text:
    T. M. HOLMES v. STATE.
    No. A-2558.
    Opinion Filed January 27, 1917.
    (162 Pac. 446.)
    TRIAL — Comments on Failure of Accused to Testify — New Trial. Section 5881, Rev. Laws 1910, contains two inhibitions. The first is that the failure of the defendant to take the stand in his own behalf shall not “be mentioned on the trial”; the second, that this fact shall not be commented on by the 'counsel for the state. Held: Blrst, that if counsel comments on the failure of ithe defendant .to' take the stand in his own 'behalf, it is mandatory that a new trial be granted; and, second, that the court is not excepted from the inhibition to the effect that the failure of the defendant- to take the stand in his own behalf shall not “be mentioned on the trial," and that it is error for the court to refer to such fact in his instructions or otherwise.

      Error from County • Court, Canadian County; R. B. Forrest, Judge.

    T. M. Holmes was convicted of having possession of intoxicating liquor with intent to violate the law, and he brings error.
    Reversed.

      Fogg& Bennett, for plaintiff in error.

      R. McMillan, Asst. Atty. Gen., for the State.
   BRETT, J.

Plaintiff in error was tried and convicted in the county court of Canadian county of having intoxicating liquors in his possession with intent to violate the prohibition laws.

■Without going into the facts, we will sa^ the evidence is abundant to justify ‘and sustain the verdict. But the defendant did not take the stand in his own behalf or offer any evidence whatever. And in the closing argument the assistant county attorney said, “Not a single bit of evidence introduced by the state has been contradicted by the defendant.” The defendant took exceptions to this remark, and asked the court to admonish the “jury to disregard such remarks.” The court stated he would prepare a written instruction on the proposition, and directed counsel for the state to proceed with his argument. At the close of his argument the court delivered to the jury the following written instruction :

“You are further instructed that'under the law the defendant in a criminal trial may be a witness in his own behalf; but the circumstance that he declines or fails to testify in his own behalf shall not be considered by the jury nor given weight by them in the consideration of their verdict. You are further instructed that reference directly or indirectly to the defendant’s failure to become a witness is not permissible and is against the law; and you are instructed that you should not consider such reference, but should entirely disregard it, as you should disregard defendant’s failure to go upon the stand to contradict or give evidence. You should be governed by evidence presented, and disregard any circumstance not arising from evidence presented.’’

The defendant objected and took exceptions to the giving of this instruction. And it is upon these proceedings that he relies for a reversal.

Section 5881, Rev. Laws 1910, provides that:

‘■’In the trial of all indictments, informations, corn-paints and other proceedings against persons charged with the commission of a crime, offense or misdemeanor before any court or committing magistrate in this state, the person charged shall at his own request, but not otherwise, be a competent, witness, and his failure to make such request shall not create any presumption against him nor be mentioned on the trialif commented upon by counsel, it shall be ground for a new trial.”

It will be noticed that there are two inhibitions contained in this statute. The first is that the failure of the defendant to take the witness stand in his own behalf shall not “be mentioned on the trial”; and the second is that that fact shall hot be commented upon by counsel for the state. And it seems to us that both of these inhibitions have been violated in the instant case.

The remarks of the assistant county attorney, in view of the fact that the defendant had not gone upon the stand himself, nor offered any testimony whatever, we think, were clearly calculated to direct the attention of the jury to the fact that the defendant had not testified in his own behalf; for it is immaterial what particular words are used by counsel, if it is clear that those words; have this effect. Had the defendant introduced any evidence, the remarks might then have been construed as having been made with reference to the futility of the testimony introduced; but, in the absence of any evidence on his part, we think the remark could not be construed in any other light than as a reference to the failure of the defendant to testify in his own behalf. And it has been repeatedly held that this statute is mandatory; and, whether the comment is made inadvertently or intentionally, the effect is the same, and the statute requires that a new trial be granted. Wilson v. Territory, 9 Okla. 331, 60 Pac. 112; Perkins v. Territory, 17 Okla. 82, 87 Pac. 297; Brown v. State, 3 Okla. Cr. 442, 106 Pac. 808; Kelly v. State, 6 Okla. Cr. 175, 117 Pac. 887; Nowlin v. State, 7 Okla. Cr. 27, 115 Pac. 625, 121 Pac. 791; Weinberger v. State, 8 Okla. Cr. 441, 128 Pac. 160; Teer v. State, 10 Okla, Cr. 651, 135 Pac. 1198.

Again, we think the instruction of the court, instead of curing the effect of the prejudicial remarks of the assistant county attorney, was in itself a direct violation of the first inhibition, which provides that the failure of the defendant to take the stand in his own behalf shall not “be mentioned on the trial.” The court is not excepted from the operation of this inhibition, and when he gave this charge, which specifically called the attention of the jury to the fact that the defendant did not take the stand in his own behalf, that was in direct violation of the plain terms of the statute, which says that that fact shall not “be mentioned on the trial.” Of course, if the defendant had requested this instruction, or acquiesced by silence, he could not now complain, or if the judge had given the oral admonition requested, while it would have been error, he could not have complained of that; but this instruction was given over his objection and exception, and was therefore given solely upon the responsibility of the court.

For these reasons, the judgment is reversed, and the cause remanded for a new trial.

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


source: Caselaw Access Project

author: DOYLE, P. J.

license: Public Domain

text:
    HOMER GORDON v. STATE.
    No. A-2571.
    Opinion Filed January 27, 1917.
    (162 Pac. 444.)
    1. APPEAL AND ERROR — Review. Where ithe jury finds a verdict of guilty, which is approved by the trial court, and there is evidence in the record to sustain .the verdict, it will not be set aside, in the absence of prejudicial error.
    2. LARCENY — Evidence—Sufficiency. In a prosecution for ithe larceny of a domestic animal, the evidence examined, and held sufficient to sustain the verdict, and that no reversible error was committed upon the trial.

      Appeal from District Court, Okfuskee County; Geo. C. Crump, Judge.

    Homer Gordon was convicted of stealing a cow, and he appeals.
    Affirmed.

      Burris & Burris, for plaintiff in error.

      R. McMillan, Asst. Atty. Gen., for the State.
   DOYLE, P. J.

Plaintiff in error, Homer Gordon, was tried and convicted in- the district court of Okfuskee county, upon an information which charged the theft of one xoan cow, the property of H.-M. Winn, and in accordance with the verdict of the jury he was sentenced to be imprisoned in the penitentiary- for the-term of two years. From the judgment he appealed by filing in this court on November 5, 1915, a petition in error with case-made.

No brief had been filed and no appearance made on behalf of the plaintiff in error, when the case was called for final submission. For this reason, we do not consider it the duty of this court to make a careful examination of the case-made to determine whether or not the trial court erred in its rulings on the admission or rejection of testimony.

No objection was made to the sufficiency of the information, and the court submitted the case to the jury upon a charge to which no objection was made or exception taken. The proof on the part of the state tended to show that the defendant took the cow in question from the possession of the owner and drove her to Henryetta, and there sold her to a butcher.

The testimony of the defendant and of his witnesses tended to show that the cow sold by him to the butcher at Henryetta was one owned by his wife.

The guilt or innocence of the defendant was therefore peculiarly within the province of the jury to determine, and when the jury renders a verdict of guilty, which is approved by the trial court, and there is evidence in the record to sustain the verdict, it will not be disturbed in the absence of prejudicial error. Upon the whole case, we are of opinion that the defendant had .a fair trial and was properly convicted.

The judgment of conviction is therefore affirmed.

ARMSTRONG and BRETT, JJ., concur.


author: BRETT, J.

text:
    JOHN RAMBO v. STATE.
    No. A-2669.
    Opinion Filed January 27, 1917.
    (162 Pac. 449.)
    1. TRIAL — Instructions. ■ Where the court, without 'being requested to do so by the defendant, correctly instructed1 tne jury as to the punishment ithey might assess, in ¡case they found the defendant guilty, held, that this is not error, since, under section 5983, Rev. Laws 1910, the jury may in all cases of conviction, when so instructed by the court, assess the punishment, if they see fit, regardless of whether the defendant requests it or not.
    2. WITNESSES — Cross-Examination — Examination' of Accused. AVhere the defendant takes the stand in his-own behalf, and denies all knowledge of the facts and acts which constitute the alleged crime, the staite may, on cross-examination, ask him about other transactions which would tend to contradict his statements.

      Error from County Court, Tulsa County'; J. W. Woodford, Judge.

    John Rambo was convicted of having possession of intoxicating liquor with intent to violate the prohibitory law, and he brings error.
    Affirmed.

      J. R. League, for plaintiff in error.

      R. McMillan, Asst. Atty. Gen., for the State.
   BRETT, J.

The plaintiff in error in this case, John Rambo, who will be referred to as defendant, and his brother, Billy Rambo, were jointly charged with having in their possession intoxicating liquor with the intent to dispose of same in violation of the prohibition laws of the state.

The facts are that John Rambo lived on a farm near Bixby,' Tulsa county, and his brother, Billy Rambo, lived with him. There is evidence that it was generally reputed' that liquor could be purchased at John Rambo’s place. The officers went out there with a search warrant, and caught Billy just as he was coming out of the house with three quart bottles of whiskey; and on further search they found 27 five-gallon kegs of whiskey concealed under some cotton bolls and kaffir corn in a shed near the house; and several hen nests were on top of this cotton and kaffir corn, and some of the hens were setting, which gave to the surroundings a still further appearance of undisputed innocence. - Billy Rambo was in the last stages of consumption, and was never able to appear in court or to be put upon trial. And a strong effort was made by. John, the defendant in this case, and his witnesses, to cast all responsibility upon Billy for the presence of so much liquor upon the defendant’s premises. But the jury, who saw the witnesses, heard all the evidence, and were the sole judges of the weight and value to be given their testimony, did not accept this theory, but found the defendant, John Rambo, guilty, and assessed the maximum penalty of $500 and six months in jail.

The defendant complains of many things that occurred during the progress of the trial; but the things complained of as error are proper proceedings, and none of them, we think, affected the substantial rights of the defendant.

For instance, the court in its instructions said to the jury:

“If you should find the defendant guilty of the offense charged in the information, you may fix his punishment at a fine of not less than $50 nor more than $500, and by imprisonment in the county jail for not less than 30 days nor more than six months.”

An exception was taken to this instruction, and the defendant in his brief says:

“To suggest to the jury the punishment which might be inflicted, we think, is an inference and suggestion to the jury that the court expects to find the defendant guilty. That the court should allow no intimation of its attitude- or opinion to reach the jury when same may be avoided, and certainly in a voluntary manner, is so clearly fundamental law, lying at the very basis of the jury system, that we deem it entirely' unnecessary to consume any time or space in arguing the proposition to this court.”

But section 5933, Rev. Laws 1910, provides that:

“In all cases of a verdict of conviction for any offense against any of the laws of the State of Oklahoma, the jury may, and shall upon the request of the defendant, assess and declare the punishment in their verdict within the limitations fixed by law, and the court shall render a judgment according to such verdict, except as hereinafter provided.”

And it will be noticed that, as stated in Chandler v. State, 3 Okla. Cr. 254, 105 Pac. 375, 107 Pac. 735:

“Under this section the jury has the right to fix the punishment, whether the court so directs or not. They must fix the punishment if the defendant requests it. If the court had not so instructed the jury, they could have, and might have, fixed the punishment.”

Hence, under this state of facts, we Tail to see how the defendant would be prejudiced by the court informing the jury as to what the penalty fixed by the law is; for under the statute neither the court nor the defendant can arbitrarily take that phase of the case from the jury. They have the right to pass upon it, if they see fit, and, that being true, the defendant is not prejudiced, we think, by the court telling the jury plainly what the law is on that phase of the case, which they have a right to pass upon, if they see fit, even without the request of the defendant. The distinction is that in all cases of conviction the jury .may assess the punishment, but, if the defendant request it, they must assess the punishment, or say by their verdict that they are unable to agree upon the punishment. Oelke v. State, 10 Okla. Or. 49, 133 Pac. 1140.

It also appears that some time prior to the search and seizure involved in this case Billy Rambo had been intercepted on the highway by an officer by the name of L. P. McGuire with two wagonloads of whiskey, consisting of 48 five-gallon kegs. In the trial of this case the defendant, John Rambo, took the witness stand in his own behalf, and on direct examination denied that he knew Billy was handling whiskey, and stated that he had no knowledge of any whiskey having ever been on his premises, except the three quart bottles Billy was taking from the house at the time the officers appeared to make the search. On cross-examination the county attorney asked him if he was not with Billy Rambo and driving one of the wagons at the time he was intercepted by L. P. McGuire with the 48 kegs of whiskey, and if the two wagons and teams used to haul this whiskey did not belong to him. An objection to these questions was overruled by the court, and the defendant insists that this ruling of the court was error. But the defendant himself laid the foundations for this line of questions. To say that he could go on the stand and testify that he knew nothing about any whiskey except the three bottles, 'and that the state could not then on cross-examination ask him about other transactions which would tend to contradict that statement, is absurd. The questions were both pertinent and proper, and clearly legitimate cross-examination.

There are other matters assigned as error, but we have carefully read the entire record, and examined every phase of the case, and, finding no prejudicial error, the judgment is affirmed.

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


author: ARMSTRONG, J.

text:
    AUGUST NICHOLSON et al. v. STATE.
    No. A-2218.
    Opinion Filed January 29, 1917.
    (162 Pac. 447.)
    1. TRIAL — Conduct of Trial. It is the duty of a trial court to re- ' .fraiii from any act or word that would indicate to the jury . that a verdict of guilty should be returned in any case on trial 'before it.
    A trial 'court is not to be criticized for placing the jury in. charge of the bailiff, and retiring the same from the courtroom, and thereafter -committing a witness who has testified in the case into ’the custody of the sheriff to be held for investigation on a perjury charge when the court is convinced that the said witness is guilty of perjury, or has reason to believe that he is guilty of giving perjured testimony in such case.
    2. EVIDENCE — Conviction. When all the evidence introduced in the trial of a criminal case 'fails, as to any defendant, to establish guilt of the crime charged beyond a reasonable doubt, a verdict of guilty is not warranted.

      Appeal from District Court, Blaine County; James R. Tolbert, Judge.

    August Nicholson, John Nicholson, and Sullivan Nicholson were convicted of burglary, and appeal. Reversed as to August Nicholson.
    Affirmed as to John Nicholson. Abated as to Sullivan Nicholson.

      I. H. Loolcabaugh, E. T. Barbour, and William Harrison, for plaintiffs in error.

      R. McMillan, Asst. Atty. Gen., for the State.
   ARMSTRONG, J.

The plaintiffs in error, August Nicholson, John Nicholson, and Sullivan Nicholson, were convicted in the district court of Blaine county on a charge of burglary. The punishment was fixed by the court at five years imprisonment each in the state penitentiary. All three of the plaintiffs in error appealed to this court. The death of Sullivan Nicholson since the appeal was taken has been suggested and proper showing made in support thereof. The appeal as to him is therefore abated.

This opinion will review the record only as it affects the rights of the plaintiffs in error August Nicholson and John Nicholson.

It appears that August Nicholson was a negro farmer living in Blaine county, Okla.; that John and Sullivan Nicholson were his sons; that Ben Slaughter lived on the farm of August Nicholson; that he also owned a store about a mile and a half away. During the winter of 1912, when there was a heavy snow upon the ground, some one entered tjie store of the prosecuting witness, Slaughter, and carried away certain merchandise, consisting of flour, meal, nuts, fruits, wearing apparel, and other items. A wagon and team were used in removing the property. The tracks were traced from and on return to the premises of the plaintiff in error August Nicholson. By reason of the snow on the ground it was easy to trace the wagon and to determine the place from which it started and at which it stopped. A search of the premises of August Nicholson disclosed the major portion of the property claimed to have been lost by Slaughter. It was found in a- haystack near the house, in a chicken coop in the yard, and in the barn.. A small amount was found in the house. Other portions were found near the house of John Nicholson under a strawstack. It was all found early in the morning following the alleged burglary; witness Slaughter apparently being the first to discover the hiding place. These are the principal facts disclosed by the record, which were offered in evidence in chief upon behalf of the state at the trial.

The defense offered John and Sullivan Nicholson, who testified that they took a wagon and team belonging to their father without his knowledge or consent, and went to the store of the prosecuting witness, Slaughter, in company with him; and he (Slaughter) opened the back door of the store and handed out the merchandise; that it was placed in the wagon; and that Slaughter went with them on their return trip and helped place the property on the-premises of August Nicholson. They testified further that this was done in pursuance of an agreement with Slaughter, the purpose of which was to compromise the said August Nicholson and extort from him money, which money was to be> divided between the two Nicholsons and the said Slaughter. Sullivan Nicholson stated that he carried all the items of property in the house which were found there, and that the elder Nicholson knew nothing about it. August Nicholson testified denying all knowledge of the affair.

A number of witnesses were introduced by the defense who testified to facts tending to show that Slaughter had repeatedly requested them to induce August Nicholson to pay him money to abandon the prosecution and leave the country.

Slaughter, in rebuttal, testified on behalf of the state, denying the greater portion of these statements, but admitting that he had discussed the same with several of the witnesses.

The sheriff of the county testified to certain facts in connection with the search and discovery of the property, but knew nothing otherwise.

There is no incriminating testimony of value' in the record which indicates that plaintiff in error August Nicholson was connected with this matter directly or indirectly, except the fact that the property was found upon his premises as herein detailed. Standing alone, this is not sufficient to establish the crime of burglary against August Nicholson. The case would have been strong had the charge been receiving stolen property as to him. He appears to have been a negro of some standing and who was prosperous. He owned a few hundred acres of land in Blaine county, some livestock, more or less cash in the bank, and a comfortable- home. No one testified to any fact which would indicate that he- was at the store- of the prosecuting witness, Slaughter, or participated in any manner, directly or indirectly,' in the burglary of said store. It is hardly reasonable to believe that any sane man would take from his own premises a team and wagon, drive two or three miles through a heavy snow, burglarize a store, steal a wagonload of general merchandise, drive back home, and place quantities of the merchandise in the yard above the surface, and leave the remainder where it could be easily found. No effort could have covered up the trace of his wagon and team.

No testimony on behalf of the state outside of the finding of the property on his premises indicates that August Nicholson was a party to any conspiracy to burglarize the store of witness Slaughter, or that he was in any manner connected with it. In fact, after reading the entire record-, we are impelled to the conclusion that August Nicholson knew nothing about the transaction. He was apparently astounded when he found people on his premises early in the morning searching for stolen property. He said nothing, but stood and gazed on the “mob,” as it is termed in the testimony, in its frantic efforts to disclose property hidden around his premises. The first discovery was made in a chicken coop sitting out in his yard. The physical facts indicate clearly a bunglesome effort to place these stolen goods in an attitude to compromise this old negro. An unbiased reading of this record, we think, would admit of no other conclusion. It may be that August Nicholson was guilty of participating in this crime, but the state should prove that he was beyond a reasonable doubt.

John 'Nicholson admits his connection with the affair. It was for the jury to say whether or not all the facts established the crime of burglary against him.

It is argued that the court erred in committing to jail for the purpose of investigation Sam K. Tolden, one of the witnesses who testified at the trial. It appears that at the conclusion of the testimony of the witness Sam K. Tolden the court.placed the jury in charge of the bailiff and had it retire from the courtroom, and directed Tolden to sit down until the jury had retired. The sheriff was sent for and the witness committed to jail to appear before a magistrate on a charge of perjury. A careful examination of the record does not indicate any act or word on the part of the court which could have prejudiced or did prejudice the rights of the plaintiffs in error. It is clearly apparent that the jury was excused from this room before the order was made committing the witness. ’If the court was convinced in his own mind that the witness had committed perjury, it was his duty to do just what he did and in the planner he did it.

The next and final assignment of error is based upon the proposition that the verdict and judgment are contrary to the law and the evidence.

The statement of facts and discussion of the same herein set forth indicates clearly that this court is of the opinion that the verdict is contrary to both the law and the evidence, in so far as August Nicholson is concerned. The law warrants the imprisonment of a citizen only when the facts disclose that he has committed a crime. In this case the facts are wholly insufficient to support a conviction of August Nicholson of burglary.

The judgment of the trial court is reversed, and the cause remanded as to August Nicholson, with directions to grant a new trial. As to John Nicholson the judgment :is affirmed.

DOYLE, P. J., and BRETT, J., concur.


text:
    JESSIE FINDLEY v. STATE.
    No. A-2545.
    Opinion Filed January 29, 1917.
    (162 Pac. 680.)
    1. INTOXICxlTING LIQUORS — Instructions. On a trial for the unlawful possession of intoxicating liquor, the court gave the jury the following instruction: “You are instructed that if you find from the evidence that the defendant had the barrel of beer testified to by the witnesses in her possession for her own personal use and with no intention of selling the same, you should find the defendant not guilty.” Held, prejudicial error, as tending to shift the burden of proof.
    2. TRIAL — Instructions—Presumptions. An instruction in the following language: “The defendant is presumed to be innocent of the crime charged until the contrary is made to appear by competent evidence to the satisfaction of the jury beyond a reasonable doubt; and, if you entertain a reasonable doubt of the guilt or innocence of the defendant, iit is your duty to return a verdict of not guilty” — is error.

      Appeal from County Court, Kay County; Joshua L. Roberson, Judge.

      Jessie Findley was convicted of a violation of the prohibitory law, and appeals.
    Reversed.

      James Q. Louthan and L. A. Maris, for plaintiff in error.
    ■ R. McMillan, Asst. Atty. Gen., for the State.
   DOYLE, P. J.

On information filed in the county court of Kay county, charging that one Jessie Findley did. have in her possession ‘‘one barrel of beer for the unlawful purpose of violating the provisions of the prohibitory laws of the state,” the plaintiff in error was tried and found guilty and her punishment fixed at imprisonment in the county jail for 30 days and a fine of $300. From the judgment rendered on the verdict an appeal was perfected by filing in this court on September 21, 1915, a petition in error with case-made.

The errors assigned are, in effect, that the court erred in admitting incompetent evidence; that the verdict of the jury is contrary to law and the evidence; that the court erred, in giving certain instructions which were duly excepted to.

The evidence for the state shows that William Dye, a transfer man at Kaw City, at the request of William Bel-mard, another witness for the state, hauled .a barrel of bottled beer from the Santa Fe depot at Kaw City to the bridge, a distance of about 300 yards, and then by direction of said Belmard hauled it back to the depot; that he did not see the defendant there at that time; that shortly thereafter the city marshal seized the beer and arrested the defendant.

The Attorney General has filed in the case the following confession of error:

“In the trial of the instant case, we find several errors according to the decisions heretofore rendered by the appellate courts of this state:
“First, the name of William Belmard, witness for the state, was not originally entered on the information, and was not entered until after the jury was sworn. The evidence of this witness is most important in the case, and supplies the original link that connects the defendant with the commission of the misdemeanor charged. Her attorneys asked that the cause be suspended until they could prepare to meet this evidence, and this was refused, and the cause proceeded with. We think this was error. Section 5733, Rev. Laws 1910; Ostendorff v. State, 8 Okla. Cr. 372 [128 Pac. 143]; Steen v. State, 4 Okla. Cr. 314 [111 Pac. 1097]; Colbert v. State, 4 Okla. Cr. 500 [113 Pac. 558] ; Clark v. State, 5 Okla. Cr. 189 [113 Pac. 992]; Ford v. State, 5. Okla. Cr. 240 [114 Pac. 273]; Hawkins v. State, 5 Okla. Cr. 282 [114 Pac. 356] ; Stockton v. State, 5 Okla. Cr. 310 [114 Pac. 626]; Hawkins v. State, 6 Okla. Cr. 308 [118 Pac. 607]; Hughes v. State, 7 Okla. Cr. 118 [122 Pac. 554]; Hawkins v. State, 7 Okla. Cr. 385 [123 Pac. 1024].
“Another error was in permitting the books of the railroad to be introduced and read to the jury without having the same first identified and proved according to the statute. Rev. Laws 1910, sec. 5114. Also Muskogee Electric Traction Co. v. McIntire, 37 Okla. 684, 133 Pac. 213 [L. R. A. 1916C, 351]; First National Building Co. v. Vandenberg, 29 Okla. 583 [119 Pac. 224]; Drumm-Flato Co., V. Edmisson, 17 Okla. 344 [87 Pac. 311]; Missouri, K. & T. Ry. Co. v. Davis [24 Okla. 677] at page 692 [104 Pac. 34, 24 L. R. A. (N. S.) 886] ; Missouri, K. & T. Ry. Co. v. Walker, 27 Okla. 849 [113 Pac. 907].
“We think there was error in charge No. 2 of the court. There he says to the jury: ‘The defendant is presumed to be innocent of the crime charged until the contrary is made to appear by competent evidence, to the satisfaction of the jury beyond a reasonable doubt; and if you entertain a reasonable doubt of the guilt or innocence of the defendant, it is your duty to return a verdict of not guilty.’ Here the court puts the burden on the defendant of proving his innocence, and all the authorities hold that the burden is on the state throughout. See Rea v. State, 3 Okla. Cr. 271 [105 Pac. 381]; Culpepper v. State, 4 Okla. Cr. 111 [111 Pac. 679]; Cowherd v. State, 7 Okla. Cr. 1 [120 Pac. 1021] ; Nichols v. State, 10 Okla. Cr. 250 [135 Pac. 1071]; Havill v. State, 11 Okla. Cr. 483 [148 Pac. 683].
“In connection with this charge, there was read to the jury instruction No. 5, which is as follows: ‘You are instructed that if you find from the evidence that the defendant had the barrel of beer testified to by the witness in her possession for her own personal use, and with no intention of selling the same, you should find the defendant not guilty.’ We say that this instruction .puts the burden on the defendant according to the authorities cited just above, and see, also, West v. State, 12 Okla. Cr. 198, 153 Pac. 538.
“So we think this cause should be sent back; that the court below and the county attorney may try it again. We do not question the guilt of the defendant; she seems to be an old offender, but she must be convicted according to some legal rule, and we say that the instant conviction was not had that way.”

After a careful examination of the record we are of opinion that .the confession of error is well founded, and that for the reasons therein stated the plaintiff in error did not have that fair trial to which she was entitled'. It follows that the judgment appealed from should be, and is, hereby reversed.

ARMSTRONG and BRETT, JJ., concur.


text:
    E. F. GIST v. STATE.
    No. A-2687.
    Opinion Filed January 29, 1917.
    (162 Pac. 451.)
    1. APPEAL AND ERROR — Briefs. Under 'the rules of the court a brief should be filed in support of the’contentions of the plaintiff in errpr within 40 days from the date ¡the appeal is ¡taken.
    2. SAME — Delay. Appeals in misdemeanor cases should not be brought to this court for the purpose of delay, and should only be taken from, the judgment of the trial court when there is substantial error and a purpose to duly prosecute the same as provided by the rules of the court and the law governing the same.
    3. SAME — Motion to Dismiss. A motion to dismiss should be sustained when it is apparent ¡that there is no purpose upon the part of the plaintiff in error to press his appeal upon meritorious grounds.

      Appeal from County Court, Garvin County; W. R. Wallace, Judge.

    E. F. Gist was convicted of violating the prohibitory law, and he appeals.
    Dismissed.

      H. M. Carr, for plaintiff in error.

      R. McMillan, Asst. Atty. Gen., for the State.
   ARMSTRONG, J.

The appeal in this cause was filed on the 28th day of March, 1916. Under the rules briefs should be filed within 40 days from the date the appeal is perfected or appearance made for oral argument when the cause is set for final submission. When this cause was set, counsel, instead of appearing to argue the same as provided by the rules of the court, appeared and asked a continuance of the same for the purpose of enabling him to properly brief the issues. The cause was "Continued, but no briefs have yet been filed.

The Attorney General has filed a motion to dismiss the appeal on the ground that the same has not been duly prosecuted as provided by law and the rules of the court.

We feel that leniency to a fault has been shown the plaintiff in error and his counsel. There is no good reason why the cause should be delayed further. In fact, this court is of opinion that appeals from violations of law of this character should not be brought to this court unless they are based upon merit and are to be briefed and followed up as provided by both the rules of the court and the law of the land. The motion to dismiss is sustained, and the appeal is accordingly dismissed.

Mandate ordered forthwith.

DOYLE, P. J., and BRETT, J., concur.


author: PER CURIAM.

text:
    STATE v. J. T. JOHNSON.
    No. A-2101.
    Opinion Filed February 3, 1917.
    (161 Pac. 821.)

      Appeal from District Court,' Nowata County; T. L. Brown, Judge.

    J. T. Johnson was charged with perjury, and, a demurrer being sustained to the information, the State appeals.
    Affirmed.

      J. E. Bennett, Co. Atty., and F. A. Calvert, Asst. Co. Atty., for the State.

      W. D. Humphrey, for defendant in error.
   PER CURIAM.

Information was filed in the district court of Nowata county, charging J. T. Johnson with perjury. A demurrer was filed, on the ground that the information did not state facts sufficient to constitute an offense against the laws of the State of Oklahoma.- This demurrer was sustained, and the defendant discharged; and the state appeals from the order sustaining the demurrer.

An examination of the information shows conclusively that it is fatally defective, and that the demurrer was properly sustained. The information is based upon an instrument upon which perjury cannot be predicated. The instrument itself was only verified upon belief, and the information pleads conclusions, where facts are essential. We are unable to see how an elaborate opinion in this case would serve any good purpose.

Without going into details, therefore, the judgment is affirmed.


text:
    BOOGIE SANDERS v. STATE.
    No. A-2266.
    Opinion Filed February 3, 1917.
    (162 Pac. 676.)

    1. INDICTMENT AND INFORMATION — Assault With Intent to Kill — Included Offenses. An information which charges assault with intent to kill includes all other felonious assaults defined in the statute and the misdemeanors, assault and battery and assault.
    2. SAME — Conviction of Included Offense. The jury is authorized to return a verdict convicting (the person on trial of any crime included in the information which is submitted to them by the trial (Count.
    3. TRIAL — Verdict—Sufficiency. The veulic.t of a jury must lie sufficient in itself to clearly disclose the crime of which the 'defendant is convicted, and for -which he is to be punished.
    4. ASSAULT AND BATTERY — Verdict—Construction. A verdict, by a jury which reads, “We, the jury, duly impaneled and sworn to try tlie above-entitled cause, do upon our oaths find ithe defendant guilty as 'charged in the information, of the crime of aggravated assault and the punishment for the court to fix,” finds the defendant guilty of assault only. The court is therefore without authority to impose punishment by imprisonment in the penitentiary, for the reason that the statute fixes the maximum penalty at a fine of $100 and costs and 30 days’ imprisonment in the. county jail.
    5. APPEAL AND ERROR — Modification of Verdict. When the trial court fails to impose punishment in keeping with the verdict of the jury, when the legal effect of the verdict of the jury is dear, this court will modify the judgment to 'Conform /to the verdict, and, as modified, affirm the same.

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

    Boogie Sanders was convicted of assault, and he appeals.
    Modified and affirmed.

      Tillotson'& Elliott and Alvah C. Hough, for plaintiff in error.

      C. J. Davenport, Asst. A-tty. Gen., for the State.
   ARMSTRONG, J.

The plaintiff in error, Boogie Sanders, was tried in the district court of Craig county on a charge of assault with intent to kill, and found guilty by the jury of assault. His punishment was fixed by the trial court at imprisonment in the state penitentiary for a term of two years. For a reversal of the judgment this cause is brought to this court upon a transcript of the record. The information in the case is as follows:

“In the district court of Craig county, State of Oklahoma, on the 3d day of November, 1913, in the name and by the authority of the State of Oklahoma, comes Willard H. Yoyles, county attorney of the said -county of Craig, and gives the court to' know and be informed: That Boogie Sanders, late of the aforesaid county, bn the. 28th day of July, 1913, in -the county of Craig, State of Oklahoma, then and there being, did then and there, willfully, unlawfully, intentionally, wrongfully, and feloniously shoot at and against, and thereby wound and injure one Albert Adams with a certain firearm, to wit, a shotgun then and there loaded with gunpowder and leaden balls, which said shotgun he, the said Boogie Sanders, then and there had and held in his hands, with the intent on the part of him, the said Boogie Sanders, to shoot the said Albert Adams then and there, and thereby to kill and murder contrary to the form of the statute in such case made and provided, and against the peace and dignity of the State of Oklahoma.”

The court instructed the jury that the information charged the crime of assault with intent to kill; that it also included, the crime of assault with a sharp and dangerous weapon, without justifiable or excusable cause, with intent to do bodily harm, and the crime of assault, commonly spoken of as simple assault.

The following verdict was returned into court by the jury:

“State of Oklahoma, Craig County — ss.:
“In the District Court of Craig County, Oklahoma. State of Oklahoma, Plaintiff, v. Boogie Sanders, Defendant. No. 1145 Criminal. Verdict.
“We, the jury, duly impaneled and sworn to try the above-entitled cause, do upon our oaths find the defendant guilty as charged in the information of the crime of aggravated assault and the punishment for the court to fix.
“J. M. Darrough, Foreman.”

The verdict in this form was received over the objection of defendant. In this state there is no crime denominated by the statute “aggravated assault.” This term was evidently inadvertently used in the verdict of the jury. It is a well-recognized rule of criminal jurisprudence that the .verdict of a jury must, within itself, be sufficient to designate definitely .the crime of which the accused is found guilty. In order for this verdict to be upheld,, the word “aggravated” must be treated as surplusage, and the verdict of the jury held to mean that the jury found the defendant at the bar guilty of the crime of assault. This crime, under our statute, is a misdemeanor, and the maximum penalty is fixed at a fine of $100 or imprisonment in the county jail for 30 days, or both.

It became necessary for the jury, under the charge of the court, to designate the particular offense of which the accused was found guilty. Section 5923, Rev. Laws 1910, is as follows:

“The jury may find the defendant guilty of any offense, the commission of which is necessarily included in that with which he is charged, or of an attempt to commit the offense.”

This section authorizes a jury to convict upon any offense included in the information ■ which was submitted by the court. Under the verdict, supra, the jury convicted of assault only. The court, therefore, was without power to impose a judgment of imprisonment in the state penitentiary.

We feel that substantial justice does not warrant a reversal of this judgment, but that the same should be modified to the maximum penalty provided by law for assault, which is a fine of $100 and imprisonment for 30 days. It is therefore ordered and adjudged by this court that the judgment of the trial court' be modified so that it will find the defendant guilty of assault and impose punishment of 30 days in the county jail of Craig county and a fine of $100 and costs. Upon failure to pay the fine and costs, defendant shall be further confined as provided by law.

As modified, the judgment is affirmed.

Mandate ordered forthwith.

DOYLE, P. J., and BRETT, J., concur.


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      Ex parte CHARLES RANKIN.
    No. A-2910.
    Opinion Filed February 3, 1917.
    (162 Pac. 677.)
    BAIL — Excessive Bail. The mere fact that a defendant cannot make bond in the sum fixed by the committing magistrate and the trial court does not necessarily make such amount excessive. Regard must be had to the nature of the crime charged and the character of the evidence by which it is supported.
    Application, of Charles Rankin for a writ of habeas corpus to reduce bail.
    Writ denied.
    /. H. Warren and Geo. W. Richardson, for petitioner.

      W. J. Holloway, B. D. Jordon, and R. McMillan, Asst. Atty. Gen., for the State.
   DOYLE, P. J.

This is an application to this court for writ of habeas corpus by Charles Rankin, who represents and states that he is restrained of his liberty and is unlawfully imprisoned at Hugo, Choctaw county, by R. B. Fitzgerald, sheriff of said county. It is further averred that:

“The cause of said restraint is that heretofore on the - day of December, 1916, said petitioner was arrested and charged with the crime of robbery, and carried before L. W. Oakes, justice of the peace, for an examining trial on the charge of having robbed the bank of Boswell, in Choctaw county. Petitioner waived his examining trial. Thereupon his bond was by said justice fixed in the sum of $20,000, and afterwards, to wit, on the 9th day of January, 1917, said petitioner was remanded to the custody of said sheriff by the judge of the district court of Choctaw county in default of bail in the sum of $20,000. Your petitioner avers and says that said sum of bail so fixed by the justice of the peace is excessive.”

Petitioner prays that a writ of habeas corpus issue, and that said excessive bail be reduced and fixed at a reasonable amount. The petition was filed in this court on January 19, 1917, and a rule to show cause was entered and issued, returnable January 29th, at which time a hearing was had upon the affidavits filed in support of the application and those filed in resisting the same.

The mere fact that a defendant cannot make bond in the sum fixed by the committing magistrate and the trial court does not necessarily make such amount excessive. Regard must be had to the nature of the crime charged and the character of the evidence by which it is supported. In re Jacobs, 4 Okla. Cr. 346,. 111 Pac, 815. As . this case is yet to be tried, we do not deem it proper to discuss the evidence further than to remark that upon 'the evidence adduced we do not feel that this court would be warranted in granting a reduction of bail in this case on the ground that the amount fixed is excessive.

The application for a reduction of bail is therefore denied.

ARMSTRONG and BRETT, JJ., concur.


text:
    T. M. YARBROUGH v. STATE.
    No. A-2269.
    Opinion Filed February 6, 1917.
    (162 Pac. 678.)
    1. HOMICIDE — Appeal—Harmless Error — Evidence. Where evidence introduced by the state is a mere conclusion or opinion of the witness, held that, when its effect is to directly corroborate and sustain the contention and theory of the defendant, he is not prejudiced and cannot complain.
    Held, further, that where a defendant, charged with murder, pleads insanity, accident, and self-defense, it is competent for the state to prove that immediately after the homicide he armed himself and left the vicinity; for one who is so insane as to be umoonscious of the character and quality of his act is not conscious of guilt, and one who kills his fellow man by accident, or in defense of his own person, is not conscious of guilt, and the fact that the accused immediately armed himself and retreated, from itjhe scene of the homicide was a circumstance to be considered by 'the jury in passing upon the merits of his respective pleas.
    2. TRIAL — Jury—Admonition. Where the 'court in the midst of a.trial, and before -the case had been submitted ito the jury, permitted 'the jury, during a recess, to separate, saying to them, “(¿entlemen, under the previous admonitions you may be excused,” held, first, that before the case is finally submitted to the jury it is discretionary with the judge whether they be permitted to separate or be kept in the charge of a bailiff; and, second, that if defendant desired that a bailiff be in charge of the jury, or 'that the court specifically repeat the statutory admonition, he should have requested it, but, having Acquiesced by silence, he will not now be heard to complain.
    3. TRIAL — Defenses—Instructions. A court should not instruct upon an element of crime not in the case, since such would only tend to confuse the jury.
    The court should also refuse to instruct the jury to the effect that the pleas tendered by the defendant are not inconsistent. The defendant has a right to enter as many pleas as he sees fit, whether consistent or inconsistent; and the judge should instruct the jury upon each defense which is supported, by competent evidence, hut should not tell the jury whether they are consistent or inconsistent.

      Error from District Court, Atoka County; Jesse M. Hatchett, Judge.

    T. M. Yarbrough was convicted of manslaughter in the first degree, and he brings error.
    Affirmed.

      Linebaugh Bros. & Pinson, for plaintiff in error.

      R. McMillan, Asst. Atty. Gen., for the State.
   BRETT, J.

The plaintiff in error in this case, T. M. Yarbrough, who will be referred to as defendant, was prosecuted in the district court of Atoka county for murder; and convicted of manslaughter in the first degree, and sentenced to the penitentiary for a term of 15 years.

The difficulty occurred in a horse lot at'Edgar’s Mill, and the material facts, as developed by the state, are that the defendant was employed by Edgar, who owned and operated a sawmill; that Will Landrum, the deceased, was also in the employ of Edgar, as foreman at this mill; that on the day of the homicide the defendant complained. that Edgar had not paid him according to contract, and used some abusive language with reference to Edgar and his business methods. In response to this language Landrum stated that Edgar was away, but would pay him as soon as he returned, and assured defendant that he would get all that was due him. This seemed to further enrage defendant, and he referred to Edgar as “a damn thief,” and further said, “Anybody that will take up for him is no better than he is.” Landrum replied by calling the defendant “a damn liar.”

Defendant seized an ax and started toward Landrum; Landrum retreated, and started to go out the lot gate. The defendant dropped the ax, and' intercepted Landrum at the gate, and told him that if he went out the gate he would kill him. Landrum stepped back from the gate, and the defendant pulled a pistol; and Landrum called to the bystanders, saying, “Boys, don’t let him shoot me.” One of the bystanders called to the defendant and said, “Don’t shoot him.” About that time Landrum made an effort to seize the pistol, but one of the state’s witnesses, who claimed to be in position to see what occurred, testified that he did not reach the gun. Defendant then threw his left arm around Landrum’s neck, and fired the fatal shot; Landrum sank to his knees, and defendant then went to his own house, which was only a short distance1 away, procured a shotgun, and left the premises. The state’s witnesses testified that Landrum had nothing in his hands during the difficulty.

The defendant pleaded insanity, accident, and self-defense, and offered evidence in support of each of these defenses. He testified that he and his family had had nothing to eat for two days, that his children were crying for bread, and that his distress' produced temporary insanity; that he did not intend to injure the' deceased, but deceased struck at him twice with an open knife, and each time slashed his coat, which was offered in evidence; that he drew the pistol to strike deceased with it, but that deceased seized it, and in the scuffle that followed it was accidentally discharged and inflicted the fatal wound. The state offered rebuttal evidence, as above indicated, to show that Landrum did not reach the gun when he attempted to seize it, and had nothing in his hands during the difficulty, and in addition offered the merchant who had' furnished defendant with groceries to show that defendant’s credit was still good at his store and he had always furnished defendant all the groceries he called for. ,

As to the facts in this case, we will say that the jury that heard the evidence, and saw the witnesses upon the stand, has passed upon them; and the defendant in his brief admits the evidence is sufficient to justify and sustain a verdict of manslaughter in the first degree, but insists that there were errors of law which occurred during the progress of the trial that entitle him to a reversal.

He first complains because the court permitted one witness for the state to testify that he “thought deceased grabbed the pistol.” But if this was a mere opinion or conclusion of the witness, and if it was error to admit it, we think the defendant was not prejudiced by it, for its effect was to corroborate the defendant’s theory that deceased actually seized the gun, in contradistinction to the state’s theory that deceased never had his hand upon the gun, and consequently it could not have been discharged by accident.

He also complains because the 12-year-old son of deceased was permitted to testify that defendant, after the difficulty, went to his house and got a shotgun and left the premises, insisting that this fact was not material, and that the little boy was only introduced as a witness to create sympathy; but we think it was material in rebuttal of defendant’s plea of insanity, accident, and self-defense, for one who is so insane as to be unconscious of the nature or quality of his act also has no consciousness of guilt, and one who kills his fellow man by accident or in defense of his own person does not have a consciousness of guilt, and the fact that the defendant immediately armed himself, and retreated from the scene of the homicide, would at least be a circumstance to be considered by the jury in passing upon the merits of his respective pleas.

The next complaint is that during the progress of the. trial the jury, during a recess, were allowed to separate, and leave the courtroom without being in charge of a bailiff, and without being given the specific instruction not to talk about or consider the case, as provided by section 5900, Rev. Laws 1910. But the record shows this was before the case was finally submitted to the jury; and that when a recess was about to be taken the' court said:

“Mr. Sheriff, just clear the way there and let the jury go without a bailiff. Gentlemen, under the previous admonitions of the court you may be excused. Just step out this way.”

And the record further shows that no objection was made to this, and no request that the jury be kept in charge of a bailiff, or that the instruction be made more specific. Under section 5899, Rev. Laws 1910, before the case is submitted to the jury, it is discretionary with the judge whether the jury be permitted to separate or be kept in charge of a bailiff. The language of the statute is plain, yet this question has been specifically passed upon in Armstrong v. State, 2 Okla. Cr. 567, 103 Pac. 658, 24 L. R. A. (N. S.) 776; Burns v. State, 8 Okla. Cr. 554, 129 Pac. 657, and Weatherholt v. State, 9 Okla. Cr. 161, 131 Pac. 185. And if the defendant felt the court should at that time have a bailiff with the jury, or repeat again the full statutory admonition, he should have requested it. But since he did not request it; but acquiesced by his silence, he will not now be heard to complain.

R is contended that the court erred in the instructions given, and also erred in refusing to give numerous requested instructions. Without going into details, we will say we think the instructions given by the court fairly presented the law of the case, and that the gist of all requested instructions which were applicable to the facts of the case was embodied in the instructions given.

The defendant, however, requested an instruction on manslaughter in the second degree; but there was no evidence that would even remotely suggest manslaughter in the second degree, that element was not in the case, and the court properly refused to confuse the jury by instructing upon it.

The defendant also requested the court to instruct the jury that the defenses interposed by the defendant of self-defense, accidental shooting, and temporary insanity were not inconsistent defenses. And he complains more particularly of the refusal of the court to give this instruction, because the county 'attorney in his argument to the jury said in part:

“Let this sink into your minds: If he killed him in self-defense, why did he plead accident and insanity; if he killed him by accident, why did he plead insanity and self-defense; and if he was insane, why in the name of God did he plead accident and self-defense?”

The court properly permitted each of these defenses to go to the jury, gave clear and specific instructions upon each of them, but properly refused to instruct upon or argue their consistency to the jury. That was the duty of counsel for defendant, and the state had the right to attack either or all of the pleas as futile under the evidence, or as inconsistent with- each other, in the light of the evidence, and it was the province of the jury under the evidence to pass upon the merit of each and all of these pleas. .And the court should not’ have taken that question from the jury, by a specific instruction to the effect that they were not inconsistent; for whether they, were consistent or inconsistent depended upon the. facts and circumstances surrounding the homicide, and was a question for the jury. The defendant has a right to enter as many pleas as he sees fit, whether consistent, or inconsistent, and the judge should instruct the jury upon .each defense which is supported by competent evidence, but he should not tell the jury whether they are consistent or inconsistent.

The defendant complains of some other minor matters; but we have carefully examined the record and briefs, and think upon the whole the defendant was awarded a fair trial.

The judgment is therefore affirmed.

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


text:
    G. T. JEFFRIES v. STATE.
    No. A-2284.
    Opinion Filed February 17, 1917.
    (162 Pac. 1137.)
    1. EVIDENCE — Evidence on Former Trial — Witness—Identification Indorsement on Information. Where the testimony of a witness was given at a preliminary bearing; where the defendant had .an opportunity to eross-examine him, and such testimony is properly preserved, held thait, if the witness is not present at the final trial, and the state shows it has, used due diligence to ascertain his whereabouts, and has .been unable to ascertain the same, or serve him with subpoena, to all intents and purposes he is beyond the jurisdiction of the court, and his former testimony may be 'read to the jury.

      And held, further, that it is immaterial that the names of the-witnesses' used by the state to identify the former testimony, to prove the -defendant'had been confronted by Ithe witness, and that the witness was then beyond the jurisdiction of the court, were not indorsed upon the information.
    :2. APPEAL AND ERROR — Harmless Error — Instructions. When ithe linimpeached evidence of a number of eyewitnesses and the testimony of the • defendant himself sustains the verdict, and proves the defendant's guilt beyond a question of doubt, this court will not reverse the case because of a technical defect in an instruction upon an immaterial issue.
    3. SAME — Verdict—Forms. The jury have a right to formulate their own verdict, or to return into 'court and request other forms, if ■ •they so desire; and, where they sentence the defendant to four years in the penitentiary, there is no merit in the contention that the defendant was prejudiced because the court did not furnish the jury with a form of verdict by which they could hav*. sentenced him to one year in the county jail.

      Error ’from District Court, Okmulgee County; Wade S. Stanfield, Judge.

    G. T. Jeffries was convicted of assault with intent to ■ Mil, and he brings' error.
    Affirmed.

      Eaton & Cowley,.'for plaintiff in error.

      R. McMillan, Asst. Atty. Gen., for the State. '
   BRETT, J.

Plaintiff in error in this case, who will be referred to as defendant, was tried in the district court. of Okmulgee county, and convicted of Assault with intent, to kill, and sentenced to serve a térm of four years in the penitentiary. • -

The material facts, as developed by the state, are:. That the defendant, G. T. Jeffries, and the prosecuting witness, Fred Hall, were employed in drilling a well for oil. That they had some words, in which insulting language was used by Hall toward the defendant. That defendant retired from the scene for a few minutes, and then returned. At that time Hall was stooping over, examining the threads of a piece of casing, which he was preparing to put down into the well. That while in that position, the defendant struck him on the head with something, crushing his skull and rendering him unconscious. That defendant, after seeing his unconscious condition, called him by an unmentionable name, and advised that if they would throw a bucket of water on him, “it would bring him to.” That Hall remained in a critical condition for days,, but finally recovered. The state’s evidence further showed that defendant told one Ed. Belmay that he struck Hall with a hatchet. That defendant, before being arrested, left the state, and was arrested in the State of Louisiana.

The defendant pleaded self-defense, and testified that Hall had threatened to brain him with a sledge hammer; that he went out of the derrick, and was gone a few minutes, and when he returned, “Hall was down looking at the casing, * * * and Hall reached right around and picked up this sledge. When he saw me he dragged it over to him, and says, ‘What are you doing here; didn’t I tell you to stay out of here?’ ” He was then asked, “What occurred after that, Mr. Jeffries?”- “I hit him,” was the reply. He denied that he struck Hall with a hatchet, but claimed that he struck him with a piece of shovel handle, and further denied that he told Belmay that he struck him with a hatchet. He also testified that he left the state, not to evade the law, but because he feared violence at the hands of Hall’s friends.

The defendant complains because the court permitted the state to read the testimony of the witness Bel-may to the jury. This witness was not present at the final trial. And the state was permitted to read to the jury the testimony he gave at the preliminary hearing. The objection to this is based upon the contention: First, that’ the state only proved by hearsay that Belmay was absent from the state; and, second, that the names of the stenographer who identified the evidence as that taken at the preliminary, and the witnesses used to prove Belmay’s absence, were not indorsed on the information. And defendant relies upon Driggers v. U. S., 1 Okla. Cr. 167, 95 Pac. 612, 129 Am. St. Rep. 823, to support his first contention. But the doctrine announced in Driggers v. U. S. has never been followed by this court, and, we think, is not the law. Under the doctrine insisted upon by the defendant, the state would not be allowed to use the former testimony of an absent witness, unless it could produce some one who saw him cross the "state line, and could then swear with equal positiveness that he had never returned. Such was never contemplated by the law. But this court has followed the doctrine announced by Mr. Wigmore that:

“If the witness has disappeared from observation, he is in effect unavailable for the purpose of compelling his attendance. Such a disappearance is shown by the party’s inability to find him after diligent search. The only objection to recognizing this ground of unavailability is the possibility of collusion between, party and witness; but, supposing the court to be satisfied that there has been no collusion, and that the search has been bona fide, this objection loses all of its force. For former testimony this cause of unavailability has long been recognized.” (Wigmore on Evidence, vol. 2, par. 1405.) Warren v. State, 6 Okla. Cr. 1, 115 Pac. 812, 34 L. R. A. (N. S.) 1121; Edwards v. State, 9 Okla. Cr. 306, 131 Pac. 956, 44 L. R. A. (N. S.) 701; Henry v. State, 10 Okla. Cr. 369, 136 Pac. 982, 52 L. R. A. (N. S.) 113.

In the case at bar the county attorney, sheriff, and his deputy show by their testimony, and the return of the subpoena, that-they- had made diligent. search and inquiry to ascertain the whereabouts of the witness, and were repeatedly informed that he had gone to Arkansas. This testimony, that the witness had gone to Arkansas, the defendant insists was mere hearsay, and did not establish the fact that he was beyond the jurisdiction of the court. But whether .he was in Arkansas or secreted somewhere else, he was beyond the reach of process, and to all intents and purposes beyond the jurisdiction of the court, coming squarely within the rule announced by this court in Warren v. State, supra, to the effect that testimony at a former trial may be used if the whereabouts of the witness cannot, with due diligence, be ascertained. In Edwards v. State, supra, the late Judge Furman, in. an able and elaborate opinion, sets this question at rest. And in Warren v. State, supra, he also answers the second objection of defendant, which is that the names of witnesses used by the state to identify the evidence of Belmay and to show that the defendant had been confronted by him and had opportunity to cross-examine him, and that Belmay was then beyond the jurisdiction of the court, were not indorsed upon the information. The name of Belmay was indorsed upon the information as a witness, and the defendant should have anticipated he would testify. But the witnesses complained of because their names were not indorsed upon the information were not used to prove a single allegation of the information, but their testimony was simply preliminary to the introduction of the testimony of the witness Belmay, given at a preliminary hearing; and it was immaterial that their names were not indorsed upon the information.

The next assignment of error is based upon an instruction of the court, which is as follows 1

“You are instructed that flight, when unexplained, raises a presumption of guilt. Therefore, if the jury believe and find from the evidence in this case beyond a reasonable doubt that the defendant, recently after the commission of the offense alleged in the information, fled from Okmulgee county to avoid arrest and trial for the assault on the witness Hall, then you may take this fact into consideration, together with all other facts in evidence in determining his guilt or innocence.”

The word “presumption,” we think, as used in this instruction, does not, with technical accuracy, state the law. Flight is only a circumstance tending, in some degree, to prove consciousness of' guilt, and, when taken in connection with ■ ¿11 the other evidence in the case; its significance or insignificance is to be determined by the jury. But while the learned trial judge used the word “presumption” in this instruction inadvisedly, yet the instruction, taken as a whole, tells the jury that they shall only consider flight in connection with all the other facts and circumstances in evidence, in determining the defendant’s guilt or innocence. Consequently the contention of the defendant that this instruction in effect charged the jury that the fact of flight alone was sufficient evidence upon which to base, conviction is not .well taken.

Besides, in this case, if the question of flight had been entirely eliminated, the' positive evidence of a number of eyewitnesses, and the testimony of the defendant himself, established the defendant’s guilt beyond a shadow of a doubt. If this were a case in which the state relied upon circumstantial evidence, or if it were a closely controverted question as to what was done, or who did it, we would consider more serioüsly the probable effect of this instruction. But when the unimpeached evidence of a number of eyewitnesses, and the testimony of the' defendant himself, sustains the verdict and proves his guilt beyond a question of doubt, this court will not reverse the case because of a technical defect in an instruction upon an immaterial issue. .

Defendant also complains because, among the forms of verdict furnished the jury, there was no form furnished “wherein the jury, if they found the defendant guilty of assault with a dangerous weapon, could have sentenced the defendant to imprisonment in the county jail not exceeding one year.” The jury had the right to formulate their own verdict, or to return into court and request other forms, if they so desired. But in this case there is no indication that the jury considered the question of even giving the defendant only one year in the penitentiary, much less one year in the county jail. Hence we are unable to appreciate the suggestion that he was prejudiced by the absence of this form of verdict.

There are other assignments of error, but we think under the record before us the matters complained of did not prejudice the substantial rights of the defendant.

The judgment is therefore affirmed.

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


text:
    C. H. VICTOR v. STATE.
    No. A-2672.
    Opinion Filed February 17, 1917.
    (162 Pac. 1183.)

      Appeal from, District Court, Haskell County; W. H. Brown, Judge.

    C. H. Victor was convicted of rape, and he appeals.
    Appeal dismissed.

      A. L. Becket, for plaintiff in error.

      S. P. Freeling, Atty. Gen., and R. McMillan, Asst. Atty. Gen., for the State.
   PER CURIAM.

Plaintiff in ' error was tried and convicted in the district court of Haskell county, on an information charging statutory rape. The judgment and sentence of th|| court, rendered on the 9th day of December, 1915, was that he be imprisoned in the penitentiary at McAlester for the term of seven years. From the judgment an appeal Ayas taken by filing in this court on March 10, 1916, a petition in error with case-made, Counsel for the state have filed a motion to dismiss the appeal on the ground that said plaintiff in error is out of the jurisdiction of this court, and is at this time an inmate of the federal penitentiary at Leavenworth, Kan., having been committed there upon a judgment and sentence rendered on a conviction for the crime of forgery. The question presented by the motion to dismiss the appeal is the same as that decided in Belcher v. State, 9 Okla. Cr. 50, 130 Pac. 515, and in numerous other cases, the last being Justus v. State, ante, p. 54, 161 Pac. 1177, wherein it was held that where a defendant has been convicted and sentenced, and perfects ‘an appeal, this court will not consider his appeal when the defendant is where he cannot be made to respond to any judgment or order which may be rendered in the case. Upon a careful examination of the motion and the proof supporting the same, we are of opinion that plaintiff in error has waived the right to have his appeal in this court considered and determined. The appeal is therefore dismissed.


text:
      Ex parte EVA SWEITZER.
    No. A-2856.
    Opinion Filed February 17, 1917.
    (162 Pac. 1134.)
    3. CONSPIRAOS — Picketing—Statute. Section :!764. Rev. Laws 1910, construed, and held, that it stays the hand of both civil and criminal 'process from interfering with ‘‘piCKeting," or other peaceable and legitimate endeavors of labor, to further their interest in trade disputes between themselves and their employers.
    2.' MUNICIPAL CORPORATIONS — Picketing—Prohibition. In law we cannot do indirectly that which may not be done directly ; and since the city commissioners cannot directly prohibit picketing in furtherance of trade disputes, they cannot accomplish that end indirectly or incidentally.
    3. MONOPOLIES — Trade Unions — Organization—Right. The trend of legal thought of modern times is that since capital, consisting of money and property, is organized to further its interests, labor, consisting of brains and muscle, may organize, and use any peaceable and legitimate means to obtain a fair share in the distribution of the earnings wliich are the joint product of 'capital and labor.
    Application of Eva Sweitzer for writ of habeas corpus.

    Writ allowed, and petitioner discharged.

      Giddings & ■ Lillard, for petitioner.

      B. D. Shear, A. T. Boys, and Frank N. Watson, for respondent.
   BRETT, J.

This matter comes up on the petition of Eva Sweitzer for writ of habeas corpus, alleging that she is unlawfully restrained of her liberty by W. B. Nichols, chief of police of Oklahoma City, and praying that she be discharged.

At the time the petitioner was arrested, she was doing picket duty in front of the Lyric Theater. At her trial in the municipal court, the arresting officer testified concerning the cause of her arrest as follows:

“Q. State what she was doing at that time? A. Walking up and down the outer edge of the walk. Q. In front of the theater? A. Yes, sir. Q. Was she holding a conversation with any person? A. She was not holding a conversation. She was just walking up .and down. I think I heard her say: ‘This theater is unfair to organized labor.’ Q. Did she have a badge displayed on her sleeve? A. Yes, sir. Q. What did it say? A. I cannot say.”

On cross-examination he testified that she was not talking loudly, but was conducting herself in a ladylike manner; and ■ that the only reason he had for arresting her was “because she was picketing.” It was shown that she is a laboring woman, and a member of a labor union. And as part of the proceedings in the municipal court counsel for petitioner and the city entered into an agreement as follows:

“It is mutually agreed by the parties that a trade dispute existed at the time of the arrest of the defendant, between the employers of the Lyric Theater and its former employees; and the picketing done by the defendant was in the furtherance of that trade dispute.”

The city insists that, regardless of the fact that the petitioner was picketing in furtherance of a trade dispute, her conduct violated City Ordinance No. 1859, adopted October 10, 1916, which provides:

“Section 1. It shall be unlawful for any person, or persons to walk, stand or loiter on any street, sidewalk, alley or public place within the city of Oklahoma City, in front of, or near to any place of business, and call out, speak to, or attract the attention of any person along such street, sidewalk, or alley ,or public place, with the intent to induce such person to patronize or not to patronize such place of business.
“Sec. 2. It shall be unlawful for any person to walk or stand or loiter along or upon any street, sidewalk, alley or public place in said city and display in any manner any sign or banner to the persons along such streets, sidewalks, .alley or public place, calling to the attention o* such person that they should or should not patronize any place of business located within the said city of Oklahoma City.”

Section 3 fixes a penalty for the violation of the provisions of this ordinance -at a fine of not less than $10 nor more than $50, or confinement in the city jail for a period not exceeding 30 days, or both such fine and imprisonment; and section 4 declares an emergency.

At the trial had in the municipal court, the petitioner was found guilty by the municipal judge, and fined $10, which she refused to pay, and filed her petition for writ of habeas corpus in this court.

The issue presented is whether or not, in this case, the judgment of the municipal court can be enforced.

It is our opinion that it cannot. First, because the very thing for which the petitioner was arrested and convicted is sanctioned by statute; and the statute further declares that it shall not “be deemed criminal.” Section 3764, Rev. Laws 1910, provides that:

“No agreement, combination or contract by or between two or more persons to do or procure to be done, or not to do or procure not to be done, any act in contemplation or furtherance of any trade dispute between employers and employees, shall be deemed criminal, nor shall those engaged therein be indictable or otherwise punishable for the crime of conspiracy, if such act committed by one person would not be punishable as a crime, nor shall such agreement, combination or contract be considered as in restraint of trade or commerce, nor shall any restraining order of injunction be issued with, relation thereto.”

Counsel for respondent, however, insist that this statute is not applicable, but that its prime object is to exempt labor combinations, formed for the furtherance of trade disputes, from the charge of conspiracy. But a careful examination of the statute shows that it contains four separate and distinct provisions, each independent of the others. These provisions are:

(1) That “No agreement, combination or contract by or between two or more persons to do or procure to be done, or not to do or procure not to be done, any act in contemplation or furtherance of any trade dispute between employers and employees, shall be deemed criminal.” ' (2) “Nor shall those engaged therein be indictable or otherwise punishable for the crime of conspiracy, if such act committed by one person would not be punishable as a crime.” (3) “Nor shall such agreement, combination or contract be' considered as in restraint of trade or commerce.” And ,(4) “nor shall any restraining order or injunction be issued with relation thereto.” And concludes, “provided, nothing in this article shall be construed to authorize force or violence.”

We think no other construction can be placed upon this statute than that it stays the hand of both civil and criminal process from interfering with the peaceable and legitimate endeavors of labor to further their interests in trade disputes between them and their employers. ■

But counsel for respondents say:

“We are not dealing with labor unions-, or their rights in thisscase, but with an individual infraction of an ordinance which prohibits the doing of a certain thing.”

But counsel slipped this contention entirely from under themselves, when they stipulated in open court that:

“It is mutually agréed by the. parties that a trade dispute existed at the time of the arrest of the defendant, between the employers of the Lyric Theater and its former .employees, and the picketing done by the defendant was in, furtherance of that trade dispute.” .

Petitioner was therefore not acting in her individual • capacity, but in conformity to “an agreement and combination” to do certain things “in furtherance of that trade dispute,” and was therefore protected by this statute, in the peaceable performance of her mission, from interference by either the civil or criminal law.

But counsel for respondent further insist that the statute is not applicable because:

“The ordinance prohibits picketing only incidentally, and its scope and effect are much broader. It prohibits as well the merchant or theatrical manager from filling sidewalks and streets adjacent to his place of business with pedestrians, who annoy passers-by with importunate solicitations.”

But, the learned counsel certainly know that in law we cannot do indirectly that which may not be' done directly. If the city commissioners cannot directly prohibit picketing in furtherance of a trade dispute, they certainly cannot accomplish that end indirectly, or, as counsel put it, “incidentally.” As to whether the ordinance may be effective in prohibiting “the merchant or theatrical manager from filling the sidewalks and streets adjacent to his place of business with pedestrians who annoy passers-by with importunate solicitations,” we are not now concerned; but we do say, in the face of the statute, it cannot be enforced in the case at bar.

The constitutionality of the statute is upheld by this court in State v. Coyle et al., 7 Okla. Cr. 50, 122 Pac. 243, so the only duty that devolves upon us at this time is to construe its provisions. And, as stated above, its provisions are clear, specific, and comprehensive, and shield labor combinations from the interference of either civil or criminal process in their peaceable and legitimate endeavors to further their interests in trade disputes between themselves and their employers.

As stated in Ames v. Union Pac. R. Co., (C. C.) 62 Fed. 7: ,

“The period of compulsory personal service, save as a punishment for crime, has passed in this country. In this country it is not unlawful for employees to associate, consult, and confer together with a view to maintain or increase their wages, by lawful and peaceful means, any more than it was unlawful for the receivers to counsel and confer together for the purpose of reducing their wages. A corporation is organized capital; it is capital consisting of money and property. Organized labor is organized capital; it is capital consisting of brains and muscle. (What it is lawful for one to do, it is lawful for the other to do. If it is lawful for the stockholders and officers of a corporation to associate and confer together for the purpose of reducing the. wages of its employees, or of devising other means of making their investments profitable, it is equally lawful for organized labor to ás-sociate, consult, and confer with a view to maintain or increase wages. Both act from the prompting of enlightened selfishness, and the action of both is lawful when no illegal or criminal means are used or threatened.”

And Martin, in his treatise on Modern Laws of Labor Unions (pages 11 and 12), says:

“Organization or combination is a law of human society. It is open to all orders of men who desire to accomplish some lawful purpose through the greater strength and effectiveness which organization offers over individual effort. A very strong reason for permitting labor combinations is this: In an age when vast combinations of capital are common and the number of individual employers, of labor greatly reduced, and, in consequence, competition for labor by employers enormously reduced, combination on the part of labor is an absolute necessity if the wage earner is to obtain his fair share in distribution of the earnings which are the-joint product of capital and labor. Combination on the part of capital is powerful. Combination on the part of labor is the necessary and desirable counterpart if the battle is to be carried on in a fair and equal way. The natural tendency of combined capital is to seek to obtain the cheapest labor; and, unless resisted by combination on the part of the wage-earner, it would inevitably result in oppression and injustice. As was said by Attorney General Olney: ‘To-day the mass of wage-earners can no longer be dealt with by capital as so many isolated units. The time is past when the individual workman is called upon to pit his feeble strength against the might of organized capital.’ ”

And the doctrine, as above stated, represents the trend of legal thought of modern times, and is specifically reflected in the statute above construed. A number of authorities are cited, and quoted, in State v. Coyle et al., supra, sustaining this doctrine; and we might add a long list in addition to those there cited, but deem it unnecessary.

For these reasons, and others that might be added, we think the petitioner is unlawfully restrained of her liberty.

The writ is therefore allowed, and the petitioner discharged.

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


text:
      Ex parte HARRY NEWBY.
    No. A-2903.
    Opinion Filed February 17, 1917.
    (102 Pac. 1134.)
    BAIL — Application—Evidence. Evidence on application for bail considered, and held sufficient to justify the refusal of bail to petitioner committed to anáwer for the crime of murder.
    Application by Harry Newby for a writ of habeas corpus to be let to bail.
    Writ denied, and bail refused.

      Geo. Goad and E. B. Hunt, for petitioner.

      R. McMillan, Asst. Atty. Gen., for respondent.
   DOYLE, P. J.

In this proceeding, petitioner, Harry Newby, by his attorneys presented to this court a verified petition wherein he alleges that he is illegally restrained of his liberty by Jim Meredith, sheriff of Delaware county, and that his illegal confinement and detention consists in this, to wit: That a warrant of commitment was illegally issued by L.- W. Ingram, justice of the peace in and for Jay township, Delaware county, upon a preliminary examination had upon a complaint wherein petitioner was charged with the crime of murder, alleged to have been committed in said county on December 18, 1916, by shooting and killing one Ben Price; and that under the evidence introduced on said examination defendant was entitled to have been discharged from custody, for the reason that said evidence was insufficient to show the commission of the crime of murder, or probable cause to. believe the defendant to be guilty of the crime of murder, which it is .alleged more fully appears from the transcript of the testimony taken upon said examination, which is annexed to and made a part of his petition. Wherefore petitioner prays that a writ of habeas corpus be granted, and that he be discharged from custody, and further prays that, if the court should be of the opinion that the evidence is sufficient to hold petitioner upon a charge of murder, he be admitted to bail fixed at a reasonable amount, for the reason that the proof of his guilt is not evident, nor the presumption thereof great.

We have examined the transcript of the testimony, .and, without entering into a discussion of the facts, we deem it sufficient to say that, upon a careful consideration of all the evidence presented in support of the application, we are of opinion that the petitioner is not entitled- to be admitted to bail as a matter of legal right. It is therefore considered and adjudged that the writ be denied, and bail refused.

ARMSTRONG and BRETT, JJ., concur.


text:
      Ex parte BERT FILES.
    No. A-2873.
    Opinion Filed February 19, 1917.
    (162 Pac. 1136.)
    HABEAS CORPUS — Erroneous Sentence. A judgment and sentence of imprisonment for an offense for whicfL tire statute provides that the punishment must be both fine and imprisonment, -there being no other defect, is merely erroneous, not void, and a person imprisoned under such a judgment' is not entitled to release upon habeas corpus.
    Application by Bert Files for writ of habeas corpus against Ellsworth Hume, Sheriff of Garfield County.
    Writ denied, and petitioner remanded to custody.

      W. 0. Cromwell and Geo. W. Buckner, for petitioner.

      R. McMillan, Asst. Atty. Gen., for the State.
   DOYLE, P. J.

This is an application to this court for writ of habeas corpus to release petitioner, Bert Files, from the custody of Ellsworth Hume, sheriff of Garfield county. It is alleged that there was filed in the district court of Garfield county two certain informations each charging petitioner with having committed the second offense of unlawfully selling intoxicating liquors; that, petitioner acting on an agreement and* understanding with the county attorney of said county1 that he would recommend a fine of $50 and imprisonment for 30 days in each case if defendant would plead guilty, he did so plead; that the judge of said court refused to accept the recommendation of the county attorney, and imposed a sentence of two years’ imprisonment in one case and one year’s imprisonment in the other; that petitioner immediately filed motions to set aside and vacate said judgments and sentences so imposed, which motions the court overruled, to which rulings petitioner excepted and asked for time to make and serve case-mades and that he be admitted to bail pending his appeal in said cases, all of, which was denied, and petitioner was committed to the custody of the sheriff, who was ordered to transport petitioner to the penitentiary.

The statute provides that the punishment for the offense charged in each of the informations must be both fine and imprisonment, and a judgment and sentence upon a conviction or plea of guilty must conform to the punishment prescribed. The judgments in these cases are obviously erroneous in respect to the punishment imposed. However, we are of the opinion that the judgments are merely erroneous and are not void, and the trial court may yet reconsider and correct the same.

In the case of Rupert v. State, 9 Okla. Cr. 226, 131 Pac. 713, 45 L. R. A. (N. S.) 60, it is said:

“The general power of a court to reconsider its judgment and sentence and reverse, vacate, or modify it at any time during the term in which it was rendered, or to increase or diminish the sentence which it has imposed, where the original sentence has not been executed or put into operation, is undeniable. Bish. New Crim. Proc. sec. 1288, and cases cited. This power is inherent in all courts of record.”

Thus we see the judgments in these cases are not yet- finalities. The petitioner is entitled to appeal from said judgments, which includes the right to have reviewed the action of the trial court in overruling his motions to set aside and vacate the same, and the right of appeal carries with it the right to be admitted to bail pending determination of the appeal. The court had jurisdiction over the defendant and of the offense charged in each information and the judgments rendered were within the scope of the general jurisdiction of the court; the only-error being that the court failed to impose fines.

The application for the writ is therefore denied, and the petitioner will be remanded to the custody of the respondent.

ARMSTRONG and BRETT, JJ., concur.