text:
    RUDOLPH TEGELER v. STATE.
    No. A-1263.
    Opinion Filed April 5, 1913.
    (130 Pac. 1164.)
    1. GRAND JURY — Clerks of Courts — Criminal Law — Impaneling Grand Jury — Powers of Deputy Clerk — Challenges to Panel — Discretion of Court, (a) The act of the Legislature of the territory of Oklahoma directing the manner in which grand juries should be impaneled was expressly repealed by Act Cong. Feb. 9, 1906, c. 155, 34 St. at L. 11.,
    (b) A deputy clerk may perform the purely ministerial duties which are performed by the clerk of the district court in the matter of recording the list of jurors upon the journal of the court and certifying to the correctness thereof.
    (c) It was not error for the trial court to overrule a challenge to the panel of the grand jury because the grand jury was selected after the commencement of the term of the court at which the indictment complained of was returned, instead of before the commencement of such term.
    (d) A substantial compliance with the law in the matter of ' selecting, summoning, and impaneling grand jurors is all that the law requires.
    (e) It is discretionary with the court to permit the withdrawal of a plea of not guilty for the purpose of allowing a defendant to file a motion to set aside an indictment, and such action will not be reviewed upon appeal, unless an abuse of this discretion is shown.
    2. VENUE — Change of Venue — Proceedings, (a) Where a defendant has filed motion for a change of venue supported by affidavits as provided by law, the state may file counter affidavits putting in issue the grounds upon which such change of venue is sought.
    (b) Where a motion for a change of venue is filed and affidavits in opposition to such change of venue are presented by the state, the court may have the parties making such affidavits on both sides or such other persons as the court may think proper sworn as witnesses and examined in open court regarding the controversy.
    (c) The presumption of law is that a defendant can get a fair and impartial trial in the county in which the offense was committed, and, if this is not true, the burden is upon the defendant who seeks a change of venue to establish his right thereto.
    (d) The granting of a change of venue is discretionary with the trial court, and will not he reviewed upon appeal, unless it is made clearly to appear that there has been an abuse of this discretion.
    3. JURY — Criminal Law — Right to Justice — Qualifications of Jurors— “Prejudice” — “Impartial”—Harmless Error, (a) It is the constitutional right of every citizen of Oklahoma, if charged with a criminal offense, to have a public trial by an impartial jury of the county in which the offense was committed, and that upon such trial justice shall be administered to him without sale, denial, delay, or prejudice.
    (b) The acts of the Legislature with reference to the conduct of criminal cases and the qualifications of jurors must be construed in connection with and in subordination to the provisions of our Constitution. The words “prejudice” and “impartial," as used in our Constitution, have no narrow, technical meaning in a legal sense, and must be construed as used in the everyday affairs of life, and as understood by persons of ordinary intelligence.
    (c) “Prejudice” means prejudged; without due examination; an opinion formed beforehand.
    (d) “Impartial” means not favoring one more than another; treating all alike; unbiased; equitable, fair and just.
    (e) Light impressions, which may fairly be presumed to yield to the testimony that may be offered, which may leave the mind to a fair consideration of the testimony, constitute no sufficient objection to a juror, but those strong and deep impressions which close the mind against the testimony that may be offered in opposition to them, and which will combat that testimony and resists its force, will disqualify a juror.
    (f) Where a juror testifies on his voir dire that he has a fixed opinion as to the guilt of a defendant, which-'it will take strong evidence to remove, and that he was then upon one side of the case, such juror is clearly disqualified; and the mere fact that the juror may be of the opinion that he can try the case fairly and impartially by the testimony heard in court and the instructions of the judge does not qualify such juror.
    (g) The doctrine of harmless error has no application to a ' case in which the defendant has been deprived of a substantial right.
    ('Syllabus by the Court.)

      Appeal from District ¡Court, Oldahoma County; G. A. Brown, Judge pro tem.

    Kudolph Tegeler was convicted of murder and his punishment assessed at confinement in the penitentiary for life, and he appeals.
    Eeversed and remanded for new trial.

      Taylor, Pruiett é Sniggs, A. G. Cruce, A. N. Munden, and E. G. McAdams, for appellant/

      Smith G. Matson, Asst. Atty. Gen., and Sam TI. Harris, for tbe State.
   FURMAN, J.

First. When this case was reached for trial, appellant requested the court to permit -him to withdraw his plea of not guilty, and ñle a motion to quash and set aside the indictment. This motion was by the court overruled, and the motion to quash the indictment which had been filed was stricken from the records, to all of which appellant duly excepted.

The motion to quash and set aside the indictment contains 44 separate paragraphs, alleging that the grand jury which found the indictment in this case was not organized as directed by law. • There are a number of good and sufficient reasons why the trial court did not err in striking out and refusing to consider this motion. It is only necessary to state one of these reasons, viz.: The territorial law upon which counsel rely had been repealed nearly two years before tins indictment was presented. The indictment in this cause was presented by the grand jury of the district court of Oklahoma county at the first term of said court after the incoming of statehood in 1907. The act of the Legislature of the territory of Oklahoma directing the manner in which grand juries should be impaneled was exjoressly repealed by the Act of February 9, 1906, of the Congress of the United States. See Federal Statutes Annotated, Supplement 1909, p. 327; Act Feb. 9, 1906, c. 155, 34 Stat. at L. 11. So it appears that the statute upon which counsel rely liad been repealed nearly five years before the motion was filed, and nearly -two years before the indictment was presented. If counsel had investigated this question thoroughly, they would have saved themselves much inventive labor in thinking up reasons why the Territorial law had not been literally complied with, for this court has twice passed upon this question and construed the act of Congress of February 9, 1906. In the ease of Reed, v. Territory of Okla., 1 Okla. Cr. 481, 98 Pac. 583, 129 Am. St. Rep. 861, this court held that a deputy clerk may perform the merely ministerial duties directed by this act of Congress to be performed by the clerk of the district court in the matter of recording the list of the jurors upon the journals of the court, and certifying to the correctness thereof.

In the case of Price v. Territory, 1 Okla. Cr. 508, 99 Pac. 157, this court in construing this act of Congress held that it was not error .for the trial court to overrule a challenge to the entire panel of the grand jury because the grand jury was selected after the commencement of the term of the district court at which the indictment complained of was returned, instead of before the commencement of such term, as provided by this act of Congress, and that the provisions of the act as to the time of the selection of the grand jury were directory only. These opinions have never been questioned, and will be found quoted in the Supplement .of 1909 of the Federal Statutes Annotated, on page 328. All of the decisions cited by counsel for appellant were in cases where the indictments in question were presented by grand juries before the repeal of the territorial law. They therefore have no reference to the law existing at the incoming of statehood. This court is committed to the doctrine that where there has been a substantial compliance with the law with reference to the selection of a grand jury, and where no injury is shown to a defendant, a motion to quash the indictment upon the grounds relied upon in this case should be denied. It is nowhere contended in the brief of counsel for appellant that there was a failure to comply substantially- with the requirements of the Act of Congress of 1906 which was in force when this indictment was presented in the matter of impaneling the grand jury. The trial court, therefore, did not err in striking from the record the motion to set aside the indictment.

In addition to this, the court had the right to refuse permission to withdraw the plea of not guilty. The statutes on this subject are specific and reasonable. The failure of a defendant to file a motion to set aside an indictment at the proper time cannot reasonably be said to give him the right to file such a motion at any time upon the-ground that the facts stated in such motion were not previously known to one of his attorneys when appellant had had for years a number of other attorneys employed in his defense. Even if the motion now under consideration had been good upon its face, it was discretionary with the court to permit the withdrawal of the plea and a consideration of the motion. This is not an open question in Oklahoma. See Hunter v. State, 3 Okla. Or. 533, 107 Pac. 444; Weatherholt v. State, post, 131 Pac. 185, decided at the present term. The views expressed in these cases are without exception sustained by the authorities.

In the case of State v. Lamon, 10 N. C. 175, the Supreme Court of that state said:

“It is complained of that the prisoner moved the court for leave to withdraw his plea of not guilty, and to plead in abatement, or to add a plea in abatement, to the plea of not guilty, which the court refused. This, however, was -a subject altogether with the -discretion of the court, -and could not be claimed as a matter of right, for, when the prisoner had once pleaded, he was bound to abide by the defense he had chosen. An act done in' the exercise of a legal discretion is not the subject of appeal to this court.”

In the' case of Richards v. State, 82 Wis. 172, 51 N. W. 652, the Supreme Court of Wisconsin said:

“Assuming (but not deciding) that there was a failure or omission of a legal examination, the accused waived the same by pleading to the merits before he offered or -attempted to interpose -the plea in abatement. His application, after such waiver, for leave to withdraw his plea in bar, and to interpose such plea in abatement, was therefore addressed to the sound discretion of the circuit court, and the refusal of the court to grant such leave cannot properly be held erroneous, unless there was a clear abuse of discretion involved in the ruling. Considering that the application was delayed until the cause was called for trial and the prosecution had been put to the expense of preparing for trial, and considering also that, had the application been granted, and had judgment gone for the accused on the dilatory plea, it would not have barred — presumably would not have prevented — the institution of another prosecution for the same. crime, we are unable to say that the denial of the application was an abuse of discretion. On the contrary, under the circumstances of the case, ‘we think it was a very proper exercise of its discretion by the circuit court.”

In 12 Cyc. p. 300, the law on this subject is stated as follows:

“It is wholly in the discretion of the court whether a plea of any sort may be withdrawn. Permission may always be granted, but, unless an abuse of discretion is shown,' the- refusal to permit the withdrawal of a plea is not error.”

See, also, 17 Nev. 275, 30 Pac. 891; Adams v. State, 28 Fla. 511, 10 South. 106; Mills v. State, 76 Md. 274, 24 Atl. 229; Early v. Commonwealth, 86 Va. 921, 11 S. E. 795; People v. Allen, 43 N. Y. 28.

In this case the plea interposed was purely dilatory. If it had been .sustained, it would not have barred or prevented the presentation of another indictment against appellant by the grand jury of Oklahoma county. Under all of the circumstances, we think that, even if the motion had been good upon its face, the ruling of the trial court was a proper exercise of discretion.

Second. Appellant filed a motion for a change of venue, in which it was alleged that the minds of the inhabitants of Oklahoma county were so prejudiced against appellant that he could not receive a fair and impartial trial in said county. This motion was duly sworn to by appellant. It was supported by the affidavits of five compurgators. In reply to this motion, the state filed the affidavits of 104 citizens of Oklahoma county, in each of which it was stated that there was no such feeling or prejudice against appellant in Oklahoma county as would prevent him from having a fair and impartial trial before a jury of said county. Section 28, Williams’ Const. Okla., provides that the venue of a criminal case may be changed to some other county of the state on the -application of the accused. Section 6766, Comp. Laws (Rev. Laws, 5811), among other things, provides that a change of venue may be had on the application of the defendant by petition, setting forth the facts verified by affidavit, supported by the affidavits of at least three credible persons who reside in said county. It further provides that the county attorney may introduce counter affidavits “to show that the persons making' affidavits in support of the application for a change of venue are not credible persons, and that a change is not necessary.” TJnder this statute, the state may file counter affidavits stating any fact or facts • that would show that a change of venue was not necessary. If the court is of the opinion upon an inspection of the affidavits filed in support of -and in opposition to a motion for a change of venue that a change of venue should not be granted, then it should be so ordered; but, if the court is not satisfied on this question, it may have all of the parties making these affidavits on both sides and such other persons as the court may think proper sworn as witnesses and examined in open court touching the matter in controversy. The presumption of law is that a defendant can get a fair and impartial trial in the county in which the offense was committed, and, if this is not true, the burden is upon the defendant to- establish his right to a change of venue. The granting of a change of venue is by the Constitution and statute made discretionary with the trial court, ■and this court will not reverse a ruling of the trial court denying an application for a change of venue, unless it is made clearly to appear that there has been such an abuse of this, discretion as to .amount practically to -a denial of justice. By abuse of discretion is meant a clearly erroneous conclusion and judgment; one that is clearly against the logic and effect of the-facts presented in support of and -against the application. Whatever the decisions in other states may be, this is not an open question in Oklahoma. See Starr v. State, 5 Okla. Cr. 440, 115 Pac. 356; Turner v. State, 4 Okla. Cr. 164, 111 Pac. 988; Blade v. State, 3 Okla. Cr. 547, 107 Pac. 524; Johnson v. State. 1 Okla. Cr. 321, 97 Pac. 1059, 18 Ann. Cas. 300.

Third. Appellant complains at the action of the trial court in overruling his challenge to a number of the jurors. Section 14, Williams’ ’Const. Okla., is. as follows:

“The courts of justice of the state shall be open to every person, and speedy and certain remedy -afforded for every wrong and for every injury to person, property, or reputation ;■ and right and justice shall be administered without .sale, denial, delay, or prejudice.”

Section 28, Williams’ Const. Okla., among other things, provides :

“In all criminal prosecutions the accused shall have the right to a speedy and public trial by an impartial jury of the county in which the crime shall have been committed.”

These two sections of our Constitution constitute the paramount law which must control in the selection bf juries and the conduct of all criminal trials in the state of Oklahoma. Any act of the Legislature with' reference to the conduct of criminal eases and the qualifications of jurors must be construed in connection with and in subordination to these two provisions of' our Constitution. Justice must be administered without prejudice, and the juries in criminal cases must be impartial in the courts of Oklahoma, is the express and imperative mandate of our Constitution, and by this mandate we are bound, it matters not what our individual views may be or what any other court may have decided. This is the end of the matter, and shuts out all discussion so far as the courts of Oklahoma are concerned. The words “prejudice” and “impartial” have no narrow, technical meaning in a legal sense, but are words commonly used in the everyday affairs of life, and their meaning is well understood by all persons of ordinary intelligence. Webster’s New International Dictionary defines “prejudice” as “an opinion or judgment formed beforehand, or without due examination; a prejudgment.” It therefore necessarily follows from this that justice is not administered without prejudice where the jury have prejudged the matters of fact submitted to them for determination. Webster’s New International Dictionary defines “Impartial” as “not favoring one more than another; treating all alike; unbiased, equitable, fair, and just.” It therefore necessarily follows that, if a juror favors one side in a criminal case more than the other, such juror is not “impartial.”

This interpretation of the two provisions of the Constitution above quoted is not only in harmony with common sense and justice, but it is supported by the great weight of legal authority. We will only cite a few of the decided cases. “Prejudice” as prepossession; judgment formed beforehand without examination. Hudgins v. State, 2 Ga. (2 Kelly) 173, 176. “Prejudice” means prejudgment, judgment beforehand; and such is its meaning when applied to a juror. State v. Anderson, 14 Mont. 541, 545, 37 Pac. 1. “Prejudice” means a prejudging of a case from any cause. It means a settled and fixed opinion, either as to the guilt or innocence of an accused, no matter from what cause that opinion is derived or upon what it is based, whether from rumor, hearsay, newspaper report, or evidence upon a former trial, or from anything else, if it is fixed and settled. Hinkle v. State, 94 Ga. 595, 597, 21 S. E. 595, 600. The word “prejudice,” as used in Code Cr. Proc. art. 578, providing for a change of venue when there exists so great a prejudice against the accused as .to preclude a fair trial, refers' to a prejudice which may exist, either as against the accused himself, or by 'reason of a prejudgment of his cause. Randle v. State, 34 Tex. Cr. R. 43, 57, 28 S. W. 953, 954. “Prejudice” ' as used with respect to veniremen, means the same as prejudgment; that is, one who has prejudged a person’s guilt of the accusation charged against him has a prejudice against such person. Randle v. State, 34 Tex. Cr. R. 43, 28 S. W. 953, cited approvingly in Faulkner v. State, 43 Tex. Cr. R. 311, 65 S. W. 1093, 1095. The word “prejudice” in a statute making the prejudice of a juror a ground of challenge “seems to im'ply nearly the same thing as ‘opinion/ a prejudgment of the case, and hot necessarily an enmity or ill will against either party. The statute intended to exclude any person who had made tip his mind or formed the judgment -in advance in favor of either side.” Commonwealth v. Webster, 59 Mass. (5 Cush.) 295, 297, 52 Am. Dec. 711. “Prejudice” means prejudgment, judgment beforehand. State v. Anderson, 14 Mont. 541, 37 Pac. 1.

“According to the definition of our standard lexicographers, a man who is impartial is one who is not biased in favor of one party more than another; who is indifferent, unprejudiced, disinterested; as an impartial judge or arbitrator. The primary idea contained in this definition is freedom from personal bias, indifference between the parties as persons; not prejudiced against one or the other; disinterested as between them.” (Eason v. State, 65 Tenn. [6 Baxt.] 466, 469.)
“Impartial” means not partial; not favoring one party more than another; unprejudiced; disinterested; equitable; just. Handle v. State, 34 Tex. Cr. R. 43, 28 S. W. 953, citing Webst. Dict.; Curry v. State, 5 Neb. 412, 413; Thompson v. Beacon Valley Rubber Co., 56 Conn. 493, 498, 16 Atl. 554; Cole v. Curtis, 16 Minn. 182, 194 (Gil. 161).
“A juror, to be impartial, must, to use the language of Lord Coke, be indifferent as he stands unsworn.” (Reynolds v. United States, 98 D. S. 145, 154, 25 L. Ed. 244 [quoting Co. Litt. 155-b.])
“As used in Const. sec. 9, art. 1, securing to the accused in all criminal prosecutions a public trial by an impartial jury, the word is not used exclusively in its primary sense, but in its secondary or more general sense, as freedom from any bias, or indifference or disinterestedness. An impartial juror is one who enters the box indifferent in feeling and in opinion.” (Eason v. State, 65 Tenn. [6 Baxt.] 466, 469.)
“The constitutional guaranty that in all criminal prosecutions the accused shall have the right of trial by an impartial jury means a jury not biased in favor of one party more than another; indifferent; unprejudiced; disinterested. This right to have an impartial jury cannot be abridged, and therefore the body of the triers should be composed of men indifferent between the parties, and otherwise capable of discharging the duty of jurors. Whether in the practical administration of justice the right is infringed is necessarily a judicial question, and whether, in a particular case, a proposed juror has -the state of mind which will render him impartial, is a question of fact which it is the duty of the court trying the case tó decide.” (Curry v. State, 5 Neb. 412, 413.)
“ ‘Impartial/ as applied to a jury, means not favoring a party or an individual because of the emotions of the human mind, heart, or affections. It means that, to be impartial, the party, his cause, or the issues involved in his cause, should not, must not, be prejudged.” (Randle v. State, 34 Tex. Cr. R. 43, 58, 28 S. W. 953, 954.)

With this explanation and construction of the provisions of our Constitution governing this matter we will now consider our statutory provisions. Section 6814, Comp. Laws 1909 (Bev. Laws, 5861), is as follows:

“In a challenge for implied bias, one or more of the causes stated in the second preceding sections must be alleged. In a challenge for actual: bias the cause stated in the second subdivision of the third preceding section must be alleged; but no person shall be disqualified as a juror by reason of having formed or expressed an opinion upon the matter or cause to be submitted to such jury, founded upon rumor; statements in. public journals, or common notoriety; provided it appears to the court, upon his declaration, under oath or otherwise, that he can and will, notwithstanding such opinion, act impartially and fairly upon the matters to be submitted to him. The challenge may be oral, but must' be entered upon the minutes of the court.”

It will be seen from an examination of this section of our statute that any juror who has formed or expressed an opinion from any source whatever upon the matter or cause to be submitted to him is prima facie disqualified, unless it appears to the court that such juror can and will, notwithstanding’ such opinion, act impartially and fairly upon the matter to be submitted to' him.

In the early case of Johnson v. State, 1 Okla. Cr. 343, 97 Pac. 1068, 18 Ann. Cas. 300, this provision of our statute was construed in connection with the provision of our Constitution as follows:

“But the enumerated causes of challenge in the statute are not exclusive of all others not enumerated. When the juror has any opinion as to the guilt of the defendant, it matters not how this opinion was formed, the closing paragraph of the statute provides that it must appear to the court that the juror can and will act fairly and impartially in the case. But, if this provision was not in the statute, we would be forced to place this construction upon the first part of the statute, because section 29 of our Constitution (Bunn’s Ed.) is in this language: 'In all criminal prosecutions, the accused shall have the right to a speedy and public trial by an impartial jury.’ Const, art. 2, sec. 20. Any statute which would even tend to deprive a defendant of a trial by an impartial jury would 'be unconstitutional and void. Although a juror may know absolutely nothing about the facts of the case, and may not have the slightest opinion as to the guilt of the defendant, yet, if from any cause or upon any ground it appears to the trial court that the juror is biased or prejudiced against the defendant, it cannot be said that he would be a fair and impartial juror, and he should be excluded from the jury; otherwise the Constitution of the state would be disregarded and trampled upon. The trial court should resolve all doubts upon this matter in favor of the defendant. Upon the other hand, when no personal, class, or race bias or prejudice appears to exist in the mind of ' the juror against the defendant, but it does appear that from rumor, or reading the public press, or from notoriety, the juror has an opinion as to the guilt of the defendant, but that such opinion will not combat the testimony or resist its force, and the court is satisfied that the juror can and will lay this opinion aside, and base his verdict alone upon the testimony of the witnesses and the instructions of the court, then the juror is competent. To our minds this is the only rational construction which can be placed upon our statute.”

Whenever upon the examination of a juror it appears that he has an opinion as to the guilt or innocence of the accused, or whenever the fairness and impartiality of such juror is called in question, the trial court must be clearly satisfied that such juror is fair and impartial, and that siioh opinion will not in any manner influence such juror in considering the testimony and arriving at his verdict, and it is the duty of the trial court to resolve all doubts on this question in favor of the accused; otherwise the constitutional provisions hereinbefore quoted would become idle and nugatory.

In the case of Scribner v. State, 3 Okla. Cr. 610, 108 Pac. 426, 35 L. R. A. (N. S.) 985, in an opinion by Judge Owen, this court said:

“It has been urged in this case that on the evidence produced the jury could not have returned other than a verdict of guilty, and therefore the defendant was not prejudiced by reason of the. fact that some of the jurors had formed an opinion as to his guilt. As to whether a different verdict could not have been returned on the evidence we are not called upon to decide. We might concede that such is true; that being true, we cannot agree that the defendant was not deprived of'the rights guaranteed to him under our Constitution. The fact remains that this, jury fixed his punishment at death. In determining this case, although the evidence may show the defendant guilty beyond all peradventure of a doubt, and sufficient to ■support a verdict with the death penalty, 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. It is a physical impossibility for a juror, who ,has an opinion based on what he has understood to be the facts in the case, to weigh the evidence as though he had never heard of the case, and had not already made up his mind. He may have an earnest • and conscientious desire to do so and to deal out exact justice, but he will unconsciously attach a greater weight to the evidence which conforms to his preconceived opinion than he would otherwise do. He is not in that frame of mind which the Constitution contemplates, and which is necessary to enable him to fairly and impartially judge as to the weight to be given to the evidence of each witness appearing before him. The determination of the qualifications of a juror is a matter addressed' to the discretion of the trial court, and the question to be determined here is whether the trial court in this case abused this discretion, to the prejudice of the defendant. After a careful review of the numerous authorities called to our attention by the counsel in the case, and those which we have been able to find by our own efforts, we are convinced that the court ,did abuse such discretion to the prejudice of the defendant. The principle that every reasonable doubt must be resolved in favor of the defendant applies in this instance as well as to the evidence offered before the jury on the final trial. The evidence offered as to the qualifications of the jurors enters into and becomes a material part of the trial, as much so as the evidence offered by the witnesses on the part of the state, and in this case the trial court should have resolved that doubt in favor of the defendant, and sustained his challenge for cause tí these jurors.”

In the case of Turner v. State, 4 Okla. Cr. 164, 111 Pac. 988, in an opinion by Judge Doyle, this court reaffirmed 'the doctrine announced in the case of Johnson v. State, supra, and in the ease of Scribner v. State, supra. After quoting from Johnson’s and Scribner’s cases, Judge Doyle said:

“Under the statute, an opinion formed or expressed as to the guilt or innocence of the defendant founded upon rumor or newspaper reports does not disqualify a juror, provided it appears to the court, upon the declaration of said juror, he can and will, notwithstanding such opinion, act impartially and fairly upon the law and evidence. As we construe the statute, the competency of a juror is a question of fact to be determined ■by the court in the exercise of a sound discretion and constitutes a legislative definition of the constitutional provision; however, it cannot be regarded as changing in any degree the essential qualifications which jurors must possess. It merely furnishes a test by which those qualifications are to be determined. It makes the declaration of the juror ‘that he can and will, notwithstanding such opinion, act impartially and fairly upon the matters to be submitted to him, competent, as bearing upon the question of his impartiality, and requires the court to consider such declaration, when so made.’ The statute does not attempt to determine what shall be the probative force of the declaration of the juror, or how far it shall have the effect of relieving him on the disqualification arising from such an opinion. The declaration when so made is evidence to be received and given such weight as, under all circumstances appearing, it is fairly and justly entitled to. Before it can operate to remove the disqualification, the court must be satisfied of its truth, and that question is left to be determined from all the facts and circumstances appearing from his examination upon the voir dire. In the case of Coughlin v. People, 144 Ill. 140, 33 N. E. 1, 19 L. R. A. 57, a similar statute was construed. Chief Justice Bailey, rendering the opinion of the court, in part said: ‘In the review of the authorities we have already made, it has sufficiently appeared that where the opinion of the juror is only slight or transient, or is hypothetical, very considerable reliance is placed upon his statement under oath that his opinion is not of such character as will interfere with his action as a juror. Indeed, where the opinion is shown to be of that character, such statement is usually one of the most satisfactory tests of the juror’s ■ impartiality. But the holding of this and other courts is substantially uniform that, where it is once shown that there exists in the mind of the juror at the time he is called to the jury box a fixed and positive opinion as to the merits of the ease, or to the guilt or innocence of the defendant he is called to try, his statement that, notwithstanding such opinion, he can render a fair and impartial verdict according to the law and the evidence, has little if any tendency to establish his impartiality. This is so because a juror who is shown to have in his mind a fixed and positive opinion as to the guilt or innocence of the accused is not impartial, as a matter of fact, to say nothing of those legal conclusions which formerly prevailed, and which would still prevail, if the statute were not in existence. His statement that he can render a fair and impartial verdict does not tend to show that he is not partial, since it does not tend to show the nonexistence of the fixed and decided opinion to which he had ■ already confessed. It merely tends to show that the juror, while admitting that he has prejudged the prisoner’s guilt, believes in his ability to act as though he had not done so, or that, while admitting his actual partiality, he believes in his ability to act as though he were impartial. It being constantly kept in mind that the fact to be proved by the juror’s answer is that he is impartial in the constitutional sense of the word, it is difficult to see how, after a juror has avowed a fixed and settled opinion as to the prisoner’s guilt, a court can be legally satisfied of the truth of his answer that he can render a fair and impartial verdict, or find therefrom that he has the qualifications of impartiality, as required by the Constitution.’ The fact in the present case that the juror was possessed of an opinion that the defendant was guilty, and that this opinion was based upon the statements of the two principal witnesses for the state, whose names appear as the first indorsed upon the indictment, and. upon whose testimony the state expected to prove its ease, was clearly sufficient to render the juror incompetent, and we believe that the court below erred in overruling the defendant’s challenge for cause to the juror Blackburn.”

Let us now apply the principles of law hereinbefore stated to the question now before us. We only deem it necessary to discuss the objections made to J. B. Johns, who acted as foreman of the jury. He frankly stated in answer to the first question that he had formed an opinion as to the guilt or innocence of the defendant; that he was present for a short -time at one of the former trials of the defendant; that it was possible that he may have talked with some of the witnesses in the case, but that lie was positive he had talked with other parties who detailed to him the purported evidence in the case, and that he had read accounts of this matter in the newspapers; that evidence might change the opinion which he had as to the guilt or innocence of the defendant, provided such evidence was sufficient to overcome it; that, if selected as a juror, it would be his duty to try the case under the instructions of the court and from the evidence heard upon the witness stand; that, if such evidence was sufficient, it would change the opinion which he then had as to the guilt or innocence of the defendant.

On cross-examination by counsel for appellant the record contains the following questions and answers:

“Q. All right; now we will get at it this way. You have an opinion now as to this man’s guilt or innocence, haven’t you? A. Yes, sir. Q. You are standing now on one side of this question, aren’t you? A. Yes, sir. Q. Now, if you are sworn as a juror, you would go into the jury box having that opinion, wouldn’t you? A. Yes, sir. Q. And you say it would require strong evidence to remove that opinion? A. Sufficient. Q. Yes. If what you hear here on the witness stand is in harmony with what you heard before going into the jury box, that opinion never would be changed, would it? A. Unless subsequent evidence would change it. Q. Well, now; catch my question, Mr. Johns. I think you understand it fully. If what you hear here on the witness stand in this case is in harmony, and not in conflict with what you have heard in the past, that opinion would not be changed when you would go to make up your verdict, would it? A. No, sir. * * * Q. Now, Mr. Johns, so I can explain to you. Now, taking for granted that your opinion is one way or the other, that the defendant is guilty or that he is innocent, now, I will give you the two propositions so you can thoroughly understand them, and don’t answer the first until I give you the second. If you should be selected as a juror in this case, if that opinion is that the defendant is guilty, it would require less evidence upon the part of the state for you to convict him than it would if you did not have the opinion you have,-and, if you believe him innocent, it would require greater evidence upon the part of the state for you to convict him than if you did not have that opinion. Your answer 'Yes’ or ‘No’ just with the two propositions together. A. Yes; I think that would be. the right answer, if I understand the question correctly. Q. In other words, you would go in there with a fixed opinion in your mind that would require strong proof to remove it? A. I think so; yes, sir. Q. You have no doubt about that, have you? A. None in the world.
“Mr. Pruiett: Challenge the juror for cause.
“Examined by the Court:
“Q. .Did you ever sit on the trial of a felony case, Mr. Johns? A. No, sir. Q. If you are selected as a juror, you would be required and instructed to try the case and arrive at your verdict alone upon the evidence adduced in this case, under the instruction' of the court as to what the law is; that the defendant is presumed to be innocent until his guilt is established by competent evidence beyond a reasonable doubt, and in the event you have a reasonable doubt, after you have heard all the evidence, then you must acquit him. Now, if you were taken on the jury in this case, after you have heard the evidence, and sworn to try the case according to the evidence, could you do that and would you do it, uninfluenced in any degree by what you have read in the newspapers, or the opinion you have formed, or would you be influenced in arriving at your verdict by that opinion or those newspaper reports? A. I would be influenced; my mind would be influenced until changed by evidence to influence it; it would have no more effect than if I had not that knowledge or mind made up until it was changed by evidence that I was satisfied. Q. Well, you understand -that, if you are taken as a juror, you are to try the case upon the evidence? A. Yes, sir. Q. Not upon what your personal idea might be. It would be your duty to ignore them — disregard them — it would not make any difference which way it is, and to try the case alone upon the evidence and base your verdict alone from the evidence heard, disregarding altogether what you have read or the opinion you have formed therein. A. Yes, sir. Q. Now, the question is, could you do that? A. I certainly could and certainly would. Q. You feel that you could and you would? A. Yes, sir. Q. Have you any doubt at all about your ability now to wholly disregard the opinion you have formed, and what you have read in the newspapers and return your verdict, if selected as a juror, alone upon the evidence heard here and submitted under the rules of the court? A. I could. Q. Have you any doubt at all about your ability to do that? A. None in the world.”

The court held the juror competent and overruled appellant’s challenge, to which appellant excepted and the juror was duly sworn.

This juror testified positively that he then stood on one side of the case, and that he had in his mind a fixed opinion as to the guilt of the appellant, which it would take strong evidence to remove. When asked as to whether he had any doubt about that, his emphatic reply was, “None in the world.” Neither of these statements was ever modified by him. Considering the entire examination of this juror in connection with all of the facts which are presented by this record, and the effect is the same as if the juror had testified that he had a fixed opinion that appellant was guilty which it would take strong evidence to remove, and that the juror was then on one side of the case. With what show of reason and truth can it be said that justice has been administered without prejudice? What is the duty of this court? To feel the public pulse-or to vindicate the supremacy of the Constitution? As is well said by Judge Doyle in Turners case, supra:

“But it may be said that the juror stated upon his voir dire that he had no bias or prejudice against the defendant, and that he could try the case fairly and impartially, and notwithstanding his opinion he would be governed exclusively by the evidence in the case and the instructions of the court, regardless as to what Carters bad said. These statements were made in response to leading questions by the court, which questions were objected to by the defendant. In the case of State v. Otto, 61 Kan. 58, 58 Pac. 995, Justice Smith, delivering the opinion of the court, used this language: Tt is the duty of the court, imposed both by statute and by the principles of natural justice, to stand as a vigilant guard over the jury box, to the end that 'bias, prejudice, and preconceived opinions do not enter. It is better that the first impression of a case come from the testimony of -the witnesses after the jurors are sworn to try the case. While there is recognized in the law a distinction between an impression and an opinion, yet there is so little difference between the two, and the step so short from one to the other that courts should be certain that a juror’s mind which is possessed of the one has received it with pressure too weak to break over the dividing line.’ The juror was probably sincere in his answers to the questions propounded, and he probably would'make the same statements even though the questions were not leading, as he undoubtedly and honestly believed that he could try the case impartially. Men are seldom conscious of being biased or prejudiced, or of being in such a condition of mind that they could not try any case impartially.”

The fact that said juror did testify in answer to questions from the court that if selected as a juror he could and would wholly disregard such opinion, and base his verdict alone upon the testimony and the charge of the court, did not in' our judgment do away with and destroy the effect of his previous testimony; for, if it did, the juror would, then become the judge of his own qualifications. When a juror states that he has an opinion as to the guilt of the defendant, he' is not made competent to sit in the ease merely because he may have stated that he can and will lay aside this opinion if taken on the jury and give the defendant a fair and impartial trial, and be governed ■alone in making up his verdict by the testimony of the witnesses and the charge of the court. No man is a competent judge of his own impartiality and of his own freedom from prejudice.'No statute can clothe a juror with such judicial discretion and power. The competency of a juror is -to be decided by the court, who is not bound by the answers made by such juror. It lb the judge, and not the juror, who is charged with .the duty of passing upon the competency of the juror, and in the discharge of this duty the judge may have recourse to any other means of information within his power. In fact, he should carefully investigate every source which would be calculated to throw any light upon the competency of the juror, and, if upon such investigation it does not clearly appear that such juror is competent, he should be excluded.

In this case the record shows that there had been three previous trials resulting from the death of James E. Meadows; that appellant had been tried twice, and Mrs. J. E. Meadows had been tried once; that full reports of the testimony and proceedings of these trials had been published in the Daily Oklahoman, a newspaper of large circulation and great influence; that as a result of these trials and publications more or less prejudice existed in the minds of a number of people against appellant which had resulted in a motion for a change of venue. While these things did not .make it impossible for appellant to obtain a fair and impartial trial in Oklahoma county, yet they should have caused the trial judge to exercise the greatest caution in passing upon the qualifications of jurors to see that no one who had prejudged appellant' should sit upon the jury. The fact that a juror had formed or expressed an opinion as to the guilt of appellant would not necessarily disqualify such juror. The question to be inquired into was as to whether or not this was a fixed opinion such as would place the juror on one side or the other of the case. A mere impression or transitory inclination of the mind which would readily yield to evidence would not constitute a disqualifying opinion. Chief Justice Marshall of the Supreme Court of the United States in Burr’s Trial, Fed. Cas. No. 14,694, correctly states the rule of law in such cases as follows:

“Light impressions, which may fairly be presumed to yield to the testimony that may be offered, which may leave the mind to a fair consideration of the testimony, constitute no sufficient objection to a juror, but tiróse strong and deep impressions which close the mind against the testimony that may -be offered in opposition to them — which will combat that testimony, and resist its force — do constitute a sufficient objection to him.”

The juror Johns ' testified emphatically that he had a fixed opinion as to the guilt of appellant, which it would take strong evidence to remove, and that he was then upon one side of the case. Who can assert that this juror was not in a condition in which his mind would resist the testimony and combat its force? To hold that such a juror was qualified would be to suspend those provisions of the Constitution which guarantee to every man charged with crime an impartial trial and the administration of justice without prejudice. This court possesses no such power, and has no such inclination. The Constitution is not to be obeyed only when it is convenient to do so, and, when this is not convenient, it cannot be regarded as so much mere sentimental rubbish. It is our duty to give full and vital force to each and every provision of the Constitution which is involved in a criminal trial. The Constitution should be liberally construed in favor of the rights and liberties of the people, but should be strictly construed against usurpations of authority and neglect of duty on the part of all officers from governor to constable.

But it is claimed that upon an examination of the entire record "it clearly appears that appellant is guilty, and that the error of the trial court in this matter therefore becomes immaterial and harmless. We heartily assent to the proposition that, when a defendant has been properly indicted and the evidence clearly shows that he is guilty, a conviction should -not be set aside on account of any error in matters of form or any technicality or exception which did not deprive the defendant of some substantial right. We have uniformly adhered to this rule, as our decisions will show; but it is an utter misconception of the doctrine of harmless error to suppose that, where a defendant has been deprived of a substantial right, such error was or could be harmless. The Constitution of Oklahoma and the Constitution of the United States declare that no person shall be deprived of life liberty, or property without due process of law. There can be no such thing as due process of law in the trial of a case where the defendant has been deprived of a material constitutional right. We are not unmindful of the fact that appellant has been twice convicted for the murder of James E. Meadows. The ’ first conviction was set aside, because after overruling, a motion for a new trial, and before the case-made could be prepared and presented to him for approval, TIon. J. G. Lowe, who presided at the first trial, departed this life. There being no provision of law permitting the approval of a case-made by any other person than the judge who presided at the trial, appellant without fault on his part was thereby deprived of his constitutional right to appeal upon a case-made. See Tegeler v. State, 3 Okla. Cr. 595, 107 Pac. 949, 139 Am. St. Rep. 976. There was a second trial, upon which the jury disagreed. Upon the third trial appellant -was again convicted of murder. So two juries have said that appellant is guilty. The prosecution of this case has consumed much time and cost many thousand dollars to the people of .the state of Oklahoma. We believe there should be an end to criminal cases, and that justice should be executed as speedily as possible. We also bélieve that the unnecessary reversal of convictions of guilty men places an unjust burden in the matter of expense upon the people. For these reasons we are loath to disturb this verdict, except upon the most grave and serious grounds. But no court has the right to place a price upon or to elevate convenience and expense above justice. Section 14, Williams’ Const. Okla., declares that justice shall be administered by the courts to every person without sale and without prejudice. In Oklahoma justice is not a luxury for the rich, but it i& equally the right ÓI the poor as of the rich, without regard to costs aud trouble. It is the fundamental constitutional right of every citizen of Oklahoma to receive justice at the hands of the courts without sale and without prejudice, and in case of his indictment, to be tried by an impartial jury. The members of this court would be both cowards and traitors if, influenced by public clamor, they denied these rights to the humblest, poorest, and most friendless person; it matters not how strong and influential the feeling against him might be. It is of far more importance to the free, intelligent, and justice-loving people of Oklahoma that the principles declared in their Constitution should remain intact and be rigidly enforced, and that absolute fairness, impartiality, and justice should control the action of their courts than it is that one man, no matter how guilty, should be convicted. If the substantial provisions of the Constitution may be disregarded in one case, they may be disregarded in all cases, and thus a precedent be established which would eventually result in arbitrary punishment, a consummation dangerous to innocence, destructive to the harmony of the law and utterly inconsistent with our free institutions.

For these reasons, we feel that we are without discretion in this case, and that it is our plain duty to set aside this; verdict and grant appellant a new trial for the errors herein-' before pointed out.

The questions presented in the other assignments of error-will probably not arise upon a subsequent trial of this case. It is therefore not necessary that they should now be discussed.

The judgment of the lower court is reversed, and the cause remanded for a new trial.

AEMSTEONG, P. J., and DOYLE, J., concur.


source: Caselaw Access Project

author: DOYLE, J.

license: Public Domain

text:
    HARRY WEATHERHOLT v. STATE.
    No. A-1488.
    Opinion Filed April 5, 1913.
    (131 Pac., 185.)
    1. TRIAL — Withdrawal of Plea — Discretion of Court. A motion to quash, and set aside an information should be made before plea, and an application for leave to withdraw a plea of “not guilty” for the purpose of moving to quash and set aside the information is addressed to the sound discretion of the court.
    2. INDICTMENT AND INFORMATION — Variance from Complaint. The complaint before the committing magistrate averred that the killing was effected by means of a shotgun; ‘and the information in the district court averred that the killing was effected by means of a Winchester rifle. Held, that this is a sufficient compliance with the constitutional provision (art. 2, sec. 17, Bill of Bights') as the means by which the offense was committed are not a constituent element of the crime of murder, and that the variance between the averments of the original complaint and the information filed in the district court are not to the prejudice of the substantial rights of the defendant.
    3. TRIAL — Arraignment and Plea — Withdrawal of Plea. Where the motion to quash and set aside is not made in good faith, and is obviously without merit, and it is evident that substantial justice will not be promoted, nor rights of the defendant prejudiced, an application for leave to withdraw a plea of not guilty for the purpose of presenting such motion was properly denied.
    4. TRIAL — Separation of Jury. Section 6851, Comp. Laws 1909 providing that “the jurors sworn to try an indictment may at any time before the submission of the cause to the jury, in the discretion of the court, be permitted to separate, or to be kept in the charge of proper officers,” leaves the question of keeping the jury together during the trial of a capital case within the discretion of the trial court. The fact that a juror in a capital case became separated from his fellow jurors at a recess during the trial, and left the custody of the officers who had the jury in charge, is not sufficient ground to grant a new trial; where it does not appear that he had any communication with any one concerning the cause, either directly by conversation, or indirectly, by overhearing the observations of others, or that he did any act inconsistent with his duty as a juror during such separation.
    5. JURY — Separation—Presumption of Prejudice. When the-jury have separated without leave of the court after retiring to deliberate on their verdict, and before delivering- or sealing the same if it be sealed, in violation of section 6896, Comp. Laws (Rev. Laws, 5937), prejudice will be presumed, and the burden of proof is on the prosecution to affirmatively show that the defendant was not prejudiced thereby.
    6. HOMICIDE — Mutual Combat. Where the killing- was done in mutual combat entered into willingly and in the knowledge of its liability to cause death to one or more of the combatants, all parties who knowingly and intentionally engage in such mutual combat are guilty of murder or first-degree manslaughter, unless it be shown that before the fatal shot was fired they had refused any further combat, and had in good faith withdrawn and sought to avoid further conflict, and that the killing was then done in necessary self-defense.
    7. .HOMICIDE — Principals. One who is present, aiding and abetting in a murder, is guilty as a principal, though another does the killing.
    8. HOMICIDE — Appeal—Harmless Error. A defendant who has been convicted of manslaughter in the second degree cannot complain that the court charged the law of manslaughter in the second degree, and that the evidence did not justify such a charge.
    (Syllabus by the Court.)

      Error from District Court, Ellis County; G. A. Brown, Judge.

    Harry Weatherholt was convicted of manslaughter in tlie second degree, and brings error.
    Affirmed.
    The plaintiff in error, hereinafter referred to as the defendant, was convicted of manslaughter in the second degree in the district court of Ellis county on an information filed in said court October 12, 1909, charging him with the murder of Thomas Morgan in said county on the 27th day of July, 1909, and was sentenced to imprisonment in the penitentiary for -a term of three and one-half years. The judgment and sentence was entered October 14, 1911. To reverse the judgment, the defendant perfected an appeal by case-made.
    The story of the homicide as told by the witnesses for the state is short and simple. The defendant and the deceased disagreed and had some difficulty over the line fence which separated the farms of the respective parties. The defendant bad removed the fence, and the deceased had moved it back. On the fatal day the cows of the deceased got through the fence and into the defendant’s kafir corn. The deceased’s daughter Elsie testified: That she drove the cows out of the cornfield, and E. E. Powers met her and told her to keep the cows out. 'She told him they would if they would let them keep the fence up; and he told her not to fix the fence and then went towards his house, and his son 'Ray, who was with him, went to Weatherholt’s. That she had a hammer and some staples and commenced to fix the fence. That presently she saw Mr. Powers and his son and the defendant coming towards her, so she went home, and told her folks about the cows being out, and asked her brothers to come and help her fix the fence; and Henry, Hiram, and Arnold said that they would go with her, and they and her father and sister-Janette returned with her. That,her oldest brother had a 22 pistol, the other two had shotguns, and her father had a 22 rifle. That they went along the fence and straightened it up and started to staple it. That the defendant, Mr. Weatherholt, and Mr. Powers and his son Ray were standing by an -old hay stack. The defendant had a double-barrel shotgun, and the elder Powers had a Winchester rifle. That the three walked up to them, and her father said, “We are fixing the fence to keep the cattle out,” and the defendant said, “Shut your mouth; your life is short.” That they were all on her father’s farm, and they went on fixing the fence. The defendant and Powers followed them. Overtaking them, her father told Powers that he wanted him to keep his dog off the cattle, and Powers said, “Shut your mouth,” and fired at him-and the defendant shot-also about the same time. That the first shot that the defendant fired struck her father on the hand; and he fired a shot, and said, “That will do,” and started home, when he was shot in the back, and died in a few minutes. That the second or third shot after her father fell struck her brother Henry in the back, and he died before the doctor arrived. That all together four shots were fired by Powers and two by the defendant.
    The testimony of Janette, Hiram, and Arnold Morgan was in substance the same as that of their sister Elsie.
    The widow of the deceased testified: That she had seen the defendant walk along the fence with an old shotgun, and she felt uneasy when the children went to the fence, so, leaving her baby with her daughter Silva, she went about 40 rods from the house' and looked, and saw the defendant and Powers following her husband and the children along the fence. That Powers fired the first shot and the defendant the second. Then the shooting became general. That she saw the defendant shoot again, and she went towards them and met her little girl, who said, “They have shot papa, and I think he is dead, and they shot Henry.” That Mr. Powers seemed to have been shot, as his son and the defendant helped him as he went away.
    Dr. G. E. Irvin testified: That he was a regular licensed and practicing physician, located at Gage, i and was called to the home of the deceased, Thomas Morgan, and examined the body. That the wound that caused the death was made by a bullet that had entered his back and passed through his body, and there was also a gunshot wound on the wrist.
    The record shows the conviction of both the defendant and Powers for the killing of Henry Morgan at the time of the tragedy, and that they were each sentenced to serve a term of two years’ imprisonment, and that after serving a short time the defendant Powers had been granted a parole.
    For the defense E. F. Powers was the main witness. He testified: That he talked with Elsie Morgan on the fatal day about the stock trespassing, but did not tell her that he would not permit the fence to be fixed. That he sent his son Ray to tell the defendant that Morgan’s stock had been in the crop and went home. That the defendant shortly after came to his home and asked him to go with him to estimate the damage done by Morgan’s stock, and he went with the defendant who had a double-barrel shotgun. That he carried his 44 Winchester rifle to shoot jack rabbits. They passed the Morgans near the line fence without stopping. Mr. Morgan made some remark, and the defendant said to Morgan that "he was not afraid of him,” and Morgan answered “that we are ready for you right now,” that the Morgans went west and -they went east into the cornfield and examined the damage, and then took the back track and overtook the, Morgans, and Mr. Morgan made some remark to witness about wanting him to keep his dog off the stock, and as he said this he and his son Henry raised. their guns and fired, and witness was struck on the head with a rifle ball, knocking him down. That he raised up and shot at Mr. Morgan. That Arnold and Hiram Morgan shot at him, several shots hitting him on the head and shoulder. And witness shot again at Mr. Morgan, and then shot.at Henry Morgan, who was shooting at him. That he had heard threats made against him and the defendant by Mr. 'Morgan, and had noticed that the Morgans often carried guns back and forth to their work. That he had been granted a pardon in the case of his conviction for killing Henry Morgan, and the case against him for the killing of Thomas Morgan had been dismissed.
    Mrs. Powers, his wife, testified that she was watching the parties, and the first shot was fired from the Morgans’ side of the fence.
    Ray' Powers testified that the Morgans fired the first shot and the defendant fired two shots.
    Joe Bryan and his wife both testified that they witnessed the shooting, and the first two shots were from the Morgan's’ side of the fence.
    Several witnesses testified that they heard the deceased threaten to shoot the defendant.
    The defense was justification in self-defense. The defendant did not take the witness stand on his own behalf.

      The foregoing statement of facts is sufficient for the purpose of this opinion.

      W. H. Springfield and G. B. Warren, for plaintiff in error.

      Chas. .West, Atty. Gen., Smith G. Matson, Asst. Atty. Gen.; and Jos. L. Hull, for the State.
   DOYLE, J.

(after stating the facts as above). A number of alleged errors in the trial of the case are assigned, which, in so far as they are deemed essential in reviewing the case, will be noted in the order of presentation. The first assignment is the usual one that the court erred in overruling the motion for new trial.

Second. The defendant claims that the court erred in overruling his application for leave to withdraw his plea of “not guilty,” and permit him to file a motion to quash the information on the ground that there was a variance between the complaint and information, in that the former charged that the killing was effected by means of breech-loading shotgun, whereas the latter charged that it was by means of a Winchester rifle.

An application for leave to withdraw a plea of not guilty is addressed to the sound discretion of the court. The record shows that on August 18, 1909, the defendant was brought before .the county judge, acting as a committing magistrate, and having waived a preliminary examination was held to answer for murder as charged before the district court; that on August 21, 1909, he was admitted to bail by the district judge; that on November 17, 1909, he was duly arraigned and entered a plea of “not guilty,” and this application was not made until the ease was called for trial April 6, 1911, about 18 months after 'the plea was entered.

In Hunter v. State, 3 Okla. Cr. 533, 107 Pac. 444, it is said:

“The facts stated, if true, in a motion to set aside an indictment, must present a case, not of technical, or possible, or hypothetical, but of manifest, prejudice to the substantial rights of the defendant, and where it is plain that substantial justice will not be promoted, nor manifest wrong to the defendant prevented, the indictment should not be set aside on more technical errors, informalities, or irregularities.”

The means with which the offense was committed are not a constituent element of the crime of murder, and while the averments of the means with which the offense charged was committed is a necessary averment to a good information, yet it cannot be said that the variance between the averments of the original complaint and the information filed in the district court was prejudicial to the substantial rights of the defendant. Williams v. State, 6 Okla. Cr. 373, 118 Pac. 1006; Ponosky v. State, 8 Okla. Cr. 116, 126 Pac. 451; Tucker v. State, 8 Okla. Cr. 428, 128 Pac. 313.

The defendant’s plea of not guilty was advisedly entered, and we think the court did not exercise its discretion unsoundly in refusing to allow the defendant to withdraw his plea for the purpose of presenting a motion to quash the information that obviously was without merit.

Third. Error is assigned upon the rulings of the court in admitting and excluding testimony. Counsel in their brief state: “We do not wish to waive this assignment, but respectfully refer the reviewing court to the record.” We do not consider it the duty of this court to examine the transcript of the evidence to determine whether or not the trial court erred in the admission or rejection of testimony and refer counsel to rule 4 prescribing that:

“When the error alleged is to the admission or to the rejection of evidence, the specification shall quote the full substance of the evidence admitted or rejected, stating specifically the objections thereto.”

Fourth. The defendant complains of misconduct of the jury in separating without leave of the court, after having been sworn and placed in charge of the bailiff, and before the case had been finally submitted to them. One of the grounds of the motion for new trial is:

“That one of the jurymen, L. Ii. Oliver, separated from the rest of the jury and went alone to look after his te.am, and went to a restaurant separate and apart from the rest of the jurors to get his supper, and that the sheriff had to go after him and bring him -back to the other jurors.”

The fact of the separation of the jury as alleged is not denied. The bailiff testified that in taking the jury to supper the first day of the trial he missed the juror Oliver when they reached the hotel, and he went back, and found the juror at a restaurant, waiting for his supper; that he remonstrated with him, and the juror said that he was hard of hearing, and had understood the judge to say to be back at half past 7; that he had a team at the livery barn and had gone to see about that.

The juror Oliver testified that he talked with the judge in regard to getting leave to go and feed his team; that he went straight to the barn and fed his team, and then went to the restaurant where he was found by the sheriff; that he did not speak to any one, and no one spoke to him, and he did not , hear any person speak about the case.

The record shows that, upon adjournment on the first day of the trial, the court instructed the bailiff to keep the jury together. This wás on Thursday, October 5th; the case was submitted to the jury on October 7th. In support of this assignment, counsel cite the case of Bilton v. Territory, 1 Okla. Cr. 566, 99 Pac. 163. In the Bilton case the jury was permitted to separate after the case had been finally submitted and the jury had retired for the purpose of deliberating. It is not claimed in the ease at bar that there was a separation of the jury after the ease had been finally submitted to them.

Section 6851 (Comp. Laws 1909 [Rev. Laws, 5899]) Procedure Criminal, provides:

“The jurors sworn to try an indictment, may at any time before the submission of the cause to the jury, in the discretion of the court, be permitted to separate, or to 'be kept in charge of proper officers. The officers must be sworn to keep the j.urojs together until the next meeting of the court, to suffer no person to speak to or communicate with them, nor to do so themselves, oil any. subject connected with the trial, and to return them into court at the next meeting thereof.”

Construing this section in the case of Armstrong v. State, 2 Okla. Cr. 567, 103 Pac. 658, 24 L. R. A. (N. S.) 776, it is said: .

“Under this provision the segregation of the jury in felony cases, before the cause is finally submitted, is left in the discretion of the trial court, yet we believe that in the exercise of sound judicial discretion the trial court in a capital ease should not refuse a request from either party to place the jury in charge of sworn officers during thp progress of the trial. The legal presumption is that jurors perform their duty in accordance with the oath they have taken, and that presumption is not overcome by proof of the mere fact, that during the adjournments of a trial the jurors were permitted to separate. The defendant must affirmatively show that by reason thereof he was denied a fair and impartial trial, or that his substantial rights were prejudiced thereby.”

And in conclusion it is said:

“The clear intention of the law-making power is that the mere separation of the jury during the numerous and necessary . adjournments incidental to a criminal trial should not result m delaying or defeating the ends of justice, when there is not the slightest presumption or probability or even possibility of injustice to the defendant.”

In a homicide case, where the court upon its own motion, after the jurors were sworn to try the case, ordered them into the custody of the sheriff during the progress of the trial, and before the final submission of the case certain of - the jurors separated from the others, the Supreme Court of California said:

“The direction of the court did not give the defendant the right to control the action of the jury or of the officer in that respect during the pendency of the trial, nor the right to any exception for error or misconduct by reason of a failure to literally comply therewith. The mere fact that the direction of the court was violated does not give to the defendant the right to have the verdict- set aside. He must show as fully as if the direction had not been given that one or more of the jurors was influenced in his verdict by some outside influence during or in consequence of such separation.” (People v. Bemmerly, 98 Cal. 299, 33 Pac. 263.)

See, also, People v. Emmons, 7 Cal. App. 685, 95 Pac. 1032.

This statute further provides (section 6858, Proc. Crim.) that, before the jury retire to deliberate on their verdict, one or more officers must be sworn to keep them together in some private and convenient place, and not to permit any person to speak to or communicate with them, nor do so themselves, unless it be by order of the court, and one of the express grounds for a new trial is:

“3d. When the jury have separated without leave of the court, after retiring to deliberate on their verdict, and before delivering, or sealing the same, if it be sealed.” (Section 6896, Proc. Crim. [Rev. Laws, 6045].)

In Goins v. State, ante, 130 Pac. 513, and cases therein collated, it is held that on proof of a violation of this provision ■by permitting the jury to separate after the case is finally submitted the defendant is entitled to the presumption that such separation has been prejudicial to him, and the burden of proof is on the prosecution to show that no injury could have resulted therefrom to the defendant.

In the case at bar the burden of showing prejudice was upon the defendant; however, the prosecution ' assumed the burden by showing that the defendant was not prejudiced thereby, and that the separation was by permission of the court, and it clearly appears that the defendant suffered no injury by reason of such separation. It is also insisted that the verdict is contrary to law, and is not supported by sufficient evidence.

The only conflict between the law in the premises and the verdict of the jury is that there was no evidence tending to reduce the homicide to manslaughter in the second degree. However, the court for some reason not apparent from the record without objection by the defendant submitted to the jury the issue of manslaughter in the second degree. And the defendant cannot complain because the court 'gave the jury an opportunity to find him guilty of this degree, even though the evidence did not justify such an instruction.

As to the sufficiency of the evidence, one who is present aiding and abetting in a murder is guilty as a principal, though another does the killing. And if the defendant in any way challenged the fight, and went to it with an armed party on the day of the killing, knowing that the other parties were armed with deadly weapons and willing to fight, he cannot af-terwards justify the taking of his assailant’s life on the ground of necessary self-defense.

The evidence in this case strongly tended to show that the killing was done in mutual mortal combat; and where a homicide is committed in mutual combat, entered into willingly and in the knowledge of its liability to cause death to one or more of the combatants, all parties who knowingly and intentionally engage in such mutual combat are guilty of murder, unless they can prove that, before the fatal shot was fired, they had refused any further combat, and had in good faith withdrawn and sought to avoid further conflict, and that the killing was then in their necessary self-defense. Driggers v. United States, 1 Okla. Cr. 167, 95 Pac. 612, 129 Am. St. Rep. 823; Id., 21 Okla. 60, 95 Pac. 612, 129, Am. St. Rep. 823, 17 Ann. Cas. 66; Evans v. State, 8 Okla. Cr. 78, 126 Pac. 586; Wood v. State, 3 Okla. Cr. 553, 107 Pac. 937. Upon the undisputed facts and the testimony offered on behalf of the defendant, he was guilty at least of manslaughter in the first degree.

The other assignments are untenable, and merit no discussion.

No error appearing in the record prejudicial to the substantial rights of the defendant, the judgment of the district court of Ellis county is affirmed.

ABMSTEONG, P. J., and FUBMAN, J., concur.


text:
    BEN MITCHELL v. STATE.
    No. A-1329.
    Opinion Filed April 12, 1913.
    (130 Pac. 1155.)
    1. VAGRANCY — Evidence. The information in this case charged the defendant with being a vagrant, to wit, “a professional gambler,” and, upon the trial, the court admitted evidence of the defendant’s general reputation to support the charge. Held, error, and that it devolves upon the state to prove the particular facts showing the defendant to be a professional gambler.
    2. SAME — General Reputation. Whether a defendant is or is not a professional gambler depends upon matters of fact, and not his reputation or character, and evidence of general reputation to prove such fact is not admissible.
    3. SAME — “Professional Gambler.” A professional gambler is one who makes his living in pursuing the business or practice of unlawful gaming, by the use of cards, dice, or other gaming device, with the purpose of thereby winning money or other property, or who conducts either as owner or employee a place for gambling.
    4. SAME — Sufficiency. Evidence examined, and held, insufficient to support the verdict.
    (Syllabus by the Court.)

      Error from Pottawatomie County Court; Ross F. Lochridge, Judge.

    Ben Mitchell was convicted of vagrancy, and brings error.
    Reversed.

      J. T. Williams, for plaintiff in error.

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

Plaintiff in error, Ben Mitchell, was convicted of vagrancy .in the county court of Pottawatomie county, and the judgment and sentence of the court was that he be confined in the county jail for a period of 30 days and to pay a fine of $100. To reverse the judgment, an appeal was perfected.

Error is assigned upon the rulings of the court “in admitting evidence that the defendant’s general reputation was that of a professional gambler.” The information charged a .violation of section 2790 of Comp. Laws 1909 (Rev. Laws, 2515), which enacts that:

“The following' persons are vagrants within the meaning of this act: * * * Fifth. Any professional gambler, or gamblers commonly known as tinhorn gamblers, card players or card sharp. * * *” ■

Three witnesses testified for the. state: E. A. Pierce, the first witness, testified that he was sheriff of Pottawatomie county, and had known defendant 13 years, and that he had lived in the town of 'McComb during that time. He was then permitted to testify, over the defendant’s objections, properly made,-as follows:

“Q. Did you ever know him to be engaged in gambling? A. I never saw him gambling. Q. Are you acquainted with the general reputation of Ben Mitchell in the community where he lives, and from what the people say about him generally, on or about the 27th day of May, 1911, and three years prior thereto, as to his being a professional gambler? A. Yes, sir; he has a reputation of being a professional gambler.”

Similar questions were repeatedly asked and similar answers given. Substantially the same questions were asked of the next witness, E. W. Grimes, and the same answers given, over objections properly made. And Albert Coleman testified in answer to a similar question: “Some say he is a gambler, I was never in a gambling house. Don’t know anything about it.”

This evidence was merely hearsay, and its admission was error prejudicial to the substantial rights of the defendant upon the merits. The statute under which the defendant was prosecuted condemns as a vagrant “any person who is a professional gambler”; and evidence that the - defendant was and is by reputation a professional gambler is not admissible; his acts, not his character, must be shown.

Thus in Commonwealth v. Hopkins, 2 Dana (Ky.) 418, the court said:

“It is the general course of conduct, in pursuing the business or practice of unlawful gaming, which constitutes a common gambler. A man’s character is, no doubt, formed by, and results from, his habits and practices; and we may infer, by proving his character, what his habits and practices have been. But we do not know any principle of law which sanctions the introduction of evidence to establish the character of the accused, with a view to convict him of offending against the law, upon such evidence alone. If the statute had made it .penal to possess the character of a common gambler, the rejected testimony would have been proper. But we apprehend that the question whether a man is or is not a common gambler depends upon matters of fact — his practices, and not his reputation or character — and therefore the facts must be proved, as in other cases.”

In the case of Arnold v. State, 28 Tex. App. 480, 13 S. W. 774, the headnote is:

“The rule is elementary that, if an offense is laid generally in an indictment or information, evidence of general reputation to prove such offense is not admissible; the particular facts which constitute the .offense must be proved. The information in this ease, in general terms, charged the accused with being a vagrant, to wit, a common prostitute, and upon the trial the court admitted evidence of general reputation to support the charge. Held, error and that it devolved upon the state to prove the particular facts showing the accused to be a common prostitute.”

See, also, Wharton’s Crim. Ev. 1-260.

A professional gambler is a person who makes his living in pursuing the business or practice of unlawful gaming, by the use of cards, dice, or other gambling device, with the purpose of thereby winning money or other property, or who conducts, either as owner or employee, a place for gambling.

In this case it devolved upon the state to prove the particular facts showing that the defendant was a professional gambler, and for the jury to determine what inference shall be drawn from the facts proved; and this proof could not be made by evidence of his general reputation in that respect.

It is also contended that the verdict is contrary to the evidence. We have read all the evidence, and it shows that the defendant lived in MeComb, owned his home, had a family, and had a legitimate business. Our conclusion is that the evidence is insufficient to sustain the verdict.

The judgment of the lower court is therefore reversed, and the cause remanded thereto, with direction to dismiss.

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


author: FURMAN, J.

text:
    E. BISHOP v. STATE.
    No. A-1952.
    Opinion. Filed April 12, 1913.
    (130 Pac. 1173.)
    1. APPEAL — Sufficiency of Evidence. Where there is any evidence from which the jury could legitimately conclude that the defendant is guilty, a verdict will not he disturbed upon the ground that it is contrary to the evidence.
    2. INTOXICATING LIQUORS — Illegal Sale — 'Internal Revenue License. Where a person applies for and obtains a United States internal revenue license to engage in the business of a retail liquor dealer at a given place, and thereby secures immunity from prosecution by the United States on account of such sales, he cannot be heard to say, when prosecuted in a state court for violating its prohibitory liquor law, that he had no connection with the sale of such liquor at such place.
    (Syllabus by the Court.)

      Appeal from, Garfield County Court; Winfield Scott, Judge.

    E. Bishop was convicted of maintaining a place for the sale of intoxicating liquors, and appeals.
    Affirmed.

      A. J. Jones, for appellant.

      C. J. Davenport, Asst. Atty. Gen., for the State.
   FURMAN, J.

Appellant, E. Bishop, and one Ollie Osten-dorf were jointly prosecuted by information, charged with the offense of keeping and maintaining a place, during the month of August, 1912, in the city of Enid, where spirituous, vinous, and malt liquors were kept with intent to sell the same. A severance was requested, and appellant was placed first upon trial and was convicted, and his punishment assessed at a fine of $500 and six months’ confinement in the county jail.

But one question is presented upon appeal, and that is that the verdict is contrary to the evidence. The testimony is conclusive that the place in question, alleged to have been kept by appellant and Ostendorf, was maintained and kept for the purpose of selling intoxicating liquors. The contention of appellant is that it was not shown that he had any connection therewith. It is true that no witness testified that he ever saw- the appellant at this place, but the state introduced a certified copy of the records of the United States internal revenue collector, showing that a United States internal revenue license was issued to E. Bishop, authorizing him to conduct the business of retail liquor dealer at the place and during the time named in the information.

Under the United States law (section 3233, Revised Statutes [U. S. Comp. St. 1901, p. 2091]), before the revenue collector issues a license, the person to whom it is issued must register with the collector his name, place of busiess, and, in case of a firm, the names of the several persons constituting the firm. We therefore have the right to assume that E. Bishop complied with this statute prior to the issuance of a license to. him.

Under the United States law (section 3241, Revised Statutes [U. S. Comp. St. 1901, p. 2094]), when a person who. has paid for the license desires to transfer the location of his. business, he may do so; but before changing the location he must make a new registration with the collector showing the change. When this is done, the internal revenue collector’s office makes a record of this tranfer.

The certificate of the internal revenue collector in this case is dated January 28, 1913, and does not show any transfer under the license mentioned therein. But it is contended that there is no proof that appellant is the same person as E. Bishop to whom the license was. issued. In the motion for a change of venue it was stated that the name of appellant was Edward B. Bishop. From this it is claimed that there is a variance between the name mentioned in the information and in the license and that of appellant. If the name of appellant had been improperly stated in the information, he might have had his true name entered of record. But he went to trial without objection under the name of E. Bishop, and it is too late now for him to claim that there is a failure of evidence in this respect. The law takes no notice of middle names, and if appellant applied for and received the license as E. Bishop he cannot be heard to complain that it was not issued in the name of Edward Bishop.

Appellant offered no evidence at all in his behalf, and did not try to explain any testimony for the state. If, as a matter of fact, the appellant was not the party mentioned in the certificate, it would have been a very easy matter for him to-prove this fact. It was not necessary for the state to prove that appellant was present when' the liquor was sold. It was enough for the state to prove that he had obtained a license to conduct this business, and that under said license sales occurred thereon. All persons concerned in the commission of an offense are guilty as principals, whether they are present at its commission or not.

We think the evidence sufficient to sustain the verdict. The judgment of the lower court is therefore in all things affirmed.

ARMSTRONG!, P. J., and DOYLE, J., concur.


text:
    ROBERT FRANKLIN v. STATE.
    No. A-1491.
    Opinion Filed April 12, 1913.
    (131 Pac. 183.)
    1. TRIAL — 'Preparation for Trial — Copy of Accusation — Waiver. Under the Constitution (art. 2, sec. 20, Bill of Rights), in all criminal prosecutions the defendant is entitled to a copy of the accusation against him; but, if he be at large so that he can go to the clerk’s office, call for, and examine the original accusation and copy it if he desires, the state is under no obligation to make and serve a copy upon him. However, if he demands a copy thereof, the state must furnish it, but, unless he demands it before announcing ready for trial, his right to a copy is waived.
    2. SAME — Service of List of Witnesses — Waiver. The defendant in a capital case may waive his constitutional right to be furnished with a list of the witnesses that will be called in chief to prove the allegations of the indictment or information, together with their post office addresses, at least two days before the case is called for trial.
    3. TIME — Computation—“Day.” A day, in legal consideration, is punctum temporis., Fractions of a day are to be disregarded in computations which include more than one day, and involve no question of priority.
    . 4. HOMICIDE — Manslaughter—Sufficiency of Evidence. In a prosecution for murder, the evidence is held sufficient to support the verdict of manslaughter in the second degree, and that no error was committed on the trial.
    5. CONTINUANCE — Waiver of Right. Where counsel for defendant in a homicide case refuses to consent to a continuance until another' case on call for that day is tried, this constitutes a waiver of any right defendant may have to a continuance.
    6. WITNESSES — List of Witnesses — Residences. Where the witnesses, whose names were indorsed on the information, were relatives and near neighbors of defendant, the words “all of Konawa, Okla.,” sufficiently designated their post office addresses, within the requirement of Const. Bill of Rights, sec. 20, that defendant shall be served with a list of the witnesses together with their post office addresses.
    (Syllabus by the Court.)

      Appeal from District Court, Seminole County; Tom D. McKeown, Judge.

      Eobert Franklin was convicted of manslaughter in the second degree, and he appeals.
    Affirmed.

      Crump & Fowler, for plaintiff in error. ■ .

      'Chas. West, Atty. Gen., Smith <C. Matson, Asst. Atty. Gen., and H. A. King, for the State.
   DOYLE, J.

Plaintiff in error, Eobert Franklin, hereinafter referred to as the defendant, was in the district court of Seminole county convicted of manslaughter in the second degree on an information charging him with the murder of Mary Gordon, and in accordance with the verdict- of the jury was on August 26, 1911, sentenced to serve a term of two years in the penitentiary. To reverse this judgment an appeal by ease-made whs perfected.

Briefly stated, the record discloses the following facts: On September 24, 1910, there was a “supper” at the home of Jim Franklin, a brother of the defendant, attended by a number of negroes, among them Mary Gordon, the deceased, and her stepson, Manual Gordon. The defendant had some trouble at the supper with Manual Gordon, and the. deceased started home, carrying a shotgun, and was overtaken by the defendant and his brother Houston Franklin, and in a scuffle for the possession of the gun 'the deceased was shot. She died in a few days from the effect of the gunshot wound.

E. L. Adamson testified that shortly after the deceased had started home he heard her exclaim, “Don’t shoot me Houston, don’t shoot meand then he heard the report of a gun. and went to where she was. The defendant and Jesse Boss were with her, and she said that Houston had shot her.

Jesse Boss testified that he was less than 100 yards distant when he heard the shot and went to where she was, meeting the defendant, who was carrying a shotgun. While witness was there, the defendant came back and said to the deceased, “I was trying to protect you, wasn’t I, Mrs. Mary Gordon?” to which she repied, “No, Eobert, don’t come here and try to blab that to me, you know yon held me and Houston shot me.”

Henry Gordon, her husband, testified that the deceased as a dying declaration stated:

“Robert held me and Houston shot me. I know the law will have its course, but I do feel sorry for the boys, and I am hoping they won’t harm them.”

The defendant’s sister testified that she waited on the deceased and on the day she died she said that Houston shot her and Robert held her, and sent for the defendant’s mother and said to her, “She did not want the boys punished, and she did not think the boys done it on purpose, and' that she would leave it in the hands of the Lord?”

The defendant, as a witness on his own behalf, testified that with his brother Houston he started home about 11 o’clock, and met the deceased on the road; that she threw the shotgun down on them and told them to stop; that they jumped off the horse they were both riding, and Houston grabbed the gun and tussled with her, and the gun went off, and the deceased grabbed him and he held her a little while 'and then laid her down and went back to the house and told them about it.

The record shows that Houston Franklin and the defendant were jointly charged in the original complaint, but it does not appear that Houston was apprehended.

The petition contains the usual assignments that the verdict is contrary to law and is not sustained by sufficient evidence, and that the court erred in overruling the motion for new trial. Also that the court erred in denying a motion for a continuance. However, there is nothing tending to show that the trial court abused its discretion in denying the application. The assignments relied upon for a reversal of the judgment are, in, effect, that the court erred in refusing the request of the defendant that he be furnished with a list of the witnesses, together with their post office addresses, two days before said case was called for trial.

The record shows that the crime for which the defendant stood charged was committed on September 24, 1910. The defendant was admitted to bail October 6, 1910. The information was filed January 10, 1911, and indorsed thereon were the names of Henry Gordon, hnsband of the deceased, Jesse Eoss, E. L. Adamson, and Loa Scott, sister of the defendant, and following the names the words “all of Konawa, Oída.” The defendant’s counsel secured the original papers in the case August 20 th, and kept them until the county attorney called for them.

When the case was called for trial August 23, 1911, the defendant objected to going to trial without a list of the witnesses, together with their post office addresses. During the afternoon session, the county attorney in open court, in the presence of the defendant and his counsel, entered the post office address of each witness on the information, and the case was continued until 9 a: m., August 25th, at which time the objection was renewed on the ground that two full days had not elapsed, and the defendant was thereby deprived of his constitutional right, as guaranteed by section 20 of the Bill of Eights providing that:

“In capital cases, at least two days before the case is called for trial, he shall be furnished with a list of the witnesses that will be called in chief to prove the allegations of the indictment or information, together with their post office addresses.”

A day, in legal consideration, is punctum temporisj fractions of a day are to be disregarded in computations which include more than one day, and involve no question of priority. Section 2962, Comp. Laws 1909 (Eev. Laws, 2942).

However, the record shows that the court offered on August 25th to pass the case until a homicide case that was on call for trial that day, was tried, but the defendant’s counsel refused to consent. This constituted a waiver of any right the defendant might have to further continuance.

In case of Blair v. State, 4 Okla. Cr. 359, 111 Pac. 1003, this court held:

“Under the Constitution of Oklahoma, the defendant is entitled to a copy of the indictment or information filed against him; but if he be at large so that he can go to the clerk’s office, call for, and examine the original accusation, and copy it if he desires, the state is under no obligation to make and serve a copy upon 'him.”

See also, Stouse v. State, 6 Okla. Cr. 415, 119 Pac. 271.

The provision of the Constitution referred to does not, as counsel contend, state that, “Defendant shall be served with a copy containing a list of witnesses with their post office address,” but states that,

“He shall be furnished with a list of the witnesses that will be called in chief to prove the allegations of the indictment or information, together with their post office addresses.”

The courts have no power to deprive a defendant of this right. However, the right is one that may be waived; and, while a defendant in a capital case is not to be presumed to waive any of his rights, yet where such right is largely for his benefit, or in the nature of a personal privilege, the law is well settled that the defendant may waive such right. Starr v. State, 5 Okla. Cr. 440, 115 Pac. 356. A defendant may plead guilty and thus deprive himself of one of s the most valuable rights secured ' to the citizen — that of a trial by jury. If he can expressly admit away the whole case, then it follows that he can admit away a part of it, but he will not be presumed to have done so. Courts should see that the defendant is protected in all his rights, and no' waiver should be implied unless the facts are such to clearly justify it.

In this instance the witnesses whose names were indorsed on the information were the relatives and near neighbors of the defendant, and the words “all of Konawa, Okla.,” sufficiently designated their post office address, and if there was any irregularity it affirmatively appears that the defendant expressly waived it. We think the technical objections made are obviously destitute of merit.

To convict of manslaughter in the second degree, it is not necessary to show an intent to kill. It is sufficient to show an unlawful killing, and we think the evidence is ample to support the verdict.

Having examined each of the assignments argued, and finding no prejudicial error in the record, the judgment of the district court of Seminole county is affirmed.

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


text:
    N. B. HIGH v. STATE.
    No. A-1916.
    Opinion Filed April 12, 1913.
    (131 Pac. 189.)
    APPEAL — Taking of Appeal — Time. In misdemeanor cases the appeal must be taken within 60 days from the date of the judgment, unless the trial judge, for good cause shown, extends the time for taking the appeal not exceeding 60 days additional.. After this time has expired, no appeal can be taken.
    (Syllabus by the Court.)

      Appeal from, Roger Mills County Court; E. E. Tracy, Judge.

    N. B. High was convicted of violating the prohibitory liquor law, and he appeals.
    Appeal dismissed.

      E. L. Mitchell, for appellant.

      •C. J. Davenport, Asst. Atty. Gen., for the State.
   FURMAN, J.

Section 6948, Comp. Laws 1909 (Rev. Laws, 5991). is as follows:

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

In this ease the appellant was convicted for a violation of the prohibitory liquor law, and his punishment was assessed at a fine of $50, and 30 days confinement in the county jail. Judgment was rendered against appellant on the 24th day of August, 1912, but the appeal was not perfected by filing the record in this court until February 20, 1913. As the appeal was not perfected within the time required by law, this court has not acquired jurisdiction of the cause. As no counsel has appeared in this court to represent appellant, we are impelled to the belief that this attempted appeal was used merely for the purpose of securing delay.

The appeal is dismissed for want of ¡jurisdiction, and the cause is remanded to the county court of Eoger Mills county, with directions to the trial court to proceed with the enforcement of its judgment.

ARMSTRONG, P. J., and DOYLE, J., concur.


text:
    JOE STARR v. STATE.
    No. A-1894.
    Opinion Filed April 12, 1913.
    (130 Pac. 1176.)
    APPEAL — Notice of Appeal — Necessity. Where an appeal is taken by a defendant, notice of such appeal must be served upon the clerk of the court in which the judgment was rendered and also upon the prosecuting attorney.
    (Syllabus by the Court.)

      Appeal from District Court, Mayes County; Preston S. Davis, Judge.

    Joe Starr was convicted of aggravated assault, and he appeals.
    Appeal dismissed.

      A. C. Brewster, for plaintiff in error.

      C. J. Davenport, Asst. Atty. Gen., for the State.
   FURMAN, J.

Appellant was convicted in the district court of Mayes county of an aggravated assault, and his punishment was assessed at confinement in the penitentiary for a period of one year and one day. From this judgment he attempted to prosecute an appeal. But no notices of appeal have been served upon the clerk of the district court of Mayes' county or upon the county attorney as is required -by law. These notices of appeal are jurisdictional, and when they have not been served this court does not acquire jurisdiction of the cause.

The appeal is therefore dismissed, with directions to the district court of Mayes county to proceed with the enforcement of its judgment.

ARMSTRONG, P. J., and DOYLE, J., concur.