text:
    J. C. HAMPTON v. STATE.
    No. A-966.
    Opinion Filed May 7, 1912.
    (123 Pac. 571.)
    1. TRIAL — Reception of Evidence — Appeal — Discretion of Trial Court, (a) The fact that evidence may have been introduced in chief by the state does not necessarily prevent its introduction as evidence in .rebuttal. The introduction of such evidence is a matter of discretion of the trial court, and will not be ground for reversal, unless an abuse of this discretion is shown.
    (b) For evidence which might have been introduced in chief, but which was properly introduced in rebuttal, see opinion.
    2. HOMICIDE — Evidence — Other Offenses — Conduct of Defendant. (a) Any fact is admissible in evidence which tends to shed light upon the intention of a defendant charged with the commission of a crime for which he is upon trial, even though it may tend to prove a separate offense.
    (b) In a homicide ease, it is competent to put in evidence the actions, conduct, and general.demeanor of a defendant before the killing, for the purpose of proving that he was armed and in a vicious humor, provided only that such conduct is so near the time of the homicide as to tend to show the state of mind of the defendant at the time of the killing.
    3. WITNESSES — Comments of Counsel — Competency of Witness— Husband and Wife, (a) Where it -appears from the record that the wife of a defendant who is upon trial is a material witness in his behalf, and he does not place her on the witness stand or account for his not doing so, such failure of the defendant to call his wife as a witness in his behalf is a proper subject of comment to the jury by counsel for the state.
    (b) The statute which prohibits husband and wife from being witnesses against each other is intended to protect confidential communications between them, but does not deprive the husband or wife of the testimony of the other as to any communications between them which would be competent evidence, were it not for the marital relations.
    (c) The statute referred to is for the benefit of the husband and wife, and such communications are rigidly protected by the law from disclosure, except where this protection is waived by the party upon trial; and the husband or wife may waive the provisions of the statute by calling the other party to the marital relations as a witness. For the reasons - supporting this construction of the statute, see opinion.
    (Syllabus by the Court.)

      Appeal from District Court, Bryan County; Jas. R. Armstrong, Judge.

    J. C. Hampton was convicted of manslaughter in the first degree, and his punishment assessed at 30 years’ confinement in the state penitentiary, and he appeals.
    Affirmed.

      W. F. Semple and Utterback, Hayes & McDonald, for ap pellant.

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

First. Upon the trial of this cause, the state placed Richard Nichols on the stand to testify in rebuttal, and, over the repeated objections of counsel for appellant, said witness was permitted to state that he was present and witnessed the difficulty in which the appellant killed the deceased, and said witness saw the appellant, J. C. Hampton, just before the fatal shot was fired, and that the witness saw the right hand of the deceased at the time he was shot by appellant, and knows what the deceased was doing with his right hand at that time, and that the deceased did not make any motion with his right arm toward his right side or right pants’ pocket at the time he was shot by appellant.

Counsel for appellant objected to the introduction of this testimony, on the ground that it was not in rebuttal of anything testified to upon the part of appellant, and should have been introduced as evidence in chief. Appellant was a witness in his own behalf, and testified to a state' of facts which were intended to make out a case of self-defense. He testified that he was first assaulted by the deceased, and-then proceeds to testify as follows:

“A. After he struck that lick, it staggered me back a step, I guess, or such a matter, and he stepped back just a half a step, I reckon, or something like that. I know he made a step, and throwed his hand back to his right side. Q. Show the jury the position he was in, Jule. A. I don’t know whether I can show it. I can’t tell just exactly where his hand was. He was back that way; I couldn’t see it. I heard him exclaim, ‘Damn you, I will kill you,’ and he had his hand back that way. Q. What did you do then, Jule? A. L — ■ Q. Show them what you did. A. I jerked my gun and shot as quick as I could; just jerked it out and shoved it out and shot.”

From this it is evident that the appellant tried to make the jury believe that at the time he fired the fatal shot he had reasonable ground to believe that the deceased was attempting to draw some weapon with which to kill him. So it is seen that the testimony admitted on the part of the state was flatly contradictory of appellant’s evidence. While the testimony of the witness Nichols might have been introduced by the state as evidence in chief, yet it does not necessarily follow that it should therefore have been rejected as evidence in rebuttal. The introduction of such evidence is a matter of discretion with the trial court, and will not be ground for reversal, unless an abuse of this discretion is shown. Shires v. State, 2 Okla. Cr. 98, 99 Pac. 1100; Harvey v. Territory, 11 Okla. 156, 65 Pac. 837; Cochran v. United States, 14 Okla. 108, 76 Pac. 672. We do not think that the court erred in admitting the evidence objected to.

Second. Mrs. Lizzie Fahy testified on the part of the state that on the night on which the deceased was killed the witness attended an entertainment or show, that while there she saw the appellant, and heard him say to Mr. Boysdon something about some one taking property away from him at Savannah, and heard appellant say: “I ain’t going to stand it; before I will let them have it, I will knock the block off of them. No; I will shoot it off of them.” She also heard appellant say in the same conversation, “I was man enough to serve a term in the penitentiary once, and I am man enough to serve another term.” Appellant objected to all of this testimony, upon the ground that it was incompetent, irrelevant, and immaterial. The same witness testified that after the show broke up and the parties started home the shooting occurred in which the deceased lost his life. Mrs. Mary Boydson, a witness for the state, testified that she heard the same conversation and statement made by appellant as previously testified to by Mrs. Fahy, and that the conversation occurred an hour or two before the time of the shooting. To this testimony, the same objection was made.

Ira Smith testified in behalf of the state that he was present at the show which was given just before the difficulty in which the deceased lost his life. That he saw the appellant there. That he heard the appellant say: ‘T have settled that McGregor matter; but old man Lamb is trying to get the rest of what I have got, and he has started something he can’t get away with.” Witness then said to appellant: “I understand that you and old man Lamb are lodge brothers and belong to the same lodge, and a few minutes conversation with you might 'be worth a whole lot to me.” That appellant said that he and Macon Green and another man was going to get the old man that night, and said, “Will you stay with me?” To which witness replied, “I will do anything I can for you that is right.” That witness and appellant then took a drink, and about that time Dr. Rappolee passed along, and appellant says, “There goes the son of a bitch now,” and said, “Let him take this, if he can,” and produced a gun. That witness told appellant that the man passing was Dr. Rappolee. Appellant then hollered and asked the man if he was Dr. Rappolee. The man replied, “Yes,” and appellant asked him to come back and take a drink. That appellant told witness that he was going to get the deceased at his front yard gate, or between the place where the show was being held and the front yard gate. That witness saw a pistol in the hands of appellant at the time. When appellant was upon the witness stand, he was asked with reference to these conversations. He testified that he did use some such language.

In the light of this evidence, we think that the testimony of Mrs. Lizzie Fahy and Mrs. Mary Boysdon was properly admitted, because it tended to prove that the appellant was armed and in a vicious humor just before the killing, and it threw light- upon the main transaction.

In the case of Williams v. State, 4 Okla. Cr. 523, 114 Pac. 1114, this court held that any fact is admissible in evidence which tends to shed light upon the intention of a defendant in the commission of a crime for which he is upon trial, even though it may prove a.separate offense. In a homicide case, it is competent to put in evidence the actions, conduct, and general demeanor of a defendant before the killing, for the purpose of proving he was armed and in a vicious humor,- provided that such conduct is so near the time of the homicide as to tend to show the state of mind of the defendant at the time of the killing. For a full discussion of this question and citation of authorities thereon, see Williams v. State, supra.

Third. Upon the trial of this case, in the closing argument for the prosecution, counsel for the state addressed the jury as follows:

“Ah, gentlemen, is it not a remarkable fact, further, that he builds his defense upon what his wife told him, and she sits here by his side ? Under the law, she is a competent witness in his behalf; but the state is not permitted to reach out and place her upon the stand against him. Her mouth is closed, so far as the state is concerned. If what he says about her — if what he says that she said to him is true, if it is unlike what he says everybody else told him, why in the name of human justice don’t he put her on the stand and have her tell about it?”

This argument was objected to by counsel for appellant, and a motion was made requesting the court to exclude it from the jury. This motion was overruled, to which ruling of the court appellant excepted. These facts all appear by proper recitals in the case-made.

In the case of Rhea v. Territory, 3 Okla. Cr. 231, 105 Pac. 314, this court held that in a criminal case, where it appears from the record that the wife of a defendant is a material witness in the case in his behalf, and he does not place her on the witness stand, such failure upon the part of the defendant to call his wife as a witness may be commented upon by counsel for the state. AVe are still of the same opinion.

Counsel for appellant rely upon section 6834, Comp. Laws 1909, which is as follows:

“Except as otherwise provided in chapter on Procedure, Criminal and Procedure, Criminal — Before Justice, the- rules of evidence in civil cases are applicable also in criminal cases; provided, however, that neither husband nor wife shall in any case be a witness against the other except in a criminal prosecution for a crime committed one against the other, but they may in all cases be witnesses for each other, and shall be subject to cross-examination, as other witnesses, and shall in no event on a criminal trial be permitted to disclose communication made by one to the other except on a trial of an offense committed by one against the other.”

In their brief, counsel for appellant say:

“If the wife had been called as a 'witness by the defendant, she could not have divulged communications made by her to her husband, the defendant, at that time, and could not have divulged communications made by her husband to her.”

With this contention, we cannot agree. It makes a discrimination against and places a burden upon the marital relation. The true purpose and effect of this statute is to protect confidential communications between the husband and wife, where such communications, if testified to by either husband or wife, would be injurious to the party against whom the evidence was admitted. It would indeed be a narrow and unjust construction of this statute to hold that it deprives the husband of any testimony which his wife could give in his behalf which would be competent, if she was not his wife.

Section 6487, Comp. Laws 1909, is as follows:

“The rule of common law that penal statutes are to be strictly construed has no application to this chapter. This chapter establishes the law of this state respecting the subjects to which it relates, and its provisions and all proceedings under it are to be liberally construed, with a view to promote its objects, and in furtherance of justice.”

We therefore hold that the object of this statute, with reference to the testimony of the wife or husband against or in favor of the other, was adopted for the purpose of protecting confidential relations between them, and was intended for the benefit of both husband and wife, and it cannot be construed so as to deprive either of them of any right which they would otherwise have; and that it is competent for the wife or husband to testify as to any communication passing between them which might be beneficial to the party upon trial, provided only that such communication was otherwise free from objections, and that such wife or husband is called as a witness by the other.

Society is interested in preserving the harmony of the marriage relations, and anything which tends to disrupt those relations is to be discountenanced. The law therefore protects all those private confidences which the relation of husband and wife holds as sacred, the disclosure of which might introduce strife, malevolence, and discord into the married life.

For a splendid brief and citation of authorities on the subject of communications made in confidence as privileged communications, see Hamilton v. Plunkett, 136 Ga. 72, 70 S. E. 781, 35 L. R. A. (N. S.) 583.

To further illustrate the principle that a statute should be so construed as to accomplish the purpose for which it was enacted, we will take the statute which makes it a crime for any person confined in prison to escape therefrom, or for any person to assist any prisoner so confined in escaping. The statute does not say a word as to the legality of the confinement, or as to the intention with which the escape is made or aided to be made. On the face of the statute, the offense is complete when any person confined in jail as a prisoner escapes or is aided to escape therefrom. Suppose that a man is confined as a prisoner in jail without warrant or the least' show of lawful authority, who will contend that it would be an offense for such person to escape from such confinement and to regain liberty ? Grant that a prisoner is legally confined, suppose the jail catches on fire, and he escapes therefrom to save his life, or suppose that the jailer is absent, and other persons assist a prisoner "so confined to escape from jail, who will be bold enough to say that, under either of these circumstances, a crime has been committed? Yet, in each of them, the letter of the law would be violated. Suppose a husband, upon his return to his home, finds that during his absence a brutal crime has been committed upon his wife, and she informs him that' her despoiler had threatened to kill her and her husband, also, if she dared to tell of the outrage committed upon her, and, on account of what had happened and the threat made, the husband kills this man under circumstances which would raise the issue of self-defense, would it not be an outrage upon humanity and a travesty upon justice to say that the wife was incompetent as a witness in such case in her husband’s behalf as to the facts which she had communicated to him? There was an ancient act of Parliament that whoever shed blood on the streets of London should be guilty of a felony. A man fell down in a fit on the streets of London. A doctor was sent for, who bled the man to relieve his malady. This doctor was arrested, tried, and convicted for shedding blood on the streets of London; but, on appeal to the House of Lords, it was declared by that body that, while he had violated the letter of the law, he had not violated its spirit; that the law had been enacted by Parliament for the purpose of suppressing breaches of the peace, affrays, and riots on the streets of London, and that this was its sole purpose; and that it did not include within its penalty any acts which were done for the preservation of the peace or of human life. But we have even a higher authority than this. If we go to the source of all law, sacred writ, we will find written there: “The letter killeth; ’tis the spirit that giveth life.” Looking, then, to the intent and purpose of the statute, rather than to its letter, it would be an insult to the intelligence of the Legislature and to American manhood and womanhood to hold that the Legislature intended to refuse to permit a wife to testify as to communications made by her to her husband which would assist in presenting a defense in his behalf. This court will never hold that a husband is not justified in believing his wife and in acting upon communications received from her, and that when he so acts she is not a competent witness regarding such communications in his behalf, provided only that such communications are otherwise competent as testimony.

In the case of Evans v. State, 5 Okla. Cr. 643, 115 Pac. 809, 34 L. R. A. (N. S.) 577, Judge Doyle, in discussing privileged communications made by a client to his attorney, says:

•“The statute is for the benefit of the client, not the attorney; and such communications are permanently protected from disclosure, except where the client waives the protection.”

The same fundamental rule applies to all privileged communications. The husband or wife may waive the provisions of the statute.

We believe that the remarks made by the prosecuting attorney in this case were fully justified by the evidence; and w;e believe the court did not err in refusing to exclude them from the jury. This court stands uncompromisingly for the enforcement of the law; and when it is shown by the record that a party charged with crime is guilty, and that he has been fairly convicted, this court can be depended upon to sustain such conviction.

We have examined the record carefully, and we have no doubt as to the guilt of appellant. The only question is as to whether or not he should have been convicted of murder' or manslaughter. The jury having seen fit to find him guilty of the lower offense, he should be exceedingly thankful therefor. We do not hesitate to say that, if the jury had convicted him of murder and assessed his punishment at death, it would have been sustained. There is considerable evidence in the record tending to show that the deceased and the defendant were both bad men; but this in no wise justifies or mitigates the offense committed.

We find no error in the record. The judgment of the lower court is therefore, in all things, affirmed.

DOYLE, J., concurs. ARMSTRONG, J., having presided at the trial of appellant in the court below, was disqualified, and did not participate in the consideration and decision of the case in this court.


source: Caselaw Access Project

author: ARMSTRONG, J.

license: Public Domain

text:
    SAM HUNTER v. STATE.
    No. A-955.
    Opinion Filed May 7, 1912.
    (123 Pac. 564.)
    1. APPEAL — Harmless Error — Instructions. When, in the trial of a homicide case, instructions on the law of self-defense are given which are erroneous and prejudicial as abstract propositions of law, a judgment of conviction will not be reversed, when the record clearly discloses that there is no element of self-defense involved,
    2. HOMICIDE — Trial—Questions for Jury — Self-Defense. For facts held insufficient to raise the issue of self-defense, see opinion.
    (Syllabus by the Court.)

      Appeal from District Court„ Seminole County; Preslie B. Cole, Judge pro tern.

    Sam Hunter was convicted of manslaughter, and appeals.
    Affirmed.

      W. I. Gilbert, Crump & Bailey and Rogers & Harris, for plaintiff in error.

      Charles West, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   ARMSTRONG, J.

The plaintiff in error, Sam Hunter, was jointly charged with Walter Epps, in the district court of Seminole county, with the murder of James Cravens. He was convicted of manslaughter, and sentenced by the court to serve 10 years in the state penitentiary.

The material testimony on the part of the state, as shown, by the record, may be briefly stated as follows: The accused, Hunter, and Epps, the person jointly charged, were brothers-in-law, and lived on the farm of Jim Cravens, the deceased. Some time prior to this homicide, Cravens had been a witness in a homicide case against a relative of the accused, named Johnson. Subsequent to the trial of Johnson, some ill feeling grew up between the accused and the deceased, based upon statements alleged to have been made by Cravens about the wife of Epps, a sister of the accused. Three or four days prior to the killing, Epps met the deceased, who, it appears, had been sick for several days, and had some words with him. A day or two before the homicide, the accused was heard to inquire how the deceased stood with the Odd Fellows Lodge, and how much insurance he carried. On the day of the homicide, the accused went down to the field where an employee of Cravens, named Sam Harrison, was at work, and in a conversation with him said, “Sam, Cravens has been talking about your woman,” to which Harrison replied: “I guess not. I have known Cravens for years and have worked for him. He is one of the best friends I have, and that certainly cannot be true.” Accused replied: “Yes; he cussed your woman, and if a man would cuss my wife or my woman I would kill him.” Accused went away, and later appeared at the home of one Stubbs, about a mile from the home of the deceased. About 1 o’clock accused, in company with Epps, appeared at the house of a Mr. Cummins, where they got in a wagon with a person by the name of Owen, who was passing along the road, and went down to the home of the deceased, when they got out and started up to the house. As they started away, Owen admonished them not to go up to the house and have trouble, as there was no need of it. They turned and looked at him, but made no reply. They went on to the house, where they met some of the deceased’s employees, and asked if deceased was home. They were told he was not. They inquired where he was, and were advised that he had gone to a neighbor’s by the name of Ragan, a mile or two distant. They then asked for a Mr. Huckby, saying that Huckby. had desired to rent some land from them, and were advised that he was also away; whereupon the accused said, “Cravens isn’t here,” and Epps said: “We can do nothing; Jim Cravens is not here. Let’s go home.” They left, and instead of going home went down the road by which the deceased would necessarily have to return to his place. Shortly afterwards they were seen in an abandoned house near where the homicide occurred, and in a short time deceased came, along in a wagon with two of his farm hands.

Upon the trial, the plaintiff in error testified in chief as follows:

“A. Epps said: ‘Jim, I want to see you; get out.’ Q. Then what; did Cravens say anything? A. He said, ‘Well?’ Q. And jumped off' the wagon? A. Yes, sir. Q. Whereabouts were you standing with reference to Cravens and Epps? Which direction was the wagon facing, Sam? A. South. Q. Whereabouts, with reference to the singletrees, was Epps standing? A. Epps was standing about at the end of the singletrees. Q. When Epps said, ‘Stop,’ to Cravens, T want to see you a minute,’ did you stop right there, or walk a little farther on? A. I stopped. Q. Whereabouts, at the time Cravens got off the wagon, were you? A. I was right behind the fore wheels. About eight feet. Q. About eight feet from the fore wheels ? A. Yes, sir. Q. What was Epps then saying to Cravens? A. He said, 'Jim, you have been talking about my wife.’ He says, ‘Talking of me and my kin.’ Q. What did Cravens say? A. Cravens said, ‘Well?’ Epps said, ‘All I want you to do is to acknowledge it, that you did say it or that you did not say it.’ O. Who said that? A. Epps said, T just want you to sign a paper saying that you did say it, or that you did not say it.’ Q. What did Cravens say then? A. He turned to me, and says', ‘Sam, I didn’t say it exactly that way.’ Q. Says which? A. T did not say it exactly that way.’ Q. Had you said anything to Cravens in the meantime about what he said about your sister? A. I told him: ‘Jim, you know you said it. There is no use to story about it.’ Q. Said what? A. That my sister is a damn whore, and could prove it. Q. And then he turned to you and said what? A. That he did not say it exactly that way. Q. Then what did he say? A. ‘You damn scalawags can’t run it over me.’ Q. What did he do at the time he said that? A. He threw his hand back this way, and started at me. Q. What did you do? A. Shot him. Q. How many times? A. Twice. Q. Do you know where you hit him? A. No, sir. Q. You shot him, and saw him fall? A. Yes, sir. Q. You say he said, ‘You damn scalawags,’ and tell the exact language, if that is not the exact language. A. To the best of my knowledge, that is what he said. Q. ‘You damn scalawags?’ A. Yes, sir; and then, ‘You can’t run it over me.’ Q. Why did you shoot him? A. He started towards me with his hands back in his pocket.”

And upon cross-examination as follows:

“Q. And then the boys stopped, didn’t they? A. Yes, sir. Q. And then what did Mr. Epps say? A. ‘Get out; I want to talk with you.’ Q. Is that what he said next, Mr. Hunter? A. .Yes, sir. Q. That is the same Jim Cravens who lived back down the road a quarter of a mile, and the same man whose house Epps had been to, was it? A. That was the same man. -Q. Did Mr. Cravens get out of the wagon? A. Yes, sir. Q. And when he got out of the wagon, what did Mr. Epps say? A. I don’t remember just what he did say. Q. Didn’t he say, ‘Jim, you God damn forked-lipped son of a gun,’ or words in substance.to that effect? Didn’t you hear something like that immediately after Mr. Cravens got out of the wagon ? Didn’t you hear that or words in substance like that? A..It seemed like I heard some words something like that. Q. Who said that? A. Epps. Q. Mr. Epps said that? A. Something like that. Q. What did Mr. Cravens say when he said that ? A. He said, ‘All right.’ Q. How long had they talked when Epps told him that he had to sign a paper? A. I don’t know. Q. About how long, four or five minutes? A. I couldn’t state that. Q. Where was Epps standing with reference to where Cravens was standing? A. He was standing six or eight feet from Kim. Q. Where were you standing, Mr. Hunter? A. Kind of north of him, north of Epps. Q. North of Epps and west of Cravens? A. Yes, sir. Q. How far west of him were you, Mr. Hunter? A. About six or eight feet. Q. And Epps was eight or ten feet south of him, wasn’t he? A. Something like that. Q. And he was talking to Epps, wasn’t he? Wasn’t he, Mr. Hunter? A. He stopped talking to Epps and went to talking to me. Q. Why did he do that; did you say anything to him ? A. I said, ‘Jim, just acknowledge the truth.’ Q. Now, Sam, that was after he refused to sign a paper? A. I don’t remember. Q. As he talked to you and after he stopped talking to Epps, how was he facing — facing you? A. Yes, sir. Q. With his body to you? A. Looking right at me. Q. And was it then you said, ‘Jim, you have talked about my sister long enough?’ A. I don’t remember saying that. Q. Was he looking at you? As you stood looking' at him, west of him, that put ■ Epps west of him ? A. South of him. O. And as he talked to you there was whe'n he said, ‘You damn scalawags, you can’t run it Over me?’ A. Yes, sir. Q. He was looking at you when he said that? A. Yes, sir. Q. And as he said that he went to his pocket for his knife or his pistol? A. He threw his hand back to his pocket like this (indicating). Q. Get up here and show me how he did that. This is north; this is south; this is west. Now, say I am in your place and you are Mr. Cravens; just show me how Mr. Cravens did. A. (Indicates.) Q. Once more? A. (Indicates.) Q. And he was in that position when you shot him? A. Yes, sir. Q. He was in front of you? A. Yes, sir. Q. Tell the jury how the bullet hit him here. (Objected to as argumentative. Objection overruled, and exception saved.) Q. Explain to the jury how the bullet hit him in the inside of the arm. A. Yes, sir. Q. You did not have a crooked barrel pistol? (Objected to, and objection sustained.) Q. When you shot the first time, what did he say? A. He said something or other and came towards me. Q. And came towards you? A. Yes, sir. Q, Did he get his knife out or his pistol? A. I never saw either one. Q. And he was coming towards you after you fired the first shot, when you fired the second shot? Is that right? A. He was coming towards me. Q. Coming right towards you? Then you hit him in the ear the second shot ? A. I don’t know where I hit him. Q. And you never hit him in the right ear as he came towards you? (Objected to and overruled. Exception saved.) A. I don’t know. Q. Which hand did he go to his pocket with? A. His right one. Q. And when you shot him the second time, Mr. Hunter, he never uttered another word, did he, after you fired the second shot? A. I never heard him. Q. Did he fall then? Á. Yes, sir. Q. How long did you stay there after he fell? A. I don’t know. About a second.”

Dr. McDaniel testified that he examined the body of the deceased at the place where the homicide occurred. His testimony is as follows:

“Q. Which direction was the head of Cravens lying? A. It was lying south — west of south. Q. Was the body of Jim Cravens on level ground, or ground slightly inclined? A. It was slightly inclined, but not very much. Q. Inclined up towards the head? A. Yes, sir. Q. How far was that body, Doctor, from the regular wagon track of the road? A. I judge about three feet, or something like that; that would be my judgment of the matter. Q. And it was near the corner of the fence at that time? A. It was about six feet, I would judge, from the corner of th'e fence? Q. You say you examined the body shortly thereafter? A. Yes, sir. Q. Did you find any wound on the arm of Mr. Cravens? A. Yes, sir. Q. Describe that wound to the jury? A. It was the right arm; and the ball struck the middle of the arm, from the elbow to the shoulder, and went straight through, striking the center of the arm, breaking the bone, and the bullet — a portion of it — passed through the outer skin. Q. Doctor, examine that piece of lead which I hand you. I hand you Exhibit A. I will ask you to state to the jury what this is and where you got it. A. I suppose that is a bullet; that is what I took it for, and I took it from Mr. Cravens’ arm. Q. Is that the piece of lead that you took from his arm? A. Yes, sir. Q. What part of the arm did you take it from, Doctor? A. The inside of the arm. (The bullet was passed to the jury to be examined.) Q. While they are examining it, Doctor, was any part of the bullet protruding from the outer part of the arm? A. Yes, sir. Q. What part of it? A. There was a small portion of the lead that foi'ms a sort of a bump there that was protruding. Q. Indicate on my arm, point out, using that as an illustration, the point of egress on Mr. Cravens’ arm. Hold your finger there at that point, where all of the jury can see. A. That is as near as I can get at it. Q. Did it pass through the arm? A. Passed directly through. Q. Could you tell from the wound prints the range of the bullet? A. Yes, sir. Q. Where was it? A. It went directly through like that (indicating). Q. Did you find any other wound on his body? A. Yes, sir. Q. What was it? A. It was a wound in the head. Q. Indicate on my head, so the jury can see, where that wound was on Mr. Cravens. A. It struck right there, directly level of the left ear, a little back, that way. That is about the place the bullet went through, practically straight through. Q. What part of the head did that bullet pass through? A. It passed through the brain. Q. What part of the brain? A. The base of the brain. Q. In your professional opinion, would a person receiving that wound die? A. Yes, sir. Q. How long would it take for a person receiving that wound to die ? A. It would be very quick. Q. Tell the jury whether or not that wound destroyed consciousness? A. I think so. Q. How long would it take to destroy consciousness? A. It would be at once. Q. You say it would destroy consciousness immediately? A. Yes, sir. Q. Would it destroy motion? A. Yes, sir.”

In attempting to explain why he was carrying the pistol with which the homicide was perpetrated, accused testified as follows :

“Q. Well, why did you have that pistol? What was your object in carrying it? A. There had been some threats made. Two of my brothers had been beat up by Huckby; and they said there was another of the outfit that he wanted to get inside of a week. Q. Who is Jim Huckby? A. A fellow that worked for him. Q. The fellow that is in jail here now? A. Yes, sir.”

And on cross-examination on the same subject as follows:

“Q. You had been carrying it about a month? A. Yes, sir. Q. Carrying it all the time ? A. Most of the time. Q. Every day ? A. No, sir; not every day. Q. Practically every day, and you were carrying it for what reason did you say? A. Joe Huckby had— Q. You were carrying it because Joe Huckby had whipped two of your brothers, and there was another one of your family he was going to whip? A. Yes, sir. Q. You say that you were carrying this pistol to protect yourself from Huckby, because he had said he had whipped two of your brothers and was going to whip another, Hunter, is that right? Just tell the jury if that was the reason you were carrying this pistol ? A. I was carrying the pistol to protect myself. Q. From Huckby? A. Yes, sir.”

Witness George W. Sayne testified that he examined the body of the deceased after the homicide, and the bullet passed directly through the arm in as straight a course as it possibly could have ranged, and just under the arm the ball had protruded out a little and made a blue spot on the deceased’s body.

On the foregoing state of facts, counsel for the accused have brought many assignments of error, based principally upon the instructions of the court involving the accused’s right of self-defense.

The doctrine they contend for as an abstract proposition of law appears to be sound, but has no application to the facts in this case. Under the testimony of the accused himself, the court would have been justified in refusing to give an instruction on the right of self-defense. The accused had armed himself and, with his brother-in-law, gone to the home of the deceased, and followed him around the country, found him, and killed him without a single act of aggression upon his part that could be reasonably designated an act of aggression. The accused never even said himself that he was in danger or believed himself in danger of death or great bodily injury. Counsel won a great victory in the court below in securing the acquittal of Epps and a conviction of manslaughter for the accused, Hunter. There is not an element of self-defense disclosed by the facts in this case. The circumstances of the homicide were detailed by the only. other persons present, who were witnesses on behalf of the state; and they make the case stronger for the state than does the testimony of the accused.

There is no error of law assigned that we can conscientiously say was prejudicial to the substantial rights of the accused. A conviction for murder under this record would have been just, and would have been sustained. We cannot do otherwise than affirm the conviction for manslaughter.

The judgment of the trial court is affirmed.

FURMAN, P. J., and DOYLE, J., concur.


text:
    MARCELLUS SULLIVAN v. STATE.
    No. A-954.
    Opinion Filed May 7, 1912.
    (123 Pac. 569.)
    1. BURGLARY — Elements of Offense — Indictment or Information-Intent — “Steal.” (a) In an indictment or information charging burglary, based upon the unlawful breaking and entering of a railroad car with intent to steal therein, it is necessary for the allegation of intent to set out the acts required to constitute the crime of stealing at common law.
    (b) “Steal,” as the word is used in the burglary statute (section 2554, Comp. Laws 1909), is an offense of such character that it is burglary to break and enter with intent to steal, without regard to the 'value of the property sought to be taken.
    2. BURGLARY — Indictment—Sufficiency. An allegation, in an indictment for burglary, that the accused, in the nighttime of a certain day, unlawfully, willfully, feloniously and burglariously did break and enter a railroad ear, situated in the city of Shawnee, in the possession of and under the control of a certain railway company, a corporation, the name of the owner thereof being to the grand jurors unknown, is fatally deficient for want of certainty, in the absence of an allegation that a more particular description of the car cannot be given.
    3. BURGLARY — Elements of Offense — “Steal”—“Larceny.” Under Comp. Laws 1909, sec. 2554, making it burglary to break and enter any building, etc., with intent to steal therein, the word “steal” involves a felonious intent on the part of the taker to deprive the owner of property and to convert it to the taker’s use; while any trespass involving the taking of personal property with intent to deprive another thereof is “larceny,” within section 2557, making it burglary to enter any building, etc., with intent to eqmmit any felony, larceny, or malicious mischief.
    (Syllabus by the Court.)

      Appeal from District Court, Pottawatomie County; Roy V. Hoffman, Judge.

    Marcellus Sullivan was convicted of burglary, and appeals.
    Reversed and remanded, with directions.

      Blakeney, Maxey & Miley, for plaintiff in error.

      C. P. Holt, Co. Atty., for the State.
   ARMSTRONG, J.

The plaintiff in error, Marcellus Sullivan, was convicted at the June, 1910, term of the district court of Pottawátomie county on a charge of burglary, and his punishment fixed at two years’ imprisonment in the state penitentiary.

There are many assignments of error. Among others, it is urged that the court erred in overruling the demurrer to the indictment in this cause, and in overruling the motion in arrest of judgment, based on the insufficiency of the indictment.

The charging part of the indictment complained of is as follows:

“* * * One Will Sullivan, PI-, and Marcus Sullivan, late of Pottawatomie county', and within the'jurisdiction of this court, in the nighttime of the said day, unlawfully, willfully, and feloniously, and burglariously, did break and enter a railroad car, situated in the city of Shawnee, in the possession of and under the'control of the Chicago, Rock Island & Pacific Railway Company, a corporation, the name of the owner thereof being to the grand jurors unknown, and in which said railroad car, goods, ware, and merchandise, the personal property of various and divers persons, the names of whom are to the grand jurors unknown, but being in the possession of and Control of the said Rock Island & Pacific Railway Company, a corporation aforesaid, were then and there kept and being, with the unlawful, willful, felonious, and burglarious intent, then and there of the said Will Sullivan, -, and Marcus Sullivan, the goods, wares, and merchandise and other valuable things, the personal property of various and divers persons, the names of whom are to the grand jurors unknown, but in the possession of and under the control of the same Chicago, Rock Island & Pacific Railway Company, a corporation aforesaid, in the said railroad car then and there kept and being as aforesaid, then and there unlawfully, willfully, feloniously, and burglariously to take, steal, and carry away by stealth; that the said breaking and entering of the said railroad car, as> aforesaid, was done and accomplished by the defendants then and there breaking and entering an outer door of said car, contrary to the form of the statutes in such cases made and provided, and against the peace and dignity of the state of Oklahoma. V. R. Biggers, County Attorney in and for Said County.”

It is contended that there are two defects in this indictment, to wit: The indictment does not sufficiently charge the unlawful intent required by law, and does not describe the car in which the burglary is alleged to have been committed with sufficient definiteness, in the absence of an allegation that a further description is unknown.

Section 2554, Comp. Laws 1909, provides:

“Every person who breaks or enters in the daytime or in the nighttime, either: 1. Any building within the curtilage of a dwelling house, but not forming a part thereof; or, 2. Any building, or any part of any building, booth, tent, railroad car, vessel or other structure or erection in which any property is kept, with intent to steal therein or to commit any felony, is guilty of burglary in the second degree.”

Section 2557, Comp. Laws 1909, provides:

“Every person who, under circumstances not amounting to any burglary, enters any building or part of any building, booth, tent, warehouse, railroad car, vessel, or other structure or erection with intent to commit any felony, larceny, or malicious mischief, is guilty of a misdemeanor.”

It will be noted that section 2557 omits the element of breaking, and the word “steal,” as used in section 2554, is changed to the word “larceny” in section 2557, supra. Section 2554 requires an intent to steal therein, in order to constitute the crime of burglary; while the latter requires an intent to commit “any felony, larceny or malicious mischief.” The intent necessary in the latter covers a wider range of criminal purpose than the former. It embraces malicious mischief and larceny as well. “Larceny,” as used in this section, is a much broader term than the word “steal.” In an indictment or information charging burglary, it is necessary for the allegation of intent to set out fully, in order to describe the crime, the acts necessary to constitute such crime. It is not sufficient to sa)r that the accused intended to steal or intended to commit a felony therein. See Holt v. Territory, 4 Okla. 479, 43 Pac. 1083; also Sullivan v. Territory, 3 Okla. 499, 58 Pac. 650.

In Hughes v. Territory, 3 Okla. 28, 56 Pac. 708, the Supreme Court of Oklahoma Territory says:

“The Legislature has 'modified the meaning of the word ‘larceny,’ as used in the crimes act, so that the taking of personal property, accomplished by , fraud ■ or stealth, and with intent to deprive another thereof, is larceny, regardless of whether or not it was taken for the purpose of depriving the owner thereof, or for the purpose of converting it to the use of the taker. Therefore, while stealing and larceny at common law were synonymous terms, our statute has given to the word ‘larceny’ a much broader meaning than it then had; while ‘steal’ or ‘stealing’ has not been defined by our statutes, and must be construed according to its co'mmon-law meaning.”

There has been no amendment to the statute since this opinion.

In the case of Shires v. State, 2 Okla. Cr. 89, 99 Pac. 1106, it is said:

“The definition of an act made an offense by statute, but not defined by it, may be ascertained by reference to the common law.”

Any trespass, involving the taking of personal property, accompanied with an intent to deprive another thereof, is larceny; but stealing requires a felonious intent on the part of the taker to deprive the owner thereof, and to convert the same to the taker’s own use, specific proof of which is not necessary to support a conviction under the general larceny statute. Crowell v. State, 6 Okla. Cr. 148, 117 Pac. 883.

If a person takes personal property from another and destroys it, with intent to deprive another thereof, he is guilty of larceny, but not guilty of stealing. This distinction is very important in this statute, because it obviously does not intend to have the same meaning as grand larceny, which is a felony, and is embraced under the general term of any felony. Stealing, as that term is used in the burglary statute, is an offense of such character that it is a burglary to break and enter with intent to steal, without regard to the value of the property sought to be taken; but, not being a statutory offense, acts constituting a common-law stealing must be alleged.

In the case of Taylor v. State, 23 Tex. App. 639, 5 S. W. 141, the Texas Court of Criminal Appeals, in discussing the necessity of alleging the intent for which the burglarious entry was made, says:

“It is well settled that an indictment for this offense must allege the felony or theft intended to be committed with the same particularity as would be required in an indictment directly charging such felony or theft.”

See, also, Draughn v. State, 76 Miss. 574, 25 South. 153; Barnhart v. State, 154 Ind. 177, 56 N. E. 212.

The indictment under consideration does not specifically aver acts which constitute any criminal offense known to the statutes. It alleges that the defendant had “a felonious intent to take, steal and carry away by stealth the goods and wares and other valuable things, personal property of various and divers parties, the names of whom being to the grand jurors unknown.” There is no allegation of the value of the property, nor that the accused intended to deprive another thereof, so as to constitute grand larceny or petit larceny. The statute with reference to grand larceny is as follows:

“Larceny is the taking of personal property accomplished by fraud or stealth, and with the intent to deprive another thereof.” (Section 2591, Comp. Laws 1909.)

Stealing at common law required that the property should be taken with intent to deprive the owner thereof, and to appropriate it to the use of the taker. In the case of State v. Feeback, 3 Okla. Cr. 508, 107 Pac. 442, this court made a distinction between crimes purely statutory and those which were offenses at common law in the following language:

“We are not unmindful of the rule that, where'a statute defines a crime in general terms, such as murder, arson, burglary, etc., then the indictment must allege the particular acts which constitute these crimes under the common law; but that rule has no application to the case at bar. 'A different rule prevails where the crime is purely statutory.”

In the case under consideration, the offense is not charged in the language of the statute; nor are sufficient acts set out to constitute stealing at common law. The indictment does not r.ecite the acts and material facts constituting the offense, and is therefore not sufficient upon which to base a prosecution. See Hendrix v. United States, 2 Okla. Cr. 240, 101 Pac. 125; Fletcher v. State, 2 Okla. Cr. 300, 101 Pac. 599, 23 L. R. A. (N. S.) 581; Clark v. State, 6 Okla. Cr. 100, 116 Pac. 200; Reed v. State, 66 Ark. 110, 49 S. W. 350.

The description of the car given in the indictment is fatally defective; in fact, it is no description at all. This question was before the Supreme Court of California in the case of People v. Webber, 138 Cal. 145, 70 Pac. 1089, and we quote, with approval, from the opinion of that court the following:

“We think, also, that there is fatal uncertainty in failing to particularize the car, alleged to have been burglarized, by number or some other description identifying the car entered. Respondent contends that this was no more necessary that that a particular room of a house, entered with burglarious intent, should be described, citing People v. Young, 65 Cal. 225, 3 Pac. 813, and People v. Henry, 77 Cal. 445, 19 Pac. 830. In the first of these cases, the allegation was that the defendant feloniously entered ‘the building, to wit, the ticket office, of the Central Pacific Railroad Company,’ and the court said: ‘Here, where the room in a building was known as the ticket office, it was properly described as a “building, to wit, the ticket office.” ’ In the other case cited, the point decided was that but one offense was charged in the allegation that defendant ‘feloniously entered the house, room, apartment, tenement, shop, warehouse, store, and building of,’ etc. There is no analogy between a building of many rooms arid a train of many cars. The statute does not say that it is burglary to feloniously enter a train of cars; the statute says ‘railroad car.’ One may commit other offenses on a train of cars; but he can only commit burglary of a railroad car of the train. Each car is separate and distinct from every other car of the train. Cars are being added to and detached from the train at points along the line during its trip; and then, too, on through lines, such as the line of the Southern Pacific Company, there are many trains, freight and passenger, running daily. The defendant should be informed with some degree of certainty, at least, as to the particular car he is charged with having feloniously entered. There is no difficulty in ascertaining the fact; for all cars bear some distinguishing mark or number.”

There is no allegation in the indictment that a more complete or particular description of the car cannot be given, but merely that the ownership of the car cannot be given. Upon a reading of the record in this case, the necessity for a more definite description of the car is apparent. On the trial, after the introduction of evidence of breaking into other cars, one transaction was finally selected. Up to that time, the accused had no information as to what car was being prosecuted for burglarizing. See In re Myrtle, 2 Cal. App. 383, 84 Pac. 335. The demurrer to the indictment should have been sustained.

The judgment of conviction is reversed, and the cause re-, rnanded, with direction to the trial court to sustain the demurrer and hold the accused for further proceedings in accordance with law.

FURMAN, P. J., and DOYLE, J., concur.


text:
    BOB DRAKE v. STATE.
    No. A-1413.
    Opinion Filed May 9, 1912.
    (123 Pac. 568.)
    APPEAL — Statutory Provisions. It is the duty of counsel appealing eases to this court from the trial courts to perfect the appeals in the manner provided by the statute, the provisions of which are plain and simple, and when not complied with, this court does not acquire jurisdiction to review a cause on the merits.
    (Syllabus by the Court.)

      Appeal from Jackson County Court;

      B. N. Woodson, Judge.

    Bob Drake was convicted of violating the prohibitory law, and appeals.
    Dismissed.

      S. J. Casilemcm, for plaintiff in error.

      Smith C. Matson, Asst. Atty. Gen. (C. J. Davenport, of counsel), for the State.
   ARMSTRONG, J.

The plaintiff-in error, Bob Drake, was convicted at the May, 1911, term of the' county court of Jackson county on a charge of selling intoxicating liquor, and his punishment fixed at a fine of $200 and imprisonment in the county jail for a period of 30 days.

The Attorney General has filed the following motion to dismiss the appeal in this case:

“Comes now the state of Oklahoma, by the Attorney General, and moves the court to dismiss the pretended appeal herein, and in support thereof says: First. That this is an attempted appeal from a conviction of violation of the prohibitory laws of the state. - Judgment was entered on June 5, 1911, and the appellant was given 40 days from said date within which to prepare and serve a case-made. That thereafter, on the 20th day of July, 1911, the court made an order attempting to extend the time for serving the case-made, but the Attorney General says that the trial judge had no authority to make said order extending the time for making and serving the case-made because the original time granted, to wit, 40 days from the 5th day of June, 1911, had expired prior to the time the said second order was made. Second. The Attorney General further shows that there is no petition in error filed in this court in this pretended appeal. Wherefore the state moves the court to dismiss the pretended appeal herein.”

It is the duty of counsel appealing cases to this court to observe the requirements of the statute, which are. plain and simple. When this is not done, this court does not acquire jurisdiction to review the errors complained of against the trial court. The motion is supported by the record, and the contention of the Attorney General is sustained by the law. We have no alternative, except to dismiss the appeal.

Let the appeal be dismissed.

FURMAN, P. J., and DOYLE, J., concur. ’


text:
    BOB DRAKE v. STATE.
    No. A-1414.
    Opinion Filed May 9, 1912.
    (123 Pac. 568.)
    APPEAL — Statutory Provisions. It is the duty of counsel appealing cases to this court from the trial courts to perfect the appeals in the manner provided by the statute, the provisions of which are plain and simple, and when not complied with this court does not acquire jurisdiction to review a cause on the merits.
    (Syllabus by the Court.)

      Appeal from Jackson County Court; B. N. Woodson, Judge.

    Bob Drake was convicted of a violation of the prohibitory law, and appeals.
    Dismissed.

      S. J. Castlemaiij for plaintiff in error.

      Smith C. Matson, Asst. Atty. Gen. (C. J. Davenport, of counsel), for the State.
   ARMSTRONG, J.

The plaintiff in error, Bob Drake, was convicted at the May, 1911, term of the county court of Jackson county on a charge of selling intoxicating liquor, and his punishment fixed at a fine-of .$300 and imprisonment in the county jail for a period of 30 days.

The Attorney General has filed the following motion to dismiss the appeal in this case: .

“Comes now the defendant in error, by the Attorney General, and, appearing especially for the purpose of this motion, moves the court to dismiss the pretended appeal filed herein, and in support thereof says: First. That this is an attempted appeal from the judgment of conviction for violation of the prohibitory laws of the state of Oklahoma. That the judgment of conviction was entered in the trial court on the 9th day of June, 1911, and on said date the plaintiff in error was given 40 days from that time in which to prepare and serve case-made. That the case-made was not filed within said 40 days, but that on the 20th day of July, 1911, the court entered an order extending the time theretofore ■granted within which to prepare and serve a case-made, but the Attorney General says that the trial court had no authority to make such order extending the time to make and serve a case-made, for the reason that the time originally granted had elapsed. Second. And the Attorney General further says that there is no petition in error attached to said purported case-made, nor filed in this court in such case. Wherefore the Attornéy General moves the court to dismiss the pretended appeal filed herein.”

It is the duty of counsel appealing cases to this court to observe the requirements of the statute, which are plain and simple. When this is not done, this court does not acquire jurisdiction to review the errors complained of against the trial court. The motion is supported by the record, and the contention of the Attorney General is sustained by the law. We have no alternative, except to dismiss the appeal.

Let the appeal be dismissed.

FURMAN, P. J., and DOYLE, J., concur.


author: DOYLE, J.

text:
    T. C. BOWES v. STATE.
    No. A-1366.
    Opinion Filed May 9, 1912.
    1. APPEAL — Record—Speedy Trial — Continuance. In tlie absence of a proper record affirmatively showing the contrary, the presumption is that the court had continued the case for a presumably lawful cause. The burden was on the defendant, in support of his motion to dismiss, to show that the laches was on the part of the state through its prosecuting officers, otherwise the presumption is that the delay was caused by or with the consent of the defendant himself, and when on bail he must demand a trial or resist the continuance of the ease from term to term. A defendant who has never demanded or been refused trial is not entitled to a discharge under the constitutional provision, art. 2, sec. 20, and the statutory provision, sec. 6498, Comp. Laws 1909.
    2. INTOXICATING LIQUORS — Evidence—Sufficiency. See opinion for evidence' held insufficient to support a conviction for selling intoxicating liquor.
    (Syllabus by the Court.)

      Appeal from Custer County Court; W. J. Lackey, Special Judge.

      T. C. Bowes was convicted of a violation of the prohibition law, and- appeals.
    Reversed.

      Chas. D. Peck, for plaintiff in error.

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

The plaintiff in error, T. C. Bowes, was convicted in the county court of Custer county on an information filed in said court on September 16, 1909, which charged the unlawful sale of three bottles of beer to one Frank Coker on September 3, in said county. The information was sworn to before A. S. Darnell, a notary public. July 17, 1911, in accordance with the verdict of the jury he was sentenced to serve a term of thirty days in the county jail and to pay a fine of fifty dollars. From the judgment he appealed by filing in this court on September 12, 1911, a petition in error with case-made. The petition contains twenty assignments of error.

From a careful examination of the íecord we are constrained to believe that nearly all of the assignments seem to be well taken. However, it is only necessary for a determination of this appeal to notice one or two.

When the case was called for trial defendant filed a motion to quash the information for the reason that the same was verified before A. S. Darnell, a notary public, he being then and there a duly appointed, qualified,- and acting deputy county attorney of Custer county, and being also the law partner of P. A. Snodgress, the county attorney. The verification of an information charging a misdemeanor should be by oath or affirmation taken before a judicial officer, one authorized to administer the oath, etc. At common law such oath was taken before a magistrate. 1 Chit. Crim. Law, 26. Our Criminal Procedure Act provides (sec. 6494, Comp. Laws 1909) that the procedure, practice, and pleadings in criminal actions, not specifically provided for in this Code, shall be in accordance with the procedure, practice, and pleadings of the common law, and we are inclined to think that the common law in that regard prevails in this state. A notary public is an officer of the civil and commercial law, and is unknown to the criminal law, and such verification was unauthorized. However, the record shows that the defendant theretofore had entered his plea of not guilty, and it may be that he had thus waived the objection as made by the motion to quash.

After the jury was empanelled and sworn to try the case the defendant filed the following motion to dismiss.:

“At this time the defendant herein moves the court to dismiss the cause for the reason that the case has been discontinued by operation of law, and for the further reason that it appears from the records that the information herein was filed in this court on September 16, 1909; that under the Constitution and the laws of the state of Oklahoma eight regular terms of this court have elapsed since the filing of this information; that.this is the first term of court at which the same has been placed on the calendar for trial, and that the said cause has not been continued upon the application of the defendant.”

Which motion was by the court overruled and exception allowed. This ruling of the court is assigned as error, and it is now contended by the defendant’s counsel that the county court of Custer county was without jurisdiction to try the case, because the defendant had not been brought to trial at the next term of the court after filing the information. ■,

In support of this assignment the case-made contains a copy of the docket entries certified to by the clerk of the court as follows :

“Sept. 16, 19Q9, complaint filed. Sept. 18, bond filed and approved. Jan. .20, 1910, continued until next term of court. July 5, 1910, set for trial July 19th. July 19, 1910, cause passed. Oct. 1, 1910, case set for tidal Oct. 1st. Dec. 19, 1910, continued for term by application of defendant. Jan. 11, 1911, continued for term by application of the defendant. April 26, 1911, passed. June 30, 1911, set for trial July 10, 1911.”

The question presented cannot be reviewed upon the record before us, for the reason that the docket entries as made by the judge of the court upon the bench docket constitute no part of the record proper, which can be brought to this court bjr a certified transcript. The case-made itself does not purport to contain the proceedings had at each term of the court.

In the absence of a proper record affirmatively showing the contrary, the presumption is that the court had continued the case for a presumably lawful cause. The burden was on the defendant, in support of his motion to- dismiss, to show that- the laches was on the part of the state through its prosecuting officers, otherwise the presumption is that the delay was caused by or with the consent of the defendant himself, and when on bail he must demand a trial or resist the continuance of the case from term to term. A defendant who has never demanded or been refused trial is not entitled to a'discharge under the constitutional provision, ai'ticle 2, sec. 20, and the statutory provision, section 6498, Comp. Laws 1909.

The next assignment of error is that the evidence is insufficient to sustain the verdict and judgment.

Frank Coker, the only witness on behalf of the state, testified as follows:

“Q. You may state whether or not you had any business transactions with the defendant in September, 1909? A. I was up there one afternoon. Q. Was that on the 3rd day of September? A. I think so. Q. You say you had dealings-with him on that da)Y A. I got three bottles of beer. ’ Q. State to the jury about that transaction, what it was? A. I went in the house and asked Mr. Bowes if he had any beer, and he said a few bottles for his own use, and I said, ‘Llave you enough that you could spare me one,’ and he said, ‘I don’t think I have,’ and I seen some in a bucket, and I picked up three of them, and walked into the kitchen, they was in the dining room, and I went into the kitchen, and opened two of them, and drank them, and the other one I brought it away with me, and I left seventy-five cents in the kitchen. Mr. Bowes was in the dining room at the time; that it the way it came up. Q. You paid him for it then? A. 1 left it in the kitchen on the table. Q. Where did this occur? A. In Mr. Bowes’ residence. Q. In Custer county. A. Yes, sir; in the town of Clinton, Oklahoma.”

The motion to direct a verdict of acquittal should have been sustained. AVe are clearly of the opinion that the testimony of this witness is insufficient to sustain a conviction. In the case of Shive v. State, infra, this witness testified to almost the same state of facts. It would seem that this witness was released from imprisonment on the condition that he would verify complaints and testify in cases where a violation of the prohibition law was charged. In the Shive case it was said:

“This court has never upheld a conviction based upon the uncorroborated testimony of a self-confessed criminal, who admitted in his testimony that he was securing immunity by reason of such testimony.”

The fact shown by this record — that a misdemeanor case was not called for trial until almost two years after the information was filed and the defendant arrested — is beyond our comprehension. Such a delay in a criminal prosecution is inexcusable and is a travesty on the administration of criminal justice.

For the reason stated, the judgment of the county court of Custer county is reversed.

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


text:
    J. V. KINNON v. STATE.
    No. A-1411.
    Opinion Filed May 9, 1912.
    (123 Pac. 567.)
    APPEAL — Filing Case-Made — Delay. It is the duty of counsel appealing eases to this court from the trial courts to perfect the appeals in the manner provided by the statute, the provisions of which are plain and simple; and when not complied with, this court does not acquire jurisdiction to review a cause on the merits.
    (Syllabus by the Court.)

      Appeal from Jackson County Court; E. N. Woodson, Judge.

    J. V. Kinnon was convicted of violating the prohibitory law, and appeals.
    Dismissed.
    S'. J. Castleman, for plaintiff in error.

      Smith C. Matson, Asst. Atty. Gen. (C. J. Davenport, of counsel), for the State.
   ARMSTRONG, J.

The plaintiff in error, J. V. Kinnon, was convicted at the May, 1911, term of the county court of Jackson county on a charge of selling intoxicating liquor, and his punishment fixed at a fine of $200 and confinement in the county jail for a period of thirty days.

The Attorney General has filed the following motion to dismiss the appeal in this case:

“Comes now the state of Oklahoma, by the Attorney General, and moves the court to dismiss the pretended appeal filed herein, and in support thereof says: First. That this is an attempted appeal Rom a judgment of conviction for violation of the prohibitory laws of the state of Oklahoma. That the judgment upon the verdict rendered in this case was entered on the 5th day of June, 1911, and the plaintiff in error was given 40'•days within which to prepare and serve case-made, and the Attorney General says that said case-made was not served within said forty days, nor was any extension of time granted within the forty days, but that on the 20th day of July, 1911, the court made an order extending the time theretofore granted within which to prepare and serve the case-made, but the Attorney General says that the court was without authority to grant such extension of time for the reason that the original time granted had elapsed. Second. That the purported case-made was not filed in the office of the clerk of' the county court, in which the judgment of conviction was had. Wherefore, the Attorney General moves the court to dismiss the pretended appeal.”

It is the duty of counsel appealing cases to this court to observe the requirements of the statute, which are plain and simple. When this is not done, this court does not acquire jurisdiction to review the errors complained of against the trial court.

The motion is supported by the record, and the contention of the Attorney General is sustained by the law. We have no alternative éxcept to dismiss the appeal.

Let the appeal be dismissed.

FURMAN, P. J., and DOYLE, J., concur.


text:
    ROBERT DAVIS v. STATE.
    No. A-1183.
    Opinion Filed May 14, 1912.
    (123 Pac. 560.)
    1. LARCENY — Evidence—Sufficiency. In a prosecution for larceny of live stock, the evidence is held to support the verdict, and that no reversible error was committed on the trial.
    2. LARCENY — Evidence—Possession of Stolen Property. In a prosecution for larceny of live stock, the fact of the theft having been proven, the question was whether the defendant stole the cattle, or bought them without notice that they had been stolen.
    Held, the presumption from possession of property, recently stolen, is one of fact, to be drawn or not, as the jury may determine, in connection with and in consideration of all the evidence in the ease.
    3. LARCENY — Evidence—Possession of Stolen Cattle. In a prosecution for larceny of certain cattle, where the evidence for the defense tended to explain the defendant’s possession of the cattle by purchase from persons other than the owner, it is competent, in rebuttal, to show the defendant’s contemporaneous possession of other stolen cattle.
    4. APPEAL — Misconduct of Prosecuting Attorney — Harmless Error.
    A conviction will not be reversed for alleged misconduct of the prosecuting attorney, unless this court can say that the prosecuting attorney was not only guilty of misconduct, but that such misconduct might, in some degree, have influenced the verdict against the defendant.
    (Syllabus by the Court.)

      Appeal from District Court, Muskogee County; R. P. DeGraffenreid,. Judge.

    Robert Davis was convicted of cattle stealing, and brings error.
    Affirmed.
    The plaintiff in error, Robert Davis, was convicted in the district court of Muskogee county on an information filed in said county January 25,1911, wherein he was charged with the larceny of two cows, the property of B. V. Bushears. Said larceny is alleged to have been committed June 16, 1910. Trial was had at the February, 1911, term of said court. The jury returned a verdict of guilty, and assessed his punishment at two years’ imprisonment in the penitentiary. On March 2, 1911, judgment and sentence was entered in accordance with the verdict. To reverse this judgment, an appeal was taken hy filing in this court, on June 10, 1911, petition in error, with case-made.
    The proof on the part of the prosecution, briefly stated, is as follows:
    B. V. Bushears testified: That he lost two cows June 14, 1910, one blue Jersey, branded “W. W.,” and marked underhalf crop in the left and split and underbit on the right; other, good-sized white and black spotted, and marked “E. V.” on left side, and underhalf crop in the left and split and underbit on the right. Made search ' for cattle, and found they had been shipped to Kansas City from Checotah, Okla. The cattle- were taken in Muskogee county, Okla., without my knowledge or consent.
    J. W. Jimmison: Lives about half mile from Bushears, and had some cattle on the range with Bushears’ cattle. Made search for some cattle in June, 1910. Tracked them over the mountain into a canon. This mountain is about three-fourths of a mile northeast of Briartown. “We tracked the cattle about threé-fourths of a mile along a very dim road. There were two horses, one shod and other partly shod. I lost two Hereford heifers at that time. My brother and John West went to Checotah, and found that the cattle had been shipped from there.” This was about Tuesday, June 14, 1910. Heifers, branded “J. M.” on left side.
    J. V. Parmenter: On June 16, 1910, was in Checotah. Went to depot in Checotah that day to inspect bill of lading, and saw same and got copy of it, and telegraphed to the Kansas City people to have the cattle inspected and make a record of the brands. This telegram was sent to .Godair-Crowley Commission Company, Kansas City, Mo.
    Charles Hamilton, Kansas City, Mo.,: On June 18, 1910, inspected car of cattle in Kansas City, shipped from Checotah, Okla., by Bob Davis to Godair-Russell Commission Company, and kept record of marks and brands of whole shipment. Witness testified to marks and brands of all the cattle, including one cow, branded “B. V.” on left side, split and underbit in the right and undercrop the left, and one cow, branded “W. W.,” separated left side and marked as above.
    Ed Toner: Lives at Carlsbad, N. M. Was in Kansas City June 18, 1910, and helped Hamilton inspect car load of cattle. Testimony same as Hamilton’s.
    E. J. Collier: Agent Missouri, Kansas & Texas Railway Company, at Checotah. Bob Davis shipped car load of cattle from Checotah, June 16, 1910, to Godair-Crowley Commission Company, Kansas City, Mo. There was 34 head. Bob Davis signed the contract. There were a number of cars of cattle shipped from Checotah along about that time. Had conversation with man that said he was Davis about getting this car. He is the man that signed the contract; but I have since learned it was Pony Starr. I am positive that Davis never made the deal for the car.
    D. E. Nester, Checotah: Agent Missouri, Kansas & Texas Railway Company, and custodian of bills of lading: Have bill of lading, dated June 16, 1910, for a car of cattle, shipped by Bob Davis. This contract is introduced in evidence.
    Robert Jones, Checotah, butcher: Saw Bob Davis on June 16, 1910, about lp-í miles each of Checotah, on the road with Pony Starr and some other men that witness did not know, driving cattle. Counted 34 head. Asked Bob Davis the price on them, and he said they had come so high he would have to ship them to get out on them. Pie said he had attempted to get cars at Porum, but couldn’t. These were fat cattle, and they were driving slow. Noticed one calf in the bunch.
    C. E. Jones: Saw Bob Davis and three or. four other men at the edge of the town of Checotah on June 16, 1910, driving 30 or 35 head of cattle. Did not know who the other men were.
    Peter Graham: Was living on Bob Davis’ place, in Muskogee county, in June, 1910. Helped drive some cattle to Checotah about middle of that month. “Bob Davis, Pony Starr, Cliff Sellers, and Leonard McCulloch were with me. We were driving something over 30 head. They were shipped at Checotah, but I don’t know who to. These cattle were driven from Davis’ pasture. I presented a check for $1,000 to the Bank of Commerce about June 20, 1910. Bob Davis gave me the check, and said it was for a draft on some cattle he had shipped from Checotah and some money he had in bank. When Bob gave me the check, he said he didn’t want to go to Porum; that they had a writ for him there.”
    M. R. Chilkert, banker: June 22, 1910, received from Kansas City, Mo., eight hundred and nineteen dollars and some cents for Bob Davis, and placed it to his credit. “Pete Graham presented a check for $1,000 that day, and I didn’t pay it; and late in the day another check for one thousand and ninety dollars and some cents (Bob Davis’ balance) was presented by Sam Davis, Bob’s brother, and I paid it.”
    Pete Graham, recalled: Saw Bob Davis and Cliff Sellers driving some cattle on the evening of June 13, 1910, coming from toward Porum. They had seven or eight head. “I noticed one black and white spotted cow that looked to be the same one that was shipped. She was heavy with calf, and had a calf before she was shipped. When I came to Bob Davis’ about two years ago, all the cattle he had was some milk cows. I heard he had been in the cattle business before that.”
    B. V. Bushears, recalled: The black and white spotted cow '.that was stolen from witness was heavy with calf when missed.
    The Defendant’s Evidence.
    J. N. McMurray, farmer: Lives two miles north of Porum. Was at Bob Davis’ place-about middle of June, 1910, hunting some horses for Chilkert and Pony Starr, and along about 5 o’clock in evening saw a trade for some cattle. Cliff Sellers and Dan Foster drove If or IS head in there and left them in the corral and came up to house and got some water, and Bob asked where they were going with the cattle, and they asked for pasture until they could ship them; and Bob said if they would make the price right he would save them the trouble of shipping them. They asked him $350 for the cattle. He bought them; but witness did not know how much he paid for them. On cross-examination, it was shown that witness was intimately acquainted with Bob Davis- and Pony Starr for many years, and was in attendance on court without a subpoena. Cliff Sellers worked for Pony Starr.
    Leonard McCulloch: Was living at McMurray’s in June, 1910. Saw cattle trade between Bob Davis and Cliff Sellers and Dan Foster, between 2 and 3 o’clock in afternoon. Did not examine cattle. Looked to be between 15 and 20 head in the bunch. “I saw Bob pay Sellers the money for the cattle. I was over there gathering some horses for Mr. Chilkert. Have known Bob Davis- and Pony Starr about three years. Don’t know what day of the week this trade was made, but about the middle of the month. Saw Bob 'pay in greenbacks out at the wood pile; the money was-handed to Foster. I don’t know where Foster is now. Cliff Sellers was just in and put of there; he was not working for Pony Starr. I helped drive the cattle to Checotah. Bob Davis paid me. Pony Starr subpoenaed me to be here. I haven’t talked with a soul about this case.”
    Clem Vann, Porum: Saw Dan Foster and Cliff Sellers driving some cattle, near Briartown, along about middle of June, 1910. They were going north toward the mountain. “Amond Davis was with me. I was down there hunting cattle. I thought they were driving 10 or 12 head. Amond Davis is a relative of Bob’s. I heard a few days after that these cattle were stolen, but never told anybody about what I had seen, because I didn’t think it was any of my business. I think Cliff Sellers was staying at Pony Starr’s at that time. I don’t know where Bushears or Mouser lives. This was about half a mile east of Briartown. I never paid any attention to the brands on the cattle; they were all kinder dark colored.”
    Amond Davis: Was living at Vann’s in June, 1910. Second cousin of Boh Davis. Testimony practically as Clem Vann’s except that witness wouldn’t be positive as to identity of parties he saw driving the-cattle.
    J. M. Blevins: Testified that he lived at Texanna, and about the 3d of July, ,1910, heard Dan Foster say that they had accused the wrong man of stealing those cattle; that he and Cliff Sellers had bought the cattle and sold them to Davis. “I don’t know where Dan Foster is now, or where Cliff Sellers is. They both claimed they came by the cattle honestly. Bob and Ed and ■Charles McClure was with me when this conversation occurred.”
    Charles McClure: Testimony practically same as Blevins. "Witness said Davis had been arrested for stealing these cattle when he had this talk with Foster, but that he never told anybody about what Foster had said.
    Bob McClure: Same as Charles McClure.
    . Chester Pitts: Lives close to Porum. .Soon after Bob Davis and Pony Starr were arrested for stealing these cattle, Cliff Sellers made a statement, in tlie presence of witness and Mr. Blake, about them..“I had started out home with Blake, and we met Cliff about a mile from Porum, west, and we spoke, and he said, T hear they got Bob Davis and Pony Starr arrested,’ and I said, Wes.’ And he said,: T sold them cattle to Bob and got the money for them, and I am going in and give up. I don’t want anybody else punished for what I done.’ But he said: T got them cattle honestly, and I think I am plenty able to prove where I got them.’ I worked for Bob Davis, and have known him for 15 years. I don’t remember that I ever told anybody around Briartown about my conversation with Cliff Sellers.”
    Bob Davis, the defendant, testified on his own behalf: Bought these cattle from Cliff Sellers and Dan Foster. “Jim McMurray was at my place when I bought them, and I told him to tell Pony Starr to order cars for me at Warner to ship these cattle. Pony told me he tried to get the cars at Warner, but did not know for certain whether they could get them on such short notice. Pony Starr went to Checotah with me.' He was going back down that way. Pony had no interest in these cattle. I signed the bill of lading myself. Pony had nothing to do with shipping the cattle. I didn’t pay any particular attention to the brands on the cattle. They were fat cattle, and the market was good. I notice one branded ‘J. M.’ and one ‘A. L.’ I bought seventeen head and paid ■ $305 for them. Peter Graham is unfriendly to me, and he and his brother have been packing guns for me. I think I notice a large black and white spotted cow in the bunch. I think the W. W. brand was in there. I think I penned these cattle on the 14th of June, about 5 in the evening. I don't remember whether there was a blue Jersey cow or not. I have known Pony Starr about 15 yeafs. I had known Cliff Sellers about two years. Sellers and Pony were gathering cattle for Chilkert, and they both helped me drive these cattle to Checotah."
    The defendant, recalled, testified: That he had bought another bunch from Cliff Sellers and Dan Foster on the same day; that they delivered the second bunch the Monday following; that no person was present at that time. The trade was made in his. pasture; that he bought 20 head, and paid $375 for them. Paid for them in greenbacks, 20’s, 10’s, and 5’s. Got the money by selling some hogs in the fall and some in the spring, and did not deposit it. Kept his money, about $800, with him. Had known Cliff Sellers about two years while he worked for Pony Starr. Had never heard of his owning any cattle before this time. They did not own any land there. That he shipped the second bunch of cattle from Warner. That the second bunch was branded “J. C.,” and was afterwards claimed by a fellow named Caesar and a fellow named Cohorn...
    J. G. Blake': Was with Chester Pitts, and had conversation with Cliff Sellers about cattle. Sellers said: “I hear they have Davis arrested, and they have got the wrong man; I drove them cattle to Davis and received pay for them.” That was about all he said. Don’t remember just when this conversation was. It was in the summer on Saturday; but don’t know the month.
    S. S. (Pony) Starr: Heard of Davis being arrested for stealing cattle. “Short time before that, I tried to get cars for him at Warner. I helped Bob drive the cattle to Checotah. I had no interest in the cattle. Cliff Sellers came home with me from Checotah. He had worked for me, but was not staying at my house at that time. I don’t know where he was staying. I never knew of him owning any cattle. I knew of him owning one horse. I was not down around Briartown. Bushears’ brand is ‘E. V.’ I don’t know whether there were any E. V. cattle in that bunch that was shipped. It was a mixed bunch. I have known Dan Foster about six years. He was from Leavenworth, Kan. I have bought some cattle from him a good while ago. I don’t» knowr what he was doing at that time. The last time I saw him was at Porum, about the time this cattle business came up. He was in Williams’ store, buying some clothes. It was after Bob Davis had been arrested. I don’t remember a white and black spotted cow in that bunch.”
    State’s Rebuttal.
    Henry Mouser, Briartown, farmer: “On the 14th of June, 1910,1 was in the bottoms plowing coin, and saw two men driving cattle. I wouldn’t be certain who they were; but I took one to be Pony Starr and the other Bob Davis. I have known them about three years. I would not swear positively who it was.”
    S'. M. Rutherford„ for plaintiff in error.

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

(after stating the facts as above). Counsel for plaintiff in error contends that the court erred in not sustaining the motion for a new trial, because there was not sufficient evidence to sustain the verdict, and in the brief states:

“We submit there is no evidence in thé record which tends to connect the defendant wdth the crime of stealing, unless it be that of his possession of the cattle. This cannot be considered a circumstance even against him; for the manner in which he obtained possession of the cattle is fully explained by himself and his witnesses.”

We have considered the record in its most favorable light to the defendant, and we cannot agree with this contention. Oui; opinion is that the evidence is sufficient to sustain the conviction; and, while the defendant offered evidence tending to show that he purchased the cattle from Cliff Sellers and Dan Foster, the jury found against him. It is undisputed that the stolen cows were in the defendant’s possession immediately after they were stolen; and it is shown that the defendant disposed of them, together with other stolen cattle, by driving them across the country, a distance of about 20 miles, to the town of Checotah, and there shipped them to Kansas City.

The record discloses that Sellers and Foster were not owners of cattle or other property, and the defendant knew of such fact; that Sellers was an employee of Pony Starr; and that Sellers, Foster, Pony Starr, and the defendant were at all times acting together in respect to these cattle, and when the defendant was arrested for the theft of the cattle Sellers and Foster disappeared from the country.

The possession of property, recently stolen, is evidence against the accused, which, like all other evidence, is to be taken and considered by the jury in connection with the other evidence in the case. Mr. Bishop says:

“When the fact of a theft has been shown, and the question is whether or not the defendant committed it, his possession of the stolen goods, either sole or joint with others, at a time not too long .after the stealing, is a circumstance for the jury to consider and weigh in connection with the other evidence. Its significance will vary with its special facts, and with the other facts'of the case, among which are the nearness or remoteness of the proven possession to the larceny, the nature of the thing as passing readily from hand to hand or not, what explanations he made on it being discovered that he had the goods, together with such other facts as ought reasonably to influence a juror’s opinion.” (2 Bish. New Cr. Pro. par 740.)

A question merely of fact is presented by the evidence, dependent wholly upon the credibility of the witnesses and the weight of their evidence. There could be no case suggested presenting a matter more proper for the decision of a jury. The jurors are the sole judges of the credibility of the witnesses who testify before them; and they aré not bound to, nor can they be compelled to, credit the testimony of any witness, whether contradicted or not. When a jury returns a verdict of guilty in this character of a case, it indicates that the explanation of the defendant’s possession, no matter how plausible, was not believed by the jury; and, unless, upon a fair consideration of all the facts and circumstances in evidence, it appears that the jury were not ■governed by the evidence in their finding, the-verdict will not be disturbed on the ground of insufficiency of the evidence.

Certain misconduct on the part of the prosecuting attorney ■during the trial is alleged. The prosecuting attorney, when the witness Nester testified,'made a statement in the presence of the jury. The record, in respect to this alleged error, is as follows:

“Mr. Disney: Now, at this time, I desire to ask Mr. Rutherford if he will not agree to let this be considered in evidence and used in the other cases against this defendant. Mr. Rutherford: I desire to object to that statement. We are trying this case, and not any other case. I want the court to instruct the jury that any remark made by the county attorney in their presence to be disregarded; that is, the remark about the other cases. Judge De Graffenreid: Gentlemen of the jury, you are instructed not to consider the remark made by Mr. Disney with reference to the other cases against this defendant. Mr. Rutherford: I desire to save an exception to the statement and remark of Mr.. Disney.”

It appears that counsel for defendant at the time requested the court to instruct' the jury to disregard any remark made by the prosecuting attorney in their presence; and the court very promptly, at the suggestion of counsel, so instructed the jury. Counsel at that time certainly thought that the error could be cured by the court’s instruction; else why the request? If the ■court could cure the error at the time, and complied with counsel’s request, why should counsel now complain? Especially is this true, we think, in view of the fact that all along throughout the record it is made to appear that other cattle were missed from the same range that these cows were taken from about the same time that these cows were alleged to have been stolen; and, at the time the defendant shipped these particular cattle to Kansas City, he shipped at least 32 head of other cattle that were branded and marked with the brands of well-known citizens of that community ; and it was not attempted to be concealed by the defendant, or by anybody, in so far as this record discloses, that other larcenies of other cattle from other people occurred about the time these cows were stolen.

When the defendant’s possession of property, recently stolen, is attempted to be accounted for, it is competent to show the defendant’s contemporaneous possession of other stolen property. For the reason stated, we think that whatever error, if any, was created by the remark of the prosecuting attorney was cured by the instructions of the court to the jury to disregard the same.

Lastly, it is contended that the trial court erred in forfeiting the defendant’s bond in open court, because the defendant did not appear when court convened pursuant to adjournment during the trial. Counsel claims: “This could have been done quietly and without calling attention of the fact to the jury, if it had been necessary at all.” If the defendant did not wish to have his bond forfeited, he should have appeared according to its conditions; and he cannot be heard to complain of the action of the court that was caused by his own laches. Counsel cites no authority in support of this contention; but states that the forfeiture was occasioned by a misunderstanding on the part of the defendant and his counsel as to the hour to which the court adjourned. As the record discloses that the proceedings continued regularly after the forfeiture was had, we presume the proper explanation was made, and the forfeiture set aside. The court did nothing more than its duty under the law. It must therefore be presumed that the action of the court was without bias, and was not prejudicial to the substantial rights of the defendant. The other assignments of error were abandoned in the argument of the case. The foregoing being all the assignments presented to the court, both in the brief and oral argument, we shall consider the others as waived.

We think the evidence well supports the verdict. The defendant had a fair trial, and his conviction was an act of justice.

Perceiving no prejudicial error in the record, the judgment of the district court of Muskogee county is affirmed.

FURMAN, P. J., concurs; ARMSTRONG, J., not participating.


author: DOYEE, J.

text:
    FRANK FULLINGIM v. STATE.
    No. A-788.
    Opinion Filed May 16, 1912.
    (123 Pac. 558.)
    1. CRIMINAL LAW — Issuance of Warrant — Authority of Clerk. The elerk of a county court is without power to issue a warrant of arrest for a defendant based upon an information filed in such court in the absence of the county judge; and, where a motion is made in apt time to set aside the warrant so issued, it should be sustained.
    2. INDICTMENT AND INFORMATION — Requisites of Information —Signature. It is essential to the validity of an information charging a misdemeanor that the county attorney shall subscribe his name thereto after the charge has been made, and the failure of the county attorney to so sign an information is sufficient ground for quashing the same.
    (Syllabus by the Court.)

      Appeal from Kiowa County Court; J. W. Mansell, Judge.

    Frank Fullingim was convicted of unlawful sale of liquor, and appeals.
    Reversed.

      O. B. Riegel and A. F. Moss, for plaintiff in error.

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

The plaintiff in error was convicted in the county court of Kiowa county in session at the court town of Snyder on an information which charged the unlawful sale to Herman Hendricks of one pint of whisky. The jury returned a verdict of guilty, fixing the punishment at five months confinement and a fine of $500. February 9, 1910, judgment and sentence was entered in accordance with said verdict. February 7, 1910, the defendant was brought before the court on the warrant of arrest for arraignment. Whereupon the defendant filed a motion to quash, set aside, and hold for naught the warrant issued for his arrest, and to discharge this defendant from arrest; for the reason that said warrant was issued by the clerk of the court. The court on hearing the motion found the facts to be that the warrant was issued by J. V. McClintic, clerk of the county court, in the absence and without the knowledge or consent of the county judge, and before the county judge had an opportunity to examine the same for sufficiency, and then overruled the motion to quash and allowed an exception.

Under the authority of Bowen v. State, 5 Okla. Cr. 605, 115 Pac. 376, the motion to quash should, have been sustained, and the county judge should then and there have issued a legal warrant for his arrest. In the case of Bowen v. State, supra, it was said:

“We have no discretion, except to hold that the court had not acquired jurisdiction of the person of the defendant, and that his trial was therefore illegal. This is the plain statute law of this state, and by it we are bound, whether we like it or not.”

Thereupon the defendant filed a motion 'to quash and set aside the information on the ground that the county attorney had prior to the commission of the alleged offense signed a number of blank informations, and left them with the clerk of the court at the court town of Snyder, and that, when the alleged transaction in this case arose, the said clerk without the knowledge or consent of the court, or judge thereof, or the county attorney, inserted the charge in the blank information. The facts stated in this motion were admitted upon the hearing of the motion. This motion to quash was also overruled by the court and exception allowed.

It is the contention of the defendant’s counsel that an information so signed and filed is not an information of a public prosecutor whose duty it is to present the same to the court. Counsel in their brief say:

“We know of no rule of law whereby a public officer can delegate his power to one who does not possess the qualifications he himself is required to have- when presenting himself for public office at election. The county attorneys of this state must be licensed attorneys, and so must their deputies. The clerk of the court was not one of these. It seems to us that a rule making the act of the clerk in filing charges over the signature of the county attorney as was done in this case, the act of the county attorney, would be dangerous to the security of society, and there would be nothing to prevent him from scattering signed blank informations throughout his jurisdiction, and allow his constituents to fill in criminal charges against the citizens of the county ad libitum

We think the contention is well taken. ' It is essential to the validity of an information charging a misdemeanor that the county attorney shall subscribe his name thereto after the facts constituting the offense have been alleged therein, and this requirement is not answered where a paper purporting to be a blank informa-' tion has been signed by the county attorney before the commission of the offense, afterwards therein attempted to be charged. Our statute provides (section 6644, Comp. Laws 1909) :

"The county attorney shall subscribe his name to informations filed in the county or district court and indorse thereon the names of the witnesses known to him at the time of filing the same."

The delivery of blank informations signed by the county attorney to the clerk of a county court is not a defect or imperfection in matter of form only within the curative provision of the statute (section 6705, Comp. Laws 1909) that no indictment or information is insufficient, nor can the trial, judgment, or other proceedings thereon be affected by reason of a defect or imperfection in the matter of form, which does not tend to the prejudice of the substantial rights of the defendant upon the merits, but is a defect of substance and jprejudicial to the substantial rights of the defendant. We are of the opinion'that the overruling of the motion to quash and set aside the information constituted reversible error.

For the- reasons stated, without considering the other assignments of error, all of which seem to be well founded, the judgment of the county court of Kiowa county is reversed.

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