text:
    W. B. FULMER v. STATE.
    No. A-1522.
    Opinion Filed January 18, 1913.
    (128 Pac. 1103.)
    APPEAL AND ERROR, — Review—Questions of Fact. Where the verdict of the jury has been approved by the trial court, and there is evidence in the record to sustain the verdict, or where the evidence is conflicting, the judgment will be affirmed in the absence of prejudicial error.
    (Syllabus by the Court.)

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

    W. B. Fulmer was convicted of violating the prohibitory law, and appeals.
    Affirmed.

      A. M. Works, for plaintiff in error.

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

The plaintiff in error was convicted in the county court of Choctaw county on an information which charged him with the unlawful sale of whisky to one Osborne Battiest, and was on the 13th day of September, 1911, sentenced in accordance with the verdict of the jury to be confined for 60 days in the county jail and to pay a fine of $200. From this judgment an appeal was properly perfected.

We have carefully examined the record, and our conclusion is that there is no merit in the assignments of error. The court fully and fairly stated the law of the case in the instructions given to the jury. The only assignment of error argued in the brief is that the verdict of the jury and the judgment of the court are not supported by sufficient evidence. The state’s witness Osborne Battiest testified that he paid the defendant a dollar and took a pint of whisky out of a coat hanging on the wall in the poolroom, where the defendant worked. On the part of the defense one or two witnesses testified that they saw Battiest take the bottle of whisky from the coat. The defendant, testifying on his own behalf, stated that he at the time had no connection with the pool hall; that he had been out of it several weeks; that at the time in question he saw Battiest and another Indian come into the pool hall while he was standing there as a bystander; that he did not own the coat and did not sell any liquor or receive any money from Osborne Battiest.- Where the evidence is conflicting, and there is evidence in the record to support the verdict, and the verdict has been approved by the trial court, this court will not review the evidence to determine its weight or sufficiency. The jury had the witnesses before them and could see their manner of testifying, and they, no doubt, in determining the truth took into consideration all the attending circumstances of the case.

It is also assigned as error that the punishment was excessive. There is no merit in this assignment. There is nothing to indicate that the jury acted under the influence of passion and prejudice.

Finding no error 'in the record, the judgment of the county court of Choctaw county is affirmed, and the cause remanded thereto, with direction to enforce its judgment and sentence therein.

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


source: Caselaw Access Project

author: DOYLE, J.

license: Public Domain

text:
    GEO. HENDRIX v. STATE.
    No. A-1242.
    Opinion Filed January 18, 1913.
    (129 Pac. 78.)
    1. EVIDENCE — “Accomplice.” The term “accomplice,” as used in section 6836, Comp. Laws 1909, providing that no person shall be convicted of a crime on the testimony of an accomplice without corroboration, is construed as meaning one culpably implicated in the commission of the crime of which the defendant is accused; in other words, an associate, one who knowingly and voluntarily co-operates or aids or assists in the commission of the crime.
    2. SAME — Testimony of “Accomplices” — Corroboration. A participant in a game of poker or other prohibited games played for money, cheeks, credit, or any representative of value is an accomplice of his adversary, within the meaning of the statute which requires the testimony of an accomplice to be corroborated.
    3. SAME — Sufficiency-of Evidence. In this cause, it is held that the testimony of the accomplice was sufficiently corroborated by the other evidence to justify the verdict.
    (Syllabus by the Court.)

      Appeal from Bryan County Court; J. L. Rappolee, Judge.

    George Hendrix was convicted of playing poker, and he appeals.
    Affirmed.

      C. C. Hatchett, for plaintiff in error.

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

The plaintiff in error was informed against for the offense of unlawfully playing at a certain game of poker for money. Upon his trial he was found guilty of gaming in manner and form as charged in the information. A motion for a new trial was duly filed and overruled, and he was sentenced to pay a fine of $25.

The first witness for the state, Jim Hickey, testified that he lives at Robbers’ Roost, and went on the night of the day named in the information to Brown’s Chapel schoolhouse on Twelve Mile Prairie, in Bryan county, and found there three boys, one of whom was the defendant, playing poker; that witness sat into the game, and they played about an hour, when one of the boys dropped out; that he did not know his name; that the defendant, George Hendrix, next dropped out, and witness continued playing with the other gentleman until Tom Stamford came in and put a stop to the game; that he had pleaded guilty, and paid a fine for this gambling. Tom Stamford testified that he lived on Twelve Mile Prairie, and went to the Brown’s Chapel schoolhouse before daylight about 3 o’clock in the morning, and there found four boys; that he knew Jim Hickey and the defendant, George Hendrix; that the other two he did not know; that Hickey and one of the boys were playing cards with a common deck of playing cards; that the defendant was looking on, and the other boy was asleep. The state rested, and the defendant demurred, on the ground that the evidence was insufficient to support a conviction, which was overruled. The defendant did not offer any testimony. The defendant requested several instructions, all relating to the question whether or not the witness Jim Hickey was an accomplice of the defendant. The court refused to give these instructions or any instruction relating to the proposition that the witness Hickey was an accomplice of the defendant.

The learned counsel for the defendant in his brief says:

“The only proposition presented to this court and the proposition that is squarely presented to the court in this case is: Was the witness Hickey an accomplice of the defendant? We do not now contend that if this case had been submitted to the jury under proper instructions relative to the witness Hickey being an accomplice of the defendant, and the jury had returned a verdict of guilty, but that there was sufficient testimony upon which to base the verdict. We concede that, if the jury had been properly instructed as to the law, and had then found the defendant guilty, that there were sufficient circumstances corroborating the witness Hickey for the court to permit the verdict to stand.”

The term “accomplice,” as used in our Procedure Criminal (section G83G, Comp. Laws 1909), providing 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 with the commission of the offense, in the absence of a statutory definition, includes all who are__ principals, as defined by our Penal Code as follows:

“Sec. 2045. All persons conceimed in the commission of crime, whether it be felony or misdemeanor, and whether they directly commit the act constituting the offense, or aid and abet in its commission, though not present, are principals.”

Words used in any statute are to be understood in their ordinary sense, except where a contrary intention plainly appears. An “accomplice” is defined in AVharton, Cr. Ev. pt. 440, as a person who “knowingly, voluntarily, and with common intent with the principal offender unites in the commission of a crime.” We think the term “accomplice,” as used in section 6836, must be considered as meaning one culpably implicated in the commission of the crime of which the defendant is accused; that is, an associate, one who knowingly and voluntarily co-operates or aids or assists in the commission of the crime.

The question presented for decision is, when two or more persons play a game of poker for money, checks, credit, or any representative of value, are they accomplices of each other? In the few cases where this question has been passed upon the decisions are conflicting. In the case of Commonwealth v. Bossie, 100 Ky. 151, 37 S. W. 844, the Court of Appeals of Kentucky held that each person engaged in a game of chance is not an accomplice within the rule forbidding a conviction on the uncorroborated testimony of an accomplice. The question presented was before the Supreme Court of Alabama in the case of Davidson v. State, 33 Ala. 350, and it was held that a participant in a game of cards is an accomplice of his adversary within the meaning of the statute which forbids a conviction on the uncorroborated testimony of an accomplice. In discussing the question the court said:

“When two or more persons play cards together, although each may be contending with all the rest, it is the combination of all the successive acts of all the different persons, which constitutes the game at cards. Each player, by every act of his done in pursuance of the law of the game, contributes an appointed part to the combination of acts, which together make a game with cards. It is clear, therefore, that in playing at a game with cards each player is a participant in the production of the result which the law condemns. If the statutory offense were winning at a game with cards, then adversaries in the game could not be accomplices. The loser of the game could not be said to participate in the accomplishment of the unlawful object (winning at a game). Our argument does not involve the position that adversaries in fact are accomplices in law. Antagonists in playing cards are not adversaries, as to the thing which constitutes the offense. They agree together as to the playing at a game with cards, and each voluntarily contributes to that end; and they are adversaries as to which one shall perform his part in the game with the highest skill. There is a perfect agreement among the players that each shall perform his part, and the strife between them is which shall do it most skillfully. If a community of purpose be necessary to constitute one an accomplice, our position is still maintainable. It would be absurd to contend that any other common object than to commit the offense was necessary to make one an accomplice with the accused. Those who play together at a game with cards have a common object to- play at the game, and that is the offense. They have diverse objects to play with the greatest skill, and that does not constitute the offense. Each sits down to the card table with a common purpose to do that which the law condemns; but each has an ultimate obj ect to accomplish by playing at a game with cards in violation of the law. They concur in the purpose to violate the law. They do not concur in the obj ect to be accomplished by the violation. The offense is complete before it is known who will be the winner.”

See, also, Bird v. State, 36 Ala. 279, and State v. Light, 17 Ore. 358, 21 Pac. 132. In the latter case it was held that the dealer of a game of stud poker is an accomplice with those who bet money or value at such game. Both are necessary to complete the offense, each performing a separate and necessary part in the violation of the statute.

Our Penal Code prohibits the playing of poker, and punishes every person who bets or plays at or against this and other prohibited games as guilty of a misdemeanor, punishable by a fine of not less than $25. The acts of at least two or more persons concurring together are necessary to effect a violation of the statute. Playing at cards is not the means by which the end contemplated by the statute is accomplished; but that is the very thing which constitutes the offense, and, as participation in guilt is what makes an accomplice, it is our opinion that e*-ch participant of the game prohibited by-the statute is an accomplice of his adversary within the meaning of section 6836, which forbids a conviction on the uncorroborated testimony of an accomplice.

The question as raised in the present case is purely technical. The testimony for the state shows several separate games, entirely independent of each other, thus being separate and distinct offenses, and no election by the state was demanded by the defendant. The witness Plickey testified that, when he went to the schoolhouse, he found the defendant and two others engaged in a game of' poker. Plickey’s guilt or innocence was not necessarily connected with the guilt or innocence of the defendant in the game played before he became a participant, and, if in the first game Plickey was not a participant, then he would not be an accomplice as to that particular offense, and a conviction of that would stand even on his uncorroborated testimony. Furthermore, as an accomplice his testimony was corroborated by other evidence amply sufficient to justify the verdict. If the instructions requested had been given, the verdict would certainly have been the same, and the trial court imposed only the minimum fine. This court has repeatedly held that a judgment of conviction will not be reversed, unless it shall appear from the whole record that there was error prejudicial to the substantial rights of the defendant, or by reason whereof it seems probable that injustice may have been done.

Perceiving no prejudicial error, the judgment of the county court of Bryan county will be affirmed.

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


author: PER CURIAM.

text:
    THOMAS WILSFORD v. STATE.
    No. A-1516.
    Opinion Filed January 18, 1913.
    (129 Pac. 80.)
    INDICTMENT AND INFORMATION — Defects—Objections to Evidence. When the defendant enters his plea of not guilty and waits until after the jury has been impaneled and sworn, and then for the first time questions the sufficiency of the information by objecting to the introduction of testimony on the ground of such insufficiency, the objection should be overruled, if by any reasonable construction or intendment the information can be sustained.
    (Syllabus by the Court.)

      Appeal from Oklahoma County Court; John W. Hayson, Judge.

    Thomas Wilsford was convicted of violating the prohibition law, and' appeals.
    Affirmed.

      F. W. Fischer, for plaintiff in error.

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

This is an appeal from the county court of Oklahoma county, wherein plaintiff in error was convicted of the crime of selling intoxicating liquors. On the 10th day of October, 1911, in accordance with the verdict of the jury, judgment was rendered, and he was sentenced to be confined in the county jail.for a term of four months, and that he pay a fine cf $400; in default of the payment of the fine the same to be satisfied by further confinement as by law provided. From this judgment an appeal was properly perfected.

We have carefully examined the record, and our conclusion is that the assignments of error are not well taken.

It is first contended that the evidence is insufficient to support the verdict. Two witnesses testified that the defendant was present and went with them to the room in the rear, where they purchased the beer, and that he directed them to pay the negro porter for it.

A certified copy of the internal revenue record was produced, showing payment of the special retail liquor dealers’ tax for one year from July 1, 1910. The defendant, testifying on his own behalf, admitted that he had paid the special tax; that he had paid it for the purpose of conducting a place on Reno street, as designated in the revenue stamp, but that he was not the proprietor at'508 North Broadway, where the witness bought the beer; that that place was owned by Tom Sims, and that he had known Sims 25 years, and when he was out of the place and the defendant present he would often sell cigars; that he had left Reno street, and was running a pool hall at 518' North Broadway at that time.

This court has repeatedly held that where there is evidence in the record to support the verdict, and the verdict has been approved by the trial- court, this court will not disturb the judgment.

It is also assigned as error that the court erred in overruling an objection to the introduction of testimony, on the ground that the information was insufficient. No demurrer was interposed, and this court has held that when the defendant enters his plea of not guilty and waits until after the jury has been impaneled and sworn, and then for the first time questions the sufficiency of the information by objecting to the introduction of testimony on the ground of such insufficiency, the objection should be overruled, if by any reasonable construction or intendment the information can be sustained. The information was sufficient.

Finding no error in the record, the judgment of the county court of Oklahoma county is affirmed.


text:
    CAL PROCTOR v. STATE.
    No. A-1518.
    Opinion Filed January 18, 1913.
    (129 Pac. 77.)
    INTOXICATING LIQUORS — -Illegal Transportation — Evidence—“Unlawfully Conveying.” Where a defendant is on trial for a specific offense, evidence 'of unrelated offenses is not admissible, unless relevant to the issue and tending to show motive or intent; and an unlawful intent is not an ingredient of the offense of unlawfully conveying intoxicating liquors.
    (Syllabus by the Court.)

      Appeal from Oklahoma County Court; John W. Hayson, Judge.

    Cal Proctor was convicted of wrongfully transporting beer, and appeals.
    Reversed.

      Ledru Guthrie and /. H. Beaty, for plaintiff in error.

      Chas. West„ Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   PER CURIAM.

The plaintiff in error was informed against, charged with a violation of the prohibitory law. It was alleged that he did unlawfully and wrongfully transport beer from a place in Oklahoma City, unknown, to and within a certain building situated at 122 Grand avenue in said city. He was found guilty, and his punishment assessed at imprisonment for 30 days in jail and to pay a fine of $50. The verdict was signed by five jurors. Judgment and sentence in accordance therewith was entered October 10, 1911. To reverse the judgment an appeal was perfected. It is contended that the verdict is not supported by law or the evidence in the case.

The evidence in the case was substantially as follows:

. „L. K. Reynolds testified that he was a deputy sheriff; that with three other deputies he was at the premises known as 122 West Grand on or about May 18, 1911, about 9 p. m., and the defendant drove a buggy into the alley behind the building and took a sack of beer out of the buggy and took it into the building; that he came down the stairway on which he was standing and went into the building and found a gunny sack with possibly two dozen bottles in it, and he arrested the defendant. Over an objection properly made, the court permitted the witness to testify that he had found intoxicating liquor there before.

He was further asked in his examination in chief :

“Q. You may state whether or not that is a place that is generally known that intoxicating liquors are kept and sold. By Ledru Guthrie: Objected to for the reason that it is incompetent, irrelevant, and immaterial. By the Court: Overruled, and exception allowed for the defendant. A. Yes, sir. We have visited that place on different occasions.”

J. C. Gilmore testified that he was standing out on the back stairs; that he saw the defendant get out of the buggy and go into his place of business, 122 West Grand, carrying this sack with him.

C. C. Stoner testified, as taken from the transcript:

“Q. State under what circumstances you saw this defendant at that place, at that time. A. We were executing a search warrant. Q. Where were you when you first seen the defendant? A. Standing on the steps in the rear of the building. Q. State whether or not you seen the defendant go into the back door of that building. A. Yes', sir. Q. How long after he had gone in did you go into that building? A. Just a short time; we went right in after him. Q. State whether or not you seen him drive up in the buggy and get out and go into that building. A. No,, sir; I did not see him drive up. Q. Well, state what you did see him do. A. I just seen him going in at the back door. Q. Where did you next see him? A. In the rear of 122 West Grand avenue. I was upstairs; and when I got downstairs and got in there Mr. Gilmore and Mr. Reynolds and Mr. Burkebyle were in there, and Mr. Proctor and some one else. Q. This defendant? A. Yes, sir. Q. State whether or not this sack of beer was setting on the floor. A. Yes, sir; it was setting on the floor in the sack. Q. Do you know who put that sack of beer on the floor in that room? A. No, sir; I do not. Q. Piad you ever been at 122 West Grand avenue prior to this time? A. Yes, sir. Q. What was your occasion there? A. Executing search warrants. Q. What did or do you know about this place being a place where intoxicating liquors are kept and sold? By Ledru Guthrie: Objected to for the reason that it is incompetent, irrelevant, and immaterial. By the Court: Overruled, and exceptions allowed the defendant. A. Well, I have found liquor there before.”

Aside from the question of the sufficiency of the evidence, which- we will not discuss, further than to say that it is very weak on the essential ingredient of the offense charged, that there must be a conveyance from a place beyond the premises of the defendant, however, we would not disturb the verdict for this' reason alone, but the court, over the objection of the defendant, permitted testimony concerning violations of other provisions of the prohibition act.

It is a settled rule that, upon the trial of a defendant on a specific act, evidence of other offenses committed by him is not admissible:

This, prosecution was under that subdivision of the. prohibition act which provides that it shall be unlawful “to ship or in any way convey such liquor from one place within this state to another place therein, except the conveyance of a lawful purchase as herein authorized.” And it was only necessary for the state to prove such conveyance. It was unnecessary to prove intent. For this reason the admission of this testimony did not come within any of the exceptions of the rule above stated.

Over the objection of the defendant, evidence of the reputation of the place was also admitted. In a prosecution of this kind this evidence was merely hearsay. If the prosecuting attorney expected to offer this kind of testimony, he should have charged the defendant with the offense of maintaining a place, or unlawful possession with intent to violate provisions ’ of the prohibition law.

We must, therefore, hold that the evidence admitted over the objection of the defendant was prejudicial to his substantial rights, as without this illegal testimony the jury might have refused to return a verdict of guilty.

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


author: DOYLE, J. DOYLE, J.

text:
    GEORGE ODOM v. STATE.
    No. A-1679.
    Opinion Filed December 17, 1912.
    Rehearing Opinion Filed January 22, 1913.
    (129 Pac. 445.)
    1. COURTS — Jurisdiction—Indictment and Information — Duplicity. The jurisdiction of a district court over a felonious assault is not defeated because the information charging the offense may be duplicitous, nor on the theory that county courts, under Const, art. 7, see. 12, have exclusive jurisdiction of an offense, the commission of which is necessarily included in that charged in the information.
    2. APPEAL — Parole—Dismissal. Where a plaintiff in error accepts a parole pending the determination of his appeal, he thereby waives the right to have his appeal determined, and when the attention of the court shall be called judicially to the fact that a parole has been granted and accepted, the appeal will be dismissed.
    (Syllabus by the Court.)

      Appeal from District Court, McIntosh County; Preslie B. Cole, Judge.

    George Odom was convicted of aggravated assault, and appeals.
    Appeal dismissed.
    /. B. Lucas, ALies & Burford, and Moman Pruiett, for plaintiff in error.

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

The plaintiff in error was convicted of the crime of assault with intent to do bodily harm, and was sentenced, in accordance with the verdict of the jury, to imprisonment for one year in the penitentiary. The judgment and sentence was entered on October 6, 1911.

The indictment charged that on December 3, 1910:

“George Odom did unlawfully, feloniously and of his malice aforethought and without authority of law, and without justifiable or excusable cause make an assault upon the person of one Tom Stout, with the felonious intent to do bodily harm to him, the said Tom Stout, with and by means of a certain gun or revolving pistol, the said gun or revolving pistol being then and there a dangerous and deadly weapon, by attempting to shoot at the said Tom Stout, and by striking the said Tom Stout with the said gun or revolving pistol, thereby inflicting a serious, painful, and dangerous wound or wounds in and upon the head of him the said Tom Stout, contrary,” etc.

On arraignment the defendant entered a plea of not guilty.

The proof on the part of the prosecution tended to show the following facts:

Thomas Stout testified that on December 3, 1910, he was city marshal of the city of Checotah; that about nine p. m. of that day he was walking from the depot to town with Jimmie Gaskell and Billy Rhynehart, and just as they passed the express office, click-click went a gun, and the defendant held a gun in his face; that he threw his left hand up and pushed the gun away and said, “What is the matter, Mr. Odom?” The defendant said: “Don’t talk to me, you g-- d- cowardly son of a b-; I would rather kill you as a dog; I would rather kill you as to look at you,” and, “hit me on the top of the head and knocked me down and pointed the gun in my breast and said if I didn’t go home he would kill me.” That he was bleeding from a wound on his head and went to a doctor. That the gash in his head was not very large but bled freely.

Jimmie Gaskell testified that the gun held by defendant looked like a forty-five caliber pistol; that the defendant cocked it before he struck Stout; that the defendant hit Stout twice with a gun over the head.

William Rhynehart, Ruben Self, and Sam Self testified substantially to the same state of facts.

Defendant, testifying on his own besalf, denied that he had a pistol; that he either struck Stout with his fist or with a whisky bottle. On cross-examination he admitted that he was convicted in the police court of Checotah for having a pistol on that occasion.

The only question presented by this appeal is the question of jurisdiction. The learned counsel in their brief say:

“If it is true that the indictment in this case charges both a felony and a misdemeanor in the same count, that under such indictment the defendant can rightfully be convicted of only the lesser offense, in this case a misdemeanor, then under our law the district court had no jurisdiction to try the cause, and in case of conviction pass sentence upon the accused.”

We think that the contention is wholly without merit. The indictment .charges a felony. The guilt of the defendant was clearly established, and there is no error in the record. It is our opinion that the appeal in this case is wholly without merit. The judgment of the district court of McIntosh county is, therefore, affirmed.

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

Opinion on Rehearing.

DOYLE, J.

This cause was submitted at the November term, and on December 17th was affirmed. A petition for rehearing was granted and the case was assigned for the January term. It has now been called to the attention of the court that plaintiff in error has been granted a parole by the Governor, which has been duly accepted by him. The provisions of our act of Criminal Procedure which allow appeals by defendants, as a matter of right, from any judgment of conviction against them, do not give the right to a paroled plaintiff in error to still maintain and prosecute his appeal. It is our opinion that the right of appeal does not exist when the defendant is not actually or constructively in custody, so that the judgment and sentence of the trial court can be enforced if affirmed by the appellate court. ' It would be a farce to proceed to determine the merits of appeals unless the courts had control over the plaintiffs in error, so that their judgments might be made effective. A plaintiff in error by accepting a parole abandons his appeal and waives the right to have it determined.

Therefore, it is considered that this appeal be, and the same is hereby dismissed, and the cause remanded to the district court of McIntosh county.

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


author: FURMAN, J. FURMAN, J.

text:
    AGNES GILBERT v. STATE.
    No. A-1421.
    Opinion Filed January 18, 1913.
    Opinion on Rehearing Filed January 25, 1913.
    (128 Pac. 1100. 129 Pac. 671.)
    1. EVIDENCE — Character of Accused. Good character of a defendant as to the issue charged is always admissible and is material in the trial of a criminal case, not only as a matter of defense, but also as a matter of mitigation.
    2. TRIAL — Evidence—Objections. Accused, on cross-examination of a state’s witness, asked his opinion as to her reputation in the community with reference to the quality involved in the issue, to which the state objected because no proper foundation had been laid and because it was not proper cross-examination. Counsel admitted that it was out of order, but desired permission to prove it then to save time, to which the prosecuting attorney replied that the evidence was not admissible until accused had testified or until there was some showing of self-defense. Held, that such statement constituted a withdrawal of his objection that the evidence was not proper cross-examination and limited the objection to the special ground stated.
    3. HOMICIDE — Good Character — Evidence — Admissibility. In a trial for murder, it is error for the trial court to hold that evidence of good moral character is not admissible until after a defendant has testified, or until after there was some show of self-defense.
    4. WITNESSES — Cross-Examination—Bias—Friendship. It is competent on cross-examination to prove by a witness any fact which tends to show bias, prejudice, friendship, or enmity, or the relationship of the witness to one of the parties to the ease.
    5. CONSTITUTIONAL LAW — Appeal—Harmless Error. A fair trial when charged with crime is the birthright of every citizen of Oklahoma, it matters not how poor and humble a defendant may be, and, if this is denied him, the fact that no unfairness was intended by the trial court will not cure the error committed.
    (Syllabus by the Court.)

      Appeal from Superior Court, Oklahoma County; B. D. Oldfield, Judge.

    Agnes Gilbert was convicted of- manslaughter in the secon& degree, and she appeals.
    Reversed and remanded.

      Pruiett & Sniggs, for appellant.

      Charles West, Atty. Gen., for the State.
   FURMAN, J.

W. D. Neff, a witness for the state, being upon the witness stand, was asked by counsel for appellant on cross-examination if he knew the general reputation of appellant for being a peaceable, quiet, law-abiding, hard-working citizen in the community in which she resided, to which counsel for the state objected upon the ground that the evidence was incompetent, irrelevant, and immaterial, because no proper foundation had been laid for the introduction of such testimony, and also upon the ground that it was not proper cross-examination. Counsel for appellant stated that he knew he was out of order, but he desired permission to prove it now and save time, and asked if the county attorney insisted upon the objection that the evidence was out of order on this ground. To which the prosecuting attorney replied, “This evidence is not admissible and never is admissible until the defendant has testified, until there is some show of self-defense.” This was equivalent to withdrawing the objection that this was not proper cross-examination and resting the objection upon the special grounds made. The court sustained the objection upon this ground, and counsel for appellant excepted.

It is always permissible for a person charged with the crime of murder to offer his or her general reputation in the community in which he or she resides as being a peaceable, quiet, law-abiding citizen, and such testimony is not, confined to cases where the doctrine of self-defense arises, neither is it necessary that the defendant should first take the witness stand to render such testimony competent. Good character is admitted for two purposes : First, to raise the presumption that there must be some mistake in the testimony of the state, upon the ground that a person of good character would not have committed the crime charged, and for this purpose it may be sufficient to create in the minds of the jury a reasonable doubt of the defendant’s guilt; second, it may be introduced in evidence for the purpose of mitigation,, and it is always admissible for either one or the other of these purposes. It was therefore error for the trial court to sustain the objection made upon the ground offered, viz., that such evidence was not admissible until after the defendant testified or until there was some evidence of self-defense. Under this ruling a defendant would be forced to take the stand and testify in his own behalf or offer evidence of self-defense by other witnesses before evidence of character would be admissible. This is not the law. It is not proper to reject any legal evidence upon the ground that the defendant has not testified. Such an idea is in direct conflict with our statute, which in express terms provides that the failure of the defendant to take the witness stand in his own behalf shall not raise any presumption of his guilt and must not in any manner be referred to during the trial. In this case the jury convicted appellant of manslaughter .in the second degree, which entirely eliminated murder and manslaughter in the first degree and the doctrine of self-defense. The punishment for manslaughter in the second degree may be by imprisonment in the penitentiary or it may be by imprisonment in the county jail not exceeding one year, or by a fine not exceeding $1,000, or by both such fine and imprisonment. The jury might have assessed the punishment of appellant at imprisonment for one hour or by a fine of $1, or both; for, while manslaughter in the second degree is a felony, it may also be punished as a misdemeanor. The evidence of the character of appellant was therefore of the utmost importance in this case, and it was her legal right to prove it to be good by any reasonable number of witnesses.

It is true that appellant is only a poor washerwoman and is without friends, without influence and without money, and is dependent upon the charity of her attorneys for her defense; but she is a human being, and her rights are as sacred in the eyes of the law as though she were the wealthiest and most influential society favorite in Oklahoma. It is the duty of this court to see that the poor and friendless are fully protected in the enjoyment of the rights given them by the law.

The court did not err in the other rulings complained of.

For the error above pointed out, the judgment of the lower court is reversed, and the cause is remanded for a new trial.

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

OpinioN on Rehearing.

FURMAN, J.

It is contended that the original opinion filed in this cause is not supported by the recitals in the record.

W. E. Neff testified as a witness for the state. His examination in chief appears on pages 35, 36, and 37 of the case-made. The record then discloses that the following took place: “Mr. Pruiett: I desire to ask the witness some questions which will be out of order, but I do it to save time, and to save bringing the witness back.” The witness was then asked if he was acquainted with the defendant. The answer being in the affirmative, the witness was asked the further question:

“Q. Are you acquainted with her general reputation for being a peaceable, quiet, law-abiding, hard-working, honest citizen in this community? Mr. Moss: Objected to as incompetent, irrelevant, and immaterial, no proper foundation laid for the introduction of such testimony, and improper cross-examination.”

If the matter had ended here, then the question for decision would have been as to whether or not new matter of this sort ' can be brought out on cross-examination. The ancient rule was that this could not be done, but the English and Canadian courts and many of the courts of the American states now hold that, where a witness is placed on the stand to prove any fact, he may be cross-examined by the opposing side as to the entire case. See Rogers v. State, ante, 127 Pac. 365. It is not necessary, however, to discuss and decide this question now, because a further examination of the record will show that the objection that it was not proper cross-examination was waived, and that an entirely new objection was interposed and sustained by-the court.

The record on this subj ect is as follows:

“Mr. Pruiett: Do they object on the ground that it is out of order?

“Mr. Moss: That evidence is not admissible, and never is admissible until the defendant has testified — until there is some show of self-defense.

“Mr. Pruiett: We except to the remarks of counsel, the prosecuting attorney, that that evidence is never competent unless the defendant testifies, and we now ask the court to instruct the jury that that remark is prejudicial to the rights of the defendant, and should not be considered by them. If your honor please, who ever heard tell of a lawyer saying that a defendant on trial for murder could not place before twelve triers 'her reputation for, being a peaceable, law-abiding citizen when she is charged with murder.

“Mr. Moss: You hear it now from me.

“Mr. Pruiett: And, if you will find one decision, I will leave the courtroom, and turn the case over to you, if you will find one single decision that will support that rule, that the defendant must testify to make that evidence competent. But I say as a lawyer that testimony as to good reputation is always competent. The law books say that it is one of the most precious assets a citizen has when charged with crime. I am shocked at the idea of counsel claiming to represent the county of Oklahoma saying that testimony would not be competent. If he objects to it that at this time it is not competent, because out of order and not proper cross-examination, I agree with him, but I am offering it out of order to save time so we can get through with this case today. That is the only purpose.

“Mr. Hooker: The only object that testimony of—

“The Court: Proceed. The motion is. overruled.

“Mr. Pruiett: Exceptions. If the court please, I don’t want the court to commit error, but, if I can’t in fifteen minutes show your honor where it is reversible error for a prosecuting attorney to make a statement of that kind, I will apologize to the court.

“The Court: We will take it up when we reach it.

“Mr. Pruiett: We will never reach it again by me. We will let it stand. What do you do with the objection?

“The Court: They have both been ruled on. The objection was sustained, and the motion overruled.”

To all of which counsel for appellant reserved exceptions.

This is a verbatim copy of the case-made as approved by Mr.- Moss, the assistant county attorney, and solemnly certified to by the trial judge, duly attested by the seal of his court. So it is seen that the record not only sustains all that was said in the original opinion touching this matter, but that it also shows further prejudicial error. We should have discussed this matter fully in the original opinion, but we have so many cases on hand which must be disposed of that we omit unnecessary discussion as far as possible. Mr. Wigmore lays it down as a rule to which the law recognizes no exception, that the good character of a defendant is always admissible in evidence in ’his behalf. See 1 Wigmore on Evidence, sec. 55. This court has repeatedly reversed convictions because evidence of good character was not received in the trial court, and has always held that such evidence was essentially relevant. See Le Roy Dickinson v. State, 3 Okla. Cr. 155, 104 Pac. 923; Frank Friel v. State, 6 Okla. Cr. 532, 119 Pac. 1124.

We have never seen an authority sustaining the ruling complained of. The effect of this ruling was to inform the jury that evidence of good character would not be admissible and could not be considered until the defendant had testified, or until there was some show of self-defense. This is not, and has never been the law. To say that legal evidence should not be received in the trial of a criminal case until the defendant has testified violates the spirit ajid the letter of our statute, which provides that in a criminal case, if the defendant does not elect to testify, this circumstance shall not be referred to during the trial, and that it shall not raise any presumption of guilt against him. We are unable to understand the reasoning which sustains this ruling. It certainly has no foundation in the just and fair laws of Oklahoma.

It is claimed that the error of the trial court was cured because one witness was permitted to testify as to her good character. But this was after appellant had been practically forced by this ruling to testify in her own behalf. There are two reasons why this does not cure the error previously committed: First, because the effect of this was to limit the testimony of good character to one witness. As was said in the original opinion, a party charged with crime has the right to prove any material fact by a reasonable number of witnesses. The second reason is because the error in the ruling of the trial court had created in the minds of the jury a false standard by which this question should be decided, and had, in effect, told the jury that evidence of character could not be considered by them unless the defendant should first testify, or unless the jury should also find'that there was evidence of self-defense.

Upon a re-examination of this case, we find that on cross-examination appellant attempted to show that one of the principal witnesses for the state was a member of a fraternal secret society of which deceased had been a member. This was not permitted by the trial judge, upon the ground that such evidence was immaterial, irrelevant, and incompetent. The law is that anything which tends to show bias, prejudice, friendship, or enmity, or the relationship of a witness to one of the parties to a case, is material, and may be inquired into on cross-examination for the purpose of affecting the weight to be given the testimony of such witness. See Newton Henry v. State, 6 Okla. Cr. 430, 119 Pac. 278. The weight to be given testimony is a question exclusively for the jury, but its admissibility is a question of law for the court. The trial court erred in not allowing appellant to question this witness upon this subject.

A fair trial, when charged with crime, is the birthright of every citizen of Oklahoma, it matters not how poor and humble the defendant may be or how numerous and influential those who are interested in the prosecution. We express no opinion as to the guilt or innocence of appellant. But it is manifest from the record that by the ruling of the trial court appellant was not allowed to introduce before the jury material and competent evidence which could and should have been considered by them in passing upon her guilt or innocencej and that appellant was practically forced by the trial court to take the stand as a witness in her own defense." We do not believe that any unfairness was intended, but we are dealing with results, and not with intentions.

The application for a rehearing is not well taken, and is denied.

ARMSTRONG, P. J., and DOYRE, J., concur.


text:
    C. M. NICHOLS et al. v. STATE.
    No. A-1483.
    Opinion Filed January 21, 1913.
    (129 Pac. 673.)
    1. INTOXICATING- LIQUORS — Injunction—Contempt—Proceedings to Punish — Constitutional and Statutory Provisions. The pro- ' vision of the prohibition enforcement act (section 13, c. 70, Sess. Laws 1910-11) that “all places where persons congregate or resort for the purpose of drinking any such liquor, are hereby declared to be public nuisances,” and that “the Attorney General, county attorney, or any officer charged with the enforcement of any of the provisions of this act, of the county where such nuisance exists, or is kept, or is maintained, may maintain an action in the name of the state to abate and perpetually enjoin the same. The injunction shall be granted at the commencement of the action, and -no bond shall be required. Any person violating the terms of any injunction granted in such proceeding shall be punished, as for contempt, by a fine of not less than one hundred dollars nor more than five hundred dollars, or by imprisonment in the county jail not less than thirty days nor more than six months, or by both such fine and imprisonment” — is a constitutional exercise of legislative authority under section 25 of the Bill of Rights (33 Williams), providing “the Legislature shall pass laws defining contempts and regulating the proceedings and punishment in matters of contempt,” and is not in conflict with the constitutional provision, “the county court shall have jurisdiction concurrent with justices of the peace in misdemeanor eases, and exclusive jurisdiction in all misdemeanor cases of which the justices of the peace have not jurisdiction.” Article 7, see. 12 (197 Williams).
    2. SAME — Injunction—Proceedings to Punish Contempt — Constitutional Guaranties. It is a criminal contempt to violate or disobey, out of the presence of the court or judge sitting as such, any order of injunction or restraint made or rendered by any court, under this provision of the prohibition enforcement act. The court, not having any personal knowledge of the facts, cannot proceed, except by an accusation in writing under oath, specifically charging the facts constituting the violation.’ By the filing of this affidavit and the issuance of attachment or rule to show cause, a criminal action is commenced, and the accused is entitled to' all the constitutional guaranties in criminal prosecutions secured by the Bill of Rights. Article 2, see. 20 (28 Williams’ Const.).
    3. JURY — Right to Trial by Jury — Proceedings for Contempt. On the trial of persons charged with contempt in violating or disobeying the terms of an injunction granted under the provisions of the prohibition enforcement act (section 14, e. 70, Sess. Laws 1910-11), the constitutional right of the accused to a trial by jury is secured by the proviso to section 25, of the Bill of Rights (Const, art. 2, sec. 25), providing: "That any person accused of violating or disobeying, when not in the presence or hearing of the court, or judge sitting as such,, any order of injunction, or restraint, made or rendered by any court or judge of the state shall, before penalty or punishment is imposed, be entitled to a trial by jury as to the guilt or innocence of the accused."
    4. CONTEMPT — Proceedings to Punish — Nature and Form — "Criminal Contempt." Contempts which are prosecuted to preserve the power and vindicate the dignity of the court, and punish the offender, are criminal contempts, and the proceedings for punishment should conform as nearly as possible to proceedings in criminal cases.
    (Syllabus by the Court.)

      Appeal from District Court, Wagoner County; R. C. Allen, Judge.

    C. M. Nichols and another were convicted of contempt, and appeal.
    Reversed and remanded.

      Kistler & Haskell, for plaintiffs in error.

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

The plaintiffs in error were, by proper proceedings under the statute,, enjoined and restrained from keeping, maintaining, operating, carrying on, or permitting to be kept, maintained, carried on, or operated, in and upon certain described premises, or at or in any other place, in Wagoner county, any place for selling unlawfully or keeping for sale intoxicating liquors. Upon affidavit of the county attorney of Wagoner county charging them with contempt of court in violating the terms of the injunction> an order of attachment was issued to the sheriff, and they were immediately arrested and brought before the court, whereupon .they filed their verified answer, denying in detail the truth of the alleged facts set forth in the affidavit of the county attorney as constituting the charge of contempt against them. The court announced that he would forthwith proceed to hear the case on oral evidence. Whereupon counsel for plaintiffs in error demanded a trial by jury, which demand was then and there denied by the court, and exception allowed, and the trial proceeded. Upon the hearing in these proceedings, the court found that plaintiffs in error had violated the injunction by selling intoxicating liquors, and were in contempt of court and subject to punishment therefor, and adjudged that C. M. Nichols pay a fine of $500 and undergo confinement in the county jail for a term of six months, and, in default of the payment of said fine, that he be further confined until said fine is satisfied as provided by law, and adjudged that Carrie Nichols pay a fine of $100 and undergo confinement in the county jail for a term of 60 days, and, in default of the payment of said fine, that she be further confined until said fine is satisfied as provided by law. From these judgments an appeal was properly perfected.

It is only necessary for this court to determine whether the district court erred in overruling the demand of plaintiffs in error for trial by jury of the question of their guilt or innocence of said alleged contempt. Article 2, sec. 25, Bills of Rights, Const. (33 Williams’), provides:

“The Legislature shall pass laws defining contempts and regulating the proceedings and punishment in matters of contempt: Provided, that any person accused of violating or disobeying, when not in the presence or hearing of the court, or judge sitting as such, any order of injunction, or restraint, made or rendered by any court or judge of the state, shall, before penalty or punishment is imposed, be entitled to a trial by a jury as to the guilt or innocence of the accused. In no case shall a penalty or punishment be imposed for contempt, until an opportunity to be heard is given.”

Section 14, c. 70 (Sess. Laws 1910-11), of the prohibition enforcement act, in part, provides:

“All places where persons congregate or resort for the purpose of drinking any such liquor, are hereby declared to be public nuisances * * * the Attorney General, county attorney, or any officer charged with the enforcement of any of the provisions of this act, of the county where such nuisance exists, or is kept, or is maintained, may maintain an action in the name of the state to abate and perpetually enjoin the same. The injunction shall be granted at the commencement of the action, and no bond shall be required. Any person violating the terms of any injunction granted in such proceeding shall be punished, as for contempt, by a fine of not less than one hundred dollars nor more than five hundred dollars, or by imprisonment in the county jail not less than thirty days nor more than six months, or by both such fine and imprisonment.”

The proceeding in this case was criminal, not remedial. Criminal contempts are prosecuted to preserve the power and vindicate the dignity of the courts, and to punish the offender. By the county attorney filing the affidavit and the issuance of attachment thereon a criminal action was commenced. It has been suggested that a violation of the statute constitutes a misdemeanor, of which county courts have exclusive jurisdiction. The suggestion is without merit. The statute is a proper exercise of the power granted by section 25 of the Bill of Rights, supra, in words as follows:

“The Legislature shall pass laws defining contempts and regulating the proceedings and punishment in matters of contempt.”

The power to fine and imprison for contempt is a necessary attribute of a court. It is a power inherent in all courts of record, and co-existing with them by the wise provisions of the common law. A court without the power to enforce its orders, judgments, or decrees would be a disgrace to the laws which created it. Such a condition could but result in the degradation of courts, and to make them truly subjects of contempt. It is a criminal contempt to violate or disobey, out of the presence of the court or judge sitting as such, the terms of any order of injunction, made or rendered by any court or judge under this provision of the prohibition enforcement act. The court not having any personal knowledge of the facts, cannot proceed, except by an accusation in writing under oath, specifically charging the facts constituting the • violation. By the filing of this affidavit and the issuance of attachment or rule to show cause, a criminal action is commenced and the accused is entitled to all the constitutional guaranties in criminal prosecutions, as provided by section 20 of the Bill of Rights, Const., art. 2 (28 Williams’), as follows:

“In all criminal prosecutions the accused shall have the right to a speedy and public trial by an impartial jury of the county in.which the crime shall have been committed: Provided, that the venue may be changed to some other county of the state, on the application of the accused, in such manner as may be prescribed by law. He shall be informed of the nature and cause of the accusation against him and have a copy thereof, and be confronted with the witnesses against him, and have compulsory process for obtaining witnesses in his behalf. He shall'have the right to be heard by himself and counsel. * * * ”

Unquestionably the court erred in denying the demand of the defendants for a trial by jury. For this reason the judgments of conviction are reversed, and the cause remanded to be proceeded with in accordance with the views herein expressed.

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