text:
    T. E. SMITH v. STATE.
    No. A-1296.
    Opinion Filed February 3, 1912.
    (120 Pac. 1031.)
    INTOXICATING LIQUORS — Illegal Sale — Evidence. Where the information charges that appellant sold whisky,. beer, wine, and ale, a conviction will not be sustained' upon the proof of the- sale of patent medicine. In other words, where an information charges a specific offense, defendant cannot be convicted of another offense.
    (Syllabus by the Court.)

      Appeal from Garvin County Court; W. B. M. Mitchell, Judge. .
    T. E. Smith was convicted of violating the prohibitory law, and brings error.
    Reversed and remanded.

      R. B. Bozvling and Thompson & Patterson, for appellant.

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

In this case, the information charged appellant with having sold whisky, beer, wine, and ale. The testimony was that defendant sold a patent medicine, known as “American Elixir.” It is a fundamental principle of justice and law that a defendant cannot be charged with one offense and convicted of another. There was therefore a fatal variance between the allegations in the information and the testimony in this case. -If the information had charged that appellant had sold a patent medicine, known as “American Elixir,” and that the same was intoxicating, or that it was used as a substitute for intoxicating liquor, and that it contained as much as one-half of one per cent, alcohol, and the proof had shown that such patent medicine came within the provisions of the prohibitory liquor law, then a case would have been made against appellant.

The Attorney General has filed a confession of error in this case. The confession of error is sustained. The judgment of the lower court is reversed, and the cause is remanded for a new trial.

ARMSTRONG and DOYLE, JJ-, concur.


source: Caselaw Access Project

author: EURMAN, P. J.

license: Public Domain

text:
    PETE GREEN v. STATE.
    No. A-1264.
    Opinion Filed February 3, 1912.
    (120 Pac. 1037.)
    APPEAL — Failure to File. The statute prescribing the manner in which an -appeal can be taken to this court is mandatory, and a failure to file the appeal in this court within the time allowed by. law or extended by order of the trial judge, is fatal to the appeal.
    (Syllabus by the Court.)

      Appeal from Hughes County Court; P. W. Gardner, Judge.

    On the 24th day of April, 1911, judgment was rendered against appellant for a violation of the prohibitory liquor law of the state of Oklahoma, and his punishment was assessed at a fine of $50, and imprisonment in the county jail for the period of 30 days. Appealed.
    Appeal dismissed.

      Cnrnp, Skinner & Bailey, for appellant.

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

At the time of the rendition of this judgment, the court entered an order giving the defendant 60 days within which to prepare and serve a case-made. The county attorney was allowed ten days thereafter in which to suggest amendments. It was further ordered that the case-made should be settled and closed on ten days notice from either party, and that the appeal should be perfected by filing the record in the Criminal Court of Appeals within five days after the case-made was so settled and closed. The record shows that the case-made was served on the county attorney on the 19th day of June, 1911, and that on said date notices of appeal were duly-served on the county attorney and clerk of the court, and that the case-made was duly signed, settled, and closed by the county judge on the 5th day of July, 1911. According to the order of the court, the transcript of the record and case-made should have been filed in this court not later than the 10th day of July, 1911, but it was not filed in this court until the 19th day of July, 1911, nine days after the expiration of the time prescribed in the order of the court. But giving the order of the court the most liberal construction possible in favor of appellant, and agreeing that he had 60 days in which to prepare and serve his case-made, and that the county attorney had ten days in which to suggest amendments, and that the county judge had ten days in which to settle and close the case-made, and appellant had five days in which to file the case-made and transcript of the record in this court, this would make 85 days from the date on which judgment was rendered, which expired on the evening of July 18, 1911, while the record was not filed in this court until the 19th day of July, 1911. So^ from any standpoint, the time for perfecting the appeal had expired when the record was filed in this court. We have no power to extend the time for filing the record in this court. If an appeal could be filed one day after the expiration of the time required by law, it could be filed one year or ten years after. Such a construction would allow criminals at pleasure to set at defiance the enforcement of the law. We think that the time granted by law within which appeals must be filed and the power given to trial judges in misdemeanor cases to extend this time 60 days beyond the time fixed by law upon a proper showing gives a defendant ample time within which to perfect his appeal. But, no matter what our opinion might be on this subject, we are absolutely bound by the provisions of the statute, and it would be a clear usurpation of power upon our part to grant time to perfect an appeal which was not allowed by law. As we have before said and again repeat, it is a very serious thing for a man to be convicted of a crime in the state of Oklahoma, and it is the dutjr of his attorneys to exercise the utmost diligence in complying with the provisions of the law in perfecting an appeal, and, where they do not do this, no relief can be granted them, unless it affirmatively appears that they are altogether without fault or blame in the matter. But, where the time has expired, it cannot be extended by this-or any other court. It matters not what prevented the appeal from being perfected before the expiration of such time. In the matter of perfecting an appeal, time is the essence of the right, and a failure to perfect the appeal within the time prescribed by law is jurisdictional and fatal to the appeal. We must therefore sustain the motion of the Attorney General and dismiss this appeal for want of jurisdiction. The appeal is therefore dismissed, with directions to the county court of Hughes county to proceed with the execution of its judgment.

ARMSTRONG and DOYLE, JJ., concur.


author: FURMAN, P. J.

text:
    T. E. SIMS v. STATE.
    No. A-1266.
    Opinion Filed February 3, 1912.
    (120 Pac. 1032.)
    1. APPEAL — Review—Conflicting Evidence. No verdict should be disturbed upon the ground of contradictions in the testimony where there is any evidence in the record from which the jury could legitimately conclude that the defendant was guilty, unless there is something in the record from which it appears that the jury were probably misled in their considerations of the testimony.

      2. APPEAL — Trial—False Testimony — Corroboration—Instructions— Exceptions. It is error for the trial court to instruct the jury that, if they believe any witness has willfully testified falsely to any material fact in the case, they may disregard the whole of sueh witness’ testimony, unless the same is corroborated by other competent testimony. But the giving of this instruction does not necessarily constitute reversible error. Before a cause will be reversed for giving this instruction, it must have been properly excepted to when given, and the evidence in the ease must be such as to enable this court to see that the defendant may have been injured thereby.
    (Syllabus by the Court.) ■

      Appeal from Oklahoma County Court;

      John W. Hayson, Judge.

    T. E. Sims was convicted of violating the prohibitory law, and appeals.
    Reversed.

      Jennings & Levy, for appellant.

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

First. There is a direct conflict in the evidence in this case, but we cannot upon this ground alone grant a new trial.' No verdict should be disturbed where there is any evidence in the record from which the jury could legitimately conclude thát the defendant was guilty, it matters not how contradictory the evidence may be, unless there is something in the record from which it may be seen that the jury were probably misled in the consideration of the testimony. To adopt any other rule would be a practical repeal of the statute that provides that the jury are the exclusive judges of the testimony and the other statute which provides that a new trial may be granted where the verdict is contrary to the evidence. It is the exclusive duty of the jury to settle all conflicts in the evidence, and we are bound by. their determination of such question, unless it appears from the record that they were influenced by improper motives or may have been misled by improper instructions which were duly excepted to at the trial.

Second. Upon the trial of this cause the court instructed the jury as follows:

“You are the exclusive judges of the weight and credibility of the witnesses, and, in determining what weight and credibility you will give to the testimony of any witness, you will take into consideration the appearance of the witness on the stand, his manner of testifying, his interest or lack of interest in the result of the case, his opportunity or lack of opportunity of knowing and seeing the things about which he has testified, and, if you believe that any witness has willfully testified falsely in any material matter, you may disregard the whole of such witness> testimony, unless the same is corroborated by other witnesses whom you believe have testified truthfully in such matter or by other competent credible testimony.”

Instructions similar to this have been repeatedly condemned by this court. See Rea v. State, 3 Okla. Cr. 269, 105 Pac. 381; ’ Gibbons v. Territory, 5 Okla. Cr. 212, 115 Pac. 129; Henry v. State, 6 Okla. Cr. 430, 119 Pac. 278. Counsel for appellant, however, are in error in stating in their brief that this 'court has ever held that the giving of this or similar instructions is necessarily reversible error. Cases may arise in which such an instruction would be beneficial to the defendant, or in which the evidence was so clear and conclusive as to his guilt that there could be no question but that he was not injured by the giving of the instruction. But this instruction cannot be ground for reversal, unless it is excepted to when given, and the evidence in this case is such as. to enable this court to see that appellant may have been injured thereby. We believe that both of these conditions are met in the case at bar. The instruction was excepted to when given, and the state’s witnesses are so clearly contradicted as to cause us to believe that this instruction may have improperly influenced the jury against appellant.

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

ARMSTRONG and DOYRE, JJ., concur.


text:
    G. W. SUMMERS v. STATE.
    No. A-1288.
    Opinion Filed February 3, 1912.
    (120 Pac. 1031.)
    1. TRIAL — Objections to Instructions — Sufficiency. A general exception to instructions given upon the trial of a ease will not be considered for any purpose whatever. Counsel should point out to the trial court the particular instruction to which they desire to except, in order that the court may have an opportunity to correct the error therein, if any.
    2. APPEAL — Review—Sufficiency of Evidence. The jury are the exclusive judges of the credibility of the witnesses, and this court will not reverse a conviction where there is any evidence in the record from which the jury could legitimately draw the conclusion that the defendant was guilty.
    (Syllabus by the Court.)

      Appeal from Woods County Court;

      W. M. Bickel, Judge.

    G. W. Summers was convicted of violating the prohibitory law, and appeals.
    Affirmed.

      Chase & Stevens, for appellant.

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

Upon the trial of this cause, among other things, the court instructed the jury as follows:

“If you find any witness has sworn falsely in the case as to any material fact, and he so swore knowingly and willingly, you may wholly disregard the testimony of such witness, except so far as it may have been corroborated by other witnesses.”

This instruction has been held to be open to criticism. See Henry v. State, 6 Okla. Cr. 430, 119 Pac. 278. In the case at bar, appellant is not in a position to complain of the giving of this instruction, because no exception was saved to it at the time of the trial. It is true the record shows that when the instructions were read to the jury counsel for appellant said, “To which instructions the defendant excepts.” This is a general exception, and applies to all the instructions given, and was wholly insufficient to give the court notice as to what particular instruction the defendant objected, and to which he desired to save an exception. When counsel desire to reserve an exception to any instruction, they should call- the attention of the court directly to the instruction objected to, and thereby give the court an opportunity to correct any error which it may contain. We cannot consider such exceptions as this 'for any purpose.

' It is contended by counsel for appellant that the verdict is contrary to the evidence. One witness testified positively for the state that he purchased the whisky from appellant. He is contradicted by two witnesses. Our statute provides that the jury •are the exclusive judges of the credibility of witnesses; and this court has always held that, where there was any evidence in the record from which the jury could legitimately draw the conclusion •of guilt, the verdict would not be set aside upon the ground that it was contrary to the evidence. The jury saw the witnesses and heard them testify, and were in a much better position to determine who was worthy of belief than are the members of this court. If this court should undertake to reverse cases where there was evidence in the record from which the jury could legitimately draw the conclusion that the defendant was guilty, upon the ground that we were in a better position to determine as to who was credible, then this court would cease to be a court of law, and would become a court of fact, and we would in effect repeal the statute which makes the jury the exclusive judges of the credibility of witnesses.

We find no error in the record which would authorize us to disturb the verdict. The judgment of the lower court is therefore affirmed.

ARMSTRONG and DOYLE, JJ., concur.


author: DOYLE, J.

text:
    JOHN PETITTI v. STATE.
    No. A-704.
    Opinion Filed February 10, 1912.
    (121 Pac. 278.)
    1. INDICTMENT AND . INFORMATION — Requisites of Accusation —Following Language of Statute. An indictment for felony, although in the language of the statute, is not sufficient, unless it states all the elements necessary to constitute the offense.
    2. STATUTES — Repeal—Implication—Statutes Covering Same Subject-Matter. The rule of construction of statutes is tha't, where two acts are not in express terms repugnant, yet, if the latter act covers the whole subject of the first, and embraces new provisions plainly 'showing that it was intended' as a substitute for the first act, it will act as a repeal of the first, and especially where the subsequent act contains a general repealing clause.
    3. BRIBERY — Statutory Provisions — Repeal. Sections 2120 and 2121 of the Penal Code (Comp. Laws of 1909) were repealed by an act entitled "An act relating to the bribery of certain public officers, and providing punishment,therefor," approved February 21, 1905, art. 7, e. 13, p. 197, Sess. Laws of 1905, being sections 2147, 2148, and 2149 of the Penal Code (Comp. Laws 1909).
    4. BRIBERY — Criminal Prosecution — Sufficiency of Evidence. Evidence examined, and held insufficient to sustain the verdict, finding the defendant guilty of bribery.
    5. BRIBERY — Indictment—Sufficiency. An indictment for offering a bribe to a constable to influence him in the execution of a search warrant which he was proceeding to execute'is insufficient, where it does not allege that the defendant knew that the person named was an officer, and does not allege that the search - warrant was issued out of a court of competent jurisdiction to the officer for execution.
    (Syllabus by the Court.)

      Appeal from District Court, Pittsburg County; A. T. West, Judge.

    John Petitti was convicted of bribery, and appeals.
    Reversed.

      W. H. Horton and L. A. Smith, for plaintiff in error.
   DOYLE, J.

John Petitti, plaintiff in error, was indicted, tried, and convicted for the offense of bribery by feloniously offering to give a bribe of $10 to one A. L. Banks, a constable of McAlester township, with the intent to corruptly influence him, as such officer, in the execution of a search warrant which he, as such officer, was proceeding to execute upon and against the premises of said John Petitti, and was sentenced to imprisonment in the penitentiary for a term of one year, and to pay a fine of $100.

Numerous assignments of error are presented by the petition and ably argued in the brief. No brief has been filed by the state.

From a careful examination of the record, our conclusion is that the judgment in this case cannot be permitted to stand. In the first place, the indictment is insufficient, in that it does not allege that the defendant knew that Banks was an officer, and does not allege that the search warrant was issued out of a court of competent jurisdiction to the officer for execution.

We also think the evidence is insufficient to show the commission of an offense. The testimony of the officer was that, in the execution of a search warrant, he went to the home of the defendant, and there found several bottles of beer and a quart of whisky, which he seized; that he delivered a copy of the search warrant to the defendant; that he told the defendant that he was going to arrest him, and the defendant laid a $10 bill on the table, and told him that he would give it to him to leave the beer and not arrest him; that the defendant then turned to Mr. Lar.rison, who was with him, with a handful of silver, and told Larrison that he would give him $10. On cross-examination, he admitted that the defendant accused him of taking $105 out of the pocket of a coat that was hanging in the room.

Larrison testified that he went with the constable to help him execute the search warrant; that he saw the defendant trying to have the officer take a $10 bill, but did not hear what he said; that the officer had him under arrest at the time, and told the defendant they were going to take him with them; that the defendant was at the time charging them with having taken $105 of his money.

The search warrant and affidavit were introduced in evidence, and showed that the search warrant was issued upon an affidavit, made upon information and belief. The search warrant was absolutely void, and the arrest of the defendant, without a warrant, was without authority of law.

From the testimony on the part of the state, it is impossible to tell- whether the offer was made by the defendant to be released from his unlawful arrest, or in connection with the execution of the search warrant issued without authority of law. The defendant, testifying on his own behalf, denied that he made any offer of money to the officer or any other person.

It also appears that the court erred in giving to the jury instruction No. 2, as follows:

“Any person who gives or offers any bribe to an executive officer of this state, with intent to influence him with respect to any act, decision, vote, opinion, or other proceeding of such officer, is punishable by confinement in the state prison not exceeding ten years, or by fine not exceeding five thousand dollars.”

Evidently the court had in mind that the prosecution was predicated upon section 2120 (Comp. Laws 1909) of the Penal Code, Laws of 1890.

Act approved Feb. 21, 1905 (Sess. Laws 1905, p. 197), is as follows:

Section 1 (section 2147, Comp. Laws 1909) :

“Whoever corruptly gives, offers or promises to any executive, legislative, county, municipal, judicial or other public officer, or any person assuming to act as such officer, after his election or appointment, either before or after he has qualified or has taken his seat, any gift or gratuity whatever, with intent to influence his act, vote, opinion, decision or judgment on any matter, question, cause or proceeding which then may be pending, or may by law come or be brought before him in his official capacity, or as a consideration for any speech, work or service in connection therewith, shall be punished by imprisonment in the state prison not exceeding five years, or by a fine not exceeding three thousand dollars and imprisonment in jail not exceeding one year.”

Section 2 (section 2148, Comp. Laws 1909) :

“Every executive, legislative, county, municipal, judicial or other public officer, or any person assuming to act as such officer, who corruptly accepts or requests a gift or gratuity, or a promise to make a gift, or a promise to do an act beneficial to such officer, or that judgment shall be given in any particular manner, or upon a particular side of any question, cause or proceeding, which is or may be by law brought before him in his official capacity, or as a consideration for any speech, work or service in connection therewith, or that in such capacity he shall make any particular nomination or appointment, shall forfeit his office, be ' forever disqualified to hold any public office, trust or appointment under the laws of this state and be punished by imprisonment in the state prison not exceeding ten years, or by fine not exceeding five thousand dollars and imprisonment in jail not exceeding one year.”

Section 3 (section 2149, Comp. Laws 1909) :

“All acts and parts of acts in conflict with the provisions of this act are hereby repealed.”

The act of 1905 in effect repealed sections 2120 and 2121, Comp. Laws 1909, under the rule of construction that, where two acts are not in express terms repugnant, yet, if the latter act covers the whole subject of the first, and embraces new provisions plainly showing that it was intended as a substitute for the first act, it will act as a repeal of the first act, especially where the subsequent act contains a general repealing clause. Eor this reason, in so far as it defines the punishment, the instruction given is erroneous. For the same reason, the court erred in pronouncing judgment against the defendant for imprisonment, and that he also pay a fine, as the latter act does not provide for both fine and imprisonment.

Our conclusion is that the prosecution in this case is destitute of merit, and for the reasons stated the judgment of conviction will be reversed.

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


text:
    H. A. MELOY v. CITY OF WOODWARD.
    No. A-653.
    Opinion Filed February 10, 1912.
    (120 Pac. 1119.)
    1. CONSTITUTIONAL LAW — Appeal — Violation of Ordinance-Jurisdiction. The provision in the constituent aet of cities of the first class (chapter 12, Wilson’s Eev. & Ann. St. 1903; chapter 14, Comp. Laws 1909) that, "in all cases before the police judge arising under the ordinances of the city, an appeal may be taken by the defendant to the district’ court, but no such appeal shall be allowed unless the defendant, within ten days, shall enter into a recognizance with good and sufficient sureties, to be approved by the police judge, conditioned for the personal appearance of the appellant before the district court of the county on the first day of the next term thereof,” is not repugnant to the Constitution, and was therefore adopted, extended to, and remained in force as the law of the state under the provisions of the Enabling Act (Act June 16, 1906, c. 3335, 34 Stat. 267) and the Constitution.
    2. APPEAL — Appeal from Police Court. The aet of June 4, 1908 (Acts 1907-08, c. 27, art. 1, see.-3; section 1979, Comp. Laws 1909), providing that "the county court shall have, concurrent with the district court, appellate jurisdiction of judgments of justices of the peace, and of judgments of police judges in all civil and-criminal causes,” only confers on the county court concurrent jurisdiction with the district court in appeals from judgments of police courts.
    (Syllabus by the Court.)

      Appeal from District Court, Woodward County; R. H. Doofbourrovo, Judge.

    H. A. Meloy was convicted of violating an ordinance of the City of Woodward, and brings error.
    Reversed.

      Fred M. Flkins and Chas. R. Alexander, for plaintiff in error.

      A. M. Appelget, City Atty., for defendant in error.
   DOYLE, J.

H. A. Meloy, plaintiff in error, was arrested, tried, and convicted before B. B. Smith, police judge in the police court of the city of Woodward,- upon a complaip* charging that he did unlawfully appear on the public streets of the city of Woodward in a state of intoxication, in violation of a city ordinance. The substantive part of said ordinance is as follows: ■ ;

“Section 1. It shall be unlawful for any person to be or appear in any public place in the city of Woodward in a state of intoxication. * * *”

“Sec. 4. Any person provisions of this ordinance shall be adjudged guilty of a misdemeanor and be punished by a fine of not less than one dollar nor more than one hundred dollars, or may be confined at hard labor in the jail of said city not more than sixty days, and be adjudged to pay the cost of such prosecution, and stand committed until such fine and cost are paid.”

The plaintiff in error perfected an appeal to the district court of Woodward county in conformity with section 746, Comp: • Laws 1909, which reads as follows:

“In all cases before the police judge arising under the ordinances of the city, an appeal may be taken by the defendant to the district court, but no such appeal shall be allowed unless the defendant, within ten days, shall enter into a recognizance with good and sufficient sureties, to be approved by the police judge, conditioned for the personal appearance of the appellant before the district court of the county on the first day of the next term thereof.”

The defendant error a “because the district court had no jurisdiction of an appeal taken from the police court of a city of the first class,” which motion was sustained and judgment entered dismissing the appeal for the reason, in such judgment stated, “that this court does not have jurisdiction from appeals from the said police court, and has no jurisdiction for that reason in said appeal herein.” The judgment was entered on January 17, 1910. From’ this judgment an appeal was properly perfected to this court.

The single question

“Have district courts jurisdiction on of conviction in police courts of cities of the first class?”

Prior to the adoption of the Constitution, appeals from police courts in cities of the first class could only be taken to the district courts as provided by section 746, supra.

The pertinent constitutional provisions are as follows:

Section 2 of art. 18, Const.:

“Every municipal corporation now existing within this state shall continue with all of its present rights and powers until otherwise provided by law, and shall always have the additional rights and powers conferred by this Constitution.”

Section 10 of the Schedule, article 24, Const.:

“Until otherwise provided by law, incorporated cities and towns, heretofore incorporated under the laws in force in the territory of Oklahoma or in the Indian Territory, shall continue their corporate existence under the laws extended in force in the state, and all officers of such municipal corporations at the time of the admission of the state into the Union shall perform the duties of their respective offices under the laws extended in force in the state, until their successors are elected and qualified in the manner that is or may be provided by law: Provided, that all valid ordinances now in force in such incorporated cities and towns shall continue 'in force until altered, amended, or repealed.”

Section 2 of the Schedule, article’24, Const.:

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

This provision was adopted in pursuance to the requirements of section 21 of the Enabling Act, prescribing that all laws in force in the territory of Oklahoma at the time of the admission of said state into the Union shall be in force throughout said state except as modified or, changed by this act or by the Constitution of the state.

The appellate jurisdiction of district and county courts as prescribed by the Constitution is as follows:

Section 10, article 7:

“The district courts shall have * * * such appellate jurisdiction as may be provided in this Constitution, or by law.”

Section 12, art. 7:

“County courts shall have such appellate judgments of justices of the peace in civil and criminal cases, may be provided by law, or in this Constitution.”

Section 14, art. 7:

“Until otherwise have jurisdiction of all cases on appeals from judgments of the of the peace in civil and criminal cases.”

Section 18, art. 7:

“Until otherwise provided by law, from judgments of the court of justices of the peace in all civil and criminal cases to the county court in the manner now pro-> vided by the laws of the territory of Oklahoma governing appeals from the courts of justices of the peace to the district court.”

We do not think that section 746, supra, either of the foregoing provisions the Constitution. The phrase “as may be,” as used in section 10, supra, must be taken as including the laws of the territory of Oklahoma adopted under section 2 of the Schedule, since the Constitution and such laws became effective and operative at one and the same time.

The act of the territorial Legislature for appeals from judgments of justices of the peace and police judges in criminal cases to the probate court (section 1, c. 29, Sess. Laws of 1905; section 7195, Comp. Laws 1909) has no application to police courts in cities of the first class, and was evidently intended to provide a mode of appeal from justices of the peace or police judges in cities, towns, and villages organized under the provisions of article 1, c. 15, Comp. Laws 1909, and could only apply to that class of minor or petty offenses that may be proceeded against summarily without a jury at common law.

The provisions by jury were in force in Oklahoma Territory, and otherwise this act would be void as in conflict with the third article of the federal Constitution and the fifth and sixth amendments thereof.

“The provision in article 3 States that ‘the trial of all crimes, except in cases of impeachment, shall be by jury,’ is to be construed in the light of the principles which, at common law, determined whether or not a person accused of crime was entitled to be tried by a jury; and, thus construed, it embraces not only felonies punishable by confinement in the penitentiary, but also some classes of misdemeanors the punishment of which may involve the deprivation of the liberty of the citizen.” (Callan v. Wilson, 127 U. S. 540, 8 Sup. Ct. 1301, 32 L. Ed. 223.)

Also with Organic Act (Act May 2, 1890, c. 182, 26 Stat. 85) sec. 9, and the act of Congress March 3, 1891, extending the jurisdiction of probate courts, conferring a limited original and no appellate jurisdiction on probate courts. It is also significant that the Constitution ignores the. act of 1905, in section 18, art. 7, Const., supra.

Considering the constitutional provisions: “The right of trial by jury shall be and remain inviolate,” and that “in all criminal prosecutions the accused shall have the right to a speedy and public .trial by an impartial jury of the county in which the crime shall have been committed” (sections 19 and 20, Bill of Rights) — it is said by this court in the case of In re Simmons t 4 Okla. Cr. 662, 112 Pac. 951:

“As we construe these constitutional provisions, the first means that a jury trial is preserved in ail, cases in which it existed at the time of the adoption óf the state Constitution. It does not extend the right of trial by jury; it simply secures it in all cases in which it was a matter of right before. The second secures to the accused in all criminal prosecutions the right of trial by a jury of the county. A prosecution for the violation of a municipal ordinance which prohibits an act which also constitutes an offense under the general criminal law is a quasi criminal proceeding.”

It was also held in the Simmons case, that where the statute authorizes a trial before a municipal court without a jury for a violation of a city ordinance, and at the same time secures to the defendant an unqualified right of appeal therefrom and a trial by jury in the appellate court, subject only to the requirement of bail for his appearance in the appellate court, such summary proceeding is not in conflict with the constitutional guaranty of a trial by jury, as the purpose of these provisions is to secure the right without directing the mode or manner in which it shall be enjoyed.

Unless section 746, supra, was adopted and extended in forcé in this state upon the adoption of the Constitution, as hereinbefore indicated, there was no provision, either of the Constitution or of the statute for appeals from judgments of conviction in police courts of cities of the first class, from the time of the admission of the state into the Union until the act of June 4, 1908,. went into effect. This act provides:

“The county court shall have, concurrent with the district court, appellate jurisdiction of judgments of justices of the peace, and of judgments of police judges in all civil and criminal causes.”

In the interim such judgments would have been final, and the person so convicted would be deprived of his constitutional right of trial by jury. It would then follow that, if such condition existed, the police courts in cities of the first class were without jurisdiction to sentence to imprisonment or to impose a fine upon an accused and order his imprisonment until such fine was paid, where the complaint charged an offense under an ordinance of the city that would also be penal under the laws of the state.

Several reasons might be urged against the validity of the act of June 4, 1908, in so far as it enlarges and extends the constitutional appellate jurisdiction of county courts. The Constitution is silent regarding appeals from municipal or police courts, and it would be reasonable to suppose that, if it had been intended to confer such jurisdiction on county courts, the Constitution would have so provided, as it does concerning appeals from courts of justices of the peace.

The Supreme Court of this state held, in the case of Holcomb v. C., R. I. & P. R. Co., 27 Okla. 667, 112 Pac. 1023, that the act of June 4, 1908, “so far as the same relates to the district court, is inoperative and void, being in conflict with section 57 of article 5 of the Constitution, providing that every act of the Legislature shall embrace but one subject, which shall be clearly expressed in the title.”

Our conclusion is that the act of June 4, 1908, onty confers ■jurisdiction on county courts concurrent with district courts on appeals from judgments of police courts.

For the reason stated, we are of opinion that district courts have jurisdiction on appeals from judgments of conviction in police courts of cities of the first class, and that the district court of Woodward county erred in dismissing said appeal.

The judgment is therefore reversed, with directions to the court below to overrule the motion to dismiss the appeal.

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


author: ARMSTRONG, J.

text:
    CHARLIE HAVILL v. STATE.
    No. A-779.
    Opinion Filed March 5, 1912.
    (121 Pac. 794.)
    1. TRIAL — Instructions—Credibility of Witnesses, (a) It is error for a trial court to instruct the jury that they are bound to accept as true the testimony of a witness who they believe has testified falsely on any material matter, when such witness is corroborated by other credible testimony.
    (b) Under the provisions of section 6857, Comp. Laws 1909, the jurors are made the exclusive judges of all questions of fact.
    2. TRIAL' — Province of Court and Jury. Trial courts cannot legally indicate their opinion, either expressly or impliedly, intentionally or otherwise, as to the credibility of any witness, or as to the truth of any fact in issue. The whole matter of finding as to the facts of the case must be left entirely to the jury, without suggestions or leadings by the court.
    S. APPEAL — Review—Presumptions, (a) Under subdivision 6, see. 6823, Comp. Laws 1909, all instructions given to a jury by a trial court must be in writing, unless waived by both parties; and such instructions must be filed and become part of the record.
    (b) When the circumstances disclosed by the record indicate that the court gave oral instructions which were reduced to writing and made a part of the record, in the absence of showing to the contrary, it will be presumed that the instructions were written out and given to the jury before they retired to deliberate.
    (Syllabus by the Court.)

      Appeal from District Court, Cleveland County; R. McMillan, Judge.

    Charlie Havill was convicted of maiming, and appeals.
    Reversed and remanded.

      B. R. Wolf, Ralph C. Hardie, and J. B. Dudley„ for plaintiff, in error.

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

Plaintiff in error, Charlie Havill, was convicted on the 20th day of January, 1910, in the district court of Cleveland county on a charge of maiming, and his punishment fixed at two and one-half years in the state penitentiary.

On the 12th of September, 1909, about sundown, J. Vandiveer, who is the prosecuting witness, and the accused became engaged in a personal encounter on the main street of the city of Norman. During the fight, it is charged that the prosecuting witness had a portion of one ear bitten off by accused. At the time of the difficulty, the prosecuting witness was engaged in conversation with one O’Haver, who was sitting in a buggy, when the accused came down the street, walked up to the buggy, and made some remark, following which words passed back and forth. It is contended that the prosecuting witness knocked the accused down, and he immediately arose and started toward said witness, when they clinched and fell to the ground, prosecuting witness falling on top. During the struggle that ensued, prosecuting witness lost the piece of ear. There is a sharp conflict in the testimony as to who was the real aggressor.

The accused, for reversal of this cause, relies on errors in the instructions of the court. The first assignment is based upon the following portion of instruction No. 11 of the court’s charge:

“If you shall find that there is a conflict in the testimony., reconcile that conflict, if you can, so as to let all the testimony stand; but, if you cannot so reconcile it, it is within your province and power to disregard the testimony of any witness whom you believe has testified falsely on any material matter, further than you believe that the same is corroborated by other credible testimony.”

This particular instruction has been condemned by this court in a number of cases, and the error therein clearly pointed out. The objection to the instruction is that it invades the province of the jury and binds them to believe the corroborated portion of a witness’ testimony, although the jury may not, in fact, believe any of it. We are satisfied that the court did not intend to bind the jury in-this manner; but such is the effect of the instruction, nevertheless. This court would not feel called upon to reverse eveiy case in which this instruction is given; but in a close case, where the testimony is sharply conflicting, and it is reasonably probable that injury resulted from the giving of such instruction, we think it is sufficient to call for a reversal.

Section 6857, Comp. Laws 1909, provides, among other things, that the court must instruct the jury that they are the exclusive judges of all questions of fact. This being so, it is for the jury to say whether they will believe any portion of a witness’ testimony, be it corroborated or not. The Legislature had the right to enact this statute, and did so, and the courts should carefully refrain from interfering with the prerogatives of the jury.

In Rea v. State, 3 Okla. Cr. 269, 105 Pac. 381, an instruction identical in principle was condemned by this court in the following language, after citing the statute, supra:

“The latter part of the instruction given flatly contradicts this statute by directing the jury, in mandatory terms, to accept and be bound by certain evidence, under the contingency therein stated. The court had no right to ingraft this exception upon the law. The doctrine expressed by the Supreme Court of Kansas is in harmony with out statute. It matters not how anxious this court may be to enforce the law, we cannot allow a 'conviction to stand which is based upon a violation of plain and mandatory statutes which go to the foundation of the case, and which action deprived the defendant of substantial rights upon the trial. The law is plain and simple, and must be followed in all matters involving the substantial rights of a defendant.”

See, also, Shellabarger v. Nafus, 15 Kan. 554.

The trend of modern action, both legislative and judicial, is to watch over and protect very jealously the legitimate powers of the jury, and to prevent the court from overstepping the line which separates law from fact. Trial judges cannot legally indicate their opinion, either expressly or impliedly, intentionally or otherwise, as to the credibility of the witnesses, or as to the truth of any fact in issue, or the subject of the evidence. They may declare the law fully and freely; but whether a certain contested fact has been proved is entirely for the jury, which involves both the credibility of the witness and the existence of the fact, whether said fact depends upon direct and positive testimony, or upon inferences to be drawn from other proved facts. In fine, the whole matter of finding the facts of the case must be left entirely to the jury, without suggestion or leadings by the court. See 11 Ency. Pleading and Practice, pp. 101 and 102.

The instruction under consideration is contrary to the exf plicit provisions of the statute. The court cannot legitimately go further than to instruct the jury that, if they believe from the evidence that any witness has willfully and corruptly sworn falsely as to any material fact, they may disregard the whole of such testimony, or any part of it which they deem false. Clearness and accuracy in instructions are of prime importance; and while the trial court in all probability' did not intend to say to the jury that they were bound to believe the testimony of any witness, whether corroborated or not, yet such is the plain interpretation of the instruction, or else it is ambiguous.

Counsel for the accused in their next assignment complain of the action of the court ip. giving oral instructions to the jury. After the case had been submitted to the jury, it returned into court for further instructions; whereupon the following proceedings were had, upon which this assignment is based:

“The Court: Mr. Jurymen, what is the trouble? A Juror: Why, I want to know what mayhem is, or if it could be committed if two parties were fighting — just got into a quarrel— and if one was to make a blow or destroy a member with his fist, or with any other means, without just taking hold of it with his mouth and destroying that member. Would that b¿ mayhem? The Court: Whether he could commit it with a blow or not? A Juror: No; if he was to destroy this member simply to come out victorious in the fight. The Court: If he was to sever a member or cut it off, it would be mayhem. A Juror: By a blow ? The Court: By any method in the world. A Juror: If two men was to meet and mutually agree to have a fight— 'both parties mutually agree — and they both stood on their feet •and struck in a pugilistic-like manner, and one would destroy a member of the other, would that be mayhem? The Court: If he cut a member off, it would be mayhem.' A Juror: Can a man commit an assault by words or actions without ever striking a blow, without hitting? The Court: He can’t. He has got to ■commit some overt act. A Juror: He has got to actually hit first? The Comí: No; he don’t have to come in contact with the body; but he has got to make an effort to do so. A Juror :■ If he was to use profane language, progressing towards the other party, would that be an assault — threatening language? The Court: If a man advances on another using profane language, leading the other to believe at the time that he is going to assault him, he has a right to treat it as an assault.”

This colloquy between the court and the juror was transcribed by the stenographer, and is incorporated in the record as instruction No. 12. We are not able to determine whether it was given to the jury when they retired from the courtroom or not; but, in the absence of showing to the contrary, the presumption is that it was.

Counsel for the accused contend that the discourse between the court and the jury, given at a time and in the manner it was, was prejudicial to his rights, and apparently base that contention on subdivision 6, sec. 6823, Comp. Laws 1909, which is as follows:

“All instructions given shall be in writing, unless waived by both parties, and shall be filed and become a part of the record in the case.”

This provision seems to have been complied with. There is no contention that any proposition of law given to the jury in this connection was incorrect, and without such issue having been raised we decline to discuss that feature. Counsel cite a number of authorities on the proposition that the instruction should have been written out and given to the jury; but, as we have said, in the absence of showing to the contrary, we presume this was done. The court has no right to give oral instructions under our statute, unless by consent of both parties; and in overruling this assignment we do not lay down a contrary doctrine, but base our ruling solely upon the theory that the instructions were transcribed and filed as part of the record in the manner required by law.

There are other assignments brought, all of which involve questions which the decisions of this court have heretofore settled, and on account of the press of business we do not feel that time should be consumed in discussing them again in this opinion.

Let the judgment be reversed, and the cause remanded for a new trial.

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


author: FURMAN, P. J. FURMAN, P. J.

text:
    L. A. NOWLIN v. STATE.
    No. A-642.
    Opinion Filed May 16, 1911.
    (115 Pac. 625.)
    Reheariug Opinion Filed March. 5, 1912.
    (121 Pac. 791.)
    1. APPEAL — Review—Verdict. The verdict of a jury will not be set aside for want of evidence to sustain it when there is any evidence in the record from which the jury could legitimately draw the conclusion of the defendant’s guilt.
    2. APPEAL — Reservation of Grounds of Review — Argument of Attorneys. The argument of attorneys to the jury is a part of the trial, and improper statements made by an attorney in the argument of a cause in open court and in the presence of the trial judge to be reviewed by the appellate court must be shown by proper recital in the case-made or bill of exceptions, and cannot be shown by affidavits.
    3. APPEAL — Record—Scope of Certificate to Case-Made. The trial judge’s certificate to the case-made attests the truthfulness and correctness of everything recited therein as having in fact taken place, but does not attest the truthfulness of affidavits filed in support of or in opposition to matters alleged in the motion for new trial.
    4. TRIAL — Arguments of Counsel — Failure of Defendant to Testify. The statute which provides that, where a defendant in a criminal ease fails to testify in his own behalf, such failure must not be mentioned on the trial, and, if commented upon by counsel, this shall be ground for a new trial, is mandatory, and must not be violated, directly or indirectly, either in its letter or spirit.
    (Syllabus by the Court.)

      Appeal from District Court, Kiowa County; J. S. Carpenter, Special Judge.

    L. A. Nowlin was convicted of violating the prohibitory law, and he appeals.
    On rehearing, reversed and remanded.

      B. M. Bradley, for appellant.

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

First. Appellant complains that the verdict in this case is not supported by the evidence. The' state’s witness T. A. Davis testified that he went to the back part of a barn in the town of Hobart; that he saw the defendant out on the sidewalk, and motioned to him to come; that the defendant came to where the witness was, and the witness said to him, “I want two pints of whisky. Here is a $20 bill”; that the defendant replied, “I will have to go to the house”; that the defendant then went into the house and came back on the west side of the barn, and entered the barn and went into the manger, and put something in there, and looked around at the witness, and handed the witness $18; that the witness then went into the manger, and got the two pints of whisky, which he said were placed there by the defendant. There was other evidence in the case, but this testimony alone, if believed by the jury, fully sustains the verdict. The credibility of the witnesses and the weight of the evidence is for the jury, and their verdict is decisive of these questions, unless it affirmatively appears from the record that they were influenced by improper considerations. We therefore cannot agree with the contention of appellant that the verdict was contrary to the evidence.

Second. Appellant contends that the jury were influenced by improper remarks made by the county attorney in the trial of said cause. Upon examination of the record, we find that this matter was complained of in the defendant’s motion for a new trial. And we also find two affidavits in the case-made which attempt to set forth at length the remarks referred to as having been made by the county attorney. But we fail to find incorporated in the record any statement made by the judge who tried this cause relating to such matter.

In the case of Saunders v. State, 4 Okla. Cr. 264, 111 Pac. 965, this court said:

“The statements of attorneys made in the argument of the case in open court in the presence and hearing of the judge cannot be shown to this court by affidavits either on the part of the state or the defendant. The argument of the cause to the jury is a part of the trial, and statements made therein, to be reviewed, must ajppear by a proper recital of fact in the case-made, so that the certificate of the trial judge will be a certificate to the correctness of the recital. The judge must settle the case-made, and thereby determine what was said, so' that his certificate -will attest the truthfulness and correctness of the recital in the case-made. But the trial judge’s certificate does not attest the truthfulness and correctness of affidavits offered in support of or in opposition to matters alleged in the motion for a new trial. There is no recital in the case-made that this matter ever took place. The trial judge has never certified that it did take place, and there is therefore nothing before us on this question. Newly discovered evidence and prejudicial matters not occurring in the regular trial of the cause in open court may be shown to .the trial judge, and on appeal to this court by affidavits as exhibits to the motion for a new trial; but there is no more reason or excuse for showing by affidavit what statement an attorney made to the jury in the argument than there is in showing in that manner the evidence introduced or excluded during the trial, or the rulings of the court thereon.”

In the case of Cochran v. State, 4 Okla. Cr. 387, 111 Pac. 977, this court said:

“If it is permissible to incorporate such questions in the case-made by affidavits, where would the matter end? If one part of the case-made as to matters occurring in open court during the progress of the trial can be incorporated in the record by affidavits, why could not all such matters also be so incorporated in the record? What then would become of the statutory provision that the case-made must be certified to by the trial judge?”

As to the proper manner of incorporating in the record questions which arise during a trial in open court, in the case of Turner v. State, 4 Lea, 209, the Supreme Court of Tennessee said:

“This being a matter occurring in open court, the proper mode to put it in the record would have been to request the judge to insert it over his own signature in the bill of exceptions.”

As to any matter relied upon in the motion for a new trial which did not occur in open court during the progress of the trial, the motion for a new trial may be sustained either by affidavits or by oral testimony, but matters occurring in open court during the trial of the cause can only be incorporated in a case-made by order of the court, and must be certified to by the judge trying the cause. If one part of the case-made can be proven by affidavits, the certificate of the judge might bei dispensed with altogether, and all parts of such case-made might be supported alone by affidavits. We therefore cannot consider the alleged improper remarks of the county- attorney. We cannot consider a case-made or any part thereof unless it is duly certified to by the judge trying the case.

The certificate of the judge in this case only certifies that the motion of the appellant for a new trial as it appears in the .record was filed in his court, and that the affidavits which the record contained were filed, but nowhere certifies to the accuracy of the statements contained in the motion for a new trial and in the affidavits filed. This court can act alone upon the certificate of the trial judge as to matters which occur in open court during the trial of the cause.

The other assignments of error relied upon relate to the instructions of the court, and have been passed upon adversely to the contentions of the defendant, and therefore need not be discussed here. We find no error in the record, and the judgment of the lower court is in all things affirmed.

ARMSTRONG and DOYLE, JJ., concur.

On Motion for Rehearing.

Sustained, and judgment of the lower court reversed, and cause remanded for new trial.

FURMAN, P. J.

This court does not profess to be infallible. We are always ready and anxious to correct any error which we may have made. We reaffirm the views expressed in the original opinion, except that we find that we overlooked an exception which is properly incorporated in the record, although it is not in that portion of the record where it should have been placed.

In considering the objection to alleged improper remarks made by the county attorney, we examined that portion of the record which follows the instructions of the court, because the instructions of the court necessarily precede the argument of counsel. We there found a number of affidavits as to the alleged improper remarks of the county attorney. For the reasons given in the original opinion, we held that these remarks so presented could not be considered; but in the motion for a rehearing our attention is called to the fact that in that portion of the record which immediately follows the testimony given in the trial of the case, and which precedes the instructions of the court, there is an exception, properly incorporated in the record, in which is presented objections made to the argument of the county attorney and the rulings of the court thereon, in which it is shown that the county attorney called attention to the fact that appellant did not testify on the trial. It was a controverted fact in the case as to whether or not appellant left the barn on the morning on which the whisky is alleged to have been sold. It is shown that the county attorney in his argument to the jury said that, if appellant had not left the barn as testified to by the state’s witness, he (appellant) would have been the best witness as to that fact. Section 0833, Comp. Laws 1909, is as follows:

“In the trial of all indictments, informations, complaints and other proceedings against persons charged with the commission of a crime, offenses and misdemeanors before any court or committing magistrate in this state, the person charged shall at his own request, but not otherwise, be a competent witness, and his failure to make such request shall not create any presumption against him nor be mentioned on the trial; if commented upon by counsel it shall be ground for a new trial.”

It matters not what we may think of the policy of this statute. It is mandatory, and therefore we have no discretion in the matter, but it is our plain duty to enforce it. It must not be violated, directly or indirectly, either in its letter or spirit. See Sturgis v. State, 2 Okla. Cr. 362, 102 Pac. 57; Brown v. State, 3 Okla. Cr. 445, 106 Pac. 808.

For these reasons, the motion for a rehearing is sustained, and the judgment of the lower court is reversed, and the cause is remanded for a new trial.

ARMSTRONG and DOYLE, JJ., concur.


text:
    WM. LOWE et al. v. STATE.
    No. A-959.
    Opinion Filed March 5, 1912.
    (121 Pac. 793.)
    1. APPEAL — Continuance—Review. An application for a continuance is addressed to the sound discretion of the trial court, and unless an abuse of this discretion is shown, a judgment will not be reversed on appeal.
    2. INDICTMENT AND INFORMATION — Amendment — When Allowed. Under Oomp. Laws 1909, sec. 6645, relating to amendments of informations, an amended information may be filed at any time prior to the time the case is actually put on trial, and if done before accused is arraigned and pleads it may be done without permission of the court, but if accused has pleaded the permission of the court must be had.
    (Syllabus by the Court.)

      Appeal from District Court, Caddo County; Frank M. Bailey, Judge.

    William Lowe and Washeen Robinson were convicted of larceny, and appeal.
    Affirmed.

      Robinson & Johnston, for plaintiffs in error.

      Smith C. Matson and B. G. Spitman, Asst. Attys. Gen., for the State.
   FURMAN, P. J.

There are three assignments of error urged for reversal of this cause. The first is that the court erred in overruling the motion for continuance on the ground of the absence of certain material witnesses.

An application for continuance is addressed to the sound discretion of the trial court, and unless there has been an abuse of this discretion, amounting to a practical denial of justice, a judgment of conviction will not be reversed on appeal. The witnesses were on bond for appearance at the trial. The subpoenas were issued about eight days before the case was called. Appellants made no showing to the effect that they would be able to produce the witnesses if the continuance had been allowed. No attachment was asked, and the exact whereabouts o f the witnesses is not disclosed. If this record disclosed the fact that the whereabouts of these witnesses had been made known to the sheriff, and through any fault of the officer service had not been had, the appellants might be in some attitude to complain. The showing on the application discloses no diligence whatever; a mere formal application for subpoena being all the record discloses. The application for continuance was properly overruled.

It is next objected that the court erred in permitting the county attorney to file an amended information. Counsel argue at length in their brief that the court erred in permitting the information to be amended after the jury had been impaneled and sworn, and after testimony had been introduced on the part of the state. This was error, and if the rights of the accused had been in any manner prejudiced thereby the judgment of conviction would have to be reversed. But there was no showing offered, and no contention made at the time this permission was given, that the rights of the accused were materially affected thereby. The county attorney was permitted' to strike out one name from his information. The proof in the record would dearly sustain a conviction under the allegations as originally made in the information, and just as clearly sustain the conviction on the amended information. It would 'be a miscarriage of justice to reverse this action, when it so clearly appears that no injury did result or could have resulted. We do not think that an information should be amended after the jury has been sworn and the testimony introduced; but, in order for such an objection to avail, it must clearly appear from the record that such proceeding was had, and that injury resulted, or could have reasonably resulted from such action.

Section 6645, Comp. Laws' 1909, provides that:

“An information may be amended in matter of substance or form at any time before the defendant pleads, without leave, and may be amended after plea on order of the court where the same can be done without material prejudice to the right of the defendant; no amendment shall cause any delay of the trial, unless for good cause shown by affidavit.”

This section of the statute, in our judgment, contemplates the filing of amended informations prior to the time the case is actually put on trial. If it is amended before the accused is arraigned and pleads it can be done without the permission of the court, and if after the accused has entered a plea then the permission of the court must be had. In this case, however, the amendment complained of did not affect the validity of the information in any sense. It charged the same offense before as it did after the amendment.

It is next urged that the court erred in overruling the demurrer of the appellants to the proof introduced on the part of the state. This assignment is based upon the contention that there is a variance between the allegation of ownership as alleged in the information and the proof on behalf of the state. The demurrer was properly overruled. Under out statute the proof was sufficient to sustain the conviction upon the allegations of the information.

The judgment of the trial court is affirmed.

ARMSTRONG and DOYLE, JJ., concur.


text:
    JULIUS CHOATE v. STATE.
    No. A-1028.
    Opinion Filed March 7, 1912.
    (121 Pac. 790.)
    APPEAL — Briefs—Failure to File. It is the duty of counsel, when they appeal a case to this court, to appear and, either by brief or oral argument, present the questions upon which they rety. If no brief is filed, and no oral argument is made, this court will not do more than examine the record for fundamental errors.
    (Syllabus by the Court.)

      Appeal from District Court, Pushmataha County; Malcolm E. Rosser, Judge.

    Julius Choate was convicted of shooting at another with a gun with intent to injure, and appeals.
    Affirmed.

      J. E. Whitehead, for. appellant.

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

On the 13th day of September, 1910, judgment was rendered against appellant in the district court of Pushmataha county for the offense of shooting at another with a gun with intent to injure, and he was duly sentenced to imprisonment in the penitentiary for a period of one year.

No brief has been filed in this court on the part of appellant, and no appearance has been made in his behalf. It is the duty of this court to decide questions properly presented, and not to brief cases. Where counsel do not appear to present the questions upon which they rely, either by brief or oral argument, this court will not do more than examine the record for fundamental errors. See Henson v. State, 5 Okla. Cr. 6, 113 Pac. 224; Price v. State, 5 Okla. Cr. 147, 113 Pac. 1061; Mingle v. State, 5 Okla. Cr. 535, 115 Pac. 616. Upon an examination of the record in this case we find no such fundamental error, and the evidence overwhelmingly establishes the guilt of appellant.

The judgment of the lower court is therefore affirmed.

ARMSTRONG and DOYLE, JJ., concur.


text:
    WILL BETHEL v. STATE.
    No. A-1010.
    Opinion Filed March 7, 1912.
    (121 Pac. 792.)
    APPEAL — Time for Taking Proceedings. In felony cases, the appeal must be perfected within six months from the date of the rendition of the judgment. If this is not done, the appellate court does not acquire jurisdiction of the cause, and the appeal will be dismissed.
    (Syllabus’by the Court.)

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

    Will Bethel was convicted of manslaughter.in the first degree, and appeals.
    Dismissed.
    Crump, Skinner & Bailey, for appellant.

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

On the 26th day of May, 1910, judgment was rendered in the district court of Seminole county against appellant, and he was sentenced to confinement in the state penitentiary at McAlester for a period of five years for the offense of manslaughter in the first degree.

The transcript of the record was not filed in this court until February 4, 1911, which was over eight months after the judgment was entered against appellant. Under the law appeals must be perfected in felony cases within six months from the date of the rendition of the judgment. As this was not done in the case at bar we have no discretion except to dismiss the appeal for want of jurisdiction. See Farmer v. State, 5 Okla. Cr. 151, 114 Pac. 753.

ARMSTRONG and DOYLE, JJ., concur.


text:
    WALTER BILLUS v. STATE.
    No. A-946.
    Opinion Filed March 8, 1912.
    (121 Pac. 790.)
    1. APPEAL — Record—Case-Made. No case-made will be considered on appeal which does not show affirmatively that it was served upon the county attorney within the time fixed for that purpose by the trial court.
    2. APPEAL — Record—'Transcript. Where a case-made has been held void because it was not served upon the county attorney, and where the clerk of the superior court in which the case was tried has not certified that the copies of the pleadings, instructions, findings, rulings, and judgments of the court as contained in the case-made are true and correct copies of the same as shown by the records of the superior court, such record cannot be considered as a transcript of the record of the court below upon the certificate of the superior judge.
    (Syllabus by the Court.)

      Appeal from Superior Court,, Pottawatomie County; George C. Abernathy, Judge.

    Walter Billus was convicted of assault with intent to murder, and sentenced to confinement in the penitentiary for one year, •and appeals.
    Dismissed.

      P. Preeling, for appellant.

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

The record in this case fails to show that the case-made was ever served upon the county attorney. In the case of Cohn v. State, 4 Okla. Cr. 492, 113 Pac. 219, this court, speaking by Judge Richardson, said:

“No case-made will be considered by this court, unless it is shown positively and affirmatively that it was served upon the county attorney, and that it was so served within the time granted by the trial court for that purpose.”

See, also, Box v. State, 4 Okla. Cr. 371, 111 Pac. 655; Wilson v. State, 4 Okla. Cr. 517, 111 Pac. 659. This question has been so often decided, both by this court and the Supreme Court of Oklahoma Territory, that further citation of authorities is unnecessary. The signature of the judge to the case-made is. not attested by the clerk of the court under the seal of the court as the law directs. We must therefore strike the case-made from the record.

There is not in the record any certificate of the clerk of the superior court to the transcript of the record. Wé therefore cannot consider this appeal as upon the transcript of the record. See Abel v. Blair, 3 Okla. 402, 41 Pac. 342; Wade et. al. v. Michell, 14 Okla. 170, 79 Pac. 95; Perky v. State, 4 Okla. Cr. 239, 111 Pac. 663; Dobbs v. State, 5 Okla. Cr. 475, 114 Pac. 358, 115 Pac. 370. We cannot consider the record before ús. as a case-made, because it fails to show it was ever served upon the county attorney, and because the signature of the judge to. the case-made is not attested by the clerk of the court under the seal of the court as the law directs. See Blitz v. Brown, 7 Wall. 693, 19 L. Ed. 280. We cannot consider the transcript of the record, because it is not certified to by the clerk of the superior court.

The appeal must be dismissed.

ARMSTRONG and DOYLE, JJ., concur.


text:
    CLARENCE WESTON v. STATE.
    No. A-973.
    Opinion Filed March 7, 1912.
    (121 Pac. 791.)
    APPEAL — Time for Taking Proceedings. If an appeal in a felony case is not perfected by filing a transcript of the record in this court within six months from the date of the judgment, the appeal will be dismissed.
    (Syllabus by the Court.)

      Appeal from Seminole County Court; R. M. Rainey, Judge.

    Clarence Weston was convicted of manslaughter in the first ■degree, and sentenced to confinement in the state penitentiary for thirty years, and appeals.
    Dismissed.

      Davis & Davis, for appellant.

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

Judgment wasf rendered against appellant’ on the 10th day of May, 1910, but the transcript of the record was not filed in this court until the 6th day of April, 1911. • Our statute is mandatory that appeals in felony cases must be perfected within six months,after date of the judgment. This appeal was not perfected until nearly eleven months after the judgment was rendered.

We therefore have no discretion, but must dismiss the appeal. See Farmer v. State, 5 Okla. Cr. 151, 114 Pac. 753.

ARMSTRONG and DOYLE, JJ., concur.


text:
    R. W. MURRAY v. STATE.
    No. A-965.
    Opinion Filed March 7, 1912.
    (121 Pac. 791.)
    APPEAL — Briefs—Failure to File. It is the duty of counsel, when they appeal a case to this court, to appear and, either by brief or oral argument, present the questions upon which they rely. If no brief is filed, and no oral argument is made, this court will not do-more than examine the record for fundamental errors.
    (Syllabus by the Court.)

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

    R. W. Murray was convicted of perjury, and sentenced to the penitentiary for five years, and appeals.
    Affirmed.

      Utterback & Hayes and Victor C. Phillips, for appellant.

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

No brief has been filed in this case on the part of appellant, and no appearance has been made in his behalf. It is the duty of this court to decide questions properly presented,, and not to brief cases. Where counsel do not appear in court and present the questions upon which they rely, either by brief or oral argument, this court will not do more than examine the record for fundamental errors. See Henson v. State, 5 Okla. Cr. 6, 113 Pac. 224; Price v. State, 5 Okla. Cr. 147, 113 Pac. 1061; Mingle v. State, 5 Okla. Cr. 535, 115 Pac. 616. Upon an examination of the record in this case, we find no fundamental error, and the evidence overwhelmingly establishes the guilt of the appellant.

The judgment of the lower court is therefore affirmed.

ARMSTRONG, J., being disqualified, having presided at the trial of appellant in the district court, did not participate in the consideration of this cause. DOYEE, J., concurs.


text:
    GEO. PASCHAL v. STATE.
    No. A-1033.
    Opinion Filed March 8, 1912.
    (121 Pac. 792.)
    CRIMINAL LAW — Appeal from Police Court — Insufficient Bond. Where a defendant is prosecuted in the police court of a city, and appeals from a judgment of conviction therein, and the appeal bond is insufficient or unsatisfactory, the appeal should not be dismissed on this account; but the court, upon motion of the county attorney, may require a" new bond.
    (Syllabus by the Court.)

      Appeal from Cherokee County Court; J. T. Parks, Jtcdge.

    George Paschal was convicted in the police court of the city of Tahlequah for assault and battery, from which conviction he appealed to the county court, and executed a bond, with sureties, which was approved by and filed with the police judge. The county attorney moved the county court to dismiss the appeal, upon the ground that one of the sureties on the appeal bond was a licensed attorney at law of the state and was counsel of record for the defendant. This motion was sustained by the court, and the appeal was dismissed and appellant has appealed.
    Reversed.

      George W. Paschal, for appellant.

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

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

“The effect of the judgment of the court is to hold that it has power to pass upon the sufficiency of an appeal bond, when this power is lodged in the first place in the hands of the police judge. The bond given was effective as an appeal bond, possibly subject to the right of the county court to require a new bond, if the judge for any sufficient reason deemed the appeal bond unsatisfactory. But to treat the bond, after it had been approved by the police judge, as a fatal defect, and to dismiss the appeal for the reason of its insufficiency, would be a denial of the right by trial by jury, in a matter affecting the liberty of an individual. This matter is fully discussed in Re Simmons, 4 Okla. Cr. 662 [112 Pac. 951], and in Meloy v. City of Woodward, infra [120 Pac. 1119]. This court held on this subject: ‘It was also held in the Simmons case that where the statute au-, thorizes a trial-before a municipal court without a jury for a violation of a city ordinance, and at the samé time secures to the defendant an unqualified right of appeal therefrom, and a trial by jury in the appellate court, subject only to the requirement of bail for his appearance in the appellate court, such summary proceeding is not in conflict with the constitutional guaranty of a trial by jury, as the purpose of these provisions is to secure the right, without directing the mode or manner in which it shall be enjoyed.’ It will be seen from this that the court had some difficulty in upholding a municipal law denying the right of jury trial in the first instance, but concluded that, if that right remained unimpaired in the appellate court, it would not constitute a violation of sections 19 and 20 of the Bill of Rights. The judgment of the county court, however, goes further, and not only impairs, but destroys, the constitutional guaranty of trial by jury in this class of cases. This case should be reversed. Respectfully submitted. Chas. West, Attorney General. Smith C. Matson, Assistant Attorney General. E. G. Spilmari, Assistant Attorney General".”

We think that the position assumed by the Attorney General is correct. If for any reason the appeal bond was not sufficient, upon motion of the county attorney, the court might have ■ required the defendant to execute a good and sufficient bond, and in case of his failing to do this he might be confined in jail pending the appeal. But the court did not have the power to dismiss the appeal on account of any real or supposed defects in the bond. The judgment of the county court is therefore reversed, with directions to reinstate this cause upon its docket and proceed with this case as above indicated. Reversed.

ARMSTRONG and DOYLE, JJ., concur.


text:
    JNO. W. HOOPER v. STATE.
    No. A-1091.
    Opinion-Filed March 19, 1912.
    (121 Pac. 1087.)
    1. EVIDENCE — Distinct Offense. The fact that a defendant may have been prosecuted, arrested, or imprisoned for an offense cannot be introduced as evidence against him unless such prosecution, arrest, or imprisonment are in some manner connected with the offense for which he is upon trial.
    2. APPEAL — Harmless' Error. When an error has been committed upon the trial of a case, it is the duty of this court upon an inspection of the entire record to determine whether or not the defendant suffered any material injury from such error. Unless such injury appears, the error will not be ground for reversal.

      3. SAME — Modification of Judgment. If this court finds that excessive punishment has been inflicted upon a defendant, it does not necessarily follow that the judgment should be reversed. The court may modify and affirm such judgment.
    (Syllabus by the Court.)

      Appeal from Texas County Court; W. C. Crow, Judge.

    John W. Plooper was convicted of assault, and appeals.
    Modified and affirmed.

      William Bdens, for appellant.

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

Upon the trial of this cause the state was permitted in its evidence in chief to introduce an information against appellant, charging him with a violation of the prohibitory liquor law. To this exceptions were reserved. This evidence was improperly admitted, without further proof that it was' in some manner connected with the offense for which appellant was upon trial. If appellant had been, convicted of bootlegging, this fact might have been proven for the purpose of affecting his credibility as a witness. See Hendrix v. State, 4 Okla. Cr 611, 113 Pac. 244. But the mere fact that he had been prosecuted for the offense was not admissible. See Slater v. United States, 1 Okla. Cr. 375, 98 Pac. 110. But, while it is true that this evidence was improperly admitted, it does not necessarily follow that this case should be reversed on this account.

Our statute provides that, on appeal, the court must give judgment without regard to technical errors or defects or exceptions which do not affect the substantial rights of the parties. Therefore, whenever an error has been committed upon the trial of a cause, it is the duty of this court on appeal upon an examination of the entire record to decide as to whether or not such error deprived the appellant of some substantial right. Upon an examination of the testimony in this case, we are satisfied that appellant is guilty of assault and battery. There .is no reason to believe the jury could have arrived at any other verdict, and we are of the opinion that the only injury appellant could have received by the introduction of this testimony was that it may have caused the jury to inflict upon him a higher penalty than they otherwise would have done; and in view of the testimony in this case, and knowing as we do of the feeling existing against persons charged with violating the prohibitory liquor law, we are of the opinion that it did have this effect. Under the state’s evi- j dence, the assault committed by appellant did not inflict any serious injury upon the party assaulted, and under the appellant’s evidence, while he was not justified in making the assault, yet it was attended with mitigating circumstances. We believe that the court erred in admitting the evidence objected to, but we also find that the appellant is guilty of a slight offense. We are not willing to reverse the case, but believe the judgment should be modified and the fine reduced from $50 to $10. This gives the appellant all that he could hope to gain from a reversal, and saves the state and the defendant the cost of another trial.

Section 6955, Comp. Taws 1909, is as follows:

“The appellate court may reverse, affirm or modify the judgment appealed from, and may, if necessary or proper, order a new trial. In either case, the cause must be remanded to the court below, with proper instructions, and the opinion of the court, within the time, and in the manner, to be prescribed by rule of the court.”

It is therefore ordered by the court that the judgment be modified and the fine imposed upon appellant be reduced from $50 to $10, and that the judgment as modified be affirmed.

ARMSTRONG and DOYRE, JJ., concur.


text:
    JOE MORGAN et al. v. STATE.
    No. A-1116.
    Opinion Filed March 19, 1912.
    (121 Pac. 1088.)
    1. GAMING — Indictment—Sufficiency. An indictment which charges a person with playing a game of poker, but which fails to charge that the person was playing such game for money or other representative of value, does not state a public offense against our statute.
    2. TRIAL — Instructions—Reasonable Doubt. An instruction which states that by the term “reasonable doubt” is meant “a doubt ' for which a reason can be given,” is erroneous.
    (Syllabus by the Court.)

      Appeal from Rogers County Court; H. Tom Right, Judge.

    Joe Morgan and George Hurford were convicted of gaming, and appeal.
    Reversed.

      Bonds & Howard, for appellants.

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

In this case the Attorney General has filed the following confession of error:

“The Attorney General would respectfully call- this honorable court's attention to the charging part of the information in this case, as follows: ‘That on the 18th day of December, A. D. 1910, in the county of Rogers, state of Oklahoma, one Joe Morgan and George Hurford, then and there being, did then and there willfully and unlawfully conduct a game of chance for money, commonly called “poker,” and was played with cards, and which said game of chance was so conducted in Claremore, Rogers county, Oklahoma, in a building on the south side of Third street, in said town, commonly known as the “Altamont rooming house.” ’ To this information plaintiffs in error each filed a demurrer because: (1) That the facts pleaded in said information do not constitute a'public-offense. (2) That said information charges more than one offense. This demurrer was by the court overruled, and excepted to, and the error of the court in so doing was set up in the motion for new trial and in the petition in error. Under the holding of this court in the case of Brown v. State, 5 Okla. Cr. 41, 113 Pac. 219, the overruling of this ‘ demurrer is reversible error, for the information must allege that the game so conducted must be played for money or some representative value.

“The court also, in defining ‘reasonable doubt’ in instruction No. 2, among other things said: ‘A reasonable doubt means a doubt for which you can assign a reason, not a mere fanciful doubt,’ etc. To- the giving of this instruction plaintiffs in error reserved an exception, and assigned the same as error, both in the motion for new trial and in the petition in error. Instructions embracing this and similar language in defining ‘reasonable doubt’ have repeatedly been held to be erroneous by this court, and sufficient ground for reversal. Abbott v. Territory, 1 Okla. Cr. 1, 94 Pac. 179; Price v. State, 1 Okla. Cr. 358, 98 Pac. 447; Gragg v. State, 3 Okla. Cr. 409, 106 Pac. 350.

“For the reasons above set out, the Attorney General believes that, under the former holdings of this court, sufficient error appears in the record in this case to authorize its reversal, and confesses error accordingly.

“Chas. West, Attorney General.

“Smith C. Matson, Asst. Atty. Gen.”

The court is of the opinion that the errors confessed by the Attorney General are material. The judgment of the lower court is therefore reversed,- and the cause is remanded for a new trial.

ARMSTRONG and DOYLE, JJ., concur.


text:
    STATE v. IRA SPEED.
    No. A-1174.
    Opinion Filed March 19, 1912.
    (121 Pac. 1090.)
    BASTARDS — Nature of Action. Bastardy proceedings are in the nature of civil actions, and -do not constitute criminal prosecutions, and this court has no jurisdiction of appeals in such cases.
    (Syllabus by the Court.)

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

    Bastardy proceedings against Ira Speed. From a judgment appeals.
    Dismissed.

      Sam Hooker, Co. Atty., for the State.

      Claude Weaver, for appellee.
   FURMAN, P. J.

Bastardy is not a crime punishable by the penal laws of this state. If a defendant has illicit intercourse with the mother of a bastard child, this offense is fully provided for in other statutes. If bastardy constitutes a penal offense, it would subject a defendant to double prosecutions by the same jurisdiction for the same act, which would be violative of both the spirit and letter of our Constitution. The object of the law on the subject of bastardy is not to punish the father for his illicit intercourse with the mother of a bastard child, but it is for the benefit of the child, and also for the protection of the county against being charged with its support.

This is not an open question in Oklahoma. In Bell v. Territory, 8 Okla. 75, 56 Pac. 853, Chief Justice Burford, speaking for the court said:

are special in character, and are governed by the act authorizing such proceedings, in so far as the same prescribes the proceedings and practice. But said actions are also in the nature of civil actions, and, in so far as not in conflict with the special act authorizing, such proceedings, the practice and proceedings in civil causes in the district court are applicable, and appeals may be taken in such causes in the same manner and to the same effect as appeals in civil cases from the probate courts. Giving these various statutes full effect, and construing them together, for the purpose and with the intent designed, the result is, in bastardy cases, if the party desires a trial de novo, his appeal should be to the district court, and should be taken in the manner and under the provisions prescribed in the chapter on probate procedure; but, if questions of law only are to be presented on appeal, then the appeal should be to the Supreme Court, and the appeal must be taken in the manner provided for appeals in civil causes from the district court to the Supreme Court.”

In re Comstock, 10 Okla. 299, 61 Pac. 921, Chief Justice Burford again said:

“A bastardy proceeding is special in character, and is in the nature of a civil proceeding. There is no authority given to impose imprisonment as part of the original judgment in such cases, in order to compel the judgment debtor to secure the payment of the judgment by executing a bond.”

For the reasons above given, we are of the opinion that this court has no jurisdiction to entertain this appeal. The appeal is therefore dismissed, because it is in a civil proceeding.

ARMSTRONG and DOYLE, JJ., concur.


author: EURMAN, P.'J.

text:
    T. P. EATON v. STATE.
    No. A-1083.
    Opinion Filed March 19, 1912.
    (121 Pac. 1089.)
    APPEAL — Dismissal. If an appeal is not perfected in the time and manner prescribed by law, this court has no jurisdiction of such appeal, and it will be dismissed.
    (Syllabus by the Court.)

      Appeal from Payne County Court; P. D. Mitchell, Judge.

    T. P. Eaton was convicted of libel, and appeals.
    Dismissed.

      Chester H. Lowry, for appellant.

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

On the 17th day of December, 1910, judgment was rendered in the county court of Payne county against appellant for the offense of libel, and his punishment was assessed by the court at a term of 30 days’ imprisonment in the county jail and a fine of $200. At said date the court granted the defendant 60 days within which to make and serve his case-made, and 90 days in which to perfect his appeal to this court. On the 15th day of February, 1911, appellant applied to the county court of Payne county and was granted an order extending the time for making and serving his case-made until the 17th day of March, 1911, and also extending the time for the defendant to perfect his appeal to this court 60 days from said 15th day of February, 1911. On the 11th day of April, 1911, the court again extended the time until the 1st day of June, 1911, within which the defendant might make and serve his case-made and perfect his appeal. The record fails to show that the case-made was ever served upon the county attorney; but there is a statement in the record, under date of June 6, 1911, signed by the county attorney, to the effect that he has no amendments to suggest to the case-made. The transcript of the record was not filed in this court until the 20th day of June, 1911.

It has time and again been decided by the Supreme Court of Oklahoma Territory, as well as by this court, that the provisions of the statute with reference to the manner of taking an appeal are mandatory, and whenever they are not complied with the appellate court will not acquire jurisdiction of the case, and the appeal must be dismissed. See Farmer v. State, 5 Okla. Or. 151, 114 Pac. 753. In the case at bar the county court was without power to extend the time more than 120 days from the rendition of the judgment, either for the purpose of making and serving the case-made or for the purpose of perfecting the appeal, and all of the orders made extending the time beyond that date are absolutely void. The law on this subject may in some instances work a hardship; but if it were not for this rule it would be impossible to enforce the laws of the state of Oklahoma. If a defendant can wait one day after the time given him by law to perfect his appeal, he can wait .indefinitely. We have no discretion in cases of this kind; but it is our plain duty to dismiss an appeal for want of jurisdiction whenever the requirements of the statute regulating the manner in which appeals must be perfected are not complied with.

The appeal must therefore be dismissed.

ARMSTRONG and DOYLE, JJ., concur. '