text:
    J. L. DODD et al. v. STATE.
    No. A-457.
    Opinion Filed May 2, 1911.
    (115 Pac. 632.)
    1. JUDGES — Disqualification. A district judge who, prior to his election as sxrch, was county. attorney and particip ted in the prosecution of a criminal action as such county attorney, is disqualified to sit in the trial of such case as judge, and to make any order in the case whatever, except that showing his disqualification.
    2. CRIMINAL LAW — Disqualification of Prosecuting Officer. A county attorney who, prior to his election and qualification as such, was counsel for a defendant in a criminal action then pending, is disqualified to appear and prosecute said defendant on behalf of the state or territory, subsequent to his election and qualification as such.
    3. JUDGES — Special Judge — Extent of Jurisdiction. The authority of a special judge, lawfully selected by the parties, to preside over any cause or proceedings in which the regularly elected judge is disqualified by reason of the provisions of our statutes, ceases with the lapsing of the term at which he was selected, unless the case is Anally disposed of at such term, and in' that case ceases with the Anal disposition of the cause.
    4. JUDGES — Disqualification. When a trial judge is disqualified to sit in the trial of a cause, he cannot make a valid order appointing a special county attorney to appear and prosecute on behalf of the state upon the suggestion of the disquali A cation of the regularly. elected and qualiñed county attorney.
    5. DISTRICT AND PROSECUTING ATTORNEYS — Special Attorneys — Prowers, (a) All acts of a special county attorney appointed under a void order of a trial court are themselves void.
    (b) A special county attorney, when properly appointed by a trial court, before attempting to exercise the functions incumbent upon him by the appointment, should qualify as the law requires.
    (c) A special county attorney, although lawfully appointed by proper order of the trial court, cannot lawfully perform any of the duties incumbent upon him until he first qualifies as provided by law.
    6. DISTRICT AND PROSECUTING ATTORNEYS — Special County Attorney — Authority—Appointment. An agreement between a special county attorney, acting under a void appointment of a trial court, and the counsel for the defendant in a criminal action selecting a judge pro tempore to try such criminal action, is itself void, and confers no lawful authority upon such judge pro tempore whatever.
    7- JUDGES — Criminal Law — Judge Pro Tempore — Void Selection— Authority — Change of Venue, (a) All orders, judgments, and decrees made by a judge pro tempore who is not lawfully selected are a nullity.
    (b) An order made for the purpose of changing the venue from one county to another by a judge pro tempore who is not lawfully selected, although made upon a petition by the defendant addressed to him, does not operate to change the venue, and confers no authority upon a judge, duly elected and qualified, to try such cause in the county to which the change of venue is ordered.
    (c) All orders, judgments, and decrees made by a trial judge duly elected and qualified and presiding at a regular term of court in a criminal case unlawfully transferred by change of venue to such Court, except to return the files to the court where they properly belong, are themselves void.
    g. APPEAL — Review—Appeal on Void Proceeding. When a conviction is had in a trial court and the record on appeal affirmatively discloses the fact that the trial was had before a court who acquired no jurisdiction by reason of the nullity of prior proceedings had in such action, the judgment and all irregular proceedings had in such action will be set aside by this court, and defendant, held to appear before the proper trial court to await further action.
    (Syllabus by the Court.)

      Appeal from District Court, Texas County: Q. A. Brown, Judge.

      J. L. Dodd and Mary Dodd were convicted of: manslaughter, and appeal.
    Eeversed and remanded.

      Wiley & Edens and J. P. McLcmghlin, for plaintiffs in error.

      Chas. W-est, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   ARMSTRONG, Judge.

An indictment was returned by the grand jury of Beaver county, Oírla., on the 39th day of March, 1907, charging the plaintiffs in error with manslaughter. On the 37th day of February, 1908, the case came on for trial in Beaver county at the regular term of the district court of said county subsequent to statehood. The regular judge of the district court of Beaver county, Hon. R. H. Loofbourrow, was disqualified to try the cause on account of having been county attorney at the time of the arrest of plaintiffs in error, and having conducted the prosecution of plaintiffs in error prior to statehood.

County ‘Attorney Albert Welborn, of Beaver count}', was disqualified to prosecute on account of having been of counsel for plaintiffs in error prior to the admission of Oklahoma into the Union as a state. Judge Loofbourrow on the 26th day of February, 1908, announced his disqualification as judge in this cause on the grounds heretofore stated, and undertook to appoint Charles Swindall, a member of the Beaver county bar. as special county attorney to prosecute this cause. Thereafter, on the 27th day of February, said Charles Swindall, under the appointment heretofore mentioned as special county attorney, and counsel for the plaintiffs in error, Wiley & Edens, R. L. Davis, and J. P. McLaughlin, agreed upon Hon. C. T. Whitaker, a member of the Beaver county bar, as judge pro tempore to sit in the trial of the case, and, after being sworn, he proceeded to arraign the plaintiffs in error, and set the cause for trial. The record fails to show ihat the special county attorney attempted to qualify as the law provides, but assumed to act as though he had qualified. A motion to set aside the indictment was filed and overruled, and a demurrer to the indictment was filed and taken under advisement until the first day of the next regular term of the district court of Beaver county, and the case continued until said next term by said Whitaker.

On the 2.4th day of August thereafter, it being one of the regular days of the August term of the Beaver county district court, Hon. C. T. Whitaker, without further action of the parties reselecting him or otherwise, assumed the bench and overruled the demurrer taken under advisement at the previous term of the court, and plaintiffs in error reserved exceptions. On the 1st day of September thereafter Special County Attorney Charles Swindall asked leave of the court to indorse additional witnesses on the indictment, which was granted over the objection of the defendant. On the, same date the plaintiffs in error filed their petition for a change of venue, which petition was overruled, and the cause set for trial on the 2d day of September thereafter. A jury was impaneled on this date and the case proceeded to trial. The jury returned a verdict of guilty on the 3d day of September thereafter, and on the same day a motion for a new trial was filed, which motion was by the court sustained on the. 4th day of September. On the same date plaintiffs in error filed a petition for change of venue, which was overruled, and on the 5th day of September thereafter plaintiffs in error u'ere allowed to make additional showing on the petition for change of venue, and upon additional showing the order overruling the petition for change of venue was set aside, and the petition allowed, and the venue changed from the district court of Beaver county to the district court- of Texas county, all of which proceedings were had before lion. -Chas. T. Whitaker, who had been selected as judge pro tempore at the February, 1908, term of the district court of Beaver county in the manner set out supra. On the 28th day of September, 1908, the record recites that “the district court of Texas county,' Oklahoma, * * * being in session in said Texas county, Oklahoma, * * * the said Ohas. T. Whitaker assuming power to sit as special judge in said cause makes the following order: Such order was that the case of the State of Oklahoma v. J. L. Dodd and Mary Dodd be continued until the next regular term of the district court of Texas county and that they stand on the bond already given.”

On the 11th day of February, 1909, plaintiffs in error filed the following motion in the district court of Texas county, where Judge G. A. Brown, having been assigned, by order of the Chief Justice of the Supreme Court of Oklahoma, to hold the February term of the Texas county district court, was presiding:

“Comes now the defendants, by their attorneys, Wiley & Edens and J. P. McLaughlin, and object to the jurisdiction of this court for the reason that the said cause has never been legally transferred or sent on change of venue from Beaver county, Oklahoma, to Texas county, Oklahoma, by any judge qualified to transfer said cause. The defendants further object to any action being taken by this court in said cause for the reason that this, court is without jurisdiction in said cause. The defendants further object to G. A. Brown sitting and acting as judge in this ease for the reason that, if the said case was properly transferred to this county and Charles T. Whitaker was ever qualified to act as special judge in said cause after the term in which he was selected, then he would be special judge at this present term to try this cause, and said G. A. Brown would have no right to assume jurisdiction to try said cause. We therefore move that said defendants be discharged, and that the cause be dismissed for want of jurisdiction. Wiley & Edens and J. P. McLaughlin.”

—which motion was overruled.

This record as shown by the above statement raises two questions for our consideration. The petition in error makes many other assignments, but it is unnecessary to consume time and space in discussing them.

The first question raised is, Did the district judge, Hon. R. H. Loofbourrow, have the power to appoint a special prosecuting attorney; and, if so, were the acts of said special prosecuting attorney without his qualifying as required by law valid? Second. When does the authority of a judge pro tempore as sucn cease? If Judge Loofbourrow could not make the appointment by reason of his disqualification, then any agreement made by the special county attorney so appointed, whether he took the oath as required by law or not, looking to the selection of a judge pro tem-pore to try this cause would be a nullity. Under the law in force at the time this appointment was made, a district judge when disqualified to sit in the trial of a cause could make one order only, and that order was the order certifying his disqualification. This question has been passed upon by the Supreme Court of Oklahoma Territory, the Supreme Court of this state, and by this court. Cullins et al. v. Overton, Sheriff, et al., 7 Okla. 470, 54 Pac. 702; Lewis v. Russell, Judge, 4 Okla. Cr. 129, 111 Pac. 818; Cowart v. State, 4 Okla. Cr. 122, 111 Pac. 672; Buchanan v. State, 2 Okla. Cr. 126, 101 Pac. 295. Under the rule announced by these courts, and nowhere varied from, the trial judge, Hon. R. H. Loofbour-row, had no authority to make the appointment, and the order entered for that purpose by him was null, and the appointment therefore void. It follows as a natural consequence that all the acts of the special county attorney were likewise void. This being true, it necessarily follows that the selection of Hon. C. T. Whitaker as judge pro tempore was not lawfully made, and conferred, upon him no authority to sit as a judge and try this case and all orders or judgments made by him were a nullity.

These questions were not raised before Judge Brown when the case was called for trial in the district court of Texas county. The only question there raised was the question of the right of the judge pro tempore to pass upon petition for a change of venue, and order the venue changed after the lapsing of the term at vliicli the judge pro tempore was selected to preside over the hearing of this cause. The question of when the authority of a judge pro tempore ceases has not been before this court in the light it is now presented heretofore. The question as it is now presented is: Does the authority of a judge pro tempore cease with the lapsing of the term of the court during which he is selected to preside over the trial of a case, or does it continue until the case is finally tried and disposed of? The Supreme Court of Wisconsin in the ease of Fordyce v. State, and State v. Fordyce, reported in 115 Wis. 608, 92 N. W. 430, in discussing this identical question as to when the authority of a judge pro tempore ceases, held that this authority ceases with the lapsing of the term of the court at which he is called to preside over the trial of a certain cause. The statute in-that state provides that the trial judge, when he is disqualified to preside over the trial of any' cause, may call another judge to preside over the trial. Our statute provides that the parties may agree on a special judge to preside in his stead. The principle is the same. The rule announced in the Wisconsin case cited, supra, is that contemplated by our law. The authority of a special judge selected by the parties to preside instead of the regularly elected judge, who is disqualified by reason of any of the provisions of our statutes, ceases with the lapsing of the term during which he is selected, unless the case is finally disposed of at such term, and in that case ceases with the final disposition of the cause.

The proceedings had in this cause from and including the appointment of the special county attorney by Judge Loofbourrow to and including the judgment rendered against the plaintiffs in error from which this appeal is prosecuted are a nullity. This cause is still pending in the district court of Beaver county.

All proceedings had herein subsequent to the appointment of the special county attorney and including that appointment are hereby set aside, and plaintiffs in error are directed to appear before the district court of Beaver county at the next regular term thereof. The clerk of this court is directed to forward the mandate in this case to the clerk of the district court of Texas county to be by him recorded in the proper records of said court, and forwarded to the district court of Beaver county to be likewise recorded.. The clerk of the district court of Texas county is also directed to forthwith return the files originally forwarded on the change of venue from Beaver county to the district court of said Beaver county.

FUBMAN, PeesidiNC Judge, and DOYLEi, Judge, concur.


source: Caselaw Access Project

author: ABMSTBONG, Judge.

license: Public Domain

text:
    J. W. FIELDS v. STATE.
    No. A-537.
    Opinion Filed May 6, 1911.
    (115 Pac. 608.)
    1. INDICTMENT AND INFORMATION — Prosecution — Felonies. Under the provisions of section 17, art. 2, of the Constitution, felonies in this jurisdiction may be prosecuted either by indictment or information.
    2. CRIMINAL LAW — Preliminary Examination — Prosecution by Information. When felonies are prosecuted by information, it is necessary for a preliminary examination to be held, and proper commitment issued holding- the person charged to ^.wait the action of the proper trial court.
    3. SAME — Prosecution by Indictment. When prosecution is by indictment, it is, not necessary that a preliminary examination be held.
    4. INDICTMENT AND INFORMATION — Manner of Prosecution-Election by State. The state is not bound to prosecute by information after a preliminary examination is had as provided by statute, but may prosecute by indictment at its election.
    5. HABEAS CORPUS — When Lies — Delay in Preliminary Examination. When a person is arrested charged with a felony and held in custody pending a preliminary examination, and such examination is not held within the time provided by law, he has a remedy by habeas corpus proceedings in a proper court for his discharge.
    (Syllabus by the Court.)

      Appeal from District Court, Osage County: John J. Shea, Judge.

    J. W. Fields was convicted of larceny of domestic animals, and brings error.
    Affirmed.

      Grinsiead, Mason & Scott, for plaintiff in error.

      Chas. West, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   ABMSTBONG, Judge.

Plaintiff in error was convicted at the November, 1909, term of the district court of Osage county on a charge of larceny of domestic animals, and sentenced to 10 years penal servitude in the state penitentiary. He was arrested on the 23d day of June, 1909, on a warrant from a justice of the peace court, and a preliminary hearing was set for July 1st, at which time he appeared and was ready for preliminary trial. The state was not ready and was granted a continuance until-the 10th of July, when plaintiff in error again appeared and was ready for trial and the state not ready, and a continuance was granted until the 24th day of July; all of the continuances having been had without the consent of the plaintiff in error. On July 6th a grand jury was impaneled by the district court of Osage county, and on the 20th day of July returned an indictment against plaintiff in' error, charging the same offense for which he was arrested and held for examination by the justice- of the peace. No disposition had been made of the cause by the justice of the peace. He was arraigned on the 1st day of November on the indictment and interposed a plea in abatement, which was overruled and he excepted. The case went to trial on the 4th, resulting in the conviction and sentence already mentioned.

The sole assignment of error relied "non bv the plaintiff in error in this court is that the trial court erred in overruling the plea in abatement. Counsel for plaintiff in error urge that the state, having elected to arrest the defendant and proceed under the provisions of the statute for preliminary examination and the filing of an information, cannot abandon that method and prosecute by indictment by a grand jury. Section 17, art. 2, of the Constitution, is as follows:

"No -person shall be prosecuted criminally in the courts of record for felony or misdemeanor otherwise than by presentment or indictment or by information. No person shall be prosecuted for a felony by information without having had -a preliminary examination before am examining magistrate, or having waived such preliminary examination. Prosecution may be instituted in courts of record upon a duly verified complaint.”

binder this provision, there are two methods prescribed by which prosecutions in felony cases may be prosecuted in courts having jurisdiction of such offenses, to wit: First, by indictment; second, by information. The preliminary examination is not, and never was, a necessary jurisdictional requirement to prosecutions by indictment. Such an examination is necessary only under our law when the prosecution is by information. There is noth-in the letter or spirit of the law to sustain the contention of the plaintiff in error. If he had been held by the committing magistrate to await the action of the grand jury, he could have been indicted, tried, and convicted just as if no examination had been had. The state is not bound to prosecute by information simply because its officers may have elected to arrest a person and hold a preliminary examination. It may be true that the plaintiff in error was held in custody illegally awaiting proper preliminary hearing. lie had a remedy, however, if he had chosen to resort to it. The plea in abatement was properly overruled.

No other errors being complained of, and none appearing from the record, the judgment of the trial court is affirmed.

FUBMAN, PRESIDING Judge, and BOYLE, Judge, concur.


author: DOYLE, Judge

text:
    BILL RIDLEY v. STATE.
    No. A-480.
    Opinion Filed May 9, 1911.
    (115 Pac. 628.)
    1. JURY — Right to Trial By Jury. It is the duty of courts to enforce a rigid and vigilant observance of the provisions of the statutes designed to preserve inviolate the right of trial by jury, and the purity of jury trials.
    2. APPEAL — Review—Presumptions—Miscdnduct of Jury. While the jury were in the jury room deliberating upon their verdict, one of their number knocked upon the door, and when the door was opened a member of the jury talked with the clerk of the court about how the verdict should be signed. Held, that any communication or conversation with the jury in reference to the ease by the clerk of the court, after the jury have retired to deliberate upon their verdict, will be presumed to be prejudicial to the rights of the defendant.
    3. INTOXICATING LIQUORS — Violation of Prohibition Law — Prosecution — Sufficiency of Evidence. The evidence in the cause examined and considered. Held, that the verdict was against the weight of the evidence.
    (Syllabus by the Court.)

      Appeal from Stephens Qounty Court; W. H. Admire, Judge.

    Bill Ridley was convicted of violating the prohibitory liquor law, and he appeals.
    Reversed and remanded.
    On the 17th day of July, 1909, there was filed in the county court of Stephens county, Olda., an information, signed by the county attorney and sworn to by M. W. Wilson, charging the defendant, Bill Ridley, with the crime of selling, giving away, and otherwise furnishing intoxicating liquor. On the same day a warrant was issued, and said defendant was brought before the court, executed, and was released upon, an appearance bond. On October 4, 1909, the defendant filed a demurrer to the information, which demurrer was confessed by the county attorney and sustained by the court, and the state was granted leave to amend. October 6, 1909, a trial of said cause was had, resulting in a verdict of guilty, and the defendant’s punishment was assessed by the jury at a fine of $100 and imprisonment in the county jail for 60 days.
    After the state had rested its case, the defendant demurred to the testimony and moved to direct a verdict of acquittal, which was overruled by the court, to which action of the court the defendant duly excepted. October 12, 1909, the court overruled the motion for a new trial and pronounced judgment on the verdict of the jury, to which action of the court the defendant excepted and prayed an appeal to the Criminal Court of Appeals for the state of Oklahoma, which was granted. And on the same date said defendant filed his appeal bond in the sum of $500, which was duly approved by the court. And from the order overruling tbe motion for a new trial, and in pronouncing judgment upon the verdict, the defendant appealed by filing in this court, on December 10, 1909, his petition in error and case-made.

      E. E. Morris, for plaintiff in error.

      Smith 0. Matson, Asst. Atty. Gen., for the State.
   DOYLE, Judge

(after stating the facts as above); The plaintff in error has assigned a number of errors committed by the county court on his trial, only two of which will be considered in this opinion.

“First. Because the verdict and judgment are contrary tc the evidence.” The testimony of Spence Kincannon, the first witness for the state, was that he, with Bill Gafford, as deputy sheriffs serving a search warrant, raided the 0. K. wagon yard at Duncan, and there found more than a dozen men drinking beer. That there were several bottles of beer in a tub with water and ice. The wagon yard was conducted by a man named Merritt, and he was there. They also found the defendant there drinking a bottle of beer. The other witness for the state, M. W'. Wilson, was the prosecuting witness.

The material part of his testimony is as follows:

“Q. You have charged Mr. Ridley, by information, of furnishing you one pint of beer? A. I was there with the crowd; I don’t know who furnished the beer. Q. Did you get any beer that day? A. Yes, sir; something similar to it. Q. Where did you get it? A. At the O. K. wagon yard. Q. How much did you get? A. I drank some out of two bottles. One man drank about half out oí one bottle, and Spence Kincannon came in, and he set his down and walked out, as well as I can remember, and I picked it up and drank it.' Q. Who brought it to you ? A. I could not tell you who> set it on the table. Q. Do vou know Bill Ridley, the defendant here? A. I am not personally acquainted with him. Q. Is this the man? A. He looks a good deal larger than him. Q. Is that the man that -furnished you the beer ? A. He was sitting down in a chair all jambed up' and looked like a smaller man— Q. I will ask you this question, Ts that the man, or not, that furnished you the beer?’ A. I could not say.”

Cross-examination:.

“Q. You do not undertake to say that this is the man who furnished you the beer? A. No, sir. Q. You mean to say he resembles him a little, but this man is a heap bigger man than he was then? A. I told the judge I could not swear positive.”

And further down on the page the following question and answer appears: “Q. You told Judge Admire you could not swear that it was Bill Ridley that furnished you the beer? A. Yes, sir.”

TJpon this testimony the state rested. The defendant moved the court to direct a verdict of acquittal, which was overruled. Whereupon the court instructed the jury and submitted the cause. The testimony taken as a whole, ^nd the facts presented by the proof, seem to fall below that degree of certainty, as evidence of guilt of the defendant, required to support a verdict and judgment of conviction. To find a verdict of guilty, the jury were required to find that the facts presented by the proof removed reasonable doubt of the defendant’s guilt, and to support such conclusion it must be founded on' testimony showing facts legitimately pointing in that direction. It is not sufficient that he may have committed the act, but it must be established that he did. Direct evidence is not always available to establish a defendant’s guilt, and resort is necessarily had to circumstances showing his guilt, but to be effectual they must do more than to create suspicion that the party charged is guilty. There is no evidence that the defendant owned the beer, or place where the beer was found; on the contrary, the evidene shows that the-place was controlled, if not owned, by another man. Here it seems that the prosecuting witness could not and would not say that the defendant was the person who furnished him the beer. If this doubt as to the identity of the defendant existed in the mind of the prosecuting witness, and his the only testimony offered by the state, can it be said that the jury were justified in finding from this evidence that the defendant was guilty beyond a reasonable doubt? We think not. Clearly the verdict was not supported by sufficient evidence tending to prove the offense charged.

■ /The eleventh assignment alleges misconduct oí the jury and clerk of the county court, as set forth by affidavits in suppoiL of the motion for a new trial, which are not controverted. It appears from said affidavits that while the jury were deliberating upon their verdict some member of the jury knocked on the door of the jury room, and when it was opened a member of the jury spoke to T. B. 'Wilkinson, the clerk of the court, and said, "Five of us agree; do we have to sign it?” and said clerk answered, and said. “The five that had agreed had to sign it.” That thereupon the door to said jury room was closed, and after a short while the jury returned into court with a verdict signed by five jurors.

Our statutes provide (section 6858, Snyder’s St.) :

“After hearing the charge, the jury may either decide in court, or may retire for deliberation. If they do' not agree without retiring, one or more officers must be sworn to keep them together in some private and convenient place, without food or drink, except bread and water, unless otherwise ordered by the court, and not to permit any person to speak to or. communicate with-them, nor do so themselves, unless it be by order of the court, or to ask them whether they have agreed upon a verdict, and to return them into court when they have so agreed, or when ordered by the court.”

And (section 6865, Snyder’s St.) :

“After the jury have retired for deliberation, if there be a disagreement between them as to any part of the testimony, or if they desire to be informed on a point of law arising in the cause, they must require the officer to conduct them into court. Upon their being brought .into court, the information required must be given in the presence of, or after notice to the county attorney and the defendant or his counsel, or after they have been called.”

The question presented is whether such misconduct is sufficient to require the court to set the verdict aside and grant a new trial. It is of the utmost importance that jurors and court officials should be held to a strict observance of the provisions of law prescribing their procedure and duties, and their conduct should be such that no possible suspicion can a.t-■tach to them of having acted in a manner prejudicial to the accused, or in his favor. If there was a disagreement between them, or if they were doubtful as to how they should proceed, they should have required the officer in charge to conduct them into court, and the necessary information would be given by the court in the presence of the parties. It will be presumed, in the absence of anything ;to the contrary, that the rights of the defendant were prejudiced by the action of the jury and clerk o£ the court in disregarding and failing to observe the requirements of the statute. Courts cannot be too strict in compelling a rigid and vigilant observance of the provisions of the statutes designed to preserve inviolate the right of trial by jury and the purity of jury trials. We deem it unnecessary to consider the other assignments.

For the reason herein set forth, the judgment will be reversed, and the cause remanded to the county court of Stephens county.

FUBMAN, PRESIDING Judge, and ARMSTRONG, Judge. concur.


author: PER CURIAM.

text:
    FAWN MANUEL v. STATE.
    No. A-569.
    Opinion Filed May 9, 1911.
    (115 Pac. 605.)
    APPEAL — Dismissal—Writ of Error Filed too Late — Failure to File Notice of Appeal. Where judgment was rendered November 1, 1909, and there was an order of the trial judge extending the time within which accused could take his appeal to January 20, 1910, and the writ of error was not filed in the appellate court until January 25, 1910, and the record failed to show that any notice of appeal was served upon the county attorney and clerk of the county court, as required by Comp. Laws 1909, sec. 6949, the appellate court never acquired jurisdiction, and the appeal must be dismissed.
    ('Syllabus by the Court.)

      Appeal from Wagoner County Court; W. T, Drake, Judge.

      Fawn Manuel was convicted of violating the prohibitory liquor law, and he appeals.
    Dismissed.

      B. F. Blair, for appellant.

      Smith 0. Matson, Asst. Atty. Gen., for the State.
   PER CURIAM.

On the 1st day of November, 1909, in the county court of Wagoner county, appellant was convicted for violating the prohibitory liquor law. His punishment was assessed at a fine of $100 and 60 days’ confinement in the county jail.

There was an order of the county judge extending the time within which appellant could take his appeal to this court to the 20th day of January, 1910. The writ of error, however, was not filed in this court until the 25th day of January, 1910. The record fails to show that any notice of appeal had ever been served upon the county attorney and clerk of the county court as is required by section 6949 of Snyder’s Comp. Laws of Oklahoma 1909.

This court, therefore, never acquired jurisdiction of this cause, and it must be dismissed.


author: FUEMAN, PRESIDING Judge.

text:
    TOM TALLEY v. STATE.
    Nos. A-611 and A-640.
    Opinion Filed May 16, 1911.
    (115 Pac. 603.)
    APPEAL — Record—Sufficiency of Case-Made. No case-made wilí be considered by this court, unless the record shows positively and affirmatively that it was served upon the county attorney within the time fixed by the ftrial court for that purpose.
    (Syllabus by the Court.)
    Tom Talley was twice convicted of violating the prohibitory liquor law, and he appeals.
    Affirmed.

      W\ A. Hauser, for appellant.

      Smith O. Matson, Asst: Atty. Gen., for thq State.
   FUEMAN, PRESIDING Judge.

On the 9th day of December, 1909, judgment was pronounced against appellant in the two above-numbered cases for violations of the prohibitory liquor law, and in each case his punishment was assessed at 30 da)'®’ confinement in the county jail and a fine of $150.

In each case he was granted 60 days within which to prepare and serve a case-made. The record shows that a case-made-ivas served on the county attorney in both of the above cases, but fails to show that it was served within the time allowed by the-trial court. This is not a compliance with the law. The record must positively and affirmatively show that the case-made was served upon the county attorney within the time fixed by the trial court for that purpose, or the case-made will be stricken from the-the record. Cohn v. State, 4 Okla. Cr. 492, 113 Pac. 219. The case-made in each case is therefore stricken from the record.

We find no error in the transcript of the record in either case, and both judgments are therefore affirmed.

ABMSTEONG and DOYLE, Judges, concur.


text:
    FRED TUNNARD v. STATE.
    No. A-352.
    Opinion Filed May 16, 1911.
    (115 Pac. 603.)
    INDICTMENT AND INFORMATION — Separate Offenses — Joinder, Where a transcript shows that an accused was tried upon two separate charges at the same time, and two verdicts rendered, one finding him guilty on the first count and another guilty on the second count, the conviction will be set aside, as accused cannot be charged with two separate offenses in the same indictment.
    (Syllabus by the Court.)

      Appeal from Roger Mills County Court; E. E. Tracy, Judge.

    Fred Tunnard was convicted of violating the .prohibitory law, and appeals.
    Eeversed and remanded.

      J. L. Anderson and E. L. Mitchell, for plaintiff in error.

      Smith G. Matson, Asst. Atty. Gen., for the State.
   PER CURIAM.

The record in this case is very unsatisfactory and more or less incomplete. A careful examination of the transcript indicates that the plaintiff in error was tried upon two separate charges at the same time, and we would infer that the charges were joined in one indictment by two separate counts. There are two verdicts by the jury, the first of which is as follows :

“We, the jury, impaneled and-sworn to try the issues in the above-entitled cause, do, upon our'oaths, find the defendant, Fred Tunnard, guilty as charged in the second count of the information, and fix his punishment at fifty dollars ($50.00) fine and thirty days in the county jail.”

The second is as follows:

“We, the jury, impaneled and sworn, to try the issues in the above-entitled cause, do, upon our oaths, find the defendant guilty as charged in the first count of the information, and fix his punishment at one hundred dollars ($100.00) fine and thirty days in the county jail.”

The judgment of the court is to the effect “that the defendant be fined and imprisoned in the county jail of Roger Mills county, state of Oklahoma, for a period of sixty days and pay a fine to the state of one hundred fifty dollars ($150.00).”

A defendant cannot be tried upon two separate offenses at the same time, and cannot be charged with two separate offenses in the same indictment. The law upon this noint is clear. IE the county attorney bad desired to prosecute the plaintiff in error for unlawfully conveying whiskv as provided in the statute, he should have filed an information charging that offense and put him on trial in the regular way. If he desired to prosecute him for having whisky in his possession for ,the purpose of violating t-v provisions of section 1, art. 3, c. 69, of the Session Laws of 1908, he should have filed an information against him charging that .particular offense. Such a conviction as that disclosed by this record cannot be upheld.

The judgment of the trial court is reversed, and the cause remanded to the county court of Eoger Mills county.


author: PEE CtTBIAM.

text:
    GEORGE GARDNER v. STATE.
    No. A-531.
    Opinion Filed May 16, 1911.
    (115 Pac. 607.)
    WITNESSES — Examination—Leading Questions — Discretion of Court. As a general rule a' party cannot ask leading questions of his own witness; hut when it appears that the witness is unfriendly toward the party placing him upon the witness stand, or is trying to evade the questions asked him, then, in the discretion of the trial court, the party may be permitted to ask leading questions of his own witness.
    (Syllabus by the Court.)

      Appeal from- Canadian County- Court; H. L. Fogg, Judge.

    George Gardner was convicted of violating the prohibitory liquor law, and he appeals.
    Affirmed.

      J. M. Frame and J. N. Robertson, for appellant.

      Smith C. Matson, Asst. Atty. Gen., for the State.
   PEE CtTBIAM.

Appellant was convicted for a violation of the prohibitory liquor law, and his punishment was assessed at a fine of $50 and confinement in the county jail for a period of 30 days.

Counsel for appellant rely upon two grounds to secure a reversal of this case. The first is that the court permitted the county attorney to ask leading questions of the state’s witness Teague. As a general rule a party cannot ask leading questions of his witness; but when it appears that the witness is unfriendly toward the party placing him upon the witness stand, or is trying to evade the questions asked him, then, in the discretion of the trial court, the party who placed said witness on the stand may be permitted to ask such witness leading questions. In this case the record abundantly shows that the witness Teague was doing all in his power to screen and protect the appellant, and to evade answering the questions asked him by the county attorney. We therefore think that the court did not abusé its discretion in permitting the county attorney to ask the witness leading questions. But, even independent of this, the guilt of the defendant is clearly proven by other testimony than that of the witness Teague.

The county attorney, in his closing argument to the jury, did attempt to make remarks not warranted by the testimony in, the case; but upon objection made thereto, he was promptly rebuked by the trial court, and such remarks were withdrawn from the consideration of the jury. We 'do not’ think that the remarks made by the county attorney, under the circumstances, injured appellant.

The judgment of the lower court is therefore in all things affirmed..


author: ARMSTRONG, Judge.

text:
    FRANK MANNING v. STATE.
    No. A-644.
    Opinion Filed May 16, 1911.
    (115 Pac. 612.)
    1. TRIAL — Instructions—Credibility of Accused. An instruction upon the credibility of the defendant as a witness in his own behalf is erroneous; and, when given, is ordinarily sufficient grounds for a new trial.
    2. APPEAL — Instructions—Credibility of Accused. When the defendant is the only, witness testifying to material facts tending to establish his defense, and the trial court, after a portion of the argument of the case has been made to the jury, gives an instruction upon the credibility of the defendant as a witness in his own behalf, a conviction had will be set aside and a new trial awarded.
    (Svllabus by the Court.)

      Appeal from, District Court, Oklahoma County; John J. Carney, J udge.

    Frank Manning was convicted of manslaughter, and he appeals.
    Reversed and remanded.

      Qiddings & addings, for plaintiff in error.

      Chas. West, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   ARMSTRONG, Judge.

Plaintiff in error was tried in March, 1909, in the district court of Oklahoma county on a charge of murder and convicted of manslaughter in the second degree, and sentenced to four years in the state penitentiary.

The proof shows: That the plaintiff in error conducted a meat and grocery market at 111 South Robinson street in Oklahoma City in the summer of 1908. That he slept at the same place. On the night of the 31st of August he closed at about 9 o’clock, and went to a resort on Grand avenue, and secured a lunch and a drink of whisky. It was a rainy night. About 11 o’clock, he returned to his place, and found the doors had been broken, and some one had forced entrance to the place. The plaintiff in error appears to have entered the back door; the front door having been locked on' the inside. As he walked through the shop, he heard a noise, and, picking up a butcher knife, started toward the front door. About the time he got to the door a man rose up, and, according to his testimony, told him to hold up his hands. A struggle ensued in which the intruder was struck on the head with the knife, and afterwards shoved out of the front'door onto the street where he fell. It developed that this person was Thomas T. Weitzel. Several persons saw the plaintiff in error and deceased struggling on the walk in front of the butcher shop, but recognized neither of them. In a few moments officers appeared on the scene, and plaintiff in error was arrested. Weitzel died from the'effects of the wound on the 1st day of September, 1908.

There are a number of assignments of error relied upon, but, in view of the fact that the questions raised have been repeatedly passed upon by this court, we shall consider only one assignment, which this court has repeatedly held is sufficient to cause a reversal. This is assignment No. 8.

After the court had instructed the jury and the assistant county attorney had made the opening argument for the state, the court gave the following instruction, over the objection and exceptions of the defendant:

“There is just one instruction that the court did not give that it will now give: ‘The defendant is a competent witness in his own behalf, and his testimony is to be weighed by the same rules that govern the testimony otf other witnesses; but, in weighing his testimony, the jury may take into consideration the fact that he is the defendant in this case and his interest in the result of the trial/ ”

In this casé the plaintiff in error was the only witness testifying to the substantial facts tending to establish his defense. Such an instruction as the foregoing has been held erroneous in a great many clasps by this court, among them the following: Bridges v. U. S., 3 Okla. Cr. 64, 104 Pac. 370; Hughes v. State, 3 Okla. Cr. 387, 106 Pac. 546; Crow v. State, 3 Okla. Cr. 428, 106 Pac. 556; Fletcher v. State, 2 Okla. Cr. 300, 101 Pac. 599, 23 L. R. A. (N. S.) 581; Banks v. State, 2 Okla. Cr. 339, 101 Pac. 610; Mitchell v. State, 2 Okla. Cr. 442, 101 Pac. 1100; Price v. U. S., 2 Okla. Cr. 449, 101 Pac. 1036; Reed v. U. S., 2 Okla. Cr. 652, 103 Pac. 371.

The judgment of the trial court is reversed, and the cau e remanded for a new trial.

FURMAN, PeesidiNg Judge, and DOYLE, Judge, concur.


author: ABMSTBONG, • Judge.

text:
    FOREST CECIL MINGLE v. STATE.
    No. A-575.
    Opinion Filed May 16, 1911.
    (115 Pac. 616.)
    1. APPEAL — Failure of Plaintiff in Error to File Briefs. When an appeal is perfected in this court, and no counsel appears and no hriefs are filed on behalf of a plaintiff in error, this court will examine the record for fundamental errors only, and discovering none the judgment appealed from will he affirmed, under rule 4 of this court (1 Okla. Cr. x, 101 Pac. xii.)
    (Syllabus by the Court.)

      Appeal from District Court, Oklahoma County; John J, Carney, Judge.

    Forest Cecil Mingle was convicted oí murder, and he appeals.
    Affirmed, with directions.

      Giddings & Giddings, for plaintiff in error.

      Chas. West, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State. •
   ABMSTBONG, • Judge.

An information was filed against the plaintiff in error in the district court of Oklahoma county on the 5th day of April, 1909, after he had had a preliminary examination as provided by law, charging him with having murdered Mrs. Pearl Pearson of Oklahoma City on the 16th day of September, 1908. The case came on for trial on the 28th day of June, 1909, and a verdict of guilty was returned by the jury on July 17, 1909, fixing his punishment at imprisonment for life at hard labor in the state penitentiary. Motions for a new trial and in arrest of judgment were filed and overruled, and on the 24th day of July thereafter judgment and sentence was pronounced by the court in accordance with the verdict, from which judgment this appeal is prosecuted.

It appears that the deceased was living with her husband, Ilarry Pearson, and conducting a boarding house in Oklahoma City during September, 1908; that they were married at Iola, Kan.; that deceased was a daughter of J. D. Man, a hotel proprietor of that place. About 1 o’clock on the 16th day of September, 1908, Mrs. Pearson left home saying that she was going down town to take treatment from a physician, and that she would return about 4 o’clock; that at this time she carried with her about $15 in money and wore two diamond, rings. About 1:30 or 2 o’clock she appeared at the home of a Mrs. Strimple in company with the plaintiff in error, and they claimed to be on their way to look at some vacant lots a few blocks further out. She was not heard from again until about 5 o’clock in the evening, when she came to the home of a Mr. Putman, suffering from three bullet wounds, -apparently from a 38 caliber revolver, and in a dying condition. She was carried from there to. the hospital, .and died about two or three hours afterwards.

While at the Strimple place, plaintiff in error, under the name of Parker, was introduced to a man by the name of Bennett. Mrs. Strimple testified that she was not sure whether she had seen plaintiff in error before at her place, but knew Mrs. Pearson. They tried to borrow a buggy and horse from Mrs. Strimple; but she refused them, and they went away. Before leaving Mrs. Strimple’s, plaintiff in error tried to get Mrs. Pearson to let him have her diamond rings, which she refused, saying: “Not on your life.” About 4:30 o’clock plaintiff in error came back to Mrs. Strimple’s alone and tried to get the hors'e and buggy, and said he wanted to take Mrs. Pearson to Britton or Edmond, and was again refused. He then went over to a place on West Twenty-Sixth street, and there - arranged to hire a boy named Shaw to take him to Edmond. Shaw’s horse gave out, and he drove to Britton, where other arrangement were made to go on to Edmond. When they started out from Oklahoma City, plaintiff in error represented to the Shaw boy that he had a very sick brother at Edmond and wanted to get there at once, in order to see him alive. When they started north on the road to BHtton, they were traveling the street which goes by the Putman house, and near the scene of the tragedy. The plaintiff in error suggested that they don’t go that way, but that they go three or four blocks west to Fiftieth street and bac-k to the load leading to Britton. From Britton plaintiff in error was carried to Edmond by a boy named Willie Brown. On arriving at Edmond, he went immediately to a restaurant and tried to secure a drink of whisky, and failing ate supper. He appeared very nervous, and inquired repeatedly about a freight train for the north, which came shortly, and he went on to Guthrie on the freight train. About 11 o’clock that night, he appeared in a restaurant in Guthrie and displayed two diamond rings, which were later identified as the rings of Mrs. Pearson. He appears to have left Guthrie during the night, having stated that he was going to Wichita. About 8 o’clock on the morning of the 17th of September, he showed up at Crescent, saying he had walked all the way from Tulsa, and was on his way to Enid; wag apparently in a very great hurry. He procured breakfast at the home of a Mrs. Fleming.

He was next seen at Lovell, where he procured a team at a livery stable. When he procured this team he stated that he wanted to drive west; but, instead of driving west, went north. The liveryman upon learning this telephoned some one at Marshall to head him off and recover the team. D. Overstreet and Floyd Thorp, stockmen living in that neighborhood, met the plaintiff in error, who told them he had just moved into the neighborhood, and that he had recently traded for the team, and that they could satisfy themselves by inquiring at the livery stable. They went back to Marshall, a short distance, and after investigation became convinced that he was the party wanted and was driving the team beloging to the Lovell liveryman, and they immediately set out in pursuit of him. When they came upon him, he got out of the buggy, turned the team loose, and escaped down a ravine. The sheriff of Enid was telephoned, and he captured the plaintiff in error about three miles from Enid and put him in jail. Plaintiff in error wore tan shoes when he left Oklahoma City and- at the time he was arrested by the sheriff at Enid; but while in the jail at Enid he traded the tan shoes to another prisoner for black ones. On the 20th of September, he was turned over to the sheriff of Logan county, who carried him back to Guthrie, where he was released on bond on tbe 26th of September. On the 28th of September, he appeared in Wichita, Kan., and said he was going to Enid. On the 29th he went to a livery stable in Enid and hired a rig, and said he was going out northwest to see a friend. He drove as far as Gremlin, where he took a train, saying he was going to Wichita that night.

A photograph had been procured of the nlaintiff in error in the meantime from a sister of the deceased, Miss Man, of Iola, Kan., by Sheriff Garrison, who had a large number of others made from it, and sent them over the country to various police officers; one of them getting into the hands of the police of Wichita, Kan. On the night of the 29th of September, a Wichita policeman named Thompson, with other officers, went out to the place where plaintiff in error was living with his father-in-law. Shortly after midnight some one came from the alley and went into the house. Several officers surrounded the house and demanded admittance. They were at first refused, but later admitted. When they went in, they said they were looking for a man named Harry Parker. The plaintiff in error stepped up, and said, “Maybe they’re looking for me,” or “Maybe there’re wanting me.” One of the officers replied, “Yes; you are the man that we want.” The photograph was produced and plaintiff in error remarked, “They’ve goo a picture of me. Where did you get it?” On looking at the photograph' and discovering that a reward was written at the bottom of it, he denied that it was his. He was taken down to the city jail in Wichita, and later delivered to Sheriff Garrison of Oklahoma county for extradition. After his arrest the officers went l?ack to the residence where the arrest ivas made, and found the ring worn by Mrs. Pearson the afternoon of the murder secreted in a dictionary in the house. The father of the deceased identified the plaintiff in error as the person who boarded at his house during the fall of 1907, under the name of Harry Parker. He was identified by many other witnesses who had been associated with him, by his writing, and by the'various persons mentioned herein, and others who saw him on the day of the murder and immediately following.

The shooting appears to have been done near the home of Bobert Putman in the outskirts of Oklahoma City. Mrs. Lasley, who was housekeeper for Putman, testified that she heard some shots and a person scream, and this repeated twice thereafter. That she ran out in the yard to see what the trouble was, and the woman, Mrs. Pearson, came up and fell on the other side of the house on the porch, and said she was shot. Heljf was called in, and an ambulance was telephoned for. Mrs. Pearson lay on the porch for something like an hour, growing weaker all the time, and while there told Mrs. Lasley about the shooting, saying, “Harry Parker did it. Don’t forget the name.” This same statement was made to Mrs. Stert. Bert Layman testified that ne lived on Thirty-Ninth street, in Oklahoma City; that he was right across the road from Bob Putman’s the afternoon the shooting occurred; that he heard shots and heard a woman holler; that the next morning after the shooting he went down to the place and found a leather purse in a ravine; that he saw where the weeds had been trampled down, and that the purse was in the ravine just east of this. A deputy sheriff inspected the locality where this murder is alleged to have taken place, and found tracks comparing with the tracks of the plaintiff in error and of the deceased, and a comb and other articles identified as the property of the deceased. He also found indications of where a person had been dragged some distance.

The defense of the plaintiff in error was an alibi; his conteation being that of mistaken identity. Taken as a whole, the proof of guilt is so clear that not even a suspicion of innocence could be indulged in by a reasonable mind. A more diabolical murder than that we are now reviewing is not disclosed by the records of this court. The plaintiff in error murdered a defenseless woman for the purpose of robbing her of less than $300. The proof of his identity and of his guilt is overwhelming. It is remarkable that 12 jurors could be found who, under the record before us, could agree upon a punishment less than death.

The petition in error and case-made were filed in this court on the 24th day of January, 1910. No brief has been filed upon the part of the plaintiff in error, and the state has filed a motion to affirm for want of prosecution, under rule 4 of this court (1 Okla. Cr. x, 101 Pac. vii). Upon a careful examination of the record, we discover no fundamental error. The motion of the Attorney General is well taken and is sustained.

The judgment of the lower court is affirmed, with directions to that court to enforce it.

FURMAN, PresidiNG Judge, and DOYLE, Judge, concur.


author: FTJBMAN, PRESIDING Judge.

text:
    BOB BRAZIEL v. STATE.
    No. A-645.
    Opinion Filed May 16, 1911.
    (115 Pac. 618.)
    1. APPEAL — Review—Formal Technicalities Not Involving Substantial Rights. Where the guilt of a defendant is clearly established by the evidence, it is utterly useless for attorneys to appeal such cases to this court upon mere formal technical questions which do not involve some substantial rights of their clients. If men will violate the law, they need not look to this court for sympathy or assistance.
    2. APPEAL — Reservation of Grounds of Review — Sufficiency of Exception. Where counsel for appellant reserve a general exception to the instructions of the court to the jury, such general exception will not be considered upon appeal.
    (Syllabus by the Court.)

      Appeal from Garter Gowvty Court; I. B. Mason, Judge.

      Bob Braziel was convicted of violating the prohibitory liquor law, and he appeals.
    Affirmed.

      William, Pfeiffer, for appellant.

      Smith 0. Matson, Asst. Atty. Gen., for the State.
   FTJBMAN, PRESIDING Judge.

Appellant was convicted for a violation of the prohibitory liqnor laws of Oklahoma, and his punishment was assessed at a fine of $50 and confinement in the county jail for a period of 30 days.

Every question of law presented in behalf of appellant has been previously decided by this court adversely to the contentions here made. It therefore would be a useless consumption of time to discuss these questions again.

If counsel for appellant will read the decisions of this court, they will see how useless it is to appeal cases upon mere formal technicalities, which do not involve any substantial right of the party upon trial, and which have time and again been settled by the decisions of this court. Counsel in his brief attempts to raise a number of objections to the instructions of the court given to the jury, and contends that at the trial of said cause he reserved exceptions to the instructions given. The record, however, does not sustain this contention.

At the conclusion of the instructions given by the trial court, we find the -following: "To which charge the defendant duly in open court excepted.” This is a general exception and is not worth the paper it is written on. We have carefully examined the instructions of the court and find no material error therein. We do not think that it would be possible to establish more clearly the guilt of a defendant by human testimony than the record in this case establishes the guilt of the appellant. In the light of the testimony, we cannot understand why or how it was the jury gave appellant the minimum punishment. Instead of appealing to this court for a reversal, he should have returned profound thanks to the jury for not giving him a fine of $500 and sending him to jail for six months. If people want to keep out of jail in Oklahoma, they must refrain from violating the laws of the state. Men who violate the laws need expect no sympathy -or assistance from this court.

The judgment of the trial court is in all things affirmed.

ABMSTBONG- and DOYLE, Judges, concur.


author: FTThMAN, PRESIDING Judge.

text:
    DAVE BRYAN v. STATE.
    No. A-648.
    Opinion Filed May 16, 1911.
    (115 Pac. 619.)
    1. CONTINUANCE — Absent Witness — Sufficiency of Showing. Where a defendant seeks a continuance upon the ground that he has used due diligence to secure the attendance of an absent witness, he must state' in his application not only that he has caused a subpoena to issue for said witness, but, also, that he has placed said subpoena in the hands of an officer duly authorized to serve such subpoena, with the request that said witness be summoned in his behalf by virtue of said subpoena.
    2. SAME. It is the duty of a defendant to use all reasonable diligence to secure the attendance of a witness in his behalf, and in an application for a continuance he must set out fully the facts which constitute such diligence.
    3. SAME. Where a defendant is charged with a crime, he must use all reasonable diligence, not only to find ..out what witnesses he will need, but also to secure the attendance of such witnesses at his trial.
    4. SAME. Where a witness has been subpoenaed to testify in behalf of a defendant, and is not present at the trial of said cause, and the defendant seeks a continuance on account of the absence of such witness, he must attach to his application for a continuance such subpoena served on said witness With the officer’s return thereon endorsed, so that the court, and, if said cause is appealed, this court,, may see as a matter of fact what diligence was used.
    5. SAME. Where a defendant is charged with the illegal sale of whisky alleged to have been made upon a certain day, an application for a continuance which states that absent witnesses will testify that on said alleged date they were with the defendant, and that on said date he did not sell whisky to the complaining witness, such testimony might be true, and yet would not necessarily constitute a defens'e to the accusation against the defendant.
    6. INDICTMENT AND INFORMATION — Time of Offense — Proof. The state is not limited in its proof of the commission of an offense to the date alleged in the information or indictment, but the defendant may be convicted upon proof of the commission of the offense made at any date within the statute of limitations and prior to the date upon which the said information or indictment was filed.
    (Syllabus by the -Court.)

      Appeal from Greer County Court; Jarret Todd, Judge.

    Dave Bryan was convicted of violating the prohibitory liquor law, and he appeals.
    Affirmed.

      B. F. Van Dyke, for appellant.

      Smith C. Matson, Asst. Atty. Gen., for the State.
   FTThMAN, PRESIDING Judge.

When this cause was called for trial, the appellant filed the following motion for a continuance :

“State of Oklahoma v. Dave Bryan. Motion for Continuance. Comes now the defendant, and moves the court to continue this cause of action for the reason that he cannot safely go to trial by reason of the absence of material evidenoe, and in support thereof attaches the following affidavit. B. F. Yan Dyke.

“State of Oklahoma, County of Greer — ss.: I, Dave Bryan, first being duly sworn on oath, say that I am the defendant in the above-entitled action; that I have caused subpoena to issue for Frank Alford; that said subpoena has been issued and returned by the sheriff, and that the return shows that the witness cannot be found; that this affiant has used due diligence in attempting to get this witness for this trial; that the whereabouts of the said witness, Frank Alford, is now unknown to this affiant, but that he formerly lived in Granite, Oklahoma, and so far as this'affiant knows his residence is still Granite, but that the witness'’ parents are now living in Bryan county, Oklahoma, and this affiant believes that by the next term of this court he can produce as a witness the said- Frank Alford. Affiant further avers that this witness, Frank Alford, will swear that he was at all times during the thirteenth day of December, nineteen hundred and nine, present and in the company of this affiant, and that at no time did this affiant, sell, barter, give away or otherwise furnish intoxicating liquors or whisky to H. M. McDaniel, or any one else. Affiant further says that such testimony on the part of Frank Alford would truthfully state the facts; and, further, the affiant says that W. A. Chism, the only other witness subpoenaed by this defendant, is now under quarantine in Granite, Oída.; that said witness will swear that this defendant furnished no liquor in any manner to íl. M. McDaniel, on the date mentioned, which fact this affiant believes to be true. Dave Bryan.

“Subscribed and sworn to before me and in my presence, by Dave Bryan, this 15th day of February, nineteen hundred and ten. Jarret -Todd, County Judge.”

This application for a continuance is fatally defective in several respects. First, it does not state when appellant had a subpoena issued for the witness Frank Alford, or what appellant did with the subpoena after it was so issued. For aught that appears in this record to the contrary, it may be true that appellant had a subpoena issued for this witness, and then placed the subpoena in his pocket or tore it up or threw it in the fire.

It is not sufficient for an application for a continuance to allege that a defendant has used due diligence to secure attendance of a witness at a trial, but he must show just what he did to secure the attendance of such witness. If a subpoena has been issued at the request of a defendant, he must go further, and show that he placed said subpoena in the hands of a duly authorized officer and requested him to serve said subpoena, and that this was done in time to secure the attendance of the witness upon the trial, lie must also show what efforts he has used to discover the place where the said witness can be found by the officer and served with said subpoena, and it must appear from the facts stated in the motion that the defendant has used all -reasonable diligence to secure the attendance of such witness at his trial and it must be shown, not by general allegations of diligence, but by a statement of just what had been done by appellant in this matter.

Men who are prosecuted in Oklahoma must understand that it is a very serious business, and cannot be trifled with, and that it is their duty to do everything reasonable in their power to get ieady for trial in ample time before the trial begins, so that the state will not be put to the expense or delay of postponements and continuances, unless they are necessary for the administration of justice.

As to the witness Chism, it is inferentially asserted that he had been subpoenaed, but it is not asserted as a matter of fact. If it be true that appellant had caused said witness to be served with a subpoena to appear and testify in his behalf, the subpoena with the return of the officer thereon indorsed should have been attached as an exhibit to the motion,for a continuance. If cases can be continued upon such a showing as was made in this cause, it would be impossible to ever bring a defendant to trial, and would make a farce of criminal proceedings. Therefore, upon the question of diligence alone, the motion for a continuance in this case should have been overruled by the trial court.

The motion for a continuance is further defective in the statement of what the defendant expected to prove by his absent witnesses. He simply says that he would be able to prove by them that he did not sell, barter, give away, and otherwise furnish intoxicating liquors or whisky to the prosecuting witness on the 13th day of December, 1909. This may have been true, but it would not necessarily constitute a defense to the accusation against the defendant.

The state was not limited in its proof to a sale of whisky on the 13th day of December, 1909. In cases of this sort time is not of the essence of the offense. The defendant might be convicted upon proof of the sale of whisky made to the prosecuting witness at any time within the statute of limitation and prior to the date upon which the information in this case was filed. The testimony in the case was positive and direct as to the sale of whisky as charged in the information. The defendant offered no evidence in his behalf. The jury could not have done otherwise than convict the defendant. There are no errors in the instructions of the court.

The judgment is therefore affirmed.

ARMSTRONG- and DOYLE, Judges, concur.


author: FURMAN, PRESIDING Judge.

text:
    A. W. GILLESPIE v. STATE.
    No. A-529.
    Opinion Filed May 16, 1911.
    (115 Pac. 620.)
    WITNESSES — Privilege—Incriminating Evidence. To permit a demand to be made on a defendant in a criminal case, in the presence of a jury, to produce a paper or document referred to, containing incriminating evidence against him, is a violation of the immunity secured to him by section 21 of article 2 of our Constitution, providing that no person in a criminal ease shall be compelled to give evidence against himself which will tend to incriminate him, even though no order for the production of the paper is made.
    (Syllabus by the Court.)

      Appeal from Garfield County Goiurt; James B. Gullison, Judge.

    A. W. Gillespie was convicted of illegal sale of liquor and appeals.
    Reversed.

      Bobberts & Curran, for appellant.

      Smith G. Matson, Asst. Atty. Gen., for tbe State.
   FURMAN, PRESIDING Judge.

Upon the trial of this cause, the state placed Winfield; Scott, an attorney residing at Enid, upon the witness stand, and by him proved that he had delivered to appellant certain letters, signed by A. W. Gillespie or the Gillespie Drug Company, which were addressed to Glazner B. Company; that the said attorney represented the Glazner B. Company in collecting a claim against appellant; that at the time the witness delivered; to appellant the letters in question appellant gave witness a cheek in payment of. the claim which witness held against appellant; that said claim was for $288.10; that appellant had said to witness that he- would pay up, but that he wanted his letters; that thereupon appellant gave witness a check for the claim, and that witness gave appellant the letters in question.

The record then shows that the following proceedings were had:

“Mr. MeKeever: At this time the state, having learned that the letters are in the hands of the defendant, asks the defendant and his attorneys to produce said letters at this time. Mr. Bob-berts: To which request the defendant objects and here and now takes exceptions, which they ask to be noted of the fact, that they have requested in open court, in the presence of the jury, the defendant to take some action or step in this ease. Mr. McKeever: At this time the request, as shown in the record, is withdrawn and corrected by the state’s attorney as follows. Mr. Bobberts: To which the defendant objects, for the reason that it is irrelevant, incompetent, and immaterial, and improper. The Court: The objection will be overruled. (To which ruling of the court, the defendant then and there duly excepted at the time.) Mr. Mc-Keever : The state’s attorney now requests the counsel for the. defendant to produce the letters as testified to by the witness Win-field Scott. Mr. Bobberts: We object to the request made of the defendant and his counsel in the presence of the jury. The Court: The objection will be overruled. . (To which ruling of the court, the defendant then 'and there duly excepted at the time.) Mr. McKeever: At this time the state’s attornew withdraws the request as made above for correction, and requests at this time the counsel to produce the letters referred to by the witness Win-field Scott. -Mr. Bobberts: To which request the defendant objects, and at this time excepts, and asks that the exception be made a part of the record, and allowed by the court. The Court: The request on the part of the state’s attorney to request the defendant’s counsel to furnish the letters testified about by the witness Winfield Scott, and objected to by the defendant, is overruled, for the reason that said letters have not been shown to have any connection with the facts in the case on trial.”

The clear and unmistakable inference from this testimony was that Glazner B. Company were wholesale liquor dealers, and that appellant and the Gillespie Drug Company had been ordering intoxicating liquors from said firm, and that the letters that were referred to related to purchases of intoxicating liquors by appellant and the Gillespie Drug Company from said firm. It is true that the witness Scott did not state this in so many words; but, as we have before said, this is the inference which was necessarily drawn by the jury from his testimony. When the county attorney had proven that these letters had been delivered to appellant, and that appellant had claimed them as his, it was then the right of the state to question the said Winfield Scott as to the contents of said letters; but the county attorney did not have the right to demand^ in the presence of the jury, of the defendant, or the defendant’s counsel, the production of such letters. Section 21 of article 2 of the 'Constitution of this state provides that no one shall be compelled to give evidence which would tend to incriminate him. This is not merely a formal technical rule, which may be enforced or dispensed with at the discretion of the courts. It is a mandatory, constitutional provision, securing to every defendant á valuable and substantial right. If a county attorney can, in the presence of the jury, demand of the defendant, or his counsel, the production of any letters or papers which may be proven to be in the possession of the defendant, of what value is this constitutional provision? It is true that mailing a demand upon a defendant to produce such letters or papers is a different thing from forcing him to produce them; but the effect is the same, because if a defendant refuses to comply with such a demand it is equivalent to admitting that the evidence demanded would incriminate him, if it were produced. The observation and experience of all practicing attorneys will sustain the statement that such an inference is more damaging to a defendant than a proven fact would be. 'When such a demand is 'made, a defendant must accept the alternative of either producing the letters, and thereby incriminate himself, or. of having the jury place the strongest possible construction against him upon his failure to do so. If this can 'be done, the very life, body, and soul of the Constitution would be violated and trampled upon.

We are .sustained in these views by the case of McKnight v. United States, 115 Fed. 972, 54 C. C. A. 358. The syllabus of that case is as follows:

“To permit a demand to be made on the defendant in a criminal case, in the presence of the jury, to produce a paper or document containing incriminating evidence against him, is a violation of. the immunity secured to him by the fifth amendment to the Constitution, providing that no person in any criminal case shall be compelled to be a witness against himself, even though no order for the production of the paper is made, and the demand is made solely, because of its supposed necessity, to authorize the introduction of secondary evidence.”

Justice Day, now a member of the Supreme Court of the United States, in rendering the opinion of the court, said:

“A perusal of the decisions of the Supreme Court shows that no constitutional right has been the subject of more jealous care than that which protects one accused' of crime from being compelled to give testimony against himself. The right to such protection existed at the common law, and was carried into the Constitution that the citizen might be forever protected from inquisitorial proceedings compelling him to bear testimony against himself of acts .which might subject him to punishment. In the present case the accused, in the presence _of the jury, was, by direction of the court, called upon to produce the document which, it was alleged, contained the corrupt agreement which was the basis of the note given by irresponsible persons for the funds of the bank by McKnight’s direction. The production of such a paper would have been self-incriminating to the defendant in the’highest'de-gree. It is true the learned judge made no order requiring its production; but the accused, by the demand made upon him before the jury, after proof tending to show his possession of the document, was required, either to produce it, deny or explain his want of possession of the writing, or by his very silence permit inferences to be drawn against him quite as prejudicial as positive testimony would be. Nor were the jury advised that the non-production of the writing afforded no ground for an inference of guilt. We think this procedure was an infraction of the constitutional rights of the accused, within the meaning of the fifth amendment to the Constitution.

“Recurring to the opinion of Mr. Justice Bradley, in the Boyd Case [116 U. S. 616, 6 Sup. Ct. 524, 29 L. Ed. 746], supra, we may quote: Tt may be it is the obnoxious thing in its least repulsive form; but illegitimate and unconstitutional practices get their first footing in that way, namely, by silent approaches and slight deviations from legal modes of procedure. This can only be obviated by adhering to the rule that constitutional provisions for the security of person and property should be liberally construed. A close and literal construction deprives them of half their efficacy, and leads to gradual depreciation of the right, as if it consisted more in sound than in substance. It is the duty of the court to be watchful of the constitutional right of the citizen, and against any stealthy encroachments thereon. Their motto should be, “Obsta principiis.”, ”

The opinion in that case was based upon the fifth amendment to the Constitution of the United States which provides that: “No person in a criminal case shall be compelled to be a witness against himself.” It is true that the first 10 amendments to the Constitution of the United States were not intended to interfere with the operation qf the state laws, and are limited in their effects to restrictions upon the powers of the United States courts. But, as the fifth amendment to the Constitution of the United States is substantially the same as section 21 of our Bill of Rights, we regard the decision of Justice Day as applicable to the case now before us.

It is true that the court did instruct the jury that they were not to take into consideration the testimony of the state’s witness, Winfield Scott, regarding the correspondence with reference to which he had testified; but the court nowhere instructed tlie jury that they' were not to consider the demand which was made upon. appellant and his counsel, in their presence, to produce the letters referred to. We are strongly inclined to the opinion that, even if the court had so instructed the jury, it would not have cured the error committed. It would be a dangerous procedure, indeed, to permit constitutional provisions which guarantee to a defendant a .substantial right to be ignored and violated in the examination of a witness, and then to hold that this error was cured by a subsequent instruction by the court to the jury that they must not consider anything that occurred which was calculated to destroy such constitutional rights. It is simply impossible for a court to wipe out impressions which will result from demands of the kind referred to. The only safe course for a court to pursue is not to permit such conduct to occur.

The other alleged errors assigned have all been decided by this court adversely to the contentions of appellant, and therefore need not be discussed.

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

ARMSTRONG and DOYLE, Judges, concur.


author: FDBMAN, PeesidiNG Judge.

text:
      Ex parte ANNANIAS COPELAND.
    No. A-1138.
    Opinion Filed May 16, 1911.
    (115 Pac. 627.)
    COURTS — Jurisdiction—Transfer of Causes — “Cause.” A judge of a district court of a county in which a superior court is created by law has the power to transfer to such superior court any cause, either civil or 'criminal, pending in said district court, and, when said cause or causes may be so transferred to such superior court, they will stand for trial in said court as if they had been originally filed therein.
    (Syllabus by the Court.)
    Petition of Annanias Copeland for a writ of habeas corpus.

    Writ discharged, and petitioner remanded to custody.

      E. J. Saddler, for petitioner.

      John Adams, County Atty., and Smith G. Matson, Asst. Atty. Gen., for the State.
   FDBMAN, PeesidiNG Judge.

This is a petition for a writ of habeas corpus in which it is alleged that petitioner is unlawfully restrained of his liberty, and is confined in the county jail of Logan county, Oída., by B. W. Murphy, sheriff of said county, under and 'by virtue of a commitment issued out of the superior court of said Logan county, based upon a sentence pronounced in said court against petitioner for the offense of grand larceny, in which sentence the punishment of petitioner was assessed at imprisonment in the state penitentiary for the period of three years after the date of his delivery to the warden of said penitentiary. Petitioner alleges that said sentence was illegal and the commitment by virtue of which petitioner is held is also illegal, because the said superior court of Logan county, Okla., had never legally acquired jurisdiction of appellant and of the offense for which this petitioner was convicted, and upon which conviction the aforesaid sentence was pronounced upon the following grounds: That petitioner was tried in the district court of Logan county, Okla., on the 87th day of February, 1911, and the jury failed to agree; that on the 9th day of April, 1911, the county attorney filed a motion to transfer said cause from the district court of Logan county, Okla., to the superior court of said county for trial, over the objections of petitioner, and that by virtue of said order said cause was transferred to said superior court, and, after being so transferred, petitioner was tried in said superior court with the result above mentioned.

'These allegations present only one question of law which can be determined in habeas corpus proceedings: That is, did the district court of Logan count}', Okla., have power to transfer this cause to the superior court of said county, and did the superior court thereby acquire jurisdiction of said cause? This question must be answered by the statute. Section 1974 of Snyder’s Comp. Laws Okla. 1909, is as follows:

“The county attorney and sheriff of every county wherein such a court shall be established, shall appear in said court, and therein perform all services for the state and county. The judge of the district court of the county or counties in which said superior court is created by operation of this act, shall upon motion of the plaintiff in any cause now pending in said district court, or which may hereafter be filed in such district court, transfer such cause or causes by order to the superior court of such county or counties, and such cause or causes shall stand for trial in said superior court as if they had been originally filed therein, and in such cases the clerk of the district court shall transfer the original files to the superior court hereby created.”

Counsel for petitioner contends that the transfer of causes provided for in 'this statute is confined alone to civil cáses. To this contention we cannot agree. This question has been repeatedly passed upon by the federal and state courts adversely to the position contended for by petitioner. “Cause” is defined to bo in practice any suit or action or any question, civil or criminal, contested before a court or justice. Taylor v. United States (C. C.) 45 Fed. 531, 539; Erwin v. United States (D. C.) 37 Fed. 470, 479, 2 L. R. A. 229; In re Farnum, 51 N. H. 376, 383; Nacoochee Hydraulic Min. Co. v. Davis, 40 Ga. 309, 320.

The action of the district court of Logan county in transferring this cause to the superior court of Logan county is approved and sustained, as being authorized by the law.

■The writ of habeas corpus is discharged, and petitioner is remanded to the custody of the sheriff of Logan county to be dealt with as directed by the judgment of the superior court of Logan county, Okla.

ARMSTRONG- and DOYLE, Juuces, concur.


author: DCYDE,-Judge

text:
    JOE PROCTOR v. STATE.
    No. A-544.
    Opinion Filed May 23, 1911.

      (115 Pac. 630.)

    RIOT — Elements of Offense. To constitute the offense of riot, there must be, not only a common intent on the part of three or more persons, acting together to do an unlawful act by use of force or violence, or by threats to use force or violence, accompanied by immediate power of execution, but also concert of action in furtherance of such intent. And where the evidence fails to prove or tend to prove any facts or circumstances from which a common intent to do such act might be inferred, or that such persons assembled, confederated, acted in concert, or acted together, a conviction for rfot will not be permitted to stand.
    (Syllabus by the Court.)

      Appeal from District Court, Adair County; Jno. II. Pitchford, Judge.

    Joe Proctor was convicted of riot, and he appeals.
    Reversed and remanded, with instructions.

      Joe Proctor, plaintiff in error, was charged jointly with Blister Scraper, Henry Turn, and Charles Sanders with the crime of riot, alleged to have been committed on or about May 22, 1909. Said information alleges that:
    “They, the said Joe Proctor, Buster Scraper, Henry Turn, and Chas. Sanders, did then and there riotously assemble to obstruct and resist a public officer of this state, to wit, W. C. Colvin, marshal of the incorporated town of Westville, in the execution of legal process, to wit, a warrant in the hands of the* said W. C. Colvin for the arrest of Henry Turn, and they the said Joe Proctor, Buster Scraper, Henry Turn, and Chas. Sanders, being then and there armed with a dangerous and deadly weapon, to wit. a pistol and a knife, and they, the said Joe Proctor, Henry Turn, Buster Scraper, and Chas. Sanders, did then and there in the manner and by the means aforesaid unlawfully, intentionally and feloniously commit the offense of riot.”
    October 12th the defendant, Joe Proctor, entered a pica of not guilty and demanded a severance, which was allowed. Whereupon he filed an application for a change of venue, which was overruled by the court.
    The evidence on the part of the state was, in brief, substantially as follows: On thd day named m the information, W. '0. Colvin, city marshal of Westville, secured, a warrant for Henry Turn for being drunk, and asked Eli Whitmire to go with him. They went to Smith’s restaurant. This defendant and Colvin had a scuffle on the sidewalk, and Colvin testifies that defendant threatened to kill him, and took his knife out of his pocket and tried to open it. Whitmire fired several shots while scuffling with Turn.
    Eli Whitmire testified that he went with the marshal, Colvin, to Smith’s restaurant to arrest Henry Turn for being drunk. The record then shows his testimony as follows:
    “Before we got there, I saw Henry Turn inside the restaurant, and I went .on in there. I didn’t see what Mr. Colvin done, as he was right behind me; I just walked up and got Henry Turn by the shoulder, and says, ‘Henry, you are getting too drunk, and we will have to take charge of you,’ and he made a grab for my pistol, and I guess we both grabbed for it. I got hold of the handle, and he got it by the barrel, and, in order to get him loose from it, I pulled the trigger, and shot it down through the floor, and then he turned it loose. About that time some one else come in — I don’t know who it was; and we scuffled there for a little bit there in the house, and Turn got around towards the counter, and by that time there had several come in. Q. Did you see Proctor at that time? A. No, sir. Q. Did you see Scraper? A. Yes, sir; I was looking for some one to help, and directly after that we got turned clear around, and some one hollowed to look out, and I looked out at the door, and Buster Scraper was off the porch on the ground there with a pistol; and I threw niv gun down on him and told him to put the pistol down, and he dropped it on the porch, and we scuffled around there for a little bit, and didn’t see where Buster went, nor who it was that took charge of the pistol. He dropped it, though, when I threw my pistol down on him. We then took Henry Turn to the cooler.”
    He then testified that he next saw the defendant, Proctor, going down the street towards the post office; that he stopped him, and Proctor said that he wanted to go to the post office and mail a letter; that he went with him; that Proctor asked him if he thought he was able to take him, or something to that effect, and witness told him he was willing to try. Just then Marshal Colvin came up, and there was some talk. Mr. Alberty then came up and said to let him take Proctor, and witness asked Marshal Colvin what to do, and he said to let Alberty have him if he could take him, and Proctor walked off with Alberty.
    Nat Dannenberg testified that he was deputy sheriff; that he heard a shot at Smith’s restaurant and went up there, and Proctor and the marshal were scuffling. Proctor got his knife out of his pocket and was trying to open it, and (he went up and took it away from him; that Buster Scraper was standing out in the street with a pistol in his hand, and Tuck Alberty was holding Henry Turn; that he turned Joe Proctor over to Tuck Alberty, and he took Henry Turn; that Henry Turn had a quart bottle of whisky stuck down in his shirt; that he made him throw the whisky on the ground; that witness had a pistol in his hand that lie bad taken from Buster Scraper. Several other witnesses testified substantially the same.
    On the part of the defense, Will Alberty testified that he saw Colvin and Whitmire come to Smith’s restaurant; that Whitmire went in and commenced to scuffle with Turn; that Colvin was on the porch, and Joe Proctor came out of Ms room, where he lived near there, and commenced to scuffle with Colvin; that Proctor came out of Ms room about the time of the shooting; that he stood within eight or ten feet of them, and did not hear Proctor make any threats.
    Thomas P. Alberty testified: That'he was standing on the Kansas City Southern Railroad with John Forgey, Frank Forgey, and Buster Scraper, and saw Colvin, Whitmire, and two or three others go to Smith’s restaurant; that he spoke to Scraper and asked him what they were going to do; that just about, that time he saw Eli Whitmire arrest Henry Turn, and Henry tried to pull loose from him; that they scuffled into the restaurant; then he heard some shooting in the house; that he saw Joe Proctor standing on the porch near the door of the house right north of Smith’s restaurant, where Proctor had his room; that Proctor was standing four or five feet from the door of his room; that witness went up and arrested Henry Turn and started to jail with him, and turned him over to Nat Dannenberg; that witness then took Joe Proctor into his room, and he went to sleep; that Proctor was drunk; that he next saw him walking down the street, going in the direction of the post office, with several officers going along; that they were having an argument, and he went, at the request of several persons, and took Proctor to the jail and locked him up; that he did not have any trouble in taking him there.
    John Forgey testified that ho-saw Joe Proctor standing near the door of his room when the trouble started; that at that time he was with Tuck Alberty, Buster Scraper, and Frank Forgey, standing on the railroad; that they went .over to Smith’s restaurant when the shooting commenced; that Buster Scraper had a pistol, and Eli Whitmire told him to drop it. Just then Nat Dannenberg ran up and took the pistol.
    Ed Walkingstick testified that he saw Joe Proctor on the. porch when Colvin met him; that they took hold of one another and scuffled, and some one separated them.
    Joe Proctor, the defendant, testified on his own behalf: That he occupied one of the Smith’s restaurant rooms on the north side of the restaurant. When he first heard the trouble, he was in his room, and went to the door, and Colvin came running towards the restaurant door; that he grabbed a hold of Colvin and held him there, because he thought some one would get killed in the house, that Colvin had a gun in his hands; that he did not attempt to take the gun from him; that he was not armed, except that he had a pocket knife in his pocket; that his room is separated from the restaurant proper by a narrow alley; that he made no threats and had never talked with the other defendants.
    October 13th the jury returned their verdict, finding the defendant, Joe Proctor, guilty as charged in the information. Motions for a new trial and in arrest of judgment were duly filed, which motions were overruled. October 15, 1909, judgment was pronounced and entered, and the defendant was sentenced to serve a term of two years in the state penitentiary. From which judgment an appeal was taken by filing in this court, on January 12, 1910, a petition in error, with case-made attached.

      Nance & Priest, for plaintiff in error.

      Chas. West, Atty. Gen., and kimith G. Matson, Asst. Atty. Gen., for the State.
   DCYDE,-Judge

(after stating the facts as above). Counsel for plaintiff in er-ror contend that there is no testimony tending to prove the commission of the crime of riot, and that the testimony tends only to show the commission of a misdemeanor, for which offense the district court of Adair county did not have jurisdiction.

The provisions of the statute dealing -with the subject of riot are as follows:

“Sec. 2497 (Snyder’s Sts.). Any use of force or violence, or any threats to use force or violence if accompanied by immediate power of execution, by three or more persons acting together and without authority of law, is riot.

“Sec. 2498. Every person guilty of participating in any riot is punishable as follows: 1st. If any murder, maiming, robbery, rape or arson was committed in the course of such riot, such pei'-son is punishable in the same manner as a principal in such crime. 2nd. If the purpose of the riotous assembly was to resist the execution of any statu e of this state or of the United States, or to obstruct any public officer of this state or of the United States, in the performance of any legal duty, or in serving or executing any legal process, such person is punishable by imprisment in the state prison not exceeding ten years and not less than two. 3rd. If such person carried at the time of such riot, any species of firearms, or other deadly or dangerous weapon, or was disguised, he is punishable by imprisonment in a state prison not exceeding ten years and not less than two. 4th. If such person directed, advised, encouraged or solicted other persons, who participated in the riot, to acts of force or violence, he is punishable by imprisonment in the state prison for not less than three-years. 5th. In all other cases such person is punishable as for a misdemeanor.

“Sec. 2499. Whenever three or more persons acting together, make any attempt to do any act toward the commission of an act which would be riot if actually committed, such assembly is a riot.

“Sec. 2500. Wherever three or more persons assemble with intent or with means and preparations to do an unlawful act which would be riot if actually committed, but do not act toward the commission thereof, or whenever such persons assemble without authority of law, and in such a manner as is adapted to disturb the public peace, or excite public alarm, such assembly is an unlawful assembly.

“Sec. 2501. Every person who participates in any rout or unlawful assembly is guilty of a misdemeanor.”

Under the statute a riot cannot be committed by one person alone, or two persons acting together; there must be three or more persons acting together, and without authority of law. Therefore, in order to make out a case of riot, it was incumbent upon the state to prove, beyond a reasonable doubt, that there wore three or more of the defendants acting together, and without authority of law; that the three or more defendants, without authority of law, used force or violence, or threatened to use force or violence, which threats were accompanied by immediate power of execution, and that they so acted together.

There is a total absence of testimony that the defendants named ever assembled or confederated to violate the law, or that they acted in concert, or acted together. To render persons guilty of riot, they must act in concert, and it must be proved that at least three persons were engaged in the unlawful act. ■While the conduct of some of the defendants was reprehensible, to say the least, we cannot, as a matter of law, say that the evidence tends to prove the crime of riot. The evidence only tends to prove a violation of section 2505, Snyder’s Statutes, which reads as follows:

“Every person who resists, or enters into a combination with any other person to resist the execution of any legal process, under circumstances not amounting to a riot, is punishable by imprisonment in a county jail not exceeding one year, or by a fine not exceeding one thousand dollars, or both.”

The evidence in this case tending only to prove the commission of a misdemeanor, we are clearly of the opinion that the district court was without jurisdiction. As this conclusion necessitates a reversal of the judgment it is not necessary that we shall consider the various other assignments of error presented in the record.

The judgment of the district court of Adair county is hereby reversed, and the cause remanded, with instructions to proceed in accordance with the views herein expressed.

FTJEMAN, PresidiNG Judge, and ARMSTRONG, Judge, concur.