text:
    C. C. CHAMBERS v. STATE.
    No. A-3418
    Opinion Filed July 26, 1919.
    (182 Pac. 714.)
    2. HOMICIDE — Degree—Intoxication—Evidence. On a trial ioa-murder, evidence of intoxication is admissible, not to excuse the crime charged, but as a circumstance, tending to show that the killing was not tire deliberate and premeditated act of the defendant, and a state of intoxication which will reduce homicide from murder to manslaughter in the first degree must be of such char-as for and extent as to render the defendant incapable of entertaining or forming a design to effect death.
    '2. SAME. Where the premeditated design or intent to kill exists, and the killing was unprovoked h.v any cause adequate to reduce the degree of the crime to manslaughter, the intoxication of the defendant at the time of the act cannot affect the degree of the crime.
    3. SAME — “Voluntary Intoxication.” Where it appears that defendant was intoxicated at the time the killing was done, the intoxication was “voluntary” within tire meaning of the law, although the liquor was furnished defendant by the person killed.
    4. APPEAL AND ERROR — Reduction of Sentence. Under Code of Criminal Procedure (section 6003. Rev. Laws 1910), this court, in the furtherance of justice, has the power to modify any judgment appealed from by reducing the sentence.
    5. SAME — -Homicide—Evidence—Modification of Sentence. The evidence reviewed, and held sufficient to warrant a verdict convicting defendant of murder, but insufficient under the facts and circumstances of the case to support a verdict assessing the death penalty, and the judgment, and sentence is modified to imprisonment for life at hard labor.

      Apv'eal from District Court, Okfuskee County; Geo. C. Crimp., Judge.

    C. C. Chambers was convicted of murder, and he ap-f*eals.
    Modified and affirmed.

      Wm. S. Peters, for plaintiff in error.

      S. P. Freeling, Atty. Gen., and R. McMillan, Asst. Mfcy. Gen., for the State.
   DOYLE, P. J.

This is an appeal by C. C. 'Chambers from a conviction of murder and judgment and sentence of death. The information charged that C. C. Chambers did, in Okfuskee county, on or about the 22d day of April, 1918, kill and murder one S. M. Wilson, by shooting him with a pistol. In accordance with the verdict of the jury, he was sentenced to suffer the punishment of death by electrocution as provided by law. When the appeal was perfected, an order was entered and served on the warden of the penitentiary, staying execution of the sentence pending decision of the appeal.

The errors assigned are:

That the court erred in overruling the defendant’s motion for a new trial.

That the evidence is insufficient to support the verdict assessing the extreme penalty -of the law, because the punishment is excessive and unreasonable, and said verdict is the result of prejudice and bias against the defendant and. is not based upon the law and the evidence.

It appears that the deceased, S. M. Wilson, left Oké-mah in an automobile with two Indians, Jonah Bear and Joe Caney, and in driving through the town of Castle met defendant. The deceased asked defendant to get into the car and go with them, and they drove to the town of Boley, then went several miles west of Boley, looking for witnesses in a lawsuit, and returned to Boley between 4 and 5 o’clock that afternoon. The deceased had served four years as sheriff of Okfuskee county, during which time defendant, a negro, was his deputy. They were good friends. They had both been drinking during the day. The deceased furnished the whisky and both became somewhat intoxicated. That night between 9 and 10 o’clock they had a scuffle in the automobile, and defendant shot the deceased, killing him instantly.

The evidence in the case was substantially as follows:

Jonah Bear testified:

“I live five miles west of Okemah and knew Sam Wilson for a long time. Í understand only a few words of English. When we started there were three of us, I, Sam Wilson, and Joe Caney. At 'Castle, Chess Chambers got in with us, and from there we went to Boley, then out in the country, and back to Boley. We were drinking. Sam Wilson furnished the whisky. He gave Chambers a bottle. Between 9 and 10 o’clock we started to go home. I got in the car first. Sam Wilson and Chess Chambers got in the front, and Sam told Chess two or three times to get out, ar d Chess said he would not get out, and Sam just pushed him out, tried to push him out, you know, and Chambers pulled out a six-shooter and shot him; that was all there was to it. When I saw him pull the six-shooter, I started to grab it. I was directly behind Sam, so I could not reach it, and he shot him. Joe Caney was outside of the car on the ground. Sam did not have a gun, only just tried to push him out, was all. I 'hadn’t taken but three drinks while we were in Boley. Sam gave me the drinks.”

Joe Caney testified:

That Sam Wilson came to his place a little before noon. Jonah Bear was with him. “I went with them to the other side of Boley, between Okemah and Boley. At Castle, Chess Chambers got in the car. When we got to Boley, we stopped about 20 minutes and then went on west to •Jimmie Huchinula, looking for witnesses in the Ponsey ■•case, now pending in this court. A little after 4' o’clock 'we returned to Boley. I was right in front of the car when •Sam Wilson was shot. Defendant was on the front seat on the right side of Sam Wilson. Sam told him to get out and get in the back seat; that he wanted Joe to sit by him. That is what he said. Chambers made a whole lot of talk. I saw Chambers get a gun out and shoo-t Saftn. The car ■was Sam Wilson’s. Jonah Bear was in the car.” That he was a -Creek full-blood and did not drink whisky. That they had been gone from the car about three -hours, and when they returned they could not walk good. That he did not think he could drive the oar.

John Owens testified:

“I live at Boley. I am city marshal. When Chambers shot ■•Sam Wilson, I was sitting on the sidewalk 'in front of the Masonic Temple, and the car was just across the street and a little angling to the north. The first thing that attracted my attention was some men tussling in the car. It was just dusk. I started to get up and go over there, and about the time I started a gun fired. I ran and jumped in the front end of the car and found a man with his head down. I raised him up and recognized Sam Wilson. I asked, ‘Who killed him?’ Chambers was sitting right by him with a pistol in his hand, and he said, ‘I killed him.’ I took hold of the gun and wrenched it from, his hand. Several others were there. Ed Grad-dy, Reuben Tyler, H. C. Cavill, and others; I can’t name them all. Two Indians were there. One, Jonah Bear; the other I did not know. Chambers seemed to -be drinking. I asked some -one to call a doctor. -Chambers at the time was deputy sheriff.”

H. C. Cavill testified:

“That he stepped out of Spencer’s store four or five steps from where the shooting occurred, and saw Jonah Bear standing up in the back end of the car; Wilson and Chambers -were sitting with their faces together in the front seat, Mr. Wilson saying, ‘Get out,’ and just then the gun fired.”

Dock Barnett testified:

That he was standing about 10 or 12 steps from the ear when the gun was fired, and heard Sam Wilson tell Chambers to get in the back seat and let one of the Indians get in the front seat with him, and Chambers told him he did not ride in no damn man’s back seat, and then the gun fired.

Dr. W. A. Paxton testified:

He had been a practicing physician at Boley for ten years, and was called and found Mr. Wi'lson sitting in a drooped position in the car where the chauffeur sits, saw that he was shot, and found he was dead. The wound was in the breast, through the upper portion of the heart, and death was instantaneous.

Dr. C. M. Bloss testified:

' That he was a practicing physician at Okemah, was called to examine the body of Sam Wilson; and found it in the seat of his car, which was standing in the streets of Boley, and found a gunshot wound in the breast just beneath the sternum, and the skin was powder burnt.

For the defense, Wm. S. Peters testified:

“I have lived at Boley for seven or eight years, practicing law. I knew Mr. Wilson and defendant Chambers during that time. I' saw them two different times that evening. When I left the office for the evening, they were on the other side of the street and called me over and began to talk to me. From their appearance I did not want to talk with them, and I got away from them as quickly as I could conveniently. About an hour later I started home and came in contact with them again on the street, and they began to talk to me again. Something was said about Bradley. They discussed two different subjects with me, and one would say to the other, ‘You can’t tell it,’ and one would say, ‘Let me tell him,’ and Mr. Wilson pushed Chess back, and he would try to talk to me, and Chess would push him back and say let <him tell me. The last time I was leaving them, I had walked about five or six steps, when I heard Chess say: ‘You let my gun alone. You don’t know what you are doing. You can’t shoot the gun.’ I was four or five blocks away when the shooting took place.”

C. P. Young testified:

“I know Mr. Wilson, and I have known .Chambers about 45 years. About ten minutes prior to the killing, I had a conversation with them. They were both so drunk they could hardly walk. While they were talking the Indian, Jonah Bear, came up. Mr. Wilson asked him if he would carry him home. He thought he was not in position to carry himself, that he could not drive good, and he asked Jonah Bear if he could drive the car, and Jonah said, ‘No,’ and shook his head. Mr. Wilson made the remark, ■ ‘There is Jonah Bear, the best damn fellow in this country,’ and Chambers spoke up and said, ‘He ain’t no better than me, is he?’ and Wilson said: ‘No, he ain’t no better than you. I am as good a friend as you got in the country.’ Chambers could beat Mr. Wilson standing up.”

Witness Green testified that Dr. Bloss picked a watch up in the automobile and gave it to him; that the watch belonged to Chambers’ wife.

As a witness in his own behalf, the defendant testified :

“My name is Chess Chambers; I am 53 years old. Have lived at Boley 12 years. I have been deputy marshal, constable, and deputy sheriff since I have been there. Mr. Wilson was sheriff of Okfuskee county for four years, and I was his deputy sheriff at Boley during that time. Between 2 and 3 o’clock that day he asked me at Castle to get in the car and ride with him. We went to- Boley, and then went four and one-half miles west of Boley. These Indians were in the car. We got back to Boley between 4 and 5 o’clock I had never had a cross word with Mr. Wilson in my life. We left the car in the street and walked around the town drinking for two or three hours. Mr. Wilson bought the whisky. He went to Turner’s and asked about the ballot box and came back to Jones’ store, and Jones was not there. He then went to Turner and told him he .only had a few days to get busy or there would be some-bi dy up there who wouldn't let u-s register, and we couldn’t get to vote, and he says that Woods -and O. H. Bradley gets a stand-in with them Democrats and there would be somebody up there that would not let you negroes register down here, and said: ‘The next time I come to Okemah, I am going to run him out of town. You negroes ought to run him out.’ Then he went back to Jones’ place, and Jones tos not there, and we started up the street. He began to talk about Bradley again, and he said: ‘Give me that pistol. I will get in the car and go up there and run that negro away this evening.’ And I said: ‘No, Mr. Wilson, don’t do that. Don’t get into trouble.’ My pistol was in my hip pocket, and I moved it around on the other side, and he ran his hand around, and I moved it around this way. We were on the street then. He had a pint of whisky, and we finished drinking that. Then he asked Turner, ‘What have you got back there?’ and Turner said, ‘Might have a little alcohol,’ and he said, ‘You want some alcohol, Chess?’ I said: T don’t care, I might drink a little.’ So he drank some alcohol, and I drank a little. Mr. Wilson first got a pint, and me and him and the Indian dr«nk Hiat up. Then he got some more. I don’t know where he got it. I drank every time he did. We were both drunk. When I got in the car, he said, T wish you would get 'in the back seat with that Indian,’ and he says: ‘You didn’t do what I told you. You know what I told you about Bradley; Bradley and Hurst both ought to be yoked together and drove out of the country.’ And I said, ‘Mr. Wilson, I ain’t going to get out of the car and let you do that.’ About that time he shoved me, and I put my hand on the car to keep from falling out; and one of the Indians was sitting behind in the car. I knew Jonah, and the other one, I didn’t know what his name is, he was out, and Jonah was in the seat behind and grabbed me by the collar. Jonah jumps up and tries to get me loose from Mr. Wilson, and Mr. Wilson started to get the pistol I had, and when he struck the pistol handle I reached in and moved it around. I got it out of my pocket and started to put it in my other' pocket, and in the scuffle pulled the pistol off. I was-carrying'a watch at the time. Afterwards Mr. Green told me that Dr. Bless was up there and found it about the car. I did not shoot Mr. Wilson intentionally. I would not shoot him for nothing. I would shoot my brother as quick as I would shoot Mr. Wilson.”

Cross-Examination.

“Q. You say you don’t remember when you lost your watch? A. No, sir; I didn’t know when I lost it. I know when I got out of the car I didn’t have it. I know when I got in the car I had .it; when I got out of the car I didn’t have it. Q. New, you say you were pretty drunk that day? A. I was. Q. And you were sober enough to know what was happening, wasn’t you? A. Until I got drunk, I was. Q. You knew you had a gun in your hand when you shot Saan Wilson, didn’t you, A. I knew the gun in my hand went off. Q. You were not so drunk but what you knew when you shot him? A. Well, he struck it around here; he struck the handle of it and tried to get my gun. Q. Now, as a matter of fact, do you say this was an accident? A. That is all I could say, an accident. Q. What kind of a pistol was that? A. A single action six-shooter Colt’s. By the Court: Did Mr. Wilson have hold of the gun, Chess? A. I don’t think that he did. Q. Who cocked it ? A. I don’t know, sir; in the scuffle the gun cocked and went off.”

The instructions given submitted the issue of murder on the theory of the state that the killing was done delib-eiately, and justification on the theory of the defense that it was a case of accidental shooting, for which defendant was not criminally responsible.

Counsel for plaintiff in error did not represent him upon the trial. In his brief he does not ask for a reversal of the judgment, but insists that the evidence is insufficient to warrant the extreme penalty, and that the judgment and sentence should accordingly be modified by this court.

The Attorney General’s brief concludes as follows:

“We say that under our statutes this was a murder; and, while our laws do not draw the distinction as is done in other states between murder in the first and second degrees, it does go very far towards drawing a distinction between different degrees of murder in fixing the penalty —it may be life imprisonment or it may be death. We think that this man should have a life sentence in the penitentiary, instead of a death sentence. We dislike very m mh to dissent from the decision of an honest jury, and there is nothing in this record that shows that they were not an honest jury; but, on a fair and complete reading of this record, we are forced to suggest to this court that it has the power to modify this judgment under section 6003, Rev. Laws, and we ask that the same be done.”

After a careful consideration of the testimony, we think it is technically sufficient to sustain the conviction. The crime was undoubtedly committed, like many others, under the influence of intoxicating liquor, but for which the fatal shot would not have been fired. However, the fact that defendant was somewhat intoxicated furnishes him no excuse.

Our Penal Code provides:

“No act committed by a person while in a state of voluntary intoxication shall be deemed less criminal by reason of his having been in such condition.” Section 2095, Rev. Laws 1910.

Under our Penal Code, first subdivision, section 2313, Rev. Laws 1910:

Homicide is murder: “When perpetrated without authority of law and with a premeditated design to effect the death of the person killed, or of any other human being.”

And evidence of intoxication is admissible to show an absence of the premeditated design to kill, for the purpose of determining whether the offense was murder or manslaughter, and a state of intoxication which will reduce homicide from murder to manslaughter in the first degree must be of such a character and extent as to render the defendant incapable of entertaining or forming a design to effect death, and the question is for the jury to determine. Cheadle v. State, 11 Okla. Cr. 566, 149 Pac. 919, L. R. A. 1915E, 1031.

Where the premeditated design or intent to kill ■ exists and the killing was unprovoked by any cause adequate to reduce the degree of the crime to manslaughter in the first degree, the intoxication of the defendant at the time of the act cannot affect the degree of the crime.

If defendant was sober enough to form the design to kill and to deliberate and premeditate this crime, then his responsibility is the same as if he had been perfectly sober, and his intoxication was voluntary within the meaning of the law, although the liquor was furnished defendant by the deceased.

The record shows that counsel for defendant did not request instructions as to the law of manslaughter in the first degree; yet we think that, upon the uncontroverted facts and circumstances in evidence and the testimony of defendant, the court should have instructed the jury on the subject. If defendant’s counsel had requested such instructions, and they had been refused and exceptions taken, the question would have been properly raised.

In a prosecution for murder, it is the duty of the trial court to instruct on the law of manslaughter if there is any evidence that the alleged crime might have been done tinder circumstances that would reduce the crime from murder to manslaughter; however, it is not reversible error for the trial court to omit to instruct, upon some particular branch of the case under the defendant’s theory of the case, when the defendant has not requested such instructions. Williams v. State, 12 Okla. Cr. 39, 151 Pac. 900.

But we think it is a proper matter for consideration-upon the question as to whether the judgment should be modified.

In a capital case, the law of our state in its great -humanity allows the jury, after they have first determined the question of guilt, to assess the punishment, which may bo death or imprisonment for life at their discretion, and, even after the jury say that the defendant should suffer death, this court, in furtherance of justice, has the power to modify the judgment to imprisonment for life. Section 6003, Rev. Laws 1910.

In the case of Fritz v. State, 8 Okla. Cr. 342, 128 Pac. 170, it is said:

“The power of this court to modify a judgment inflicting the death penalty for murder to imprisonment for life at hard labor, when deemed proper in the furtherance of justice, is in no sense the power of commutation of the sentence of the lower court. Commutation can be granted only by the chief executive of the state, and is granted as a matter of clemency. The judicial power to modify a judgment and sentence and the executive power to pardon, parole, or commute are wholly distinct in their nature. The one is an award of justice, and the other is an act of grace. Commutation is a matter of discretion, and may be refused. Justice is imperative, and must not be denied. The fact that the Governor has the power to commute does not abridge the defendant’s right to appeal to .this court foi relief. In other words, the provision of our criminal procedure act makes it the duty of this court to review the record, and in a proper case, if necessary in the furtherance of justice, modify the judgment so as to prevent the imposition of punishment which the evidence will not warrant.”

In this case we are convinced from ‘ a careful examination of the record that the evidence is insufficient to warrant the extreme penalty of the law, and for this reason the jury abused its discretion in assessing the death penalty. While the evidence for the state tends to show that the killing was deliberate, the undisputed facts are that defendant and the deceased were at all times intimate and familiar with each other; there was no evidence of any animosity between them.

While defendant’s intoxication is no excuse for the crime comjhitted, it is a fact tending to throw light on other facts and circumstances in the case, and at most the evidence/tending to show premeditated design to take life is very 'weak and unsatisfactory. -

I/or the reasons stated, we are of opinion that the punishment imposed is excessive. It appearing from the record i^bat no objections were made or exceptions taken in the case to any ruling of the court, our duty is fully performed by modifying the judgment to the extent that the sentence will -be changed from the infliction-of the death penalty to ihal of imprisonment in the state penitentiary at hard labir for life.

I As thus modified, the judgment herein is affirmed.

ARMSTRONG and MATSON, JJ„ concur.


source: Caselaw Access Project

author: MATSON, J.

license: Public Domain

text:
    STATE v. MARTIN M. FULKERSON.
    No. A-2867
    Opinion Filed July 26, 1919.
    (182 Pac. 725.)
    1. LIMITATION 'OF PROSECUTIONS — Construction of Statute. A statute of limitations in criminal cases is to be liberally construed in favor of defendants, as it surrenders the right of the state to try and punish criminal offenses at its discretion.
    2. SAME — Statutory and Constitutional Provisions — Informations. The statute of limitations, section (1571. Clomp. Laws Oklahoma 15)09. in force as to ail prosecutions by Indictment for felony, except murder, committed after statehood and prior to the adoption of Revised Laws 1910. applies also to prosecutions for such offenses by information, (-hereby requiring an information charging such felony to be filed in the trial court, within three years after the commission of the offense.

      Appeal from District Court, Woods Cdainty; W. C. Crow, Judge. \

    Martin M. Fulkerson was informed against for forgery, his demurrer to the information was sustained, and the State appeals.
    Affirmed.
    On February 14, 1916, the county attorney of '^Voods county, Oklahoma, filed a preliminary information or ^ complaint containing two counts against the defendant, Martin M. Fulkerson, the first count charging the forgery of a negotiable note, and the second count thereof charging the forgery of. an indorsement guaranteeing the payment of said forged note. The complaint was filed 'before Hon. Gus Had wicker, county judge of Woods county, sitting as an examining and committing magistrate, and, omitting vthe cap-cion and formal parts, reads as follows: \

      “First Count.

    “I, Sandor J. Vigg, county -attorney of Woods counity, Okla., in the name, by the authority and on behalf of the state of Oklahoma, give information that on or about the 81st day of March, 1913, in said county of Woods, state of Oklahoma, one M. M. Fulkerson, then and there 'being, did then and there, with intent to defraud one W. A. Rafler, and other persons to our informant unknown, wil-fully, falsely, fraudulently, unlawfully, and feloniously make, forge, and counterfeit an instrument in writing, to wit, a negotiable promissory note, being and purporting to be the act of another person, to wit, W. A. Rafler, by then and there, and without the consent of the said W. A. Rafler, and by which said forged, false, and counterfeit instrument in writing a pecuniary demand and obligation vns then and there created and purported to be created against the said W. A. Rafler, and by which said false, forging, and counterfeiting of said instrument in writing, as aforesaid, the said W. A. Rafler may be affected, and was then and there affected, bound, and injured in his property, and which said false, forged, and counterfeited instrument in writing was and is of the tenor and in language, words, and figures as follows, that is to say:
    “ ‘$3,065.00 Alva, Oklahoma, March 31, 1913.
    “ ‘On July 20th, 1913, I promise to pay to the order of the Alva Security Bank of Alva, Oklahoma, thirty-six hundred five dollars, for value received, payable at the Alva Security Bank of Alva, Oklahoma, with interest at the rate of ten per cent, per annum from maty, until paid.
    “ ‘W. A. Rafler.
    “ ‘P. 0. Alva.
    “ ‘Securitv: C. M.
    “ ‘45774.’
    “And on the back of said instrument in writing there are the following, to wit:
    “ ‘Without recourse in any event. Alva Security Bank. Alva, Oklahoma, by M. M. Fulkerson, Cashier.
    “ ‘Protest waived and payment guaranteed. M. M. Fulkerson. G. A. Harbaugh’
    with the wilful, fraudulent, unlawful and felonious intent of him, the said M. M. Fulkerson, to then and there and thereby cheat, wrong, and defraud the said W. A. Rafler, and other persons to your informant unknown, contrary to •he form of the statute in such case made and provided, and against the peace and dignity of the state of Oklahoma.

      “Second Count,

    “I, Sandor J. Vigg, county attorney of Woods county, Oklahoma, in the name, 'by the authority and on behalf of the state of Oklahoma, further complaining against the said M. M. Fulkerson, give information that on or about the 31st day of March, 1913, and within the county of Woods, state of Oklahoma, and at the same identical time and place, and as a part and parcel of the same identical transaction mentioned in the first count of this complaint, the said defendant, M. M. Fulkerson, then and there being, did then and there, with intent to defraud the said W. A. Rafler and G. A. Harbaugh, and other persons to your informant unknown, wilfully, falsely, fraudulently, unlawfully and feloniousy forge and counterfeit the name of the said G. A. Harbaugh on the back of said false, forged, and counterfeited instrument in writing, to wit, a negotiable promissory note, the same being and is the identical instrument in writing mentioned and set forth in the first count of this complaint, by then and there, and in the manner aforesaid, signing and forging the name of the said G. A. Haxbaugh or the back of said instrument in writing, as an indorser thereon, without the authority so to do, and which said false, forged, and counterfeited indorsement was and is in writing and of the following tenor, that is to say, ‘G. A. Harbaugh,’ and which said false, forged, and counterfeited instrument was and is of the tenor and in language, words, and figures as follows, to wit:
    “ ‘S3,605.00. Alva, Oklahoma, March 31, 1913.

      “ ‘On July 20. 1913, T promise to pay to the order of the Alva Security Bank of Alva, Oklahoma, thirty-six hundred five dollars, for value received, payable at the Alva Security Bank of Alva, Oklahoma, with interest at the rate of ten per cent, per annum from maty, until paid.
    “ ‘W. A. Rafler.
    “ ‘P. O.: Alva.
    “ ‘Security: C. M.
    “ ‘45774.’
    “And on the back of said instrument in writing there are the following indorsements and memorandas in writing, to wit:
    “ ‘Without recourse in any event. Alva Security Bank, Alva, Oklahoma, by M. M. Fulkerson, Cashier.
    “ ‘Protest waived and payment guarantee. M. M. Ful-kerson. A. Harbaugh.’
    “And which said false, forged, and counterfeited in-dorsement on the back of said instrument in writing being and purporting to be the act of another person, to wit, the said G. A. Harbaugh, and by which said false, forged, and counterfeited indorsement of said name of said G. A. Har-baugh on the back of said false, forged, and counterfeited instrument in writing, as indorser thereon, a pecuniary demand and obligation was then and there created, and purported to be created, against the said G. A. Harbaugh and the said W. A. Rafler, and by which said false forging and counterfeiting of said name of the said G. A. Harbaugh, as indorser on said note as aforesaid, the said G. A. Harbaugh and the said W. A. Rafler may be affected, and were then and there affected, bound, and injured in their property; and he, the said M. M. Fulkerson, forged and counterfeited the name of the said G. A. Harbaugh on the back of said instrument in writing as an indorser thereon, with the wilful, fraudulent, unlawful, and felonious intent of him, !he said M. M. Fulkerson, to then and there and thereby cheat, wrong, and défraud the said G. A. Harbaugh and the said W. A. Rafler, and other persons to your informant unknown, contrary to the form of the statute in such case made and provided, and against the peace and dignity of the state of Oklahoma.”

      A warrant of arrest was duly issued on said complaint and served by the sheriff of Woods county by arresting the defendant on the 15th day of February, 1916, and bringing him before the county judge for preliminary examination.
    On the 16th day of February, 1916, the defendant entered into an appearance bond to answer said charge, and on April 12, 1916, the defendant waived a preliminary hearing upon the charge contained in the complaint, and was held by the county judge to answer the same, and admitted to bail on the 15th of April, 1916.
    Thereafter, on April 19, 1916, the county attorney of Woods county filed with the clerk of the district court of Woods county an information charging the identical offense set out in .the preliminary complaint or information above. On the 7th day of October, 1916, the defendant, on being arraigned, filed a demurrer to the information, said demurrer being as follows, omitting said caption and formal parts:
    “Comes now said defendant, M. M. Fulkerson, and demurs to the information filed against him in the above-entitled cause, and as grounds for such demurrer assigns the following, to wit:
    “First. Because said information does not charge this defendant with any offense against the laws of the state of Oklahoma.
    “■Second. Because said information does not conform substantially to the provisions of chapter 62 of the Revised Laws of the state of Oklahoma 1910.
    “Third. Because more than one offense is improperly sought to foe charged in said information.
    “Fourth. Because said information contains matters which constitute a legal defense to the offense charged, and is a bar thereto.

      “Sixth. Because said information shows on its face that this prosecution is barred by the statutes -of limitation.”
    On the 9th day of October, 1916, the district court of Woods county made an order sustaining said demurrer, which order is as follows:
    “This cause coming on regularly for hearing on this 9th day of October, 1916, the same being a regular day of the regular October, 1916, term of the district court of Woods county, Okla., present Hon. W. 'C. Crow, presiding judge, and said cause being heard upon a demurrer to the information heretofore filed by the defendant, Martin M. Fulkerson, and the state of Oklahoma being present 'by San dor J. Vigg, county attorney for Woods county, and J. I. Howard, Assistant Attorney General of the state of Oklahoma, and the defendant being present in person and by his attorneys, E. W. Snoddy, C. H. Mauntel, L. T. Wilson, and W. M. Bickel, and the court, after hearing said demurrer and hearing argument of counsel and being fully advised in the premises, does hereby sustain said demurrer and each and all of the paragraphs thereof, to which ruling of the > court the state of Oklahoma does now except, and its exceptions are by the court allowed, and now the state of Oklahoma, by and through Sandor J. Vigg, county attorney of Woods county, Okla., and J. I. Howard, Assistant Attorney General of the state of Oklahoma, assigned to prosecute offenses against the banking laws of said state, does now in open court reserve an exception to the ruling of the court, and does hereby in open court reserve the question of the correctness of the ruling of the court in sustaining said demurrer for appeal and review by the Criminal Court of Appeals of the state of Oklahoma, and now in open court gives notice of its intention to appeal from said ruling of the court sustaining said demurrer to' the Criminal Court of Appeals of the state of Oklahoma, and now, upon good cause shown, it is ordered by the court that the state be, and it is, hereby allowed 15 day's from this date in which to make and serve a case-made in said cause, the defendant be and he is hereby allowed ten days in which to suggest amendments to said case-made, and the same be settled and signed upon five days’ written notice by either party to the other, and it is further ordéred that said appeal be perfected by filing with the clerk of the Criminal Court of Appeals petition in error with case-made attached within 40 days from this date, unless time is further granted by the court or judge thereon, for good cause.
    “W. C. Crow, Judge.”

    Thereafter the state of Oklahoma gave notice of its intention to ap<peal, and on November 6, 1916, filed an appeal in this court properly perfected.
    Among the assignments of error are the following:
    “Because the district court erred in sustaining the said demurrer to said information on the ground that the said information shows on its face that the alleged offense is barred by the statute of limitations of the state.
    “Because said district court erred in sustaining said demurrer to said information and to each count thereof on the ground that the prosecution is barred by the statute of limitations.
    “Because said district court erred in sustaining said demurrer to said information on the ground that more than one offense is improperly sought to be charged in said information.”

      S. P. Freeling, Atty. Gen., J. I. Howard, Asst. Atty. Gen., and Sandor J. Vigg, Co. Atty., for the State.

      Mauntel & Barry, L. T. Wilson, and W. M. Bickel, for defendant in error.
   MATSON, J.

(after stating the facts as above). It appears from the briefs filed by both parties to this appeal ■that in sustaining the demurrer to the information 'the trial court considered only two grounds, namely: That the alleged offense is barred by the statute of limitations of the state in force at the time; and (2) that more than one offense is improperly sought to be charged in the information.

The conclusion is reached “hat under the statutes of this state in force at the time this offense was committed an indictment or information charging the offense must have been filed in the district court of the county where the same was committed within three years after the date of its commission, and a failure to do so was a bar to the prosecution. It vyill be unnecessary, therefore, to consider the other question presented as to whether the information charges more than one offense.

The statutes of limitation in force at the time this offense was committed are embodied in sections 6570, 6571, and 6572, Compiled Laws of Oklahoma 1909, as follows:

“6570. There is no limitation of the time within which a prosecution for murder must be commenced. It may be commenced at any time after the death of the person killed.

“6571. In all other cases an indictment for a public offense must be found within three years after its commission.”

“6573. An indictment is found within the meaning of the last three sections, when it is duly presented iby the grand jury in open court, and there received and filed.”

Prior to statehood, prosecution for felony by information was not provided. All felony prosecutions prior to statehood had to be by indictment. Either the defendant prior to the return of the indictment had been bound over to answer said charge by a committing magistrate under a preliminary examination for the purpose of admitting to ■bail, or else the evidence was submitted to the grand jury-in the first instance. Under the statute then in force, the limitation as to a prosecution for a felony operated up until the very moment an indictment was presented by the grand jury in open court, and there received and filed. In tho'se cases prosecuted by indictment, where a preliminary exam-ihatioh was had, and bail allowed, in no case was the prosecution ' considered commenced until the indictment had been returned and filed. In re Lacey, 6 Okla. 4, 37 Pac. 1005:

,. This was the situation then that confronted the framers of our Constitution and the people when they adopted the same, and section 17 of article 2 of the Constitution must be considered in connection with the foregoing statutes, and also in connection with section 2 of the Schedule to the Constitution.

Section 17 of article 2 provides:

“No-person shall be prosecuted criminally in courts of record for felony or misdemeanor otherwise than by presentment or indictment or by information. No person shall be prosecuted for a felony by information without having had a preliminary examination before an examining magistrate, or having waived such preliminary examination. Prosecutions may be instituted in courts not of record upon a duly verified complaint.”

Section 2 of the Schedule to the Constitution provides:

“All laws in force in the territory of Oklahoma at the time of the admission of the state into the Union, which are not repugnant to this Constitution, and which are not locally inapplicable, shall be extended to and remain in force in the state of Oklahoma until they expire by their ownUimitation or are altered or repealed by law.”

Section 17 of article 2, in so far as it provides for prosecution for felony by presentment or indictment, is in no particular repugnant to the statutes of the territory of Oklahoma in force at the time of the adoption of the Constitution providing for prosecution of felonies by indictment, nor is it repugnant to the provisions of the territorial statutes heretofore quoted relative to the limitation of felony prosecutions by indictment.

Inasmuch as there was no provision of the territorial statutes relative to the prosecution of felonies by information, and therefore nothing provided in said statutes as to the limit of time within which such a prosecution might be instituted, it is necessary for the court to consider the intention .of the framers of the Constitution and the people in adopting section 17 of article 2, supra,, as to the time within which a prosecution for felony by information, other than the crime of murder, should be deemed commenced.

In our opinion, it was not the intention to provide one rule for the commencement of felony prosecutions by indictment and another and different rule for the commencement of the same by information.

In other words, while the framers of the Constitution provided that a preliminary examination, or a waiver of the same, was a necessary prerequisite for a prosecution of a felony by information, without making a preliminary . examination a necessary prerequisite to prosecution by indictment, although such an examination was and. is permissible in such prosecutions, nevertheless it is clear that as to the commencement of these prosecutions it was intended that the same statute should apply. Therefore, having not provided otherwise, it is our opinion that as to offenses committed prior to the adoption of Revised Laws *1910, the statute of the territory of Oklahoma requiring an indictment to be presented by the grand jury in open court and there received and filed before a felony prosecution was deemed commenced, was inferentially applicable to prosecutions by information, the said provision not being repugnant to prosecutions by information, thereby requiring the county attorney to file his information in the district or other court having jurisdiction to finally try the defendant, before the prosecution could be deemed commenced so as to arrest the running of the statute of limitations.

The state relies upon section 5625, Revised Laws 1910, which provides:

“In all other cases the prosecution for a public offense must be commenced within three years after its commission”

—and numerous well-considered authorities are cited to support the contention that a prosecution by information is deemed commenced within the meaning of such a statute, sufficient to prevent the statute of limitations from running against it, by the filing of a preliminary complaint on oath and the issuance of a warrant of arrest thereon in good faith. But said section is not applicable to this alleged offense, for the reason that section 2 of chapter 39, Session Laws 1910-11, p. 70, adopting said Code, specifically provided that—

“All general or public laws of the state of Oklahoma not contained in said revision are hereby repealed. Provided, that this act shall not be construed to repeal, or in any way affect * * * any pending proceeding or any existing rights or remedies, nor the running of the statute of limitations in force at the time of the approval of this act.”

Prior to the adoption of Revised Laws 1910, the limitation was against the filing,of the indictment or informar tion; thereafter, against the commencement of the prosecution.

It appears from a copy of the alleged forged instrument set out in the body of the information, and from the allegations of the information itself, that this alleged crime was committed, if at all, on the 31st day of March, 1918, and that the information charging the offense was not filed in the district court of Woods county until the 19th day of April, 1916, more than three years after it is alleged said offense was committed. According to the conclusions reached, the offense, therefore, was barred by the statute of limitations in force at the time of the commission of the offense, and the subsequent taking effect of Revised Laws 1910 on the 17th day of May, 1913, did not have the effect of extending the statute of limitations, for the reason that it was clearly not the intention of the Legislature to give it any such effect.

The conclusion here reached is not in conflict with the opinion of the Supreme Court of this state in Ex parte McNaught. 1 Okla. Cr. 260, 100 Pac. 27, wherein it was held that section 5304, Wilson’s Revised and Annotated Statutes 1903, providing that no person shall be prosecuted for a felony in the district court except by indictment, was repugnant to section 17, article 2, of the Constitution, which was held to be self-executing, and for that reason section 5304 was not extended in force in the state under section 2 of the Schedule, for the reason that said section also provided for prosecution for felony by information. But there is nothing in the Constitution touching upon the question of when prosecution for felony should be commenced, or how and when they should be deemed commenced. Therefore the provision of the territorial statute above quoted, requiring an indictment for a felony to be filed within three years after the crime was committed, was not repugnant to any provision of the Constitution relating to prosecution of felonies by indictment, and under section 2 of the .Schedule was extended in force after statehood. If extended in force as to prosecutions by indictment, with what reason may it be assumed that it was not intended that an information charging such an offense should be filed within three years after the commission of the offense, and, if a prosecution by indictment was not commenced until the indictment was filed (Ex parte Lacey, supra), with what reason can it be said that a prosecution by information should be deehied commenced at any time before the information is filed in the trial court?

In Re McNaught, 1 Okla. Cr. 528, 99 Pac. 241, this court held, under section 17 of article 2 of the Constitution, that in prosecutions for felony by indictment or information, concurrent remedies were provided. If concurrent remedies, and a prosecution by indictment charging a felony must be filed within three years after the commission of the offense as to all felonies committed prior to the taking effect of Revised Laws 1910, certainly as to such felonies prosecutions by information must also have been filed within three years after the commission of the offense. Any other construction would' rob such limitation statute of uniformity.

It must be fully understood that the decision in this case has no bearing whatever upon the commencement of prosecutions for crimes committed on and after the date of the taking effect of Revised Laws 1910 (Harris-Day Code).

For the reasons stated, it is the opinion of the court, therefore, that this cause was barred by the statute of limitations in force at the time this information was filed in the district court of Woods county charging the offense, and that the trial court did not err in sustaining the demurrer to the information. People v. Ayhens, 85 Cal. 86, 24 Pac. 635.

The judgment is affirmed.

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


author: DOYLE, P. J.

text:
    HENRY BALLARD v. STATE.
    No. A-3005
    Opinion Filed July 26, 1919.
    (182 Pac. 524.)
    HOMICIDE — Assault with Intent to Kill — Sufficiency of Evidence. In a prosecution for assault with intent to kill, the evidence considered, and held sufficient to sustain the conviction, and that no reversible error was committed on the trial.

      Appeal from District Court, Delaware County; John E. Pitchford, Judge.

    Henry Ballard was convicted of assault with intent to kill, and he appeals.
    Affirmed.

      J. Berry King, for plaintiff in error.
    The Attorney General and W. C. Hall, Asst. Atty. Gen., for the State.
   DOYLE, P. J.

Plaintiff in error, Henry Ballard, wa's convicted in the district court of Delaware county on an information charging that in said county, on or about the 39th day of December, 1915, he did shoot with intent to kill, one William Sheldon, with a breech-loading shotgun, and his punishment was fixed at imprisonment in the penitentiary for eight years. From the judgment and sentence in accordance with the verdict, an appeal was perfected by filing in this court on May 14, 1917, petition in error with case-made.

The evidence for the state tended to show that the shooting occurred on a public road near Beavers Springs; that William Sheldon, a deputy United States marshal, and another officer were camped by the roadside waiting for whisky runners, -and the defendant and another person drove by in a wagon, and the officers followed them and ordered them to stop, and the defendant fired three shots at them, one of the shots striking Sheldon in the side. There were about 20 gallon jugs of whisky in'the wagon driven by the defendant.

As a witness in his own behalf, the defendant testified :

“My name is William H. Ballard, better known as Henry Ballard. I live at Tahlequah. I went to the still-house for a load of whisky and got it. Another fellow was there who had two gallons of whisky, and I let him put his whisky in my wagon, and we -started back and got down to Beavers Springs. There is where the shooting took place. The first thing that attracted my attention, the fellow with me grabbed up -the gun. I started to jump out of the wagon, and I was shot. I did not know the fellow that was with me. I 'walked back to Si'loam and got a buggy and went home. I did not fire the shot. The fellow that was with me fired the shot. The whisky in the wagon, except his two gallons, belonged to me.”

The errors assigned are, in effect, that the court erred in overruling the demurrer to the information, and in overruling a motion for a change of venue, and in rulings on the admission of evidence, and in certain instructions given to the jury, and that the verdict is contrary to the law and the evidence. No brief had been filed and no appearance made for plaintiff in error when the case was palled for submission. In cases of this kind, we do not consider it the duty of the court to go into an examination of the evidence to determine whether or not the trial court erred in the admission or rejection of testimony. We have examined the information, the instructions of the court, and we have discovered no error which would warrant a reversal of the judgment.

In Love. v. State, 15 Okla. Cr. 429, 177 Pac. 387, it is said :

“Under our statutes, a peace officer has the right, and it is his duty, to arrest one who is committing a public offense in his presence and to use such force as may be necessary to effect the arrest, and if the person committing the offense resists arrest, and in so doing kills the officer, he is guilty of murder, if he knew that the person attempting to make the arrest was 'an officer, and at least guilty of manslaughter in the first degree if he did not know it.

“The officer being in the right, and in the discharge of his duty, the person resisting arrest does it at his peril, and, if he kills, he is guilty of murder or manslaughter, as it may appear that he knew or did not know the character in which the officer was acting. In Collegenia v. State, 9 Okla. Cr. 425, 132 Pac. 375, it is said:

“ ‘An arrest by a peace officer without a warrant for a public offense committed or attempted in his presence, made in substantial compliance with the terms of the statute, is a legal arrest, which no one can lawfully resist, and the officer may use whatever force is reasonably necessary to prevent an escape and secure the offender; but the officer must use no moré force and violence than is reasonably necessary to secure the arrest.’ ”

The evidence was sufficient to support the verdict, and there was no abuse of discretion by the court below in refusing to grant a change of venue.

We find no error in the record, and . the judgment is affirmed.

ARMSTRONG and MATSON, JJ., concur.


author: ARMSTRONG, J.

text:
    JOHN RYAL v. STATE.
    No. A-2801
    Opinion Filed March 10, 1919.
    Rehearing Denied Aug. 2, 1919.
    (182 Pac. 253.)
    1. CONTINUANCE — Absent Witness — Sufficiency of Application. Where an absent witness has been summoned and it is not averred in the affidavit upon which the motion for a continuance is predicated, or shown by evidence, that such witness is not absent ■by consent or procurement of the defendant, and that the cause of the absence of said witness is .unknown, and no attachment is asked for said witness, and it is averred in said affidavit that the whereabouts of said witness is unknown, such application is insufficient upon its face and properly overruled.
    2. WITNESSES — Interest—Offer to Purchase Property of Prosecuting Witness. The state introduced evidence tending to show that an effort was made by a witness for the defendant, and without the defendant’s instance, to purchase at an excessive value all the property of the prosecuting witness, with the condition that such witness leave the state and stay away two years and not appear against the defendant, and the party making such offer appeared and testified for the defendant, denying that he had made any such statements or offer. Held, that said offer to purchase said property may be shown for the purpose of showing the interest of such witness for the defendant, if the court limits such evidence solely to such interest.
    EVIDENCE — Admissibility—Attempt to Prevent Testimony of State’s Witness. An effort of a defendant to cause a witness for the state not to appear against him is a circumstance tending to sliow tlie guilt of tlie defendant, and tbe facts of sucb effort may be properly admitted on bis trial.
    4 TRIAL — Testimony of Accomplice — Question for Jury. Unless tbe court is able to instruct tbe jury as a matter of law that a witness is an accomplice, whether or not the witness is an accomplice is a question of fact for tbe jury to determine.
    5. APPEAL AND ERROR — Review—Accomplice Testimony — Conviction. Where evidence is submitted tending to show that a •witness for the state is an accomplice in tbe crime for which tbe defendant is being tried and also evidence to corroborate such evidence of such accomplice, and these questions are properly submitted to tlie jury, a verdict of conviction will not be disturbed upon the ground that the conviction is in violation of section 5881, Revised Laws 1910.
    6. LARCENY — Taking of live Stock — Instructions. Instructions given by the court and excepted to by the defendant, considered in connection with the entire instructions of the court, and held free from error.
    7. LARCENY — Live Stock — Conviction. The evidence in this case carefully examined, and held, though in conflict, sufficient to reasonably support the verdict of the jury.
    8 NEW TRIAL — Newly Discovered Evidence — Effect on Result— Discretion of Trial Court — Case Overruled. A motion was made for a new trial upon the ground of newly discovered evidence, the motion being predicated upon an affidavit of a witness for the state at the trial that he (witness) committed the offense for which the defendant was convicted, and that defendant had no part in the commission of the offense, together with affidavits as to the good character of the defendant. Held: (1) That such showing does not entitle the defendant as a matter of right to a new trial, but calls into exercise the sound discretion of the court, and such motion should be overruled unless the trial court ber lieves that such recantation is probably true and that another trial would probably result in the acquittal of the defendant. (2) The holding in the second paragraph of the syllabus in N. D. Chappell v. State, 6 Okla. Cr. 398, 119 Pac. 139, is hereby expressly disapproved, and the same modified to conform to the rule of law herein announced.

      Appeal from District Court, McIntosh County; R. W. Higgins, Judge.

    John Ryal was convicted of larceny of live stock, and appeals.
    Affirmed.

      Presley B. Cole, for plaintiff in error.

      S. P. Freeling, Atty. Gen., and R. McMillan, Asst. Atty. Gen., for the State.
   ARMSTRONG, J.

The plaintiff in error, John Ryal, hereinafter referred to as “defendant,” was, together with Nick Barrow and Sam Guy, jointly informed against for the offense of larceny of live stock. The prosecution was dismissed as to Nick Barrow and Sam Guy, and upon his trial defendant was convicted, and his punishment fixed at six years’ imprisonment in the penitentiary.

To reverse the judgment rendered, the defendant prosecutes this appeal.

The information contains two counts, and the state elected to stand upon the first count, which count, omitting caption and signature, is as follows :

“That John Ryal, Nick Barrow and Sam Guy, on the day and year aforesaid, in the county and state aforesaid, acting .together, did unlawfully, wilfully, wrongfully, stealthily and feloniously, take, steal and'carry away, one hay mare about three years old, with white spot on forehead, about 14% hands high, of the personal property of one J. E. Watson, without the consent and against the will of him the said J. E. Watson, the true owner thereof, and with the unlawful, wrongful and felonious intent then . and there on the part of them, the said John Ryal, Nick Barrow and Sam Guy, to deprive the said J. E. Watson of the said property, live stock and horse, and to convert the same to the use and benefit of them the said John Ryal, Nick Barrow and Sam Guy, contrary to the form of the statutes, in such cases made and provided, and against the peace and dignity of the state.”

The defendant moved for a continuance on the ground of the absence of Myrtle Gage and Henry Turpin, witnesses for the defendant. The affidavit which is the basis for the motion for a continuance, and in support of which no evidence is offered, avers: “That Myrtle Gage resides near Ghanute, Okla., but whose whereabouts is now unknown, and Henry Turpin, whose residence is not stated, and whose whereabouts is now totally unknown,” have each been legally subpoenaed in this case as witnesses for the defendant, and for some reason unknown to the defendant are absent, and that if present Myrtle Gage would testify that early in September, just after the theft was committed, Sam Guy and Nick Barrow brought some horses and put them in their pasture; that she was informed at that time that the horses put in the pasture were the horses of Sam Guy and that he would pay for. their pasturage; and that Henry Turpin, if present, would testify that he worked for John Ryal at the same timé that Sam Guy, one of the defendants, Worked for him; that he is well acquainted with Sam Guy, and that iSam Guy was well acquainted with and knew all of John Ryal’s horses; that, at the time said witness was working foi him, the defendant Sam Guy tried to induce the said Henry Turpin to aid or assist him in stealing horses or cattle, and that if they were intercepted' they would turn state’s evidence on John Ryal and go free, and this affiant believes the same to be true.

The said affidavit further avers that the facts which the defendant expects to prove by said absent witnesses cannot be proved by other witnesses. There is no allegation in said affidavit that the said witnesses are not absent by the procurement or consent of the defendant, or that the affiant 'believes that the evidence which Myrtle Gage would- give is true.

The court overruled the motion for a continuance, and the defendant excepted.

There is evidence that a hay mare belonging to J. E. Watson and another bay mare and a light bay horse belonging to J. Ardica were in a pasture near the home of the defendant in McIntosh county; that the said animals were missed and unsuccessfully hunted by their owners; that, shortly after said animals were missed, they were in the lot of defendant near his home; and that the said animals were by direction of the defendant started at night and driven to the home of Mr. Barrow, in Washita county, Okla., the father-in-law of the defendant, by Sam Guy and others; that the defendant, in advance of the starting of said drive of said horses, went from his'home to Washita county, Okla., and met the said horses about two miles from the home of the said Barrow, and by his direction they were put in the pasture of said Barrow; and that the next day, by direction of defendant, a part of said animals, -including the said mare belonging to Watson and the mare and horse belonging to Ardica, were taken from the home of the fa/ther-in-law ‘ of the defendant to the home of defendant’s brother-in-law in Custer county; and that the sheriff of McIntosh county, accompanied by Watson, there found the animals 'belonging to Watson and Ardica, and Watson got said animals and took them back to McIntosh county; that the sheriff of McIntosh county, two or three weeks after said animals were driven from McIntosh county, saw the defendant in the jail of Washita county, where he had been incarcerated by request of said sheriff, and was informed by the defendant “that he did not know anything about said animals belonging to Watson and Ardica, that he had got the fellows to 'bring his horses through, but knew nothing about their stealing any others,” and directed the sheriff to go up to old man Barrows-’ and see what horses they brought, which direction was given after said'"averred stolen stock had been removed frota old m^n Barrows’, in Washita county, to Custer county to defendant’s brother-in-law’s, by direction of the defendant.

The undenied evidence is that Sam Guy helped to- drive the horses from defendant’s lot in McIntosh county to Washita county.

Dick Ransom testified:

That he was a jail guard at the jail in McIntosh county, and that 'Sam Guy, one of the defendants charged in the information in this case, was confined in said jail; that he knew the defendant; that the defendant offered to pay witness $500, which he said he would get from his mother, if Ransom would turn Sam Guy out and run him off, -saying:

“Turn him out. Get him out, and tell him to come to my house and I will give him some money to get away with, and, if he don’t get away, I will kill the son of a hitch.”

There was undenied evidence that the said mare belonging to the said Watson and the said mare and horse belonging to the said Ardioa were not taken by consent of said owners.

The defendant testified in his own behalf and denied all the material evidence of the state tending to.show that he was guilty of the larceny of the said live stock with which he was charged, and offered evidence of several witnesses tending to show that the larceny of said live stock was done by Sam Guy, and that -Sata Guy claimed them as his own, and that the alleged stolen horses were added :to the bunch of his horses by the said Guy after they had -started from his (defendant’s) lot, and that the' said ’hi-legfed 'stolen live stock was not in the lot of defendant when defendant directed the same to be driven to Washita county.

There was also evidence tending to show that the defendant did not have the conversation with Ransom as testified by said Ransom. The defendant testified “that, if he had such conversation with Ransom, he did not remember it,” but admitted that he was at the jail and talked to Dick Ransom and asked him why he did not turn the negro out. The defendant admitted that he had directed Nick Barrow and Vance Thomasberry, but no one else, to drive his horses from McIntosh county to Washita county, and the uncontradicted evidence is that at that time the said Nick Barrow was 15 years old, and' Vance Thomas-berry was 11 years old.

E. H. Taft having testified as a witness for the defendant, Watson, the owner of one of the horses alleged to have been stolen, was recalled, and testified that said Taft and two others offered to buy his (Watson’s) property and to pay $1,000 for the same, if Watson would sign a bill of sale and leave the country and not appear to prosecute John Ryal, and nothing was said about John Ryal or that be was to pay the said $1,000. The court, upon admitting said evidence against the objection and exception of the defendant, instructed the jury:

• “That said evidence is considered for one purpose only, and that is whether or not the witness Taft has any interest in the prosecution or defense of this action, and is to be considered by you only for that purpose.”

Among other instructions, the court gave the following, to each of which the defendant excepted:

“No. 7. If you believe from the evidence in this case beyond a reasonable doubt that on or about the date charged in the information, or at any time within three years next prior to the date of the filing of the information in this cause, the defendant, John Ryal, either alone, or acting in conjunction with or aiding and abetting one Nick Barrow and one Sam Guy, or either of them, unlawfully, wilfully, and feloniously, by stealth, took, stole, and carried away the certain bay mare, described in the first count of the information, with the intent to convert the same to his own use, and to deprive the true owner, J. E. Watson, of the use and possession thereof, you will find the defendant guilty.

“But, on the other hand, if you entertain a reasonable doubt as to any of the material allegations of the information as above explained as necessary to be proved, you must give the defendant the benefit of the doubt and acquit him.

“No. 8. You are instructed that an ‘accomplice’ is a person involved either directly or indirectly in the commission of a crime. To render a person an accomplice he must in some manner aid or assist or participate in the criminal act, and by that connection he becomes equally involved in such oifense. You are further instructed that a conviction cannot be had upon the testimony of an accomplice unless he be corroborated by such other evidence as tends to connect the defendant, John Ryal, with the commission of the oifense, and the corroboration is not sufficient if it merely shows the commission of an offense, or the circumstances thereof ; but you are further instructed that it is not necessary that the corroborating evidence go so far as to establish by itself and without the aid of the testimony of the accomplice that the defendant committed the crime as charged. And if there be sufficient corroborating evidence outside of that given by the accomplice, which, when considered together with that of the testimony of 'such accomplice, will satisfy the minds of the jury of the guilt of the defendant, John Ryal, beyond a reasonable doubt, then the guilt of the defendant, John Ryal, is sufficiently established.”

On the 2d day of February, 1916, the defendant filed a motion' for a new trial upon the following grounds:

“(1) That the court erred in overruling the defendant’s motion for a continuance.

“(2) That the court erred in allowing the testimony of Dick Ransom, witness for the state, to go to jury, which was duly excepted to 'by the defendant.

“(3) That the court admitted over the objection of defendant transcript of the committing justice of the peace to be introduced as testimony.

“(4) That the court erred in overruling various and sundry objections of defendant to the introduction of testimony to which exceptions were duly saved at the time by defendant.

• “(5) That the court erred in giving instructions Nos. 7 and 8, to which exceptions were duly saved 'by the defendant.

“(6) That the verdict is not sustained by sufficient evidence and is contrary to law.”

—which motion was overruled, and defendant excepted.

On July 5, 1915, the defendant filed a motion to set aside the judgment rendered in this case on the ground of newly discovered testimony, and in support thereof sub--mitted many affidavits showing admissions by 'Sam Guy of several persons that he and not the defendant committed the larceny of which the defendant was convicted; that Sam -Guy was a man of bad character, “a thief, a bootlegger, and a preacher”; and that the defendant was a man of fine character as a citizen and an honest man, and many of the affiants were surprised at his conviction.

. In addition to said several affidavits, the defendant presented the following affidavit made by Sam Guy, caption omitted:

“Affiant, Sam Guy, being duly sworn deposes and says: My name is Sam Guy. I reside near the defendant, John Ryal, south of Henryetta. I am the same Sam Guy, the colored man that testified for the state against John Ryal at Eufaula at the trial in the above-entitled cause in which John Ryal was convicted of larceny and given six years in the state penitentiary. The defendant, John Ryal, ■ Nick Barrow and myself were all arrested, charged with stealing the horses that were taken from John Ryal’s home near Henryetta to Barrow’s, and Gages’ pasture near 'Canute, Oklahoma. I was promised that if I turned state’s evidence against John Ryal that the case against me would b.e dismissed and I WQuld never be prosecuted for it. I will further state that John Ryal had nothing to do with the taking, stealing or carrying away any of the horses that were stolen, and I alone am responsible for same, and John Ryal did not know that they were to be taken to Canute and did not see them after they arrived and neither did we tell him about it. I swore at the trial at Eufaula to save myself and that was the only reason that I swore as I did against John Ryal, and further affiant saith not.

“(Signed) Sam Guy.

“Subscribed and sworn to before'me this 25th day of March, 1916.

(Seal) Geo. W. Burroughs,

“Notary Public, Okmulgee County, Okla.

“My commission expires Feb. 12, 1917.”

The state did not offer any evidence in contradiction of the affidavits offered by the defendant.

The court overruled the motion for a new trial on account of newly discovered evidence, and the defendant excepted.

It is first insisted that the court committed prejudicial error in overruling the' motion for a continuance, and with this contention we cannot agree. It is not averred in the affidavit upon which the said motion is predicated that the affiant believes that the testimony whicli Myrtle Gage would give is true, and it avers that the whereabouts of Henry Turpin is totally unknown, and the necessary averment that the said witnesses are not absent by the procurement or consent of the defendant is not made, and hence the affidavit does not comply with the statute governing continuances.

“The affidavit should state that the witness is not absent by procurement or consent of the defendant.” Musgraves v. State, 3 Okla. Cr. 423, 106 Pac. 545.

It is averred in the affidavit for a continuance that the absent witnesses had been summoned, but it is not shown therein why they were absent, nor that an attachment was asked for said absent witnesses, and hence it is not shown that the defendant had exhausted all of his legal remedies to secure the presence of said witnesses, and therefore the application was insufficient upon its face.

“When the witnesses have been subpoenaed and there is no showing why they were absent, defendant should have an attachment issued for them. And if he does not ask for an attachment, he is not entitled to a continn anee.” Somie McCarter v. State, 14 Okla. Cr. 305, 170 Pac. 712; Rose v. State, 8 Okla. Cr. 294, 127 Pac. 873.

“Application for a continuance should be most strongly construed against the pleader.” Musgraves v. State, supra.

It is the unbroken line of decision of this court that a motion for a continuance on account of absent witnesses is addressed to the sound discretion of the court, and, unless an abuse of this discretion appears, a conviction will not be reversed on account of the denial of such motion. We are unable to see that the court in overruling the motion for a continuance in this case abused its sound discretion.

The defendant also seriously complains that the court committed reversible error in admitting the evidence in regard to a proposed purchase of Watson’s property, and to have him leave the country and not prosecute the defendant, for the reason that the defendant was not shown to have actuated or to have been connected with the transaction. The evidence shows that the said transaction, if it did occur, was by Taft, a witness for the defendant, and, as the court instructed the jury that the only purpose of said evidence was to show that Taft was interested in the case and that they must consider said evidence only for such purpose, we are not able to see that the said complaint of the defendant is well grounded. It does not require the citation of authorities to support the rule that it may be shown that a witness is interested in the case in which he testifies.

We have carefully considered the seventh and' eighth paragraphs of the instructions given the jury by the court, and are of the opinion that each of said paragraphs states the law.

The defendant further complains that the court committed prejudicial error in not sustaining his motion to strike the evidence of Dick Ransom, which the defendant indirectly admits to be true, by testifying “that, if he had such conversation with Ransom, he does not remember it.” Certainly said contention, based upon the ground that such conversation, if it occurred, “was after the commission of the offense,” is without merit. The evidence of Ransom shows - an effort bn the part of the defendant to get an important witness out of the way, and this is a cir--cumstance tending to show an indirect admission on the part of the defendant of guilt. Certainly it is untenable to say that the effort of a defendant to suppress evidence against him, if not made until some time after the commission of the crime, is inadmissible. We are of the opinion that the court did -not err in admitting Ransom’s evidence.

The defendant insists that there is no evidence to in any manner connect him with the offense charged, except that of accomplices, and that the evidence of such accomplices is not corroborated, and hence the verdict rendered against him is in violation of the law which prohibits a conviction upon the uncorroborated evidence of an accomplice.

The jury in order to have reached the verdict rendered must have found,, either that the witnesses for the state were not accomplices of the defendant, or that, if accomplices, the evidence of such witnesses was eorrobo-rated, and we are of the opinion that under the evidence the jury were warranted in'finding that the said witnesses were not accomplices. If, however, the said witnesses were accomplices, which we do not hold, we think the evidence fully justified the jury in finding, -from the evidence of the sheriff of McIntosh county, the evidence of an effort of defendant to prevent one of the most important witnesses against him from appearing against him, thus indirectly tending to admit guilt, and from parts of the defendant’s evidence that the evidence of the state’s witnesses was corroborated, and hence it is immaterial whether the jury determined that the state’s witnesses- were not accomplices, or that, if accomplices, their testimony was sufficiently corroborated, as in either event a legal conviction might foi-low. These were questions properly within the province of the jury, and there being evidence to reasonably support either theory that the jury may have adopted, and the court having properly instructed the jury, the contention of the defendant that his conviction has been brought about solely by the evidence of accomplices and in violation of section 5884, Rev. Laws 1910, is not well taken.

That a witness, was jointly informed against with the defendant for an offense does not make him an accomplice. The proof alone must be looked to, to determine, whether or not the witness was an accomplice of the defendant, and this is a question for the jury.

There are several other contentions of the defendant as to the rejection or admission of evidence which, after proper consideration, we deem unnecessary to discuss; for if thereby technical errors were committed, which we do not hold, such errors are harmless and must be disregarded. Section 6005, Rev. Laws 1910.'

We have with great care fully considered the evidence in this case, and, while the evidence is in conflict, we are of the opinion that the evidence is sufficient to reasonably support the verdict and judgment rendered.

In Dugan Dunbar v. State, 15 Okla. Cr. 513, 178 Pac. 699, it is held:

“Where the evidence is conflicting, but the facts and circumstances in the evidence are sufficient to authorize the jury reasonably to infer that defendant is guilty of the crime charged, the judgment will not be reversed because of .insufficient evidence.”

The ruling in Dugan Dunbar v. State, supra, finds support in an unbroken line of decisions of this court.

For the reasons hereinbefore stated, and upon the authorities cited, we are of the opinion that the court did not err in overruling the «notion for a new trial.

On the 5th day of July, 1916, the defendant filed a motion to set aside the judgment rendered against him and grant him a new trial upon the grounds of newly discovered evidence, which the defendant did not know prior to his trial, as follows:

“That Sam Guy had, since the conviction of the defendant, stated to different persons that be (Sam Guy) committed the offense of which the defendant was convicted, and that the defendant was not connected with and had no knowledge of the said crime; that Nick Barrow, who was jointly charged with the defendant, in said case, prior to the trial stated that John Ryal had nothing to do with the larceny of .said horses; that Sam Guy offered to Walter Payne, about, the 1st day of September, '1915, to trade a span of mares for a span of mules owned by Payne, when in fact Sam Guy owned no live stock of any kind; that Oscar Watson, Taylor Taylor, Alva 'Smith, B. B. Hendon, Chas. King, A. A. Blum, S. T. Jones and W. P. Jones have voluntarily expressed themselves as being surprised at the conviction of the defendant, and would have testified to the good character of the defendant, that said defendant had no idea that said witnesses were competent and material evidence for him or that they would testify to his good character before the trial, and had no means of ascertaining the same; that said above foregoing witnesses have assured the defendant that if a new trial is granted in this case that they and each of said witnesses will attend said trial and testify as stated in the affidavits hereto attached and marked Exhibits A, B, C, D, E, F, G, H, I, J, K, L, M, N, O, P, and Q.”

The original case-made was made a part of said motion.

On July 24, 1916, the defendant by leave of court filed three additional affidavits in support of his said motion to set aside judgment and grant a new trial on the ground of newly discovered evidence, and in two of said affidavits it is respectively alleged that affiant knows Sam Guy and his general reputation, and his reputation is that of a “disreputable negro thief,” and “a violator of law and a maker and seller of Choctaw beer and a preacher,” and the other of said additional affidavits filed is a joint affidavit of Philip McMack and his wife, and contains like averments to- those contained in the two other additional affidavits filed as to their knowledge of and the reputation of Sam Guy, and also that they know the defendant and his general reputation, and that his reputation is that “he is an honest, truthful, law-abiding citizen.”

In addition to the affidavits' above enumerated, the defendant in support of his said motion filed the affidavit of Sam Guy, a copy of which is heretofore set out in this opinion, in which Sam Guy avers that the defendant did not commit the larceny of which he was convicted in this case; that affiant swore falsely at said trial of defendant, and that he (affiant) committed the offense of which defendant was convicted, and that the defendant had nothing to do with it.

It is difficult to understand how the character of the defendant, a matured man, who had lived in the community for several years, could be newly discovered evidence. Certainly with the slightest effort defendant could .have ascertained what his neighbors thought of him, and on his trial have produced such evidence, if his reputation was good, to generate a doubt of his guilt, and where the state could have rebutted such evidence. This the defendant did not do.

The evidence in this case shows that Sam Guy was well known to defendant and was for some time employed by him, and certainly'it would not have required much exertion to have secured the evidence as to Sam Guy’s reputation at the trial of the defendant. All the affidavits offered in support of said motion, .except the affidavit of Sam Guy, state facts tending to support an impeachment of the state’s witness, together with an expression on the part of the affiants as to their 'being surprised at the conviction of the defendant. Certainly not any one of said affidavits in any manner can be regarded in law as disclosing newly discovered evidence, except possibly the statement contained in the affidavit of Sam Guy, which we will hereafter consider.

A motion for a new trial on the grounds of newly discovered evidence as to the bad character of the state’s witness and the good character of the defendant should not be granted, especially when, as in this case, the characters of the state’s witnesses are not attacked at the trial, or the good character of the defendant set up.

In W. T. Caple v. State, 3 Okla. Cr. 621, 105 Pac. 681, it is held:

(1) “When parties are indicted, they must recognize the fact that it is a serious matter, and be diligent in preparing for trial. It is too late after conviction to begin to investigate the character of the witnesses for the state, of whom they have no notice before trial.”

(2) “A new trial will not be granted on the ground of newly discovered evidence ¡to impeach the. reputation for truth and veracity of witnesses for the state.”

It has been settled by a long line of decisions that a new trial on the ground of newly discovered evidence will not be granted in order that the defeated party may impeach the witnesses of his adversary by proving that they are not credible. Corley v. New York & Harlem R. R. Co., 12 App. Div. 410, 42 N. Y. Supp. 941; People ex rel. Stemmler v. McGuire, 2 Hun (N. Y.) 269, affirmed 60 N. Y. 640; Schultz v. Third Avenue R. R. Co., 47 N. Y. Super. Co. 285. The cases cited, it is true, were not criminal cases, but the same rule is applicable to a criminal case, on a motion for a new trial on the ground of newly discovered evidence, that is applicable to a civil case. People v. Baker, 27 App. Div. 597, 50 N. Y. Supp. 771.

We are therefore of the opinion that the affidavits hied in said motion attacking the character of the named state’s witnesses and tending to establish the good character of defendant do not present any grounds whatever why said motion should be granted.

The defendant most earnestly insists that, under the holding of this court in the second paragraph of the syllabus in Chappell v. State, 6 Okla. Cr. 398, 119 Pac. 139, which reads:

“Where, subsequent to a conviction, a witness who testified for the state upon the trial of the case makes an affidavit, stating that the testimony given by such witness was false, and where the testimony of the state, excluding such admittedly false testimony, is not conclusive as to the guilt of the defendant, a new trial should be granted”

—the court committed prejudicial error in overruling the motion for a new trial on the ground of newly discovered evidence.

In People v. Shilitano, 218 N. Y. 161, 112 N. E. 733, L. R. A. 1916F, 1044, it is held:

“Where, after conviction, the state’s witnesses asserted that their testimony at trial was false, accused is not as a matter of law entitled to a new trial, but new ■trial will be granted only if the trial court in the exercise of its discretion determines that the recantation was probably true.”

In People v. Tallmadge, 114 Cal. 427, 46 Pac. 282, the court said:

“Applications on the ground of newly discovered evidence are addressed to the discretion of the trial court, and its action will not be set aside except for an abuse of such discretion, and the presumption is that the discretion was properly exercised; and it has been repeatedly held by this court that such applications are to be regarded with disfavor. Hayne on New Trial and Appeal, par. 87, and cases there cited: People v. Sutton, 73 Cal. 243, 15 Pac. 86; People v. Freeman, 92 Cal. 359, 28 Pac. 261. It cannot be said that, as a matter of law, a new trial should be granted whenever an important witness against the defendant shall make an affidavit that he committed perjury in his testimony; if that were so, justice would be defeated in many grave cases. Notwithstanding such an affidavit, the appellate court will rest largely upon the discretion of the judge who heard the trial, and will not disturb his ruling except in clear cases of abuse of discretion.”

In People v. McGuire, 2 Hun (N. Y.) 269, it is said:

“By one of the affidavits, a witness who gave material evidence in the plaintiff’s favor, concerning the number of votes polled in one of the contested election districts, stated in substance that he had committed perjury in testifying as he did, but the court declined to set aside the verdict on the faith of it. In that respect the decision was clearly right, because the affidavit of such a person is not entitled to so much weight as to justify the conclusion that the evidence given by him, and which the jury may have regarded as credible and reliable, was corruptly and wilfully false.”

No authority is pointed to in support of said paragraph 2 of the syllabus in Chappell v. State, supra, and we are of the opinion that the same is in conflict with the great weight of authority, and is too broad .and ■ does not correctly and fully state the law. An affidavit of a material witness for the state that he perjured hi'mself on the trial of the defendant* and proof of the good character of the defendant, do not as a matter of right entitle a defendant to a new trial; but the granting of same is a matter of discretion of the trial court, and the court, under such state of the record, should not grant a new trial unless the court, in the exercise of its sound discretion, determines that the recantation of the witness was probably true. The said second paragraph of the syllabus in Chappell v. State is hereby modified to conform to the views herein expressed in regard to said syllabus.

It is the settled law of this court that a case will not be reversed on account of the overruling of a motion for a new trial, unless it is clearly shown that the court abused its discretion.

“A motion for a new trial * * * is addressed to the sound discretion of the court.” Jim Noel v. State, 14 Okla. Cr. 548, 174 Pac. 293.

“Motions for new trial upon the ground of newly discovered evidence, made before or after judgment, are addressed to the discretion of the trial court, and its ruling thereon will not be disturbed, except for an abuse of discretion.” Frank Hawkins v. State, 11 Okla. Cr. 73, 142 Pac. 1093.

See, also, Drew v. State. 6 Okla. Cr. 348, 118 Pac. 667; Howey v. State, 9 Okla. Cr. 453, 132 Pac. 499; Farper v. State, 7 Okla. Cr. 581, 124 Pac. 1116.

The defendant finally insists that under the third paragraph of the syllabus in Smith v. State, 3 Okla. Cr. 629, 108 Pac. 418. which reads:

“A judgment of conviction will 'be reversed on appeal where the record shows that it is founded solely on perjured testimony” • .

—che court committed reversible error in overruling the motion for a new trial on the ground of newly discovered evidence. The said syllabus relied upon undoubtedly correctly announces the law, but it is not in point in the instant case, because the record does not show that the conviction in this case “was founded solely on. perjured testimony,” there being other evidence than the evidence set up in the motion as perjured, and there is no evidence in the record except the averments of the ex 'parte, affidavits filed to support the motion for a new trial that perjury was committed in the trial of the case. It is true that there was conflict in the evidence as to the guilt of the defendant; but, there being evidence in the case to reasonably support the verdict rendered, this court cannot disturb it, the facts being exclusively with the jury.

The contrary statements made by Barrow out of court as to the facts testified by him at the trial are not grounds for a new trial, or even of consideration.

“A verdict should not be set aside' because of affidavits being filed in support of a motion for new trial showing that the affiants have heard a witness for the state make statements directly contrary to such witness’ testimony in the trial.” Bowlegs v. State, 9 Okla. Cr. 69, 130 Pac. 824.

Again, at the utmost, the only affidavit of the affiants filed at all worthy of any consideration is that of Sam Guy, and, if the evidence of Sam Guy at the trial be excluded, there remains sufficient evidence to reasonably support the verdict of the jury.

We are unable to see that error was committed in overruling the motion for a new trial on account of newly discovered evidence.

Finding no prejudicial error in the record, the judgment of the trial court is affirmed.

DOYLE, R. J., and MATSON, J., concur.


text:
    LEE TERRELL v. STATE.
    No. A-2868
    Opinion Filed Jan. 11, 1919.
    Rehearing Denied Aug. 2, 1919.
    (177 Pac. 125.)
    1. JUDGMENT AND SENTENCE — Verdict—Sentence. It is not error for tlie trial court to pronounce sentence and render judgment of conviction against tlie defendant before the expiration of two days after the return of the verdict, when the defendant requests that sentence be pronounced without delay after having been fully informed of his rights in the premises.
    2. APPEAL AND ERROR — Record—Affidavits. Affidavits filed in this court attempting to impeach the record as certified to by the trial judge will not be considered.
    3. APPEAL AND ERROR — Jurisdiction of Court Below — Objection. Question involving the- jurisdiction of the trial court may be raised for the first time on appeal.
    4. COURTS — Transfer of Criminal Case — Statute-. -Chapter 121, Session Laws 1910-11. considered, and held to authorize the transfer, on the application of the county attorney, of a criminal cause from die superior court to the district court of the county in which said cause is pending, where such cause is one over the subject-matter of which such district court-has jurisdiction.

      Appeal from District Court, Tulsa County; George C. Crump, Assigned Judge.

      Lee Terrell was convicted of manslaughter in the first degree, and she appeals.
    Affirmed.

      R. M. Dick, for plaintiff in error.

      S. P. Freeling, Atty. Gen., and R. McMillan, Asst. Atty. Gen., for the State.
   MATSON, J.

This is an appeal from the district court of Tulsa county, in which court the plaintiff in error, Lee Terrell, hereinafter designated as defendant, was convicted'of the crime of manslaughter in the first degree and sentenced to serve a term of ten years’ imprisonment in the state penitentiary.

Numerous errors are assigned, which are alleged to have occurred during the progress of the trial,' but which are not necessary to be considered in connection with the disposition of this case, except to state that an examination of the record fails to disclose any real merit in such assignments, and also upon the defendant’s own testimony a verdict of manslaughter in the first degree was justifiable.

The record discloses that after the verdict of the jury had been returned, and before judgment was pronounced upon defendant, the defendant, in open court, waived delay and asked that the court pronounce judgment upon the verdict, which was accordingly done by the court, sentencing the defendant at that time to serve a term of ten years’ imprisonment. No motion for a new trial was filed, and the defendant stated to the court that she did not desire to appeal frcm the judgment of conviction. However, it appears that after judgment was pronounced, and after the special judge, who had been assigned by the Supreme Court to hold a term of district court in that county, had departed for his hoime in another district of the state, an effort was made to file with the clerk of the court a motion for a new trial, setting up certain alleged errors occurring during the progress of the trial; but the record shows clearly that this motion was filed after the defendant had, in open court; waived delay in having judgment pronounced, and had personally assented that the court pronounce judgment against her. There is no showing in the record that any advantage was taken of the defendant. She was fully informed of her constitutional and statutory rights to an appeal and personally waived the same, and judgment was pronounced against her at her solicitation and request. That defendant may waive delay in the pronouncement of sentence is held in the following cases: Jones v. Ter., 4 Okla. 45, 43 Pac. 1072; Hill v. State, 9 Okla. Cr. 629, 132 Pac. 950.

However, in this court, an attempt is made to impeach the record certified to by the trial judge by certain affidavits of the defendant, and of one Mary Lee Dodson, her sister, whom the record shows was present in open court at the time judgment of conviction was pronounced. These affidavits, attempting to impeach in this court the record as certified to by the trial judge, cannot be considered. Thorp v. State, 5 Okla. Cr. 597, 115 Pac. 609. This court is bound by the record as made by the trial judge, and, had it been desired, the way was open to the defendant to correct any errors or mistakes by proper proceedings in the trial court. That this court is bound by the recitals contained- in the record as to what occurred in the trial court is sustained by the following authorities: Buck v. Ter., 1 Okla. Cr. 517, 98 Pac. 1017; Moody v. State, 13 Okla. Cr. 327, 164 Pac. 676; State v. Hasty, 121 Iowa, 507, 96 N. W. 1115.

■: " It- is incumbent upon the court, however, to consider ascertain jurisdictional question raised in this appeal. It is contended that the .district court of Tulsa county acquired no. lawful jurisdiction of the subject-matter or person of the defendant. The question presented involves the .-transfer of the cause from the superior court of Tulsa county to the district, court thereof.

'••■ After proper preliminary examination, an information' was filed- by the county attorney in the superior court for Tulsa county, Oklahoma, on the 26th day of November, •1915, charging the defendant with the crime of manslaughter’. On the 18th day of December, 1915, the superior court' made an order on the application of the county attorney in behalf of the state for the removal of said'cause to the district court of Tulsa county, and directed the clerk of the court to prepare a transcript and to transfer all the original files in said cause to said district cqurt, ,;

• When the cause was called for trial in the district court of Tulsa county on the 11th day of May, 1916, the defendant was present in open court in person and «by counsel, and announced ready for trial, making no objection whatever to the jurisdiction of said court at that time, and the trial proceeded to completion without any objection whatever by the defendant or her counsel as to the jurisdiction of the court, either over the subject-matter of-the- information or the person of the defendant. The jurisdictional question is raised for the first time in this court, the contention being that there is no statute in this state which permits the transfer of such a cause from a superior court to a district court.

The contention of counsel for defendant is without merit. Chapter 121, Session Laws of 1911, amending section 10 of article 7 of chapter 14 of the Session Laws of 1909, specifically provides for the transfer, on application, of the county attorney, of a criminal cause from the superior court to the district court of the county where such a cause is one over the subject-matter of which a district court has jurisdiction. This act was in full force and effect at the time this transfer was made. In re Nichols’ Will (Phebus et al. v. Vinson et al.) 64 Oklahoma, 166 Pac. 1087.

The record discloses that the transfer of the cause was made in full compliance with section 1 of chapter 121, Session Laws 1911.

It is the opinion of the court, therefore, that the district court .of Tulsa county acquired full and complete jurisdiction of this cause, and of the person of the defendant prior to the trial had in said court; that the questions raised in this appeal are without merit; and that the judgment should be affirmed. It is so ordered.

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