author: FURMAN, PRESIDING Judge,

text:
    E. S. McLellan v. State.
    No. A-124.
    Opinion Filed September 7, 1909.
    (103 Pac. 876.)
    1. APPEAL — Appeal from Motion Denying New Trial — Dismissal. Where a defendant attempts to take an appeal from a judgment overruling a motion for a new trial, the appeal will .be dismissed.
    2. SAME — Necessity of Final Judgment. No appeal can be take¡n until after final judgment has been rendered against the defendant.
    (Syllabus by the Court.)

      Appeal from Choctaiu County Court; W. T. Glenn, Judge.

    E. S. McLellan was convicted of conspiracy to resist legal process, and appeals.
    Dismissed.
    An information was filed against E. S. McLellan (hereinafter ■ called defendant), on the 17th day of November, 1908, in the county court of Choctaw county charging him with having- en-terecl into a conspiracy to resist the execution of certain legal process, which said information is as follows:
    “In the County Court of Choctaw County, Oklahoma. The State of Oklahoma v. E. S. McLellan. Information for Resisting Arrest. In the name and by the authority of the state of Oklahoma, now comes J. M. Willis, county attorney in and for Choctaw county, Oklahoma, who prosecutes for and on behalf of said state in all courts sitting in said county, and duly authorized and empowered to inform of all offenses committed or triable therein, and gives the court to know and be informed, that heretofore, to wit, on or about the 25th day of August, A. D. 1908, within the county of Choctaw and the state of Oklahoma, one E. S. McLell-an, then and there being, did then and there unlawfully enter into a combination with one Ed Houghton to resist the execution of a certain legal process, to wit, a warrant duly and legally issued out of the county court of Choctaw county, Old alloma, directed to the sheriff of said county, commanding the arrest of the said Ed Hough'ton, by then and there counseling, encouraging, aiding, and abetting the said Ed Houghton in resisting said process, con-•trarjr to and in violation of the statutes in such cases made and provided, and against the peace and dignity of the state. J. M. Willis, County Attorney.”
    The defendant was found guilty by the jury, and his punishment jvas assessed at a fine of $500. A motion for a new trial was made -and overruled. The defendant excepted, and prosecuted an appeal. There is no pretense of ■ a judgment in the record before us.

      Richardson & Hardison, for appellant.

      Charles L. Moore, Asst. Atty. Gen., for the State.
   FURMAN, PRESIDING Judge,

(after .stating the flacts as above). The Attorney General files a motion to dismiss this appeal upon the ground that the record filed in this court does not contain a final judgment of the court against the defendant. The record contains the following ruling of the court upon the defendant’s motion for'a new trial:

“Now, on this the 9th day of December, 1908, there coming on for hearing the motion of the defendant herein for a new trial, the defendant appears in person and by his attorneys, Thus. S. Hardison and Geo. W. Bichardson; and the court, having considered said motion and being well and sufficiently advised in the premises, doth overrule the same, to which ruling of the court in overruling said motion the defendant did then and there except. The court, allowing defendant 90 days in which to prepare and serve his case-made, grants to the state 15 days thereafter in which to prepare and hie suggestions or amendments; case-made to be settled and signed within 10 days thereafter upon 5 days’ notice in writing to either party. Case-made to be filed in Court of Criminal Appeals within 12'0 days from this date.”

The record does not contain a final judgment. The necessity for a final judgment, before, an appeal can be taken, has been repeatedly passed upon by appellate courts.

In Shannon v. State, 7 Tex. 492, it is said: “An appeal will not lie, in either a civil or a criminal cause, until after final judgment.”

In Calvin v. State, 23 Tex. 577, it is said:

“The judgment of the law upon the verdict must be entered on the minutes of the court, notwithstanding an appeal by the defendant; and this court will dismiss the appeal for want of jurisdiction, if the proper judgment be not entered of record in the court below. Many other cases might be cited to the same effect, but we deem it sufficient for our present purpose to refer only to the cases of Nathan v. State, 28 Tex. 326, and Mayfield v. State, 40 Tex. 290.”

In Smith v. State, 1 Tex. App. 410, 411, it is said:

“The verdict of the jury, by which the accused was found guilty of murder in the second degree, rendered on the 23d day of April, 1873, could not have been appealed from, nor could the judgment of the/Court overruling the defendant’s motion for new trial have been appealed from, for the want of a final judgment of conviction entered against him on the minutes of the court below.”

In Mirelles v. State, 13 Tex. App. 347, it is said:

“In Pennington v. State, 11 Tex. App. 281, it was held that 'though a convicted defendant has a right of appeal in any criminal action, yet he is not convicted until final judgment is rendered against him.’ If, therefore, the record on appeal shows no final judgment in the trial court against the appellant, the appeal will be dismissed by this court. In the case before us there is no declaration in the judgment that 'the defendant is adjudged guilty of the offense as found by the jury.5 55

This question was passed upon by the Supreme Court of Oklahoma Territory in Sproat v. Durland, 7 Okla. 230, 54 Pac. 458. In that case the record contains the following:

‘Otto C. Durland v. Samuel Sproat. No. 1,551. Come now the plaintiff and defendant, by their counsel, and waive a jury and consent to a trial by court; and' J. M-. Owens is sworn and testified on behalf of plaintiff, and plaintiff and defendant rest; and judgment is rendered herein for plaintiff and against the defendant, per journal entry; and defendant excepts to said judgment, and is given 30 days to make and serve a case-made for the Supreme 'Court, and 10 days given to- suggest amendments, and to be closed on 5 days5 notice.5 There is no certificate of the clerk that this is a copy of the judgment rendered in said cause, and it is not, and does not purport to be, a judgment. .It is simply a' recital of the fact that a judgment was rendered, and shows on its face that a journal entry was to be filed, showing what the judgment of the court was. It has frequently been held bjr appellate courts that the form of a judgment is not to be treated as fatal, if it appears that it was intended; to be a judgment, and it can be determined whom the judgment was in favor of, and whom against and what the court ordered or decreed should be done, together with the amount of recovery, if there was a money judgment. But what is not intended for a judgment of the court cannot be treated as -a judgment, and it is clear from what we have before us that the entry set out was not intended for the judgment of the court. This court will not review the proceedings of the trial 'court in any ease, unless the record contains a copy of the final judgment or final order of the court from which the appeal is taken. Gardenhire v. Burdick, 7 Okla. 212, 54 Pac. 483.55

In Brown v. Territory, 15 Okla. 362, 82 Pac. 647, the court said:

“The .case-made contains no copy of the judgment of the district court, nor does it contain any statement that a judgment of conviction was rendered against the defendant, the plaintiff in error; neither does the record contain airy motion for new trial. Tliere is a recital that a motion for new trial was filed, presented, and overruled; but we have no means of knowing what it contains or upon what the plaintiff in error relies as ground for new trial in the court below. We cannot consider the alleged errors embraced in the petition in error upon so defective a record. It is the judgment of trial court that the plaintiff in error is entitled to appeal from. There is nothing to inform this court that any judgment has ever been rendered.”

An appeal does not lie to this court from any ruling or order made by the trial court before final judgment is rendered and sentence has been pronounced. When' a final judgment is rendered, and an appeal is taken therefrom, then any and all rulings or orders made during the trial are subject to review by this court, if properly saved by exceptions and contained, in the case-made or transcripts of the record. In a number of cases submitted to this court, many irregularities appear in the record. This shows a want of care and attention on the part of counsel for the defense in preparing their casesmrade, and also on the part of county attorneys in failing to carefully inspect the case-made served upon them, and in not pointing out to1 the trial judges the errors which they contain, in. order that they may be corrected. It is the duty of counsel for the defense to see that, before a case is filed in this court, the case-made and transcript, of the record are properly prepared and contain everything that they desire to present to the court, and which is necessary to give this court jurisdiction. It is equally the duty of the county attorneys to carefully inspect all eases-made sferved upon them,, and, if they are defective, to point out to the court any errors contained therein. The due and regular administration of justice requires that this must be done by the respective counsel in all cases appealed. There is great room for improvement in this matter on the part of many of the attorneys for the defense and county attorneys in this state. This court has no desire to be captious or technical in its rulings. On the contrary, it is our earnest desire to treat both the state and the defendant with perfect fairness in each case brought before us. We have repeatedly granted extensions of time to allow counsel to correct the record in this case; but it remains in its present condition, and we are forced to pass upon it as it is.

We will base our decisions upon substance and justice, rather than upon shadows and technicalities; but at ithe same time we cannot ignore constitutional and statutory provisions, or those rules of practice which are founded upon justice and supported by reason, where the record shows that injury has been done ;to a defendant. We advise a careful examination of the rules adopted by this court on the 6th day of July, 1909. They may be found in volume 1, Olcla. Or. Kep., and in volume 102, Pac. Eep. If there is anything unfair or unjust in these rules, we earnestly request counsel to suggest any alterations which should be made in them which will aid in the administration of justice. These rules were made 'to1 be enforced, and counsel "having cases in this court will consult the interests of their clients by conforming to tliern, as well as by studying and.’ following the provisions of our statutes as to the manner in which appeals may be taken. The sooner the criminal jurisprudence of Oklahoma is placed upon a just, uniform, and harmonious basis, the better it will be for parties having cases in court, as well as for .the entire people of the sítate. Courts are not established for the purpose of enabling lawyers to earn and collect fees. The supreme purpose of 'their creation is the enforcement of justice and thereby protecting the people in the quiet and peaceful enjoyment of their property, ¡their liberties, and their lives. Every other consideration is secondary, and must yield to this supreme purpose..

'Because the record before us does not contain a copy of the final judgment in this case, the motion of the Attorney General to dismiss the appeal must be sustained. The appeal is therefore dismissed, without prejudice.

DOYLE and OWEN, .Judges, concur.


source: Caselaw Access Project

author: FURMAN, PRESIDING Judge.

license: Public Domain

text:
    Nat Hines v. United States.
    No. 15.
    Opinion Filed September 7, 1909.
    (103 Pac. 879.)
    1. APPEAL — Review—Sufficiency of Evidence. When the instructions of the court are not included in the transcript, and the record contains any evidence from which the jury could legitimately draw the conclusion of guilt, a conviction will not be reversed solely upon the ground that the testimony does not support the verdict.
    2. SAME — Instructions Not in Transcript. When the instructions to the jury are not included in the transcript of the record, this court will assume that -they are correct, and that all of the rights of the defendant were properly protected.
    3. SAME — Dismissal—Defective Record. It is the duty of counsel to exercise the utmost care in the preparation of record on appeal. If they do not desire to have their appeals dismissed, they -must discharge this duty faithfully.
    4. LARCENY — Evidence—Concealing Stolen Goods. Por facts which sustain a verdict of guilty of larceny, and of knowingly concealing stolen property, see opinion.
    (■Syllabus by the Court.)

      Appeal from the United tí lates Court for the Western District vf the Indian TeiWilory; Wm. JR. Lawrence, Judge.

    Nat Hines was convicted of larceny, and bo appeals.
    Affirmed.

      Williams <£• Williams, for appellant.

      Charles West, Atty. Gen., and IK. G. Beeves, Asst Attv. Gen., for the United States.
   FURMAN, PRESIDING Judge.

The defendant was jointly indicted with one Charley Parks. The indictment contained two counts, viz.: First, for the larceny of horses; second, for knowingly receiving stolen property!-, to wit, the horses alleged to have been stolen. This tvas permissible under the statute then in force in the Indian Territory. Section 1452, Carter’s Ind. T. Ann. St. 1899, is as follows:

"The offenses named in each of the subdivisions 'of this section may be charged in an indictment. First, larceny and knowingly receiving stolen property.”

After the evidence’ was introduced, no motion was made to require the prosecution to1 elect which count it would rely upon 'to secure a conviction,, and the case was submitted to the jury, without objection, on both counts in the indictment. The jury found the defendant guilty. The record does not contain the instructions of the court. 'We are therefore bound to hold that the jury were properly instructed as to the law of the case, and that the rights of the .defendant were fully protected.

Only one question is presented in the brief of counsel for the defendant, and that is as to the sufficiency of the evidence to support .the verdict of the jury. Want of consent of tire owner of stolen property to its being taken may be proven by circumstantial evidence. In this case it is shown by the testimony in the record that the owner of the horses charged to have been stolen lost the horses in question; that he inquired for the horses, and found and regained possession of them; and that he had the defendant arrested and prosecuted ■ for having been a party to .their theft and of knowingly having received stolen property. These circumstances fully warranted the jury in believing that '.the horses were taken without the consent of the owner. But one witness connected the defendant with the stolen horses. His testimony is as follows:

“6. W. Price, called as a witness on the part of the plaintiff, being'first duly sworn according to law, testifies as follows: 'My'name is G. W. Price, I live at Stroud, Oklahoma Territory. I met Charley Parks and Nat Iiine on Sunday, October 28, 1906, at my livery and sale barn. I never knew either of them before. Parks spoke to me about trading horses. lie wanted a cheaper horse, and wanted to get some boot; that he was broke. Hines was with him most of the time, and stated that the horse was a good horse; that he knew the horse. I saw them about 5 o’clock in the evening. They came in soon after I came in, and Parks spoke to me about the trade. We talked it over, and looked at each other’s horses, and closed the trade Monday morning, by me giving him $20 to boot. I gave Parks my check foi $19.50. The other 50 cents was for a bed which I stood, good for. Hines did not claim any interest in the horse, but bragged on the horse. I saw them the last time between 9 and 10 o’clock that morning. They were in a buggy with two horses; one of them being the one I traded to Parks. They were driving out of townj headed west. Whenever I saw them .they were together, except the time I gave Parks the check, which I did at a blacksmith shop near my barn. Parks went to blacksmith shop alone with me. I gave check for $19.50 payable to Charley Parks. The horse I traded for from Charley Parks was afterwards claimed and recovered by W. W. Foster, of Owasso, Indian Territory. Parks came to my barn and put up his team for the night. I traded horses with him the next morning, after trying him to a . single buggy and satisfying myself that he would work all right singly. Hines had nothing to do with the trade.’ ”

If this witness was worthy of belief, his evidence established the fact that, while the defendant did not claim to have possession of the horse and did not trade the horse to the wi'tne°s Price, yet the defendant was not only with Parks, but assisted him in making the trade, by stating that he knew the horse, and that it was a good horse, and bragging on the horse. From this the jury was warranted in-finding that the defendant was acting with Parks in the commission of the crime. There being this evidence in the record, and the jury being the exclusive judges of the credibility of the witnesses and the weight of the testimony, we cannot agree with the contention of counsel for the defendant that the verdict is contrary to and not supported by the testimony. The rule is that, where the record contains any testimony from which the jurjr could legitimately draw the conclusion of guilt, the verdict will not be disturbed upon the ground that it is contrary to the evidence.

The record in' this case contains many errors and omissions, and we would have been fully justified in dismissing the appeal upon this ground; but we dislike to pursue this course. -We are hot disposed to deprive a defendant of the right of appeal upon technical grounds, and have not done so in the past when we could possibly avoid it. But we desire to again admonish counsel for the defense that it is their duty to exercise great care in preparing their records upon appeal, and see that they contain ■ all things which are necessary to give this court jurisdiction, ■ and that they fully present all matters which are necessary to enable this court to intelligently pass upon the questions involved. After having repeatedly warned counsel about the necessity of sending up full and correct records, we may become more strict about such matters in the future.

Affirmed.

DOYLE and OWEN, Judges, concur.


text:
    Earl Howard v. State.
    Opinion Filed September 7, 1909.
    (103 Pac. 864.)
    APPEAL — Notice—Dismissal. When no notice of appeal has been sewed upon the cleric of the court and the prosecuting attorney of the county in which a defendant was convicted, this court acquires no jurisdiction, and the appeal will be dismissed.
    (■Syllabus by the Count.)

      Appeal friorn Qrady County Court; N. W. William,s, Judge.

    Earl Howard was convicted of violating the prohibitory law, and appeals.
    Dismissed.

      F. E. Biddle., for appellant.

      Fred >S. Caldwell, for the State.
   FURMAN, PRESIDING Judge.

There is nothing in 'the record which shows that a notice of appeal in-this' case was served upon the clerk of the county court or the county attorney of G-rady county. Section 5610, Wilson’s Eev. & Ann. S't 1903, is as follows:

“An appeal is' taken by the service of a notice upon the clerk of the court where the judgment was entered, stating that the appellant appeals from the judgment. If taken by the der fendant, a similar notice must be served upon the prosecuting attorney. If taken by the territory, a similar notice must be served upon the defendant if he can be found in the county; if not there, by posting up a notice three weeks in the office of the clerk of the district court.”

This statute is mandatory and jurisdictional, and in the absence of such notices this court acquires no jurisdiction to entertain an appeal.

The appeal is therefore dismissed.

DOYLE and OWEN, Judges, concur.


author: FURMAN, PeesidiNG Judge,

text:
    E. L. Drake v. State.
    No. 63.
    Opinion Filed September 8, 1909.
    (103 Pac. 878.)
    1. APPEAL — Record—Perfecting Appeal. Where a defendant is found guilty of an offense which is bailable upon appeal, tbe record must show either that the defendant has been released upon bail or that he has been committed to the custody of the sheriff pending such appeal. If not on bail or in jail, this court’ will have no power to enforce its judgment if the case is affirmed, and in such cases the appeal will be dismissed.
    2. INDICTMENT AND INFORMATION — Verification. An information must be verified by the positive oath or affirmation of the county attorney or some other person.
    3. EXTORTION — Evidence—False Pretenses, (a) To constitute extortion, the taking of money or property must have been under color of official right. Therefore it is necessary to allege and prove the official capacity of the defendant.
    (b) If an officer authorizes some other person to receive property, under such circumstances as would' constitute extortion if such receiving had been done by the officer himself, then both such officer and such other person would be guilty of extortion.
    (c) If a person without authority from an officer falsely represents himself as having such authority, and takes or receives property under such circumstances as would constitute extortion if such representations had been true, then such person is not guilty of extortion, but is guilty of obtaining property under false representations.
    (Syllabus by the Court.)

      Appeal from Creek County Court; Josiah C. Davis, Judge.

    E. L! Drake was convicted of extortion, and lie appeals.
    Reversed and remanded.
    On the 19th day of December, 1907, an information was filed in the county court of Creek county, Okla., against E. L. Drake (hereinafter called defendant), which 'information is as follows:
    “The State of Oklahoma v. E. L. Drake, Defendant. In the County 'Court of Creek County. In the name and by the authority of the state of Oklahoma now comes L. B. Jackson, the duly qualified and acting county attorney in and for Creek county, state of Oklahoma, and gives the county court of Creek county and state of Oklahoma to know and be informed that E. L. Drake did, in Creek county and in the state of Oklahoma, on or about the 14th day of December in the year of our Lord one thousand nine hundred "and seven, and anterior to the presentment hereof, commit the crime of extortion in the manner and form as follows, to wit: That the said E. L. Drake did on or about the 14th day of December, 1907, in the county of Creek and state of Okla-.homia, extort the sum of $35.00 from one B. F. Henderson, by then and there falsely and fraudulently representing to the said Henderson that he, the said Drake, as the agent of L. B. Jackson, then county attorney of said Creek couiitjq would grant the said Henderson immunity to violate .the liquor laws of the state of Oklahoma, and by such false and fraudulent representation the said Drake did then and there obtain from the said Henderson, with his consent, the said sum of $35.00, and there did commit-extortion, contrary to the form of the statutes in such cases made and provided, and against the peace and dignity of the state. L. B. JACKSON, County Attorney.

      “State of Oklahoma, Creek -County — ss.:
    “1, L. B. Jackson, being duly sworn, on oath state that I have read the above and foregoing information and know the contents thereof, and that the facts stated therein are true to the best of my information and belief. L. B. Jackson.
    “Subscribed and sworn to before me at Sapulpa, this 19th day of December, 1907. Josiaii O. Davis, Judge.”
    . The defendant filed a motion to set aside the information, which was overruled by the court, and the defendant reserved an exception. Upon the trial the defendant was found guilty, and the case is regularly before us on appeal.

      Sornberger £ Williams, for appellant.
    — On essentials to constitute offense of extortion: 19 Cyc., pages 38, 41, and 43, and cases4 cited; 12 A. & E. Enc. Law, pages 578 and 582', and cases cited.

      W. O. Beeves, Asst. Atty. Gen., for the State.
   FURMAN, PeesidiNG Judge,

(after stating the facts as above). First. There is nothing in the record in this case which shows whether the defendant gave bond and is legally at liberty, pending his appeal, or is confined in jail. If the defendant appears and gives bail, this fact should appear in the record. If the defendant is committed to jail in default of bail, this fact must also appear. Unless the defendant is either under bond or confinement, this court has no assurance that any judgment which it renders will be complied with, and it is a waste of time for this court to1 pass upon the case,; but, as this point has never been passed upon by this court, we deem it to be fair to all parties that we announce this rule before enforcing it. Counsel will therefore take notice and prepare their cases-made upon this basis in the future.

Second. Upon authority of Ex parte Flowers, ante, p. 430, 101 Pas. 860, Salter v. State, ante, p. 464, 102 Pac. 719, and De Graff v. State, ante, p. 519, 103 Pac. 538, previously decided, we must hold the information in this case to be fatally defective, 'because it is not verified by the positive affidavit of the affiant. For the authorities upon which we base this conclusion see the cases cited and discussed in the above cases.

Third. The facts stated in the information do not constitute the offense of extortion^ which is a misdemeanor, but do constitute the offense of obtaining money under false pretenses, which is a felony. County courts' have no jurisdiction of felonies.

There is no such thing as agency in the commission of crime. All persons who are concerned in the commission of a crime are principals, and should be prosecuted and convicted as such. This information was filed under section 2498, Wilson's Bev & Ann. St. 1903, which is as follows:

“Every person'who commits any extortion under color of official right, in cases for which a different punishment is not prescribed by this chapter, or some of the statutes which it specifies as continuing in force, is guilty of a misdemeanor.”

The indictment does not charge that the defendant occupied any official position, so he could not have committed extortion “under color of his official right.” His representation that he was authorized by the county attorney of Creek county is alleged to be false, so his offense was that of obtaining money under false pretense. If it had been charged that the defendant did represent the county attorney, and that the said county attorney had in fact authorized him to make the proposition alleged to have been made, and that he thereby obtained the money described in the information, then both the defendant and the county attorney, if such allegations were sustained by the testimony, would be jointly guilty of extortion, because the money would have been obtained under the color of the county attorney’s office with .his assent thereto. But as it is alleged that the representations made were false, and that the county attorney had'not authorized them to be made, the offense charged is, beyond dispute, that of obtaining money under false pretenses, and the defendant should be prosecuted for that' offense. We cannot understand why the defendant was prosecuted for a misdemeanor, when the facts alleged clearly constitute a felony. We .are therefore forced to 'hold that upon tliis ground tbe motion to set aside the information should have been sustained.

For the reasons hereinbefore given, the judgment is reversed, and the case is remanded, with directions to the county attorney of Creek county to proceed against the defendant for obtaining money under false pretense.

DOYLE and OWEN, Judges, concur.


author: OWEN, Judge.

text:
    Charley Keys v. United States.
    No. 603,
    Ind. T.
    Opinion Filed September 10, 1909.
    (103 Pac. 874.)
    1. LARCENY — Unbranded Horses — “Cattle.” The word “cattle,” as used in section 1655 'Of M-ansfleld’s Digest of the Statutes of Arkansas (Ind.- T. Ann. St. 1899, sec. 998), does not include horses.
    2. WITNESSES — Cross-Examination. It is not proper to ask a witness, on cross-examination, if he has been in jail.
    ('Syllabus by the Court.)

      Appeal from the United States Court of the Northern District of the Indian Territory, at Nowata: Wm. B. Lawrence, Judge.

    Charley Keys was tried and convicted in the United States Court for the Northern District, Indian Territory, October 26, 1904, on indictment charging him with the crime of larceny of a horse. The case was appealed to the United States Court of Appeals, Indian Territory, and was pending there at the admission of this state into the Union. The appeal was properly transferred to this court after its organization.
    Reversed and remanded.

      Preston S. Davis, for appellant.—
    On definition of “cattle”: McClain on -Criminal Law, vol. 2, § 1162; Webster’s Unabridged Dictionary; Black’s Law Dictiom ary, p. 180; Worcester’s Dictionary; Cyc. vol. 6. pages 702, 703; U. S. v. Mattock, 2 Sawy. (TJ. S.) 148,'. 149, 2'6 Fed. Cas. No. 15,744; Endere v. McDonald, 5 Ind. App. 297, 31 N. E. 1056; Randall v. Richmond, ele., R. Qo., 107 N. C. 748, 749, 12 S. E. 605, 11 L. R. A. 460; McIntosh v. The State, 18 Tex. App. 284, 2'85; People v. Barnes, 65 Cal. 16, 17, 2 Pac. 493; Henderson v. Wahash, etc., R. Go., 81 Mo. 605, 606; State v. Grooves, 119 N. C. 822, 823, 25 S. E. 819; Decatur First National Bank. v. SI. Louis Home Saving Bank, 21 Wallace (IT. St) 294, 299, Book 22, L. Ed. p. 560; Newark, etc., Horse Gar Ry. Go. v. Hunt. 50 N. J. L. 308, 311, 12 Atl. 697; Matthetvs v. State, 39 Tex. Cr. 553, 554, *7 S. W. 647, 48 S. W. 189; State v. Hambleton, 22 Mo. 452.

      Chantes West, Atty. Gen., and Charles L. Moore, Asst. Attv. Gen., for the “United States.
   OWEN, Judge.

Counsel for appellant urges two reasons for reversing this case.

First." Under section 1655 of Mansfield’s Digest of the Statutes of Arkansas (Inch T. Ann. St. 1899, § 998), the taking of the horse would not make appellant guilty of larceny, for the reason that it was more than 12 months old, was running at large on the open range, and was not branded or marked.

Second. The court permitted the prosecuting attorney to ask the defendant, on the witness stand, if he had been arrested, and required the defendant to answer the question.

Section 1655 of Mansfield’s Digest of the Statutes of Arkansas (Ind. T. Ann. St. 1899, § 998), in force at the time- of the alleged offense in this case, is as follows:

"■Owners of cattle, hogs or sheep which run at large in the range or woods shall designate such animals, if over twelve months old, by brands or earmarks; otherwise, if taken or converted to the use of any other person, such person shall not be deemed guilty of larceny, but the owner may have his action for the value of such unmarked or unbranded animal.”

The proof was to the effect that the animal alleged to have been stolen was four years of age, unmarked and unbranded, and running at large on the open range.

•Counsel for appellant urges that the term “cattle,” as used in this section, includes horses, and therefore this appellant would not be guilty of larceny in taking the animal from the range. Counsels presentation of this question, both in the oral argument and brief filed, was a very ingenious and forceful one. But we are unable to agree with his construction of this statute. There are some authorities to the effect that the term “cattle” in a penal statute includes horses. So far as we have been able to ascertain, these authorities are confined to the earlier cases and where the statutes construed used that term alone and without any words of qualification. In its primary sense the word “cattle,” according to Webster,, includes “animals, horses, asses, and all the varieties of domesticated horned beasts of the bovine genus.” According to Webster it was used in this general sense in the Scriptures. This statute, relied on by counsel, does not confine the terms to “cattle,” but uses this language, “owners of cattle, hogs or sheep.” If the Legislature had intended that the word “cattle” should include all species of domesticated animals, the words “hogs or sheep” would not have been used. The mere fact that the words “hogs or sheep” appear is conclusive that the word “cattle” was not used in its primary sense, but in the common acceptation of the term, and was- not intended to cover any other kind of animals.

Section 1628 of Mansfield’s Digest (Ind. T. Ann. St. 1899, § 971) is as follows:

“'Every person who shall mark, steal or kill, or wound, with intent to steal, any kind of cattle, pigs, hogs, sheep or goats, shall be guilty of a felony, and, upon conviction thereof, be imprisoned at hard labor in the penitentiary for any time not less than one year nor more than five years.”

Section 1629 of the same statutes (section 972) is as follows:

“Whoever shall be convicted of stealing any horse, mane, gelding, filly, foal, mule, ass or jenny shall be imprisoned in the penitentiary not less than five nor more than fifteen years.”

If the construction counsel places on section 1655 be correct, and the term “cattle” intended to cover all domesticated animals, including horses, then there is a conflict between that section and section 1629. Section 1629 makes it larceny to steal a horse of any age. Construing these three sections together, it is clear that section 1655 modifies section 1628, but does» not affect section 1629. Section 1655 modifies section 1628, and uses the same terms, “cattle, hogs and sheep.” If there had been any intention to modify section 1629 the same terms would have been used that were used in that section. Section 1628 deals with “cattle, pigs, hogs, sheep or goats.” Section 1629 deals with “horses, mules, and asses.” This is conclusive that the Legislature used the word, “cattle” in the -common acceptation of the term. It would not be a reasonable construction to say that the Legislature in these two sections would use the terms “cattle” and “horses” in the common acceptation of the term, and as belonging to different classes, yet in section 1655 the same Legislature would use the word “cattle”, to include horses. The Legislature not only placed them in different classes, but provided a more severe' penalty for stealing horses than for stealing cattle. We are driven, to the conclusion that the word “cattle,” in section 1655, was used in the sense in which it is commonly used, and not to include horses.

As to the second reason urged, we find in the record, in the cross-examination of the defendant, the following:

“Q. Have you ever been in jail, 'Charley? Mr. Davis: We object to that question. The Court: I will overrule that objection. He may answer that question. Mr. Davis: The ^defendant excepts to the court’s ruling. A. Yes, sir. Q. How many times have you been in jail, Charley? Mr. Davis: The defendant objects to the question, for the reason it is incompetent, immaterial, irrelevant, and not proper cross-examination. The Court: The objection will be overruled.' Mr. Davis: The defendant excepts. A. I have been in jail three times. Q. Is that all, Charley? A. Yes,, sir. Q. You have been in jail at Ft. Smith, Ark., haven’t .you? Mr. Davis: The defendant'objects to this question, for the reason it is incompetent, immaterial, irrelevant, and not proper cross-examination. The Court: The objection is overruled. Mr. Davis: The defendant excepts. A. Yes, sir. Q. Yon have been in jail at Muskogee? - A. Yes, sir: but that'was the same transaction. They moved me from Muskoge'e up here. Q. You have been in jail a’t Yinita? A. Yes, sir; but that is the same thing. They moved me from Muskogee to Yinita, and then up here. Q. You have been in jail at CofEeyville, Kan., haven’t you? A. No; but I was at Independence. Q. Where else, Charley? A. That’s all. Q. How long have you been in jail, Charley, all your life, all told? Mr. Davis: Defendant objects to the question for the reason it is incompetent, immaterial, irrelevant, and not proper cross-examination. The Court: The objection is overruled. Mr. Davis. The defendant excepts.”

This constitutes reversible error. This c.ourl, in the case of Slater v. United States, 1 Okla. Cr. 275, 98 Pac. 110 (opinion by the Presiding Judge), held similar conduct on the part of the court and prosecuting attorney to be reversible error, and we feel that we can add nothing to the reasons given in that case. The error complained of in that case was that the witness, on cross-examination, was asked by the prosecution, YHave you ever been arrested?” to which the witness replied that he had. The witness was then, compelled to answer what he had been arrested for. These questions were asked and answered over the objection and exception of counsel for appellant. The reasons given in that case are approved here.

The ease will be reversed, and remanded to the district court of Nowata county, with directions to grant the defendant a new trial.

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


author: OWEN, Judge,

text:
    Jesse Reed v. United States.
    No. A-16.
    Opinion Filed July 27, 1909.
    (103 Pac. 371.)
    "I. APPEAL — Refusal of New Trial — Necessity of Exception. Where no objection is made, and no exception is saved, to the order of the trial court in overruling a motion for new trial, this court will not consider the motion.
    a. AP-PEAL — Reviewable Instructions. Instructions of the court, and the indorsements thereon, are by statute made a part of the record proper in the cause. Such instructions and the exceptions indorsed thereon, being a part of the record proper, will be reviewed in felony cases by this court, although no exception was saved to the order of the court overruling motion for new trial.
    3. INSTRUCTIONS — Credibility of Defendant. It is error for the trial court to single out the defendant personally, and instruct the jury upon the credibility of his evidence.
    (Syllabus by the Court.)

      Appeal from District Court, Pittsburg County; Preslia B. Cole, Judge.

    Jesse Eeed was convicted of murder, and appeals.
    Eeversed.
    The defendant below was tried separately on indictment, charging him, jointly with William Frazier, with the crime o£ murder. He was convicted and sentenced to imprisonment in the penitentiary for life. A motion for new trial was filed, overruled, and no exceptions saved to the order of the court overruling the same. The case is before this court on case-made. The Attorney General files motion to dismiss the appeal and affirm the judgment of the lower court for the reason no exception was saved to the order of the court overruling the motion for new trial.

      J. H. Wilkins, for plaintiff in error.

      Chas. West, Atty. Gen., and Chas. L. Moore, Asst. Atty. Gen., for the United States.
    No copies of briefs reached the reporter.
   OWEN, Judge,

(after stating the facts as above). .Upon inspection of the record in this case we find no objection or exception to the action of the court in overruling the motion for new trial. It is well settled that' the errors committed on the trial of a case must be excepted to at the time, and brought to the attention of the trial court in a motion for new trial, and, before the motion can be made any part of the record, there must be proper exceptions to the order of the court in overruling it. State v. Irwin, 171 Mo. 558, 71 S. W. 1015; State v. Noeninger, 108 Mo. 166, 18 S. W. 990; State v. Sweeney, 68 Mo. 96; Nesbit v. Hines, 17 Kan. 316; Atchison v. Bayrnes, 22 Kan. 65; State v. Swarts, 9 Ind. 222; Longfellow v. Smith, 10 Kan. App. 575, 61 Pac. 875. There having been no exception saved to the order of court overruling the motion for new trial, there is nothing before this court for review, except the record proper, and this court will consider only the errors that appear therein. The rule in felony cases is that all -errors appearing in the record proper will be considered on appeal.

In the case of Vickers v. United States, decided by this court, and reported in 1 Okla. Cr. 452, 98 Pac. 467, this rule was observed. In that case the defendant below had been tried and convicted on a charge of rape, and sentenced to death. No objection to the indictment had been made, either in the trial court or before this court. This court, in passing on that case, said:

“This indictment does not, in any way, charge a felonious ravishment. It is our opinion that the charging part of this indictment is not in substance sufficiently specific to put the defendant fairly on trial for the offense sought to be charged. Error in the record is not presumed; there should be at least some evidence to show it. However, before a court of last resort affirms a judgment of conviction in a capital case, it should appear affirmatively from .the record that every step necessary to the validity of the sentence has been taken. We believe, from our examination of the.record, that this case has been tried and submitted to the jury upon an erroneous theory, prejudicial to the rights of the defendant, and which had a controlling influence upon the trial and the result. Although not urged upon the trial, nor here, we deem it our duty to pass upon and decide this question,-as that which the law makes essential in proceedings involving the deprivation of life cannot be dispensed with or affected by the consent of the accused, much less by his mere failure, when on trial, to object to unauthorized methods.”

It follows that the rulings complained of in the motion for new trial are res adjudicate/, here, and the motion of the Attorney-General in this case should be sustained, and the judgment of the lower court affirmed, unless there are prejudicial errors apparent in the record proper. Under the common law the record proper was the indictment, plea of defendant, verdict of the jury, and sentence of the court.

By statute in this state (see. 5484, Wilson’s Kev.- & Ann. St. 1903) the instructions of the court are made a part of the record, in the following language:

“All instructions given shall be in writing unless waived by both parties, and shall be filed and become part of the record in the case. * * *”

Again in section 5580, Wilson’s Rev. & Ann. St., we find:

“When judgment upon a conviction is rendered, the clerk must enter the same upon the minutes, stating, briefly the offense for which the conviction has been had, and must immediately annex together and file the following papers,, which constitute a record of the action: First, the indictment and a copy of the minutes of the plea or demurrer; second, a copy of the minutes of the trial; third, the charges given or refused, and the indorsements, if any, thereon; and, fourth, a copy of the judgment.”

Section 5484, above referred to, also provides:

“Instructions refused shall be marked in writing by .the judge, if modified, modification shall be shown in the instruction, and by refusal to give ■ instructions or the modification thereof, shall be deemed to be excepted to.”

The indictment, plea, verdict, and judgment of the court appear to be regular and in proper form. Under this statute, making the instructions and indorsements thereon part of the record, exceptions to the instructions must be observed. Lee v. United States, 7 Okla. 558, 54 Pac. 792. This statute seems to be taken from Nebraska. The Supreme Court of that state, at' the January term, 18?6, in the ease of Thompson v. People, 4 Neb. 524, held:

“■It was urged in argument by counsel for the prosecution that, no exception having been taken to the charge in the court below, it is too late to assign these errors here as ground for a reversal of the judgment. The rule here invoked is properly applicable in all civil eases, and quite generally in criminal cases also. But in the latter class it is not of universal application, especially in capital ■ and other felonies, where reviewing courts not 'unfnequently correct errors preijudiciial to the- accused, or where the charge cannot be correct in any conceivable view of the case, although no objection was interposed on that ground in the court below. This instruction, as before stated, is a part of the record of the ease, made so by statute, and is therefore properly before us.”' 5

Instruction No. 10 of the trial court as it appears in the case-made is as follows:

“The court further instructs the jury that the defendant is a competent witness on his own behalf, and the fact that he is the defendant is not of itself sufficient to impeach or discredit Ms testimony, but the jury should take into consideration the fact that he is the defendant, and the interest which he has in the result of the trial, and also that in determining the weight to be given to the testimony of a defendant, you should take Into, consideration the testimony of all the other witnesses, and also such facts and circumstances as are in proof in this ease, and, with the testimony of the other witnesses and such facts and circumstances, determine how much weight and credit you should give to the testimony of the defendant, and after such consideration give it such weight and credit as in your judgment it stands entitled under all the facts and circumstances and other testimony in proof in this case.”

In the case-made also appears the following statement:

“And thereupon the defendant, in the presence of the jury, duly excepted to that part of instruction No. 10, given by the court as follows, to wit: ‘The court further instructs the jury that the defendant is a competent witness on his own behalf, and the fact that he is the defendant is not of itself sufficient to impeach or discredit his testimony, but the jury should take into consideration the fact that be is the defendant, and the interest which he Iras in the result of the trial/ ”

Tn our opinion it is reversible error for the trial court to single out the defendant personally, and instruct the jury upon the credibility of his evidence. This court so held in the case of Fletcher v. State, ante, p. 300, 101 Pac. 599, and in the case of Green v. United States, ante, p. 55, 101 Pac. 112, and again in the case of Hendrix v. United States, ante, p. 240, 101 Pac. 125. In the latter case the instruction was condemned, but was held to be harmless error in that case, for reasons given in the opinion. In the case of Fletcher v. State, opinion by the' presiding judge of this court, the court in passing on this question, says:

“We think that it is error for the court to single^out any special witness personally, and burden his testimony with any suggestions which might indicate to the jury that, in the opinion of the court, such witness was liable to testify falsely. Instructions as to the credibility of witnesses should be general, and apply equally to all of the witnesses for the state and the defendant alike. Because a witness may be the defendant is no reason why he should be visited with condemnation upon the one hand, or clothed with sanctity upon the other. He is before the court as a witness, and should be treated by both the court and the jury just as other witnesses are treated — no better and no worse. We trust that the courts in Oklahoma will cease to give such instructions in the future ; otherwise it will result in the' reversal of many convictions, which, but for such instructions, would be affirmed/’

The opinion of the court in that case is here approved.

Inasmuch as the case must be reversed for the error complained of in the instruction above quoted, we deem it unnecessary to consider the other instructions complained of in defendant’s brief.

The motion to dismiss is overruled.

For the error in giving instruction No: 10, the judgment of the court below is reversed, and the cause remanded for new trial.

FURMAN, Phesiding Judge, and DOYLE, Judge, concur.


text:
    William Frazier v. United States.
    No. A-17.
    Opinion Filed July 27, 1909.
    (103 Pac. 373.)
    1. APPEAL — -Refusal of New Trial — Necessity of Exception. Where no objection is made, and no exception is -saved, to the order of the trial court in overruling a motion for new trial, this court will not consider the motion.
    2. APPEAL — Reviewable Instructions. Instructions of the court and the indorsements thereon, are toy statute, made a part of the record proper in the cause. Such instructions and the exceptions indorsed thereon, toeing a part of the record proper, will be reviewed in felony cases by this court, although no exception was saved to the order of the court overruling motion for new trial.
    3. INSTRUCTIONS — Burden of Proof. In a felony case, it is error to give an instruction which casts on defendant the burden of disproving any material allegation of the charge.
    (Syllabus by the Court.)

      Appeal from District Court, Pittsbwg County; Preside B. Cole, Judge.

    William Frazier was convicted of murder, and appeals.
    Reversed.
    Tlie defendant below was tried separately on an indictment charging him, jointly with Jesse Reed, with the crime of murder, was -convicted, and sentenced to imprisonment in the penitentiary for life. A motion for new trial was filed, overruled, and no exceptions saved to the order of the court overruling the motion. The case is before this court on case-made. The Attorney General files motion to dismiss the appeal and affirm the judgment of the lower court, for the reason no exception was saved to the order of the court overruling motion for new trial.

      J. PL. Wilkins, for plaintiff in error.
    — On instructions on corpus deilicli: Hughes’ Or. Law, §§ 3089-3092; Wills on Or. Ev. pp. 206, 694; People v. Tarbo>x, 115 Cal. 57; U. S. v. Boese, 46 Fed. 917; Slate v. Brown, 1 Mo. App. 86.

      O'has. West, Atty. Gen., and Olías. L. Moore, Asst. Atty. Gen., for the United States.
   OWEN, Judge,

(after stating the facts as above). This is a companion case with the case of Jesse Reed v. United States (decided by this court at this term), ante, p. 652, 303 Pac. 371. They were tried separately in the court below on an indictment ■charging them jointly with the crime of murder.

In this case there are two questions presented, identical with the questions presented in the Jesse Peed case: First. Should the motion to dismiss be sustained? Second. Are there any reversible errors appearing in the record proper? The opinion of this court in the Peed Case settles the first question. It is approved here, and we deem it unnecessarj'- to set forth the authorities, or the reasons of the court given there. This court in that case held, instructions of the court, and indorsements thereon, by statute having been made a part of the record proper, the errors complained of in the instructions were properly before this court. It follows that the motion by the Attorney General to dismiss this case must be overruled.

Counsel for defendant in his brief urges nine assignments of error. Under the rule announced in the Peed Case we can consider only such of these as go to the record proper. Two errors which are urged as reasons for reversing the case appear in the instructions; First, the refusal of the court to give instruction No. 1, requested by the defendant; second, the giving of instruction No. 7. Instruction No. 1, requested by defendant and refused by the court, was in the following language;

“The court instructs the jury that in law the corpus delicti in criminal cases cannot, be established by confession alone. It must be shown by other evidence independent of confession of the accused, and the court further instructs the jury that it is the duty of the state to prove every material allegation in the indictment bejrond a reasonable doubt; and, if it fails to establish in the minds oí the jury every material allegation in the indictment in this case to the satisfaction of the jury beyond a reasonable doubt, it is the duty of the jury to acquit the defendant.”

Instruction No. ?, which was given, is as follows:

“The defendant denies that the body of the man found dead was that of Leemaster, but that it was the body of some other person, and the court instructs the jury that, if you believe from the evidence that the man found dead as testified to in this case was not the deceased, Henry Leemaster, but was the body of some other person, and that the defendant did not kill the said Henry Leemaster as charged in the indictment, then you should acquit the defendant.”

We do not believe it was error for the court to refuse to give the instruction in the language requested. The language of this instruction embodies two distinct propositions. In this instruction the court is requested to instruct as to the corpus delicti, and as to the burden of proof. It was the duty of the trial court to give a proper instruction oii the corpus delicti, and also to give a proper instruction on the burden of proof. It may be said, as an abstract proposition, that the corpus delicti in criminal cases cannot be established by confession alone,. Hughes in his work on Criminal Law (section 3093) announces the rule in this language:

“The corpus delicti cannot be established alone by the concessions of the accused. This rule is fully recognized by the ablest text-writers and the general current authorities” — citing a great number of authorities to sustain the rule.

The same rule is announced by the Texas Corirt of Appeals in the case of Jackson v. State, reported in 29 Tex. App. 458, 16 S. W. 247, in the following language:

“In murder the corpus delicti has two components — death as the result, and the criminal agency and identity of another as the means. * * * A naked uncorroborated confession is not sufficient of itself to establish the corpus delicti, nor to support a conviction. * * * A confession is sufficient if there be such corroborative circumstances as will, taken in connection with the confession, produce conviction of defendant’s guilt in the minds of the jury beyond a reasonable doubt.”

We think tliis the correct rule, and in this case it was the duty of the court to so instruct the jury. Instruction No. 7, above quoted, seems to be the only attempt of. the court to instruct as to the corpus delicti. This instruction in our opinion was error. It, in effect, cast the burden on the defendant to prove the man killed was not Henry Leemaster. The indictment charges the defendant with having killed Henry Leemaster. The defendant was entitled to an acquittal if the proof on part of the state failed to convince the jury beyond a reasonable doubt that Henry Leemaster was killed, and that the defendant killed him, In 'the trial of felony cases there is no shifting of the burden of proof. The rule is universal that the burden is upon the state to show the commission of the crime charged; and, if there be a reasonable doubt of the guilt of the person accused, he must be acquitted. This unquestionably means that it devolves upon the state to prove the corpus delicti beyond a reasonable doubt. As was announced by the Texas Court of Appeals in the case above referred to:

“In murder the corpus delicti has two components — death as the result, and The criminal agency and identity of another as the means.”

In this case the state was bound by the allegation that Henry Leemaster was killed; and, if the jury had any reasonable doubt as to whether Henry Leemaster was killed, the defendant was entitled to an acquittal.

Underhill on Criminal Evidence (section 2'3) announces the rule in the following language:

“The general rule, stated broadly, as laid down by the cases •is that the burden of proof and the obligation to convince the jury of the prisoner’s guilt beyond a reasonable doubt as to all essential facts, including the criminal intent, are upon the prosecution throughout the trial. There is no shifting of the burden of proof during the trial.”

In the case of People v. Millard, 53 Mich. 63, 18 N. W. 562, the court said:

“In every criminal case the burden is throughout upon the prosecution.”

In the case of State v. Harvey, 131 Mo. 339, 32 S. W. 1110, the court held:

Hn a criminal case .it is error to give an instruction which casts on the defendant the burden of establishing an alibi.”

In that case the court, over objection of defendant, instructed the jury ■ that,- if they believed from the evidence that the defendant was not present, at the time and place where the crime was committed, they would find him not guilty. The instruction there was very similar to instruction No. 7 here. In that case the -jury was told that, if they believed from the evidence that the defendant was not present, they would acquit. Here the court told the jury that, if they believed from the evidence that the man found dead was not Henry Leemaster, and that the defendant did not kill Henry Leemaster as charged in the indictment, they would acquit.

In the case of Williams v. People, 101 Ill. 385, the court says:

“Indeed it is an elementary and fundamental principle that every material fact essential to the commission of the crime must lie distinctly alleged and clearly proven on the trial, in order to warrant a conviction.”

Section 5489, Wilson’s Kev. & Ann. St. 1903-, is'as follows:

“A defendant in a criminal action is presumed to be innocent until the contrary is proved and in case of a reasonable doubt as to whether his guilt is satisfactorily shown, he is entitled to be acquitted.”

This section in effect announces what was already the universal rule. If the evidence offered by defendant is strong enough to raise a reasonable doubt in the minds of the jury, or if from the insufficiency of the evidence on the part of the state they have such reasonable doubt, then the defendant is entitled to an acquittal.

For the error in giving this instruction, the case is reversed, and the cause remanded for new trial.

FUEMAN, PresidiNG Judge, and DOYLE, Judge, concur.


author: FURMAN, PRESIDING Judge. PER CURIAM.

text:
    Alexander Moody v. United States.
    No. 768,
    Ind. T.
    Opinion Filed September 7, 1909.
    (103 Pac. 862.)
    1. APPEAL — Sufficiency of Evidence. Where a defendant has been properly indicted and fairly tried and convicted, this court will not reverse the conviction, upon the ground that the evidence does not sustain the verdict, if there is in the record any evidence from which the jury could legitimately draw the conclusion that the defendant was guilty.
    2. ROBBERY — Evidence. Por facts sustaining a conviction of robbery, see opinion.
    3. APPEAL — Presumption. Every presumption must be indulged in favor of the regularity of proceedings in courts of record. .
    (Syllabus by the Court.)

      Appeal from the United States Court for the Western District of the Indian Territory; Wm. Ti. Lawrence, Judge.

    Alexander Moody was convicted of robbery, and appeals.
    Affirmed.

      W. F. Schuermeyer, for appellant.

      W. C. Reeves, Asst. Atty. Gen., for the United States.
   FURMAN, PRESIDING Judge.

Only one question is submitted to this court in the brief of counsel for the defendant, and is stated in the brief as follows:

“This case is presented to this court for consideration on the question of sufficiency of evidence to sustain the indictment and for variance. All the assignments of error may properly be considered together. The indictment is for robbery. The property taken is described as follows: “The following money of the paper currency of the United States of America, to-wit, two treasury-notes, 'two national bank notes, two gold certificates, two silver certificates, of the denomination and value of $10 each; two treasury notes, two national bank notes, two gold certificates, two silver certificates, of the denomination and value of $5 each/ ”

The statement in the brief of the descriptive part of the indictment is defective, in that it omits the following allegations, which is contained in the indictment:

“A more particular description of all of said money being to the grand jurors unknown.”

This case appears to have been very carelessly tried by counsel on both sides. The entire testimony in the record is as follows:

“Whereupon to sustain the issues on its behalf the plaintiff introduced the following evidence: Sam Drew, called as a witness on the part of the plaintiff, being first duty sworn, testifies as follows: ‘My name is Sam Drew. I live at Tallehasse, Ind. T. On July 18, 1905, Henry Nelson, Sandy Wilkerson, and the defendant, Alex Moody, stopped me behind a little restaurant at Porter, Ind. T., and tried to get me to buy and drink some Perrina with them. Henry Nelson grabbed my pocketbook out of my pocket, while the other two were holding- me. Sandy Wilkerson and Alex Moody had hold of my arms. There was a $20 bill in my pocket. I never got my mone}*- back/ Solomon Jackson, called as a witness on the part of the plaintiff, being first duly sworn, testifies as follows: ‘My name is Solomon Jackson, I live at Tallehasse, Ind. T. I am a brother-in-law of Sam Drew. I was in Porter, Ind. T., on the 18th day of July, 1905. I was present at the restaurant with Henry Nelson, Sandy Wilkerson, Alex Moody, and Sam Drew just before this trouble took place, and went off to get some change. When I came back, Sam Drew told me he had lost his money, and he pointed to Alex Moody, Sandy Wilkerson, and Henry Nelson as the ones who took his money, and told me that they took his money/ ”

It appears that the defendant’s counsel did not cross-examine the witnesses for the government, and offered no testimony for the defendant. The jury having found the defendant guilty, it is our duty to determine as to whether or not there is any evidence in the record which supports the verdict.

The contention of counsel for the defendant is that the testimony of Sam Drew that there was a $20 bill in his pocket and that he never got his money back does not support the charge made. Cbunsel state their position in their brief as follows:

“We contend, first, that the evidence must sustain the allegation that money of the paper currency of the United States of America was taken. The only evidence going to the description of the money taken is where Sam Drew1 states There was a $2'0 bill in my pocket/ ”

We cannot agree with this statement. The witness Drew said: “I never got my money back/’ The witness Jackson testified:' “When I came back. Sam Drew told me he had lost his money, and he pointed to Alex Moody, Sandy Wilkerson, and ITenry Nelson as the ones who took his money.”

But it may be said that this was hearsajr, and was therefore not competent evidence. Nfo such objection wiais made to the admission of this evidence in the trial court; neither is such an objection made in this court. Having allowed this testimony to go to the jury without objection, defendant cannot be permitted to escape its force now. Even if it had been objected to at the trial, we think that it was admissible as a part of the res gesiae. It was made at the place of the robbery and 'within a few moments thereafter and appears to have been a spontaneous declaration, springing out of and throwing light upon the main transaction. So it is clear that the witnesses were testifying with reference to the loss of a $20 paper bill which constituted money. This was admissible under the general descriptive allegation, contained in the indictment, which was omitted in the statement made-in the brief of counsel for the defendant. The indictment did specifically describe some money charged to have been taken, and then contained the further general allegation referred to.

It is clear that at the trial it was understood by all parties that the witnesses were testifying to the loss of money. Counsel for the defendant tacitly admitted this fact by failing to cross-examine the witnesses. We know that some courts have gone to an absurd extreme upon the question of descriptive averments in indictments and the necessity of proving such averments with the nicest particularity. Many of these decisions appear to our minds as attaining the folly of reason. We will not discuss this matter in detail now, as it is not necessary to do so, in the light of the plain meaning of the evidence in this case. It would have been better for the prosecuting attorney to have identified the $20 bill more fully, and we do not desire to be understood as indorsing such carelessness on his part; but at the same time we believe that there was enough evidence before the jury to warrant them in believing that the bill referred to was a $20 bill of United States currency, and, as this is the only question raised, we cannot sustain the contention of the defendant.

(a) APPEAL — Doctrine of Harmless Error. This court did not originate the doctrine of harmless error. It is simply enforcing a principle of law as old as the American systerri of criminal jurisprudence, which is recognized in theory by all appellate courts, but not enforced by mans'- of them.

The indictment is in the language of the statute, and contains all other necessary allegations. The judgment of the court is regular. The record does not contain the charge of the court. We are therefore warranted in believing that the rights of the defendant were fully protected, and that the jury was properly instructed as to all legal questions involved. Before a defendant is tried, all of the presumptions of law and fact are favorable to him. But when he has been properly indicted and fairly tried, and the testimony is susceptible of a construction which will sustain a ver- ■ diet of conviction, it is our duty to sustain the verdict, unless something appears in the record which shows that the defendant has been deprived of a substantial right. In other words, every' presumption must be indulged in favor of all proceedings in courts, of record, and unless it appears that the defendant was deprived of some substantial right, or some jurisdictional error appears upon the face of the record, this court will not disturb a verdict of guilty, upon the mere possibility that error may have occurred.

Affirmed.

DOYLE and OWEN, Judges, concur.

ON MOTION Foe BeHEARING.

Denied.

(b) 'ROBBERY — Evidence—Identification of Money. The character of the money described in an indictment in a ease of robbery may be proven by circumstances as well as by positive identification, and where the circumstances of the trial show that no issue was made before the jury on this question, and the defendant’s counsel tacitly admitted that the money- with reference to which the witnesses were testifying was the kind described in the indictment, and the circumstances of the trial clearly show, from evidence admitted without objections, that the jury and the witnesses understood that the' testimony was with reference to this kind of money, and the evidence sustains the verdict, a conviction will not be reversed on account of purely technical defects in the identification of the money described in the indictment.

(c) APPEAL — Review—Harmless Error. Appellate courts, in reviewing the action of trial courts upon questions of practice, should base their decisions upon substance rather than upon shadows, upon justice rather than upon i^chnicalities, and when there is undisputed testimony in a record from which the jury could legitimately draw the conclusion that the defendant is guilty, the verdict should not be disturbed, because all purely technical rules were not rigidly complied with, when it does not appear from the record that the defendant was thereby deprived of some substantial right.

(Syllabus by the Court.)

PER CURIAM.

With a single exception the motion for a rehearing is but a repetition of the brief originally filed in the case. All of the questions presented were carefully considered by the court in the original opinion. Nothing has been suggested which alters the conclusions there arrived at. The new matter suggested is that as this case arose under the laws of Arkansas, then in force in Indian Territory, it was improper for this court to affirm the conviction when technical error appears in the record. The doctrine of harmless error, or error without prejudice, did not originate with this court. Practically all courts recognize the principle, while but few enforce it. It is as old as our American system of law.

In 12' Cyc. 910 the law is stated as follo'ws:

“As a general proposition appellant or plaintiff in error, to obtain a reversal, must show not only that error occurred, but that he was substantially prejudiced thereby. Technical and nominal errors, therefore, and mere irregularities, not substantially prejudicing the accused, may be disregarded on review by the appellate court.”

This is supported by an overwhelming weight of authorities. .It is in harmony with the statutes of Arkansas in force in the Indian Territory when the offense was committed. Section 2468 of the Statutes of Arkansas is as follows:

“The judgment shall only be reversed for errors of law, apparent in the record to the prejudice of the appellant.”

According, then,’ to the laws of Arkansas, there must be prejudice, injury, or harm from a technical error before it could be ground for a reversal. This is our position precisely. There is nothing new or revolutionarjr about it. We are simply resetting the ancient landmarks and enforcing a principle which cannot be ■ disputed, without doing great violence to justice, but which is too often lost sight of and disregarded by appellate courts. We are going to rigidly adhere to the views expressed in the Byers case, 1 Okla. Cr. 677, 100 Pac. 261, where it appears from the record that the defendant has been properly indicted and fairly tried and the evidence supports the verdict.

If counsel who represented the defendant on the trial of the case in the court below had been vigilant, a very different condition might have presented itself. The case was tried upon the idea, on both sides, that the twenty dollar bill was United States currency. There ivas no dispute upon this point. The evidence was admitted, without objection, upon this theory. The facts arid circumstances of the case show conclusively that the lawyers on both sides and the witnesses themselves understood that they were testifying with reference to United States currency. In the light of the entire record the jury were warranted in so finding. In justice to the attorney who appears for the defendant in this court, we desire to state that we have his assurance that he did not participate in the trial of this case in the court below; therefore no responsibility or blame attaches to him for the condition of the record.

The • evidence amply warranted the jury in the verdict rendered. The motion for a rehearing is therefore denied.