not have him on the jury if they didn’t want to stick him. Q. About when was that conversation? A. Between eight and nine days ago, probably ten. Mr. Griffiths come back after a while I believe that day, and I asked him what they was going to do with Buck Mask, and he said it was put off, or didn’t come up, I don’t know which.”

The witness Griffiths, who was the juror in question, asked about this conversation, testified 'as follows:

“Q. You heard, the other conversation you are purported to have had? A. Yes, sir. Q. About ten days ago did you have that conversation? A. Yes, I suppose something to that effect. Of course I couldn’t say that it was just exactly the way he stated it.”

, The record futher shows by the testimony introduced by the appellant and uncontroverted that the juror was examined on his voir dire and qualified that he had no bias or prejudice against the defendant, and the fact that this juror had these conversations and had been guilty of discussing the case during the progress of the trial was unknown to counsel or the appellant until after the verdict was rendered.

That this juror was clearly biased and prejudiced against the appellant appears from the admissions in his testimony, quoted supra, although he stated upon his voir dire that he had no bias or prejudice against the appellant. In the case of Scribner v. State, 3 Okla. Cr. 601, 108 Pac. 422, this court, in discussing the question of the right to trial before an impartial jury, speaking through Judge Owen, said:

. "In determining this case, although the evidence may show the defendant guilty beyond all' peradventure ‘of a doubt, and sufficient to support a verdict, * * * we must nevertheless set a precedent under which a perfectly innocent man may be tried and have preserved to him his constitutional rights of the presumption of innocence and a trial before an impartial jury. If a juror has prejudged the guilt of the defendant before hearing the sworn testimony, then it cannot be said that the defendant had a trial before an impartial jury.” •

See, also, Turner v. State, 4 Okla. Cr. 164, 111 Pac. 988.

From a careful examinatiotn of this record, we are forced to conclude'that the appellant did not have that fair and impartial trial guaranteed to every citizen.

The motion for a new trial should have been sustained. The judgment of the court below is reversed, and this cause remanded, with direction to the court below to grant the appellant a new trial.

FUBMAN, PRESIDING Judge, and DOYLE, Jíjdge, concur.


text:
    SEARCE CHANCE v. STATE.
    No. A-370.
    Opinion Filed March 7, 1911.
    (113 Pac. 996.)
    TRIAL — Separation of Jury. It is reversible error for the trial court to permit a jury to separate after the submission of a felony case to them for determination, under our statutes, especially when the defendant objects to such separation and the state fails to show that he was not prejudiced thereby.
    (Syllabus by the Court.)

      Appeal from District Court, Johnston County; A. T. West, Judge.

    Searce Chance was convicted of larceny, and appeals.
    Reversed and remanded.

      Alexander Gullett and J. B. O’Bryan, for appellant.

      Smith C. Matson, Asst. Atty. Gen., for the State.
   ARMSTRONG, Judge.

The appellant was convicted in the district court of Johnston county, in May, 1909, on a charge of larceny and has perfected his appeal in this court.

There are a great many assignments of error urged here; but we deem it necessary to consider only one of them, as the others are such as are not likely to occur again on a retrial of this.case.

In assignment No. 16, plaintiff in error urges that he is entitled to a new trial on the ground that the court permitted the jury to separate after the cause had been finally submitted. The record shows that, after all testimony had been concluded, the court had instructed the jury, and the argument of counsel had been finished, over the objection and exception of the defendant, the court permitted the jury to separate before agreeing upon a verdict. Section 6858, Snyder’s Comp. Laws 1909, reads as follows:

"After hearing the charge, the jury may either decide in court, or may retire for deliberation. If they do not agree without retiring, one or more officers must be sworn to keep them together in some private and convenient place, without food or drink, except bread and water, unless otherwise ordered by the court, and not to permit any person-to speak to or otherwise communicate with them, nor do so themselves, unless it be by order of the court, or to ask them whether they have agreed upon a verdict, and to return them into court when they have so agreed, or when ordered by the court.”

This section of the statute was construed in the case of Armstrong v. State, 2 Okla. Cr. 567, 103 Pac. 658, 24 L. R. A. (N. S.) 776, and under the rule announced in that case the judgment of the trial court will have to be reversed. The state never attempted to show that the defendant was not prejudiced by the action of the court. If the trial courts would take care to follow the plain provisions of the law, they would save their counties and this state a great deal of unnecessary expense.

Eeversed and remanded.

FITBMAN, PRESIDING Judge, and DOYLE, Judge, concur.


author: DOYLE, Judge.

text:
      Ex parte JOHN ALEXANDER.
    No. A-1034.
    Opinion Filed March 7, 1911.
    (113 Pac. 993.)
    1. HABEAS CORPUS — Authority fior Restraint — Commitment. A person held under a warrant of commitment issued by a county court upon the judgment and sentence of said county court is not entitled to his release on habeas corpus, where said county court had jurisdiction to render the judgment upon which the warrant of commitment issued, when the term of commitment has not expired.-
    2. SENTENCE — Execution. The time fixed for execution of a sentence, or for the commencement of its execution, is not one of its essential elements, and, strictly speaking, forms no part of the judgment and sentence, which is the penalty of the law as declared by the court; while the dire'ction with respect to the time of carrying it into effect is in the nature of an award of execution, so that, where the penalty is imprisonment, the sentence may be satisfied only by the actual suffering of the imprisonment imposed, unless remitted by death or some legal authority.
    3. SENTENCE — Arrest of Accused to Serve. Where a convicted defendant is at liberty and has not served his sentence, and the same is not stayed as provided by law, he may be arrested as an escape and ordered into custody on the unexecuted judgment.
    ('Syllabus by the Court.)
    Application of John Alexander for a writ of habeas corpus.

    Writ denied.

      W. 8. Pendleton, for petitioner.

      Smith 0. Matson, Asst. Atty. G-en., for the State.
   DOYLE, Judge.

This case is an application for writ of habeas corpus that was presented to Hon. Henry M. Furman, Presiding Judge, asking the discharge of John Alexander, who is held under a warrant of commitment of the county court of Pottawatomie county, issued upon a judgment and sentence of said county court pronounced and rendered on the 8th day of June, 1909, for having in his possession in the said county intoxicating liquors for the unlawful purpose of selling the same; the punishment fixed by said judgment being imprisonment for 30 days, and a fine of $50 and costs, which warrant of commitment was issued on the 10th day of February, 1911.

Petitioner alleges that said imprisonment is illegal, in this:

“First. That said sentence was not cumulative, and failed to specify any date at which it should go into effect, and therefore, as your petitioner is advised and believes, went into effect immediately. But that afterwards on, to wit, the 18th day of the said June, 1909, petitioner filed his bond for appeal in said cause, which was duly approved by the court. That petitioner failed to perfect his appeal, and said bond therefore, as petitioner is informed and believes, ceased to stay 'the judgment after the 8th day of June, 1909. That petitioner was at all times after the said 8th day of June, 1909, living and being in the oity of Shawnee, in the county and state aforesaid, as was well known to the county officers, was not a fugitive from justice, and in no manner evading nor seeking to evade arrest. Wherefore he believes that his said sentence had expired and has been fully satisfied before his arrest on, to wit, the 10th day of February, 1911, as aforesaid. Second. That petitioner had also been convicted and sentenced on, to wit, the 18th day of May, 19t)9, in the said county court of said county, for another offense of having in his possession intoxicating liquors for the purpose of sale, from which sentence petitioner appealed to this honorable court. That, on to wit, the 10th day of December, 1910, this honorable court dismissed the said appeal and issued its mandate to the court below. That thereafter on, to wit, the - day of December, 1910, a warrant of commitment was issued against petitioner' in said cause No. 442, and he was at once arrested by virtue thereof, and was imprisoned and held to hard labor thereunder for a period of about 56 days up to the said 10th day of February, 1911, when he was released by virtue of an order of this honorable court staying said mandate. Wherefore petitioner believes that, if the said sentence in cause No. 694 had not been satisfied, it ran concurrently with cause No. 442 and his said imprisonment in said cause No. 442 also satisfied the sentence in 694, and he prays that this honorable court issue its writ of habeas corpus directed to E. A. Pierce, sheriff of said county, commanding him to bring the body of petitioner before this court at once, and show cause why petitioner should not be discharged. Petitioner says that the said warrants are in the hands of, the road boss, and petitioner cannot get copies of the same without inconvenience and loss of time.”

Said petition was duly verified on February 24, 1911.

Counsel for petitioner in his brief states:

“We need only to cite the very able opinion of Justice Dunn, in the Clendenning Case, 1 Okla. Cr. 227, 97 Pac. 650 [19 L. R. A. (N. S.) 1041], and his masterly analysis of the authorities. In such case the defendant is at liberty by the implied consent of the court, or more properly of the state, and, if he remains so until the period fixed in the sentence for his imprisonment has expired, his sentence is regarded as having been executed as much as if he had actually served the sentence in prison.”

We are of opinion that said petition does not state facts sufficient to entitle petitioner to the relief prayed for. Section 6207, Snyder’s Comp. Laws 1909, provides:

“No court or judge shall inquire into the legality of any judgment or process, whereby the party is in custody, or discharge him when the term of commitment has not expired in either of the cases following: * * * Second. Upon any process issued on any final judgment of a court of competent jurisdiction. * * * Fourth. Upon a warrant or commitment issued from the district court, or any other court of competent jurisdiction, upon an indictment or information.”

■ The contention of petitioner’s counsel that the term of commitment has expired is not well founded. The question presented has been squarely passed upon by this court in the case of Ex parte Eldridge, 3 Okla. Cr. 499, 106 Pac. 980, 27 L. R. A. (N. S.) 625, wherein the court said:

“Let us assume a void bail bond is given and approved as a supersedeas in a criminal' ease, a common occurrence, and, after the expiration of the period of time fixed by the sentence, this defect is discovered, under the doctrine of the Clendenning case, would the defendant be entitled to his discharge? We think not. Such is not the law. In the case at bar an'appeal was attempted to be taken to this court, and a recognizance was taken after conviction for the appearance 'of the defendant to answer any judgment rendered by the Criminal Court of Appeals of Oklahoma or of the county court of Noble county in the further progress of said cause. The judgment itself specifically provides: ‘That said term of imprisonment shall begin and date from the date of his, defendant’s surrender to, or arrest by the sheriff of Noble county for the purpose of such imprisonment.’ The date fixed by a sentence for the punishment to commence is directory merely, and forms no part of the sentence itself. Hence, if from any cause it is not carried into effect at the period named, the party may be brought before the court again upon motion, and a new period be prescribed. It was held by this court in the case of William Ridley v. State, ante, page 350, 106 Pac. 553 [26 L. R. A. (N. S.) 110], that: TJnder the provisions of Procedure Criminal, art. 14, c. 89, Snyder’s Comp. Laws 1909, after a plea or verdict of guilty, the court must render judgment, and assess the punishment or penalty prescribed by law. The time fixed for executing a judgment and sentence or for the commencement of its execution is not one of its essential elements, and, strictly speaking, is not a part of the judgment and sentence. The essential part of the judgment is the punishment, and the amount thereof, without reference to the time when it shall be executed. Except in cases where the defendant has been convicted of two or more offenses before judgment on either the order of the court in reference to the time when the sentence shall be executed is not material.’ Our statute on the subject is simply declaratory of the common law, and where the judgment and sentence is imprisonment for a certain term, and from any cause the time, elapses without the imprisonment being endured, it would still be a valid subsisting unexecuted judgment. ‘The judgment is the penalty of the law, as declared by the court while the direction with respect to the time of carrying it into effect is in the nature of an award of execution. Where the penalty is imprisonment, the sentence of the law is to be satisfied only by the actual suffering of the imprisonment imposed, unless remitted by death or by some legal authority. The expiration of time without imprisonment is in no sense an execution of the sentence.’ Ex parte Collins, 8 Cal. App. 367, 97 Pac. 188; State v. Cockerham, 24 N. C. 204; Dolan's Case, 101 Mass. 222. ‘Where the convicted defendant is at liberty and has not served his sentence, if there be no statute to the contrary, he may be rearrested as an escape, and ordered into custody upon the unexecuted judgment.’ 1 Bishop, New Crim. Proc. par. 1384; In re Shaw, 31 Minn. 44, 16 N. W. 461; Ex parte Vance, 90 Cal. 208, 27 Pac. 209, 13 L. R. A. 574; People v. Patrich, 118 Cal. 332, 50 Pac. 425. Our statute provides that where judgments are rendered contemporaneously (section 6916, Snyder’s Comp. Laws 1909) that: ‘If the defendant have been convicted of two or more offenses, before judgment on either, the judgment may be that the imprisonment upon any one may commence at the expiration of the imprisonment upon any other of the offenses.’ ”

That is not this case. The defendant was first sentenced on the 18th day of May, 1909, in said county court, and the second sentence was rendered on the 8th day of June, 1909, and neither judgment and sentence has been fully executed or satisfied. When the county court of Pottawatomie county issued the order of commitment in cause No. 694, there was a valid, subsisting, un-executed judgment against the defendant, and, while the defendant may have been at the times mentioned within the jurisdiction of the court, upon his failurp to properly' perfect an appeal, he did not demand that the judgment and sentence be carried into execution. The judgment being valid, and the sentence unserved, the commitment of defendant in execution of the judgment and sentence constitutes a legal and valid detention.

For the reasons stated, the application for a writ of habeas corpus is denied.

FIJRMAN, PRESIDING Judge, and ARMSTRONG-, Judge, concur.


text:
    FRANK HENSON v. STATE.
    No. A-994.
    Opinion Filed March 7, 1911.
    (114 Pac. 630.)
    1. INFORMATION — Verification—Sufficiency in Felonies. A conviction on an information charging' a felony by -the prosecuting attorney, verified only on information and belief, is not in derogation of the defendant’s constitutional guaranty that no warrant shall issue but upon probable cause, supported by oath or affirmation, where the prosecution was in fact predicated on a verified complaint filed before an examining' magistrate and the action of that officer in holding for trial in the district court.
    2. SAME. In the absence of a statute requiring verification, the prosecuting attorney, acting on his official oath, may present án information charging a felony, where the defendant having had a preliminary examination before an examining magistrate, or having waived such preliminary examination, was held to the district court for trial for the felony charged.
    3. SAME. The verification' of an information charging a felony is no part of the information itself, and is not an indispensable requisite.
    (Syllabus by the Court.)

      Appeal from District Court, Tulsa- County; L. M. Poe, Judge.

    Frank Henson was convicted, of murder and appeals.
    Affirmed.

      Deichmm & Prentice, for plaintiff in error.

      Chas. West. Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   DOYLE, Judge.

The plaintiff in error, Frank Henson, was informed against, tried, and convicted of the crime of murder. The homicide is alleged to have been committed in Tulsa county on the 9th day of October, 1910, by killing one Charley Stamper. Judgment and sentence in accordance with the verdict, assessing the death penalty, was pronounced and rendered on the 3d day of December, 1910. From which judgment and sentence, an appeal was perfected by filing in this court on January 13, 1911, a petition in error with case-made attached.

The case comes before this court for a second time. Just prior to the expiration of his term of office, Hon. Chas. N. Haskell, Governor, in pursuance to section 6928, Snyder’s Statutes 1909, requested the opinion of the judges of the Criminal Court of Appeals, and accompanied the request with a statement of the conviction of the defendant, together with the record and a transcript of the testimony taken upon the trial as transmitted to the Governor by the trial judge, and in compliance with section 6927, Snyder’s Statutes, the court without notice that an appeal was being taken responded with an opinion of the judges. 4 Okla. Cr. 594, 112 Pac. 948.

A brief view of the facts as established at the trial seems to us to exclude every element of reasonable doubt as to the justice of the judgment herein upon the merits. In the town of Dawson, Tulsa county, Okla., on Sunday, October 9, 1910, the defendant, a negro, in a fight with another negro or Indian, fired eight or ten shots. The deceased Charley Stamper, a deputy sheriff living at Dawson, attempted to arrest the defendant, whereupon defendant with a 45-caliber pistol shot him, the ball shattering his jaw, and passing out through his neck, from which wound he died that day. The evidence shows that the defendant, seeing Stamper with several other persons coming toward him, said, in substance, that, if an officer came near him, he was going to shoot his damn brains out. All the witnesses testify that, when the deceased told the defendant to “consider yourself under arrest,” the defendant fired the fatal shot. After the shooting, the defendant attempted to escape, and was captured by those present when the shooting occurred. A plea of self-defense was interposed, and the defendant in his own behalf testified that he did not know that Charley Stamper was an officer; that the deceased, with another man, walked up to him, and said, “Consider yourself under arrest, young man,” and that he told him “ all right”; that the deceased then shot him, bitting him on his right leg; that he then pulled, his gun and -shot the deceased; that the deceased then shot him a second time. The defendant is not corroborated by any person present when the shooting occurred. All the witnesses testify that the deceased shot at the defendant only after the defendant had shot him. There is not a circumstance in the case that is even seemingly corroborative of the defendant’s testimony. The trial was eminently fair, the instructions fully, fairly, and correctly state the law, and the few exceptions taken to the rulings of the court upon the trial were without merit.

It is assigned as error:

“That the court erred in overruling the motion to quash the information because the same was not verified as required by law, in that said information is verified on information and belief only, and that the verification of said information is not subscribed by any one.”

In support of this assignment several decisions of this court are cited. The cases cited relate to informations charging misdemeanors. In the case of In re Talley, 4 Okla. Cr. 398, 112 Pac. 36, Mr. Justice Eiehardson, delivering the opinion of the court, used the following language:

“That no misunderstanding with respect to the statements made above as to the necessity of the verification of informations may arise, we deem it proper to state, further, that the holding that such requirement exists relates solely to informations charging a misdemeanor. There is no constitutional or statutory requirement in this state that informations charging a felony be verified at all. As to felonies, the constitutional provision for a showing of probable cause supported by oath or affirmation to authorize the arrest and detention of the accused is fully met (1) by the verified complaint filed with the examining magistrate as provided for by section 6577 of Snyder’s Comp. Laws; and (2) by the evidence taken under oath in the accused’s preliminary examination as required bv section 30, art. 2, of the state Constitution, and by his being held to answer by the magistrate, or by the fact that the accused waived such preliminary examination, thereby admitting the existence of probable cause to believe him guilty sufficient to warrant his formal accusation and trial. But these preliminary proceedings are not required in misdemeanor eases; and for that reason, and also on account of the provisions of section 6644 of Snyder’s Comp. Laws, information charging the commission of a misdemeanor must be verified unless verification be waived by the defendant.”

The prosecution of felonies by indictment and information have been concurrent remedies since the organization of the state. Both methods require a judicial preliminary investigation, either by a grand jury upon sworn testimony or by a magistrate. upon evidence publicly given and in the presence of the accused, with a right on his part to cross-examine and to produce witnesses in his own behalf, if he sees fit to do so. As there was no statute in the laws adopted from Oklahoma Territory which prescribed the mode of procedure by information in the prosecution of felonies in the district courts, and as the appellate courts hold the provision of the Constitution that provides for, and authorizes the prosecution of felonies by information after the accused has had a preliminary examination before an examining magistrate, or having waived such preliminary examination, is self-executing (In re McNaught, 1 Okla. Cr. 528, 99 Pac. 241; Ex parte McNaught, 1 Okla. Cr. 260, 100 Pac. 27), informations in felony cases are therefore to be tested as near as may be by the statutes regulating indictments.

Section 6705, Snyder’s Stat., provides:

“No indictment is insufficient, nor can the trial, judgment or other proceedings thereon be affected by reason of a defect or imperfection in the matter of form which does not tend to the prejudice of the substantial rights of the defendant upon the merits.”

The verification is not part of an information charging a felony, and is therefore not an indispensable requisite. The object of such verification is not, as in misdemeanors, for a showing of probable cause supported by oath or affirmation to authorize the arrest of the accused, and it is not for the purpose of evidence, yvhich is to be weighed and passed upon, but only, as we believe, to secure good faith and as a'matter of good form in pleading. The record of this case discloses that the defendant had a preliminary examination upon tbe charge of murder, and that he was held to answer in the district court for the murder of Charley Stamper as charged in the information upon the official oath of the prosecuting attorney, whose duty it was to present and prosecute the formal charge. In addition to this, the information is verified by the prosecuting attorney upon information and belief. It would have been sufficient without verification. However, in the absence of a statute, as a matter of good form and practice, prosecuting attorneys should verify informations in felony cases, at least upon information and belief. We are of the opinion that the motion to quash and set aside the information was properly overruled.

A few exceptions were taken on the trial to the admission of testimony, but the rulings of the court are so clearly correct as to require no consideration here. ,

•Our conclusion is that the defendant had a fair and impartial trial in the manner prescribed by law. The evidence in the case does not admit a shadow of doubt of the defendant’s guilt of deliberate murder, and in such cases it is the duty of courts and juries to give the law fixing the extreme penalty effect.

As the day fixed for the execution of the judgment and sentenced has passed, it is ordered that the judge of the district court of Tulsa county execute a warrant in due form of law, cause the same to be attested by the clerk under the seal of the court, and to be delivered to the sheriff of said county commanding said sheriff to execute the defendant, Frank Henson, on Friday, March 31, 1911, in accordance with law and the judgment and sentence of said district court heretofore rendered.

FURMAN, PRESIDING Judge, and ARMSTRONG, Judge, concur.