text:
    PAUL SMITH v. STATE.
    No. A-170.
    Opinion Filed November 23. 1910.
    1. CONTINUANCE — Amendment of Information — Right to Postponement. When an information is amended upon the eve of trial and the defendant files a motion for a postponement supported by affidavit showing surprise, and that the amendment to the information requires additional preparation upon the part of the defendant before he could be ready for trial, reasonable time should be allowed the defendant, by the court, within which to make such preparation.
    2. JURY — Exclusion of Negroes — ’“Equal Protection of the Laws.” (a) When a negro is charged with violating the criminal laws of a state, and when under oath he challenges the panel of the jury upon the ground that the commissioners who selected such jury and the sheriff who summoned them had excluded from the jury all persons of African descent, solely on account of their race and color, and offers evidence to sustain this ground of challenge, the trial court should hear the evidence, and if it is of the opinion that as a matter of fact negroes were intentionally excluded from the panel, solely upon-the ground of their race and color, said motion should be sustained. This has been repeatedly decided by the Supreme Court of the United States, and all state tribunals are bound thereby.
    (b) The mere fact that the jury was composed solely of white men will not be ground for challenge in such case. There is no law requiring that negroes shall be selected to sit upon juries. The only law upon this subject is, they must not be excluded therefrom solely on account of their race or color.
    (.c) Officers charged with the duty of selecting and summoning jurors can exercise their own discretion in selecting those persons who, in their judgment, are competent and qualified to serve as such jurors, provided, that they do not exclude competent persons who are negroes, solely on account of their race and color.
    (Syllabus by the Court.)

      Appeal from Muskogee Qouniy Courtj W. C. Jackson, Judge.

    Defendant was convicted for violation of the prohibition law and sentenced to pay a fine of $300.00 and forty days’ confinement in the county jail, and he prosecuted an appeal.
    Beversed and remanded.

      8. F. Gidneg, for appellant.
    Citing Garter v. Texas, 177 TJ. S. 442, and Rogers v. Alabama, 192 TJ. S. 226.

      Fred 8. Caldwell, for the State.
   FURMAN, Presiding Judge.

1. The information in this case was filed on the 21st day of September, 1908. It charged the defendant, in general terms, with the unlawful sale of intoxicating liquor on the 21st day of September, 1908, but did not allege to whom such liquor was sold or that the name of the purchaser was unknown to the informant. The ease came on to be tried upon this information on the 6th day of January, 1909. Defendant demurred to the information because it did not state to whom the sale was made or that the name of the purchaser was unknown to the informant. Thereupon the county attorney, with the permission of the court, filed an amended information, in which he alleged that the sale of liquor on the 21st.day of September, 1908, was made by the defendant to Al Ayer. Defendant thereupon moved the court to postpone the case for a period of twenty-four hours to enable him to prepare to meet such charge. The motion was in conformity with the statute and duly- sworn to by the defendant. This motion was by the court overruled and the defendant excepted. Defendant was immediately forced into trial. To this defendant excepted. In this there was error. Under the repeated decisions of this court an information for the sale of intoxicating liquor which does not state the.name of the person to whom such sale was made, .or state that the name of such party was unknown, if demurred to upon this ground in apt time, is wholly insufficient. Under our statute an information can be amended, but when such amendment is allowed and it sets up any new matter which operates as a surprise to the defendant, upon his filing the motion provided for by the statute, in all fairness and justice he should be allowed reasonable time within which to prepare to make his defense. According to the record in this case defendant did not know until the amendment was filed as to what transaction he would be called upon to defend. lie had no time to prepare for trial, to consult his attorneys or to summon witnesses. His request for a postponement of the case for twenty-four hours to enable him to prepare to meet the amended information was reasonable and should have been allowed by the trial court.

■2. Before the jury was empaneled the defendant filed the following challenge to the array or jurors.

• “In the County Court of Muskogee County, State of Oklahoma. State of Oklahoma v. Paul Smith.
“Comes the defendant, Paul Smith, and objects to the panel of the jury called in this court for the purpose of sitting as a jury in this cause and objects to going to trial because he says that he is a person of African descent known as a negro; and that the panel from which all jurors must be called in this cause is composed exclusively of white persons; and that all persons of color or African descent known as negroes were excluded from serving on said panel of jury by the commissioners of Muskogee County on account of their race and color, and for no other reason.
“2nd. That the jury commissioners of this, Muskogee county, have for a long period of time, to-wit: fourteen months last past during the entire time since the organization of Muskogee County, neglected and refused and excluded all colored persons, or persons of African descent, from serving on juries in said county solely on account of their 'race and color; that said exclusion, neglect and refusal is a discrimination against this defendant, who is a negro, and is a denial to him of an equal protection of the laws as guaranteed to him under the Constitution of the United States.
“3rd. That the persons selected by the sheriff of Muskogee County to serve upon the panel of jury during the present term of this court have all been white persons, and that said sheriff has neglected, refused and excluded all colored persons, or persons of African descent, from serving on said jury solely on account of their race and color; that said exclusion, neglect and refusal is a discrimination against this defendant, who is a negro, and is a denial to him of an equal protection of the laws as guaranteed to him under the Constitution of the United States.
“4th. That during the entire period of time during which Muskogee County has been an organized county all of the jurors summoned and serving upon any jury in this court have been white men, and that there has been a studied exclusion, neglect and refusal by the officers of this county and of this court to summons any person who is a negro or of African descent to serve upon a jury in this court or in this county, and that such studied exclusion, neglect and refusal to summons a negro is a denial to him of an equal protection of the laws as guaranteed to him under the Constitution of the United States.
“The defendant says that more than one-third of the inhabitants and more than one-fourth of the legal electors of Muskogee County are persons of color or African descent known as negroes and were excluded from such jury service by the commissioners of said Muskogee County, and _ other officers whose duty it was to summons juries, on account of their race and color and for no other purpose.
“Paul Smith.
“Subscribed and sworn to before me this 6th day of January, 1909.
“Tony Matney,
“Clerk District Court.
“By Ross Houck,
“My commission expires “Deputy.”

The defendant then offered to introduce evidence in support of the motion, but the court refused to receive such evidence and overruled the motion, to all of which the defendant excepted. In this there was error. The Supreme Court of the United States has repeatedly passed upon this question. The substance and effect of their decisions is that whenever by any action of a state, whether through its Legislature, through its courts, or through its executive or administrative officers, persons of African descent are excluded solely on account of their race or color from serving on grand or petit juries in a criminal prosecution against a negro, the equal protection of the law is denied to such defendant, contrary to the 14th amendment to the Constitution of the United States, and that in such eases, if a defendant makes a timely challenge to the jury, and it is denied by the state court, a conviction upon appeal to the United States courts will be set aside. See Strouder v. W. Va., 100 U. S. 303; Neal v. Delaware, 103 U. S. 370-397; Gibson v. Miss., 162 U. S. 565; Carter v. Texas, 177 U. S. 442; Rogers v. Ala., 192 U. S. 226. By these decisions we are bound. See also Castleberry v. State, 69 Ark. 246; Wilson v. State, 69 Ga. 224; Green v. State, 73 Ala. 26; Torrance v. State, (Fla.) 30 So. 685; Hoggard v. Com., 79 Ky. 366; Com. v. Johnson, 78 Ky. 509; Cooper v. State, 64 Md. 40, 20 Atl. 986; Smith v. State (Tex. Cr.) 69 S. W. 151; Leach v. State (Tex. Cr.) 62 S. W. 422; Kipper v. State (Tex. Cr.) 62 S. W. 420. We therefore hold that the trial court should have heard the testimony offered by the defendant, and that, if it appeared therefrom that negroes were excluded from the jury by the officers of the court solely upon the ground of their color, the 'challenge to the jury should have been sustained. The 14th amendment to the Constitution of the United States does not require the jury commissioners or other officers charged with the selection of juries to place negroes upon the jury list simply because they are negroes. The allegation that the jury was composed solely of white men .does not violate the 14th amendment to the Constitution of the United States, and proof of that fact would not support the motion. The ground upon which the decisions of the Supreme Court of the United States- rest is not that negroes were not selected to sit upon juries, but that they were excluded therefrom solely on account of their race or color. In other words,' there is no law to compel the jury commissioners or other officers of the court to select or summon negroes as jurors. They can select any persons whom they regard as competent to serve as jurors without regard to their race or color, but the law prohibits them from excluding negroes solely on account of their race or color. Therefore the judge should have heard ¡the testimony, and if he found from the evidence that there was an agreement among the jury commissioners to exclude negroes from the jury panel simply because they were negroes, or that the officers charged with the duty of selecting and summoning said jurors had refused to select or summons negroes on the jury, and had excluded them therefrom solely upon the ground that they were negroes, then the judge should have sustained said motion. There is no law requiring an officer to place negroes on the panel simply because they are ne-groes. It is his duty to select the best jurors without regard to race or color. When this is done the law is satisfied. For the reasons herein pointed out, the judgment of the lower court is reversed and remanded.

DOYLE and RICHARDSON, Judges, concur.


source: Caselaw Access Project

author: FURMAN, Presiding Judge.

license: Public Domain

text:
    BEN HUGHES v. STATE.
    No. A-731.
    Opinion Filed November 23, 1910.
    (111 Pac. 964.)
    1. APPEAL — Oral Notice — Sufficiency. Under section 6949, Snyder’s Comp. Laws, requiring notice of appeals to he served upon the clerk of the court and the prosecuting attorney, a written notice is intended; and oral notice, though given in open court in the presence of those officers, and. shown toy journal entry, is insufficient.
    2. APIPEAL — Time of Taking. The act of 1909 (Snyder’s Comp. Ibaws, sec. 6948), requiring appeals in felony cases to be taken within six months from rendition of judgment, is applicable to an offense committed prior to its passage, where the defendant was not tried until after the act became effective.
    3. APPEAL — Notice—Sufficiency. Notice of appeal given after the ' expiration of the time provided by statute for taking such appeals is a nullity, and will not confer jurisdiction upon the appellate court.
    ('Syllabus 'by the Court.)

      Appeal from District Court, Custer County; James B. Tolbert, ' Judge.

    Ben Hughes was convicted of grand larceny, and appeals.
    Dismissed.

      W. J. Knott and Le Boy Jones, for plaintiff in error.

      Smith C. Matson, Assistant Attorney General, for the State.
   FURMAN, Presiding Judge.

The Attorney General files the following motion;

“Comes now the Attorney General and moves your honorable Court to dismiss the appeal of plaintiff in error in the above entitled cause for the reason that notice of appeal was not served upon the clerk of the district court of Custer County, wherein said judgment was entered, within six months allowed by law, as required by sections 6948 and 6949, Compiled Laws of Oklahoma (Snyder).”

The record discloses the fact that judgment in this ease was rendered on the 22nd day of July, 1909, and notice of appeal as required by law was served upon the clerk of the district court of Ouster County on the 23rd day of February, 1910. The defendant resists the motion to dismiss the appeal on the ground that at the time of the rendition of the judgment in open court oral notice was given that an appeal would be taken to the Criminal Court of Appeals. The sufficiency of such notice was passed upon in the case of Ensley v. State, infra, 109 Pac. 252. There the court said:

“Is oral notice sufficient? We think not. It may be laid down as a general proposition, first, that wherever the statute required notice to be served in a legal proceeding, a written notice, capable of legal service, and of proof and return, and capable of being filed, is intended; and especially is that true where service of such notice and proof thereof are matters jurisdictional, as they are in this character of proceeding. Jenkins v. Wild, 14 Wend. (N. Y.) 539; Minard v. Douglas County, 9 Or. 206; Ratlibun v. Acker, 18 Barb. (N. Y.) 393.”

In the next place, the defendant contends that, when the offense was committed, the statute gave parties convicted of felonies one year’s time in which to prosecute an appeal. The statute was amended in 1909, limiting the lime for taking an appeal in felony cases to six months. This statute went into effect June, 1909, prior to the date upon which judgment of conviction was pronounced against the defendant. In the case of Ensley v. State, supra, Judge Richardson, speaking for the court, said:

“In 1909. the Legislature passed an act requiring appeals in misdemeanor cases to be taken within sixty days after rendition of judgment, unless the trial court for good cause shown should grant an extension of time for that purpose, not exceeding sixty days (section 6949, Snyder’s Comp. Laws). Prior to tbat time a defendant had a year in which to perfect his appeal. The offense of which plaintiff in error was convicted is alleged to have been committed on May 19, 1909. The information was filed on July 17th of that year, trial was had on July 19th, and motions for a new trial and in arrest of judgment were filed, and were overruled on October 3, 1909, on which day the court rendered the judgment appealed from; and it is now contended that inasmuch as the offense was committed, if at all, before this act became effective, plaintiff in error is entitled to a full year in which to appeal, and therefore may yet serve the notices required and thus avoid a dismissal, although the information was not filed, trial had, or judgment rendered until after the act took effect. It is admitted by plaintiff in error that the act in question relates only to the procedure, and is not, therefore, ex post facto; but he insists that the right contended for is preserved to him by section 54 of article 5 of our Constitution, which reads as follows: ‘The repeal of a statute shall not revive a statute previously repealed by such statute, nor shall such repeal effect any accrued right, or penalty incurred, or proceedings begun by virtue of such repealed statute.’ Plaintiff in error places his reliance on that portion of the above section relating to ‘proceedings begun by virtue of such repealed statute.’ But again we are compelled to disagree with him. It would seem to require neither argument nor citation of authorities to show that this prosecution was not a proceeding begun by virtue of the statute, now repealed, granting to a defendant convicted of a misdemeanor a year in which to appeal. What that statute had to do with making criminal the act complained of we are unable to -perceive. This prosecution was begun by virtue of the statute making it an offense to sell intoxicating liquor, or to have the same in one’s possession with the intent to sell. That was the basis of the action, the statute creating and defining the crime, and that was the statute under and by virtue of which the proceeding was begun and carried on. If, after the prosecution had been instituted, the prohibition law had been repealed, under the constitutional provision quoted the state’s right to proceed with the prosecution would not have been affected thereby; but the law prescribing the procedure during the trial or any portion thereof, and the manner and time of taking the appeal, is not within either the letter or the spirit 'of the section quoted.”

We think this is decisive of the question now before us, and, as the law requiring that appeals in felony cases must be taken within six months from the date of judgment went into effect before the judgment was rendered, notice of appeal must have been given in time in which the appeal could be taken. Motion to dismiss the appeal is therefore sustained.

DOYLE and RICHARDSON, Judges, concur.


author: RICHARDSON Judge.

text:
    H. W. ROBERSON v. UNITED STATES.
    No. A-177.
    Opinion Filed November 23, 1910.
    1. ARREST — Warrant—Requisites. Tinder the law in force in the Indian Territory prior to statehood a warrant of arrest, to be valid and to justify an officer in acting thereunder, must either name or describe the person to be arrested.
    2. SAME — Necessity of Warrant — Misdemeanor. A peace officer may lawfully arrest without a warrant for a misdemeanor committed in his presence.
    3. ARREST — Duty of Officer to Inform Person of Intent. Under section 1350, Ind. Ter. Stat, a peace officer in making an arrest should inform the person about to be arrested of the intention to arrest him and the offense for which he is arrested; 'but this was not required where the person to be arrested knew the officer’s official character and was committing an offense in the officer’s presence.
    4- ASSAULT AND BATTERY — Resisting Arrest — Self-Defense. A person about to be arrested, who knows the officer’s official character and his intention to arrest him, cannot assault such' officer upon his first uttering a word, and justify his act on the ground that the attempted arrest was illegal in that the officer did not inform him of his intention to arrest and for what offense the arrest was to be made.
    5. SAM E — Resisting Arrest Without Warrant. Where an officer without a warrant, attempts an arrest for a misdemeanor believed by him to have been committed in his presence, but which in fact wtas not committed, the person to be arrested, if he knew the officer’s official character and his intention, is not justified, merely on the ground that he is innocent of the offense, in assaulting the officer upon the latter’s first uttering a word, without the arrested party’s making any explanation, and without his either inquiring the purpose of the arrest or giving the officer an opportunity to state it..
    6. SAME — Illegality of Arrest — Evidence. Where a defendant is on trial for an assault committed upon an officer in resisting arrest, and he contends that the attempted arrest was illegal, it is competent for the prosecution to introduce evidence tend.-ing to show 'that it was legal.
    7. ARREST — Right to Use Force. An officer has no right, in the' absence of resistance or flight, to use any force or violence upon one whom He is arresting for any offense; and also has no right to use a deadly weapon upon one whom he is attempting to arrest for a misdemeanor and who. does not resist but merely flees.
    8. ASSAULT AND BATTERY — Resisting Arrest — Self-Defense. The mere fact that a known officer in making an arrest for a misdemeanor lias a pistol in his hahd, will not alone and of itself justify the person to be arrested in shooting at the officer.
    9. SAME. Where a person about to be arrested makes no effort to resist or injure the officer, and the latter nevertheless makes; such a demonstration. with his pistol as would cause a reasonable man in like situation to believe that he is about to. be killed; or seriously injured, and the arrested party perceives suchi demonstration and honestly believe? that he is about to be-killed or injured by the officer, he is justified in shooting the-officer, if he acts in good faith, under the influence of sucbj. belief, and not in a spirit of malice or revenge.
    10. SAME. Where a person to be arrested for a misdemeanor offers no resistance or violence towards the officer, but merely flees or attempts to flee, and thereupon the officer either-shoots at him or makes such a demonstration as would cause-a reasonable man in like situation to believe that the officer was about to shoot at him, and such person thereupon shoots the- , officer, honestly believing that unless he does so he will probably be killed or seriously injured, his act is justifiable.
    11. INSTRUCTIONS — .Requests—Duty to Instruct oh Material Issues. Where an instruction requested by the defendant is not in proper-form, but pertains to a material issue in the case as made by the evidence, the court should correct it. and give it in proper form, if he has not otherwise instructed upon that issue; and. after such request it is error for him to fail or refuse to give an instruction upon -such issue.
    (’Syllabus toy the Court.)

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

      H. W. Roberson was convicted of an assault with intent to kill, and he appeals.
    Reversed and remanded.

      Bond & Melton, Ray & Cunningham, and A. L. Herr, for plaintiff in error.
    Citing: Hughes v. Com. (Iiy.) 41 S. W. 294; Lynch % State (Tex.) 57 S. W. 1130; Wharton on Homicide, sees. 408, 409, 500; Hardin v. State. (Tex.) 49 S. W. (507; State v. Sigmon (N. C.) 11 S. E. 521.

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

On. August 23, 1907, plaintiff in error was indicted in the United States Court for the Southern District of the Indian Territory at Chickasha for an assault with intent to kill. Upon the admission of Oklahoma into the Union the cause was transferred to the District Court of Grady County. It was tried during the January, 1909, term of said court and resulted in a judgment of conviction, to reverse which this appeal has been taken.

There was a saloon known as the Line Saloon situated a few miles from Chickasha, Indian Territory, on the Oklahoma side of the former boundary line between the two territories. Section 8 of the Act of Congress approved March 1, 1895, (Ind. Ter. Stat., sec. 52,) made it an offense, punishable by a fine not exceeding $500.00 and imprisonment for not less than one month nor more than five years, for any person to carry intoxicating liquor of any kind into the Indian Territory. During the evening of January 7, 1907, Burke and 'Burney, deputy United States marshals residing in Chickasha, procured some warrants for the arrest of “John Doe,” and started out toward the Line Saloon. They stopped on the side of the road about a mile from Chickasha for the purpose of intercepting and 'arresting any person who should pass there bringing liquor into the Indian Territory. They testified that about nine o’clock they heard a wagon coming from the direction of the saloon, whereupon they took positions on opposite sides of the road. When the wagon, a light, one-horse vehicle, came within twenty-five or thirty feet of the officers, they recognized plaintiff in error. When the latter got within twenty feet of the officers, he began whipping up his- horse. Buike stepped up and looked into the wagon as it got even with him, and saw lying therein a gunny sack filled, as he thought, with bottles of whisky. ■He then said, “Hold up, Mr. Koberson, hold up.” Whereupon plaintiff in error raised a pistol and shot him in the right side, and immediately fired at him again, but missed him. The horse was running by this time, still in the direction of Chickasha, and the officers fired at the man and wagon. The officers followed the wagon and found it in the road about a quarter of a mile from the scene of the difficulty, the horse lying dead from a shot, 'still harnessed thereto. Two bullet holes were found in the end-gate of the wagon. The officers then went on to Chickasha. Plaintiff in error was soon found and arrested, and a bottle of whisky was taken from his person. The officers, in company with the chief of police of the city, then returned to the wagon, and in a ravine about twenty-five steps from the horse and wagon they found a gunny sack-containing twenty-seven bottles of whisky of the same brand and in bottles of the same size as that found on plaintiff in error. Sixteen of the bottles were intact; the remainder, were broken, and there were two holes in the sack, presumably made by the bullets which went through the end-gate of the wagon. It was shown that plaintiff in error had known both Burke and Burney for some time, and knew that they were peace officers.

Plaintiff in error testified that he went to the country that afternoon to look at a’ piece of land, and after seeing the land went to the Line Saloon. There he took one or two drinks of whisky, but brought none away with him; that he had no,sack in his wagon, and that he obtained the whisky found on his person after he got back to town. He' testified that as he was driving along two men stepped out, one from each side of the road; that he did not recognize them, and they made ho statement as to' who they were or what they, intended. Believing that he was about to be robbed, he whipped up his horse to get away, when one of the men said, “Hold up, or I will shoot,” and immediately followed the statement with a shot at plaintiff in error; that the latter did not shoot first, but returned the officer’s fire for the sole -purpose of saving himself from being killed or wounded and from being robbed.

Plaintiff in error’s first contention is that -the' verdict and judgment herein were contrary to t.he law and the evidence. This .contention is predicated upon the assumption that the attempted arrest -was illegal, first, because the officers'had no -sufficient war•rant- of arrest; second, because the introduction of intoxicating liquor into the Indian Territory was only a misdemeanor; and if plaintiff in error .was guilty of that offense, that fact was not known to the officers, so that the offense could be said to have been committed in their presence; and third, because the officers did nqt inform plaintiff in error of the fact that they were officers, their intention to arrest him, and the offense for which the arrest was to be made. It is true that the “John Doe” warrant held by the officers, which neither named nor described plaintiff in error, was no authority for the latter’s arrest (West v. Cabell, 153 U. S. 78, 38 L. Ed. 643); and the trial court so held, and excluded the warrant from evidence. Section 1345 of the Indian Territory Statutes provided that, “A peace officer may make an arrest * * * * without a warrant, where a public offense is committed "in his presence, or where he has reasonable grounds for believing that the person arrested has committed a felony.” The introduction of intoxicating liquor into the Indian Territory was a public offense, a misdemeanor under the laws of the Hnited States. And if plaintiff in error was introducing liquor into the Indian Territory on the occasion in question, he was committing a misdemeanor in the presence of the officers; and in such case ■the statute authorized them to arrest him. Section 1350 of the Indian Territory Statutes provided that “the person making the arrest shall inform the person about to be arrested of the intention to arrest-him, and the offense for which he is arrested,” and it is insisted that the attempted arrest was illegal because • this provision of the statute was not complied with. There are many authorities to the effect that a compliance with such provision is not required where, as we are now assuming, the person about to be arrested knew the officer, knew that he was an officer, that he intended to arrest him, and where the person about to be arrested was then committing an offense in the officer’s presence. Tiner v. State, 44 Tex. 128; Plasters v. State, 1 Tex. App. 673: Rex v. Howarth, 1 Moody C. C. 207; King v. State, 89 Ala. 43; People v. Durfee, 62 Mich. 487, People v. Nash, 1 Idaho, 206; Rex. v. Whithorne, 3 Car. & P. 394; Rex. v. Payne, 1 Moody C. C. 378; Rex v. Davis, 7 Car. & P. 785; Shovlin v. Com., 106 Pa. 369; Com. v. Weathers, 7 Kulp 1; State v. McAfee, 107 N. C. 812, 10 L. R. A. 607; Wolf v. State, 19 Ohio St. 248. And we think the rule sound. But granting the necessity of the officer’s giving that information, he must have some opportunity to communicate it; and a person who knows the officer and the intention to arrest, and is committing an offense in the latter’s presencej as the jury could legitimately have found from the evidence to have been the case here, will not be permitted to shoot the officer upon his first uttering a word, and then contend that the attempted arrest was illegal because the officer did not go through with a formality which the person himself thus prevented. And even if plaintiff in error was not committing the offense for which the attempted arrest was made, yet if he knew the officers, knew that they were officers, and that they intended to arrest him, and had no reasonable cause to believe that they intended to do him any personal injury, he would not be permitted to shoot them upon their first uttering a word, and that without making any explanation himself and without either inquiring the purpose of the arrest or giving them an opportunity to state it, in short, without knowing or caring by what authority they were acting. To hold otherwise 'is to place a premium upon resisting an officer. How did he know that they did.not have a valid warrant? How did he know upon what evidence they were acting? How did he know but that they had reasonable ground to believe that he had committed a felony- and were about to arrest him on that account? Oí course, he may have known-that he-.had not committed'a felony, but his knowledge and the officer’s reasonable ground of belief are two different things-; and the ’latter and not the former, under the statute, determines the legality of an arrest in such case. Assuming, as the jury could have found from the evidence, that -plaintiff in error knew the officers and their intention to arrest him, then under the evidence for the prosecution he shot altogether too quickly, even if he was not committing that particular misdemeanor; and if he was committing it, in the absence of reasonable cause for believing that serious bodily harm was about to be inflicted upon him, he had no -right to resist the arrest at all. ' The verdict was not contrary to the evidence.

It is next contended that the court committed error in certain óf the instructions- given to the jury, but an examination of the cage-made fails to disclose an exception to any of the instructions given; and we shall not therefore consider the assignment.

It is also urged that the court erred in admitting the evidence in regard to finding the sack of whisky in the' ravine about 25 steps from the wagon, the contention being that this evidence was relevant to no issue in the case. The evidence was competent as proof of a circumstance tending to show that plaintiff in error was bringing this sack of whisky into the Indian Territory; that the sack which Burke saw in the wagon was what he thought it was, namely, a sack of whisky; and that plaintiff in error was committing an offense in the presence of the officers.

Plaintiff in error requested the court to instruct the jury that at the time the shot in question was fired by him his attempted arrest by said Burke and Burney was an unlawful and unauthorized act, and that plaintiff in error had a right under the law to resist said unlawful attempt. This instruction the court refused to give, and error is assigned upon his refusal. We have already considered this matter, and we hold that the court did right in refusing the instruction.

The court instructed the jury as to plaintiff in error’s right to fire tbe shot in his apparent necessary self-defense, if he "did not know the officers and their purpose, but had reasonable cause to believe and did believe that he was about to be-killed, injured or robbed. Plaintiff in error then requested and the court refused the following instruction, to which refusal an exception was taken:

“You are instructed that under the law in force in the Indian Territory at the time the alleged shooting.took place, the introducing into the Indian Territory of intoxicating liquor was a misdemeanor only, and you are. further instructed that .an .officer, even though he was authorized under the law to make an . arrest, has no right in making or in attempting-to malee an arrest of a person charged with a misdemeanor, in the first instance and before any violence is used against him, to prevent the person whom he is attempting to arrest fleeing from or escaping such arrest by the use of a deadly weapon or by force of arms. If therefore you find from the evidence in this case that the prosecuting witness. Thos. Burke, in conjunction with one Ed Burney, in attempting to arrest the defendant for introducing into the indian Territory intoxicating liquors, in the first instance and before any violence was used against them by the defendant, drew a deadly weapon in order to prevent the defendant from escaping such arrest, then and in that event, the defendant had a right to meet force with force, and if under such circumstances, at the time the shot in question was fired by the defendant, viewed from his standpoint as a reasonable man he had reasons to believe and did believe from the acts of the said Thos. Burke and Ed Burney that he was in immediate danger, real or apparent, of receiving at their hands great bodily harm unless he submitted to such arrest, such shooting by. the defendant would be justifiable under the law and you should find the defendant ffiot guilty/ even though you may believe from the evidence that the defendant knew who said Thos. Burke and Ed. Burney were, knew that they were U. S. deputy marshals and knew that they intended to arrest him.”

We think the instruction should not have been given in the form requested. While an officer has no right, in the absence of resistance, to use any force or violence upon one whom he is arresting, and also has no right to use a deadly weapon upon one whom he is attempting to arrest for a misdemeanor and who flees; yet where an offense is committed in his presence, he is empowered and it is his duty to arrest for it. If resistance be offered, the party resisting is in law the aggressor, and not the officer; and in such case the officer may nse all force reasonably adequate and necessary to overcome the offered resistance. And he is not required to engage with the party about to be. arrested upon equal terms. He may lawfully anticipate resistance in the sense that he may prepare himself to overcome it if it be offered. And the mere fact that a known officer intending to arrest for a misdemeanor, his intention being known, has a pistol in his hand, will not alone and of itself justify such person in shooting at the officer.

But the court should have instructed the jury in substance that even if plaintiff in error knew the officers and their intention to arrest him, yet if he made no effort to injure them or either of them, and nevertheless the officers made such a demonstration with their pistols as would cause a reasonable man in like situation to believe that he was about to be lulled or seriously injured, and plaintiff in error perceived said demonstration and then and there honestly believed that unless he shot said officer his life would be taken or that he would receive great bodily injury, and that ho fired the shot under such circumstances and not in a spirit of malice or revenge, then in that event the jury should acquit. The court should also have instructed the jury that if plaintiff in error was offering no violence toward the officers, but was merely fleeing or attempting to flee, and thereupon the officers either shot at him 'or made such a demonstration as gave plaintiff in error reasonable cause to believe that they were about to shoot at him, and plaintiff in error fired the shot in question under those circumstances, not in a spirit of unlawfulness or revenge, but honestly believing that unless he did so he would probably be killed or seriously injured, then in such case they should acquit. And we think that the requested instructions was sufficient to call the court’s attention to this phase of the case and to require an instruction upon it. It is the law that an officer is not justified in shooting at one charged only with a misdemeanor who is merely attempting to flee; and if he does so, such person has a right to defend himself against this unauthorized use of force and violence upon him, even to the taking of the officer’s life if it reasonably appears necessary. Of course, if, when an officer attempts to arrest one charged only with a misdemeanor, such person resists the arrest and in so resisting uses or is apparently about to use force or violence upon the officer, the latter would have the right of self-defense even to the extent of talcing the life of his assailant, if necessary. In this case it was for the jury to say upon a consideration of all the evidence whether or not the officer fired first. If it was a fact that the defendant was only trying to escape and 'that the officers thereupon began to shoot at him, then the defendant had the right to shoot in defense of himself. And we think that the court should have submitted this question to the jury under proper instructions. The court did instruct the jury that an officer, in making an arrest for a misdemeanor committed in his presence, was permitted to use, only such force as to an ordinarily prudent person would appear reasonably necessary under the circumstances to effect the arrest; and that, if an officer in making the arrest of a person charged with a misdemeanor unnecessarily uses such force as to endanger the life or limb of such person, the use of such unnecessary force would constitute an assault, and in such case the party to be arrested would be justified in using such means as to a reasonable and prudent man under such circumstances would appear necessary to protect life and limb. This instruction was well enough so far as it went. But it is not -applicable to a case where no resistance is offered, but where the person charged with a misdemeanor only attempts to flee, as plaintiff in error testified that he did in this case. Whether his testimony was true was a question for the jury to determine. It raised this issue, and the court should have submitted it to the jury by proper instructions. Reversed and remanded for a new trial.

FURMAN, Presiding Judge, and DOYLE, Judge, concur.


author: FURMAN, Presiding Judge

text:
      In re GEORGE JACOBS.
    No. 559.
    Opinion Filed November 23, 1910.
    (111 Pac. 815.)
    1. BAIL — 'Excessive Bail. The mere fact that a defendant cannot make bond in a certain sum does not necessarily make such sum excessive. Regard must be had to the nature of the crime alleged to have been committed, and the character of the testimony by which it is supported.
    2. BAIL — Right to Reduction — Evidence. Por evidence upon which a defendant was not entitled to reduction of 'bail upon the ground that further confinement would endanger his life, see testimony in this case.
    (Syllabus by the Court.)
    Application of George Jacobs for reduction of bail.
    Denied.
    See, also, 3 Olda. Or. 552, 106 Pac. 977.
    Tbe petitioner offered tbe following affidavits:
    “In tbe District Court of the Fourteenth Judicial District of tbe State of Oklahoma, in and for McClain County. State of Oklahoma v. George Jacobs. Charged with murder. George Jacobs, being first duly sworn upon his oath, deposes and says: I am the defendant in the above-entitled cause, I am .at the present time confined in the county jail of Cleveland county, Oklahoma, at Norman, charged with the crime of murder. I was placed in jail on the 9th day of November, 1909, and have continuously been in jail since said time. At the time of my arrest and incarceration I was in good health, and weighed 157 pounds My health continued fairly good until about six weeks ago, when the hot weather commenced, at which time I was taken with fever and my blood became very badly infected, so much so that I broke out with boils which have eaten large holes into my body. I have lost in weight until I now weigh only about 115 lbs., and I am losing flesh and strength daily. I have been compelled to employ a doctor in order to try and protect my health, and save my life. I believe a continued confinement in jail will result in the permanent impairment of my health, if not in my death. Prior to my arrest and imprisonment, I had always led an active life. For many years I was engaged in the railroad business and was section foreman. George Jacobs.
    “Signed, subscribed and sworn to before me, this the 6th day of August, 1910. F. 0. Miller, Clerk District Court. [Seal.]”
    “In the District Court of the Fourteenth Judicial District of the State of Oklahoma, in and for McClain County. State of Oklahoma v. George Jacobs. Affidavit of Dr. C. S. Bobo. Dr. C. S. Bobo, being first duly sworn upon his oath, deposes and says-: My name is C. S. Bobo.. I am a practicing physicion and reside at Norman, Oklahoma. I am acquainted with deorge Jacobs, now confined in the county jail,' in Cleveland county, Oklahoma, at Norman, on a charge of murder. I have been called to treat him within the recent past professionally, and found him suffering from septic fever due to suppuration of left inguinal gland. His physical condition at this time is such that a continued confinement in-jail, in my judgment, will seriously imperil his health, if in fact it will not cause his death. C. S. Bobo.
    “Signed, subscribed and sworn to before me, this 6th day of August, A. D. 1910. F. 0. Miller, Clerk District Court. [Seal.]”
    “In the District Court of the Fourteenth Judicial District of the State of -Oklahoma, in and for McClain County. State of Oklahoma v. George Jacobs. Affidavit of W. D. Maxey. W. D. Maxey, being first duly sworn upon- his oath deposes and says: That he is the jailer of Cleveland county, Oklahoma, at Norman; that as such jailer he has in his charge and under his control George Jacobs, charged with murder, of McClain county; that the said George Jacobs has been confined in jail now nearly nine months at Norman; that his health was fairly good until the opening of the hot season in the early summer of 1910, when he commenced to lose flesh and strength; that for the past several weeks the condition of his health has been such that as jailer-1 was compelled to remove him from the jail proper where the prisoners are confined, to a room in the front of the jail building, where he could have better attention. He has been rinable to eat-and has steadily lost in flesh and strength; and, in addition to this, his blood has been so poisoned that he has broken out with boils which have eaten into his flesh. His condition became so serious I was compelled to call Dr. C. S. Bobo, who has given him medical attention. In my judgment continued confinement of Jacobs during this hot weather will result in the permanent impairment .of his health, if not in his death. During all the time he has been confined in jail, he has been an exemplary prisoner, never giving the least trouble in any way, and always being ready and willing to assist the officers in maintaining order in keeping down' disturbances.' W. D. Máxey.
    "Signed, subscribed and sworn to before me, this 6th day of August, 1910. F. 0. Miller, Clerk District Court. [Seal.]”
    The state placed Dr. W. C. McCurd on the stand, who testified as follows:
    Direct examination by Mr. Carr :
    “Q. Where do you live? A. Purcell. Q. What is your business? A.-Physician. Q. Are you a regular licensed and practicing physician? A. Yes, sir. Q. Graduate of any school? A. Yes, sir. Q. What? A. Texas State University. Q. What year? ■ A. 1903. Q. How long have you been practicing medicine in Purcell? A. About five jrears; five or six. Q. I will ask you if you were called upon by Mr. Ben Franklin, the county attorney of McClain county, to malee a physicial examination, of one George Jacobs who is confined in jail at Norman? A. Yes, sir. Q. Did you go to Norman and make that examination? A. Yes, sir. Q. State to the court what was the physical condition.of Mr,. Jacobs as, you found upon your examination; make that as full as'you can, just whatever you saw. A. I examined Mr. Jacobs yesterday afternoon about 4 o’clock. I first got a history of his trouble since going to jail. Q. Who from? A. From himself. Q. What did he state? A. He gave a history of the carbuncle on his left thigh. Judge Furman: Where ? A. On his left thigh; on the fleshy part of the leg. By Mr. Carr: Q. Where is the inguinal gland? A. In the groin: Q. And the infection came from this? A. Yes, sir, from the carbuncle. That was -something like six'weeks ago, and the' wound has healed practically, and has had none since; only one carbuncle. Though about two weeks ago he had a little attack of bilious fever, which lasted four or five days. Outside of that he gave a history of nothing except constipation and lost appetite on the physical examination. Mr. Patterson: We object as to his giving a general statement as to the history given him by the defendant. If the state desires to offer the statements, of the defendant we urge that the witness be required to give those statements, and not only make general statements as to what the history was. 'Judge Furman: Your objection is this: That the witness should state'what the defendant stated? Mr. Patterson: Yes, sir. By Mr. Carr: Q.- Just state what the defendant stated to you. A. Well, he told me that he had a carbuncle and showed me the wound. He took down his pants.and underclothing, and showed me the wound he had about six weeks ago. Also .he had an attack of fever which lasted three or four days; that was about two weeks ago. Q. Did he say what kind of fever it was, or how it affected him ? A. He said it was possibly bilious malaria; lasted three or four days. Q. Did he say whether or not he had a physician called in to wait on him on that occasion? A. T think Dr. Bobo saw him that time, I know he did when he treated the carbuncle. Q. State what further he. said, if anything. A. That was the symptoms he complained of. Then 1 proceeded to make a physieial examination. Q. Did he undress ? A. I had him remove his jumper and overalls. Q. Did you make a physical examination of him ? A. Yes, sir. Q. Stale what- his condition was ? A. I found his pulse normal; about 68.' Temperature normal, 68. [Respiration was normal. Q. What was it? A. About 16 or 18. Q. Did yoxx find him suffering from any functional troubles of any character whatever, Doctor- A. Ño, sir. Q. Would you pronounce him a sick man or well man from your examination? A. Well, he was a well man yesterday. Stated that he felt well. On examination I found him to be well. Q. State the surroundings under which you were placed there, whether they were sanitary or otherwise; how he was treated there; what you saw ? A. He has an outside corner room, "two outside windows. Everything is clean, sanitary; conditions almost perfect. Q. Doctor, do you know how long he has been confined in jail there? A. No, sir, I don’t. Q. Did you learn from him or from the jailer or any one? A. No, I don’t think I asked, . Q. What effect if any will solitary confinement have upon a man after say eight or ten months or a year? A. Well, inactivity of course weakens a man to a certain extent. Q. Any man, will it? A. Yes, sir. Q. Whatever his physical condition may have been when he was placed there? A. Yes, sir. Q. State whether or not you found Mr. Jacobs suffering from any disease whatever of an organic order or nature. If he was kept in confinement, would it be liable to end his life or lessen his years? A. Nothing at all, Q. I will ask you, Doctor, if from the examination you made of him and the condition you found him in, if in your opinion it would have any bad 'effects upon his life between now and the October term óf court, if he was tried in October, so far as the confinement is concerned? A. I don’t think so.”
    Cross-examination by,Mr. Patterson:
    “Q. When did you begin the practice of medicine? A. About seven years ago. Q. Where did yon practice? A. I practiced in Texas. Came to Oklahoma City for about six months. Then to Purcell since, about six years. Q. Have you been practicing alone or have you been associated with another? A. I was alone until a year and a half ago; my partner is with me now. Q. Do you hold any official position; health officer or anything of that kind? A. No, sir. Q. What is the character of your practice? A. General practice. Q. Were you acquainted with Mr. Jacobs before his confinement? A. I was called to see him one night while he was deputy sheriff at Purcell; something like a year ago. Q. Do you know what his weight was at that time? A. Well, I judge it was about 140 or 45. Q. Was there any perceptible difference in the weight which he had prior to his confinement and the time you went to visit him yesterday? A. Aes, sir. Q. What was the difference, did he weigh more or less? A. He weighs less. Q. Approximately how much? A. I judge him to weigh something .like ten, thirteen pounds, maybe less. Q. Will not confinement or inactivity cause a man to gain weight rather than to lose under ordinary or normal conditions? A. I don’t think so. Q. What effect would it have upon a man’s weight under normal conditions to be confined, and without having exercise other than just his ordinary exercise that is given prisoners in confinement in the county jail? A. Well, of course it affects the digestion and affects the secretions. It makes them all more inactive. Q. I had reference particularly to the weight. What effect would it have on'their weight, ordinarily? Would it change their weight? Confinement and inactivity of a man under normal conditions would produce what effect upon his weight? A. I suppose that depends a good deal upon the temperament. I have seen some that gained and some that lost. Q. Were you sufficiently acquainted with Mr. George Jacobs prior to his confinement to judge as to his temperament and condition? A. No, sir. Q. If Mr. Jacobs weighed 157 pounds when he entered jail about nine months ago, and he now weighs 115 pounds, a loss of 42 pounds, what in your judgment would produce, the loss of so much weight? A. I ascribe the loss I recognized in him to his carbuncle and the infection which accompanied it and the other attack of fever later on. Q. You spoke in giving a description of your conversation or rather yonr examination of having seen him about six weeks before. Did you mean to say you had seen him six weeks before that, and his statement had reference to the examination some six weeks before then — this is the first time you have examined him for the purpose of ascertaining his physical condition? A. Except the time I was called about a year ago. Q. Since his arrest? A. Yes, sir. Q. Are you acquainted with Dr. Bobo? A. Yes, sir. Q. What is his age? A. I don’t know. Q. Where does he live? A. Norman. Q. You know the extent of his practice, how many years he has been practicing. A. A number of years. He was practicing here when I came; I don’t know how long before. Q. He is a physician of good repute, is he not? A. Yes, sir. Q. In examining Mr. Jacobs where did you find him? Was he confined with the other prisoners, or was he separated from them? A. He was separated. Had a private room.-Q. Was anybody with vou when you made the examination? A. No, sir. Q. How did you gain entrance into his room? A. I had a letter of introduction from Mr. Franklin to the sheriff. Q. The jailer let you in? A. Yes, sir. Q. Did the jailer accompany you and observe the examination? A. No, sir. Q. Was Mr. Maxey present? A. He was in his office. Q. So the examination was made alone? A. Yes, sir. Q. Did anybody accompany you from Purcell? A. No, sir. Q. You didn’t request any of the other physicians to accompany you to make the examination? A. No, sir. Q. Did you inform Mr. Jacobs that you were there for the purpose of making an examination for and on behair of the state? A. Yes, sir, that was my first statement to him. Q. Then it was he told you frankly how he felt about it, and you found those conditions? A. Yes, sir. Q. You are not familiar with his past history except what he has told you? A. No, sir. Q. Know nothing about the conditions prior to the time you male the examination on yesterday? A. No, sir. Q. What, in your judgment, did he weigh yesterday? A. I judge him to weigh about 130 or 135. Q. Was he pale, emaciated or otherwise, was he tall, what size man is he? A. About 5%. Q. What would'be the normal weight of a man that height? A. 135 or 140. Q. In the examination, Doctor, did you merely just.take his temperature and his pulse, or did you get his respiration? A. Yes, sir. Q." That is the only examination you made, and you base your judgment upon that examination, and upon the statement máde by Jacobs at the time? A. I examined all the different‘organs, liver, spleen,, and lungs. Q. You made only a superficial examination? A. Certainty. Q. Did you have your instruments 'with you ? A. 'Yes, sir.’?
    Redirect examination by Mr. Carr:
    ££Q. Did Mr. Jacobs say anything to you at the time oth'er than what you have stated? A. Yes, sir. Q. What was it? Mr. Patterson : I object to the statement made by the defendant. Judge Furman: He asked what he said. I think we are entitled to the conditions. About his physicial condition? Mr. Carr: Yes, sir. Judge Furman: I think that is competent. By Mr. Carr: Q. What did he say to you about it, if anything? Did you tell him what condition you found him in? A. No, sir; I didn’t explain it to him. ' I just thanked him for his courtesy. Q. Did he say anything about it ? A. Well, he says. £If it ever comes up, remember me.’” (Witness excused.)
    Mr. Ben Franklin, being called as a witness on behalf of the state, and being first duty sworn testified as follows.: .
    Direct examination by Mr. C'arr:
    ££Q. What official position do you hold in McClain county? A. County attorney. Q. Have charge of the criminal docket and have the prosecution of criminal cases in that county? A. I have. Q. I will ask jfou if the case of the State versus George Jacobs, is on your docket? A. Yes,-sir. Q. I will ask you when the next term of your court will be held? A. In October. I forget what day. Q. I will ask you if that ease is set for trial at that term? A. The docket has not yet been set, but the ease will be set when the docket is set. Q. Will the state be ready for trial at that time ? A. We have every reason to believe we will. Mr. Patterson: We object to that as a mere conclusion. Judge Furman: We recognize the fact that is a matter of uncertainty.” (Witness excused, ánd no more witnesses called.)

      Pr^aiett, Taylor &■ Sniggs and Thompson '& Patterson, for petitioner.

      Ben Franklin, Co. Atty., and Henry M. Carr, for the State.
   FURMAN, Presiding Judge

(after stating the facts as above). The defendant being indicted for murder applied, on.the 18th day of January, 1910, 'to this court to secure bail pending his trial on this indictment. On the 11th day of March, 1910, this court granted the defendant bail in the sum of $20,000, which was never given. The defendant now makes application for the reduction in the amount of hail upon the ground that he cannot give bond in the sum of $30,000, and that therefore it is excessive. The mere fact that a defendant cannot make a bond in a certain sum does not necessarily make such amount excessive. Begard must be had to the nature of the crime alleged to have been committed and character of the evidence by which it is supported. As this ease is yet to be tried we do not deem it proper to discuss the evidence further than-to remark that in the light of the evidence before us we do not feel that we would be justified in granting a reduction in the amount of the bail upon the ground that it is excessive.

The defendant next contends that he is entitled to a reduction of his bond on account of the state of his health, alleging that further confinement would endanger his life.

We have granted bail upon this ground in several cases, but in each case the facts upon which we acted were conceded by the prosecution. But in this case the facts upon* which the defendant relies are contested by the state.

From a consideration of the entire testimony introduced, we are of the opinion that the defendant is not entitled to a reduction of bail upon the ground that further confinement will endanger his life.

The application for a reduction of bail is therefore refused.

DOYLE and BICHABDSON, Judges, concur.


text:
    JOE BONITZER v. STATE.
    No. A-160.
    Opinion Filed November 23, 1910.
    INDICTMENT AND INFORMATION — Duplicity—Distinct Offenses. An indictment or information which charges two or more separate and distinct offenses not based upon the same transaction is bad for duplicity, and should be quashed whether said charges are contained in one or more counts.
    (Syllabus by the Court.)

      Appeal p'om Oklahoma County Court; 8am Hooker, Judge.

    The defendant was convicted for violation of the prohibition law and was sentenced to pay a fine of $500.00 and imprisonment in the county jail for six months. Defendant appealed.
    Reversed.

      ’E. G. McAdams, for appellant.
    Citing Wells v. Territory, 1 Olda. Or. 469.

      Fred 8. Caldwell, for the State.
   FURMAN, Presiding Judge.

The information in this case contains two counts. The first count charges the defendant with two offenses: First, with having in his possession intoxicating liquors, to wit, beer, with the intent of unlawfully disposing of the same. Second, with selling beer to B. F. McDonald. The second count in the information charges the defendant with having in his possession beer with the intent to sell the same to persons unknown.

The defendant demurred to the information on the ground of duplicity. The court overruled the demurrer of the defendant and required the state to elect the offense upon which the defendant should be put on trial. The state elected to try, the defendant for selling beer to B. F. McDonald, to which the defendant objected and reserved an exception. The action of the trial court was doubtless based upon a statement, made by this court in the case of De Graff v. State, 2 Okla. Cr. 540, which is as follows:

“For the reasons and upon the authorities cited in the Sturgis ease,- this motion should have been sustained, or-the court should have required the state to elect the count upon which it would proceed to trial, and have set aside the other counts. The trial court overruled the motion to set aside the information and failed to require the state to elect upon which count it would proceed to trial.”

An examination of the De Graff case will show that this statement of the court was not necessary to the decision of the case. In fact, this precise question was not presented to the court or argued by counsel in that case. Upon more mature investigation and reflection, we are satisfied that we were mistaken in stating that where an indictment or information charged more than one offense the state could elect the offense for which the defendant could be placed upon trial. We are now satisfied that this can not be done. This is the language of the statute, and we have no right to modify or alter it. See Colon Cochran v. State (No. A-268, decided at the present term of court) infra, 111 Pac. 974. The purpose of this statute is to force the state to try but one transaction alleged to be criminal at a time. This statute also confers a valuable right upon the defendant. If the state could bring several criminal accusations against the defendant in one information or indictment, based upon more than one transaction, what limit would there be as to the number of transactions, which might be incorporated in one indictment or information, or how would it be possible for the defendant to know as to the particular transaction for which he will be placed upon trial, and how could he prepare his defense? This makes it clear that the requirement of the statute, that but one transaction should be investigated at a time, is based upon reason and justice, and that it confers a valuable right upon the defendant. This is not only our statute law, but it is the very substance of our Constitution itself. •

Section 29 of the Bill of Rights, Bunn’s Oklahoma Constitution, among other rights secured to a defendant of which the Legislature can not deny him, we find the following:

“He shall be informed of the nature and cause of the accusation against him, and have a copy thereof.” u

This shows that the Constitution limits the power of the court in criminal cases to the investigation of but one accusation at a time, and it will not permit an indictment or information to contain more than one such accusation.

We are therefore of the opinion that an information or indictment must charge but one offense, but when the same acts may constitute different offenses and the proof may be uncertain as to which of the two or more offenses the accused may be guilty, the different offenses may be set forth in separate po.unts in the same indictment or information, and that in such cases, the information or indictment must show upon its face that the separate counts all refer to the one and same transaction. This in effect amounts to but one accusation. Even where it would be 'permissible to charge different offenses in the same information or indictment upon the ground that they are all based upon one and the same transaction, this must be done in separate counts. In other words, it is a direct violation of'the statute under any cireuin-stances to charge two offenses in the same count.

The first count in the information in this ease charges two offenses: First, the defendant is charged with having liquor in his possession with the unlawful intent of selling the same. Second, with selling beer to R. F. McDonald. The second count in the information charges the defendant with unlawful possession of beer with the intent to sell the same; this being a repetition of the first accusation in the first count in the information.

For the reasons hereinbefore given, we are of the.opinion that the defendant’s demurrer to the information, upon the ground of duplicity, should have been sustained. In so far as the question herein involved is concerned, the case of De Omff v. State is modified and overruled. For error in not sustaining defendants demurrer to the information, the judgment of the lower court is reversed and the cause remanded.

DOYLE and RICHARDSON, Judges, concur.


author: RICHARDSON, Judge.

text:
    PIERCE COX v. STATE.
    No. A-283.
    Opinion Filed November 23, 1910.
    1. TRIAL — Demurrer to Evidence — Directing Verdict. Under sec. 6848, Snyder’s Comp. L. Okla., a demurrer to the evidence or a, motion to direct a verdict of not guilty cannot be entertained in a criminal case, if there is any evidence whatever tending to prove the essential elements .of the crime charged.
    2, LARCENY — Evidence—Sufficiency, Evidence examined and held to warrant a conviction for larceny.
    ('Syllabus iby the Court.)

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

    Pierce Cox was convicted of larceny, and he appeals.
    Affirmed.

      James U. Gerneri, for plaintiff in error.

      Chas. West, Atty. Gen., and Chas. Ij. Moore, Asst. Atty. Gen., for the State.
   RICHARDSON, Judge.

The first and third assignments of error herein go to the trial court’s action in overruling plaintiff in error’s demurrer to the evidence, which was put in after the state had closed its case in chief; and also the court’s action in overruling a subsequent motion to direct a verdict of acquittal. The court committed no error in this respect. Section 6848 qf Snyder’s Comp. Laws of Okla. provides:

“If, at any time after the evidence on either side is closed, the court deem it insufficient to warrant a conviction, it may advise the jury to acquit the defendant. But the jury are not bound by the advice, nor can the court, for any cause, prevent the jury from giving a verdict.”

Hnder this statute a demurrer to the evidence or a motion to direct an acquittal cannot be entertained in a criminal- case, if there is any evidence whatever tending to prove the essential elements of the crime charged. The jury are made the sole judges of the facts, and they cannot be prevented by the court’s order from rendering the verdict which they deem just and proper under the evidence in the case. The most the court can do for the defendant in this respect is to advise the jury to acquit; he should exercise great caution in the use even of this power, and in all cases where the court deems it proper to give such advice, he should inform the jury that they are the sole judges of the facts proven, and are not bound by the advice given.

The next assignment of error is that the verdict and judgment were contrary to the evidence.

The larceny alleged was of four hogs belonging to one I. G. Hall. Hall testified to his ownership of the hogs, and the fact that they were missing; he described them, swore that they were worth in the aggregate the sum of $31.00, and that he had sold them to no one and had given no person permission to take them or kill them. A. L. Kimberly testified that on the night of the alleged larceny he saw plaintiff in error, together with Solomon McCoy and Robert Kemp, with four hogs in a pen at Miles Jackson’s place. They had killed and were cleaning one of the hogs, and the other three, which tallied with Hall’s description of the hogs he lost, had not then been killed. The witness testified that he went within 30 feet of where they were cleaning the hog; that he knew Hall’s hogs, and from the flesh marks his best judgment was that these were Hall’s. He further testified that while he was watching these parties Roland Williams rode up; that as soon as the three saw him they scattered back as if in alarm, but presently reassembled and continued their work, and Williams dismounted and went into the pen.

Kemp, McCoy and plaintiff in error all testified that they killed four hogs at that place that night, but that they thought the hogs belonged to Roland Williams; that Williams requested them to assist in the killing, and subsequently sold them a part of the meat. They testified that Williams cut the heads off the hogs and burned them. It was shown that Roland Williams lived about a mile and a half from where the hogs were killed. It was not shown that he owned any hogs. Why the hogs were killed at night, why they were killed at Miles Jackson’s place and not at Roland Williams’ place, why the heads were cut off and burned, and why plaintiff in error and his associates were in such trepidation when Williams rode up, was not explained. It is insisted that the evidence did not show that the hogs in question were HalPs hogs. We think the evidence sufficiently showed that fact, and upon the whole was sufficient to warrant a conviction. No other assignments of error have been made or presented, and the judgment of the district court will be affirmed.

FURMAN, Presiding Judge, and DOYLE, Judge, concur.


author: BICHABDSON, Judge.

text:
    JOSEPH A. BLAIR v. STATE.
    No. A-288.
    Opinion Filed November 23, 1910.
    1. INDICTMENT AND INFORMATION — Grammatical Errors. An allegation in an indictment or information that the defendant committed the crime of murder “by then and there — shoot and discharge leaden bullets,” etc., where thé averment should have been, “toy then and there — shooting and discharging leaden bullets,” is only a defect of form, a mere grammatical error, does not tend to the prejudice of the substantial rights of the defendant upon the merits, and presents no ground for a demurrer.
    2. HOMICIDE — Murder—Sufficiency of Information. An indictment or information which alleges that the defendant shot the deceased with a gun, without authority of law, and with a premeditated design to effect his death, and that the death of the deceased was thereby produced, sufficiently charges the offense of murder. It is not necessary to allego in express words that the killing itself was committed with a premeditated design to effect death. The shooting- resulting in death, constituted the killing.
    3.. INFORMATION — Defective Verification — Method of Objection. A defective verification of an information, or the total want of a verification, cannot be reached by demurrer, but can be taken advantage of only by a motion to set aside the information on that specific ground.
    4. INFORMATION — Verification—'Sufficiency. An information as a ■whole constitutes but one statement; and a verification thereof •which says that “the statement contained in the above information is true,” is not defective for omitting to say that the statements therein contained are true.
    5. CRIMINAL LAW — Right of Accused to Copy of Indictment or . Information. Under the Constitution of Oklahoma, the defendant is entitled to a copy of the indictment or information filed against him; but if he be at large so that he can go to the clerk’s office, call for and examine the original accusation, and copy it if -he desires, the state is under no obligation to make and serve a copy upon him. If the defendant be in custody and demands a copy of the accusation, the state must furnish it; but unless he demands it (before announcing ready for trial, his right to a copy is waived.
    6. SAME — Time for Demanding Copy — Appeal—Record. The demand for a copy of the accusation should be made in open court before announcing ready for trial; and the fact of the demand and the court’s ruling thereon should be made a matter of record, or shown by proper recitals in the case-made.
    7. INFORMATION — Allegations—Presumption of Preliminary Examination. When an information is filed charging á defendant with the commission of a felony, the law presumes that the defendant has had a preliminary examination or has waived the same, and the information need' not allege that fact. If the defendant contends that no preliminary examination has been had or waived, and he desires to raise the question, he must do so by a motion to set (aside the information on that ground, and the burden of proof is on him.
    8. HOMICIDE — Dying Declaration — Sufficiency of Predicate. [Proof that the deceased was found lying on the ground, covered with gunshot wounds and unable to move, that he stated that he was dying, and that he died within six hours thereafter, shows a sense of impending death, and constitutes a sufficient predicate for the admission of his dying- declaration.
    9. HOMICIDE — Dying Declaration. In response to the question, “Did you see who shot you?” the deceased in his dying declaration answered, “Joe Blair, from ambush, two shots.” Held, that the answer on its face was a statexnent of fact and not a mere opinion, and was admissible.
    10. TRIAL — Verdict—Assessment of Punishment by Court. Under ■ section 2029 of Sxyyder’s Comp. Daws, where the jury returns a verdict of conviction, but fails to assess the punishment to be inflicted, it is the duty of the court to assess and declare the punishment.
    11. TRIAL — Misconduct of Jury. The mere fact that the trial jury and their bailiff, before the submission of the case, had their pictures made in a group by a photographer in front of the court house, is not ground for a new trial.
    (Syllabus by the Court.)

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

    Joseph. A. Blair was tried for the murder of one Joseph Kearns, and was convicted of manslaughter in the first degree. From an order overruling a motion for a new trial and in arrest of judgment, “he appeals.
    Affirmed.

      Charles Cwswell and Gilbert & Bond, for plaintiff in error.

      Chas. West, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State1.
   BICHABDSON, Judge.

Before entering his plea, plaintiff in error, hereinafter called the defendant, filed a demurrer to the information alleging that the same did not state facts sufficient to constitute a public offense. The information charged that the defendant “did then and there commit the crime of murder by then and there unlawfully, wilfully and feloniously, without authority of law, and with a premeditated design then and- there to effect the death of one Joseph Kearns, shoot and discharge leaden-bullets into the body of him, the said Joseph Kearns, from a certain loaded shotgun, which he the said Joseph A. Blair then and there had and -held' in his hands, then and there and thereby inflicting upon the .body of him the said Joseph Kearns mortal wounds, of which he the said Joseph Kearns did then and there die.” The first contention is that the information is insufficient, in that it charges that the defendant committed the crime of murder c<by then and there * * * shoot and discharge leaden bullets,” etc., instead of alleging that the defendant committed • the crime by then and there shooting and discharging leaden bullets, etc. This is a mere grammatical error, however, and is not of such character as to vitiate the information. Section 6705 of Snyder’s Comp. Laws provides that: “No indictment is insufficient, nor can the trial, judgment or other proceedings thereon be affected, by reason of a defect or imperfection in the matter of form which does not tend to the prejudice of the substantial rights of the defendant upon the merits.” The defect complained of is only a matter of form. The defendant and every one else of common understanding who read the indictment, or heard it read, knew therefrom exactly what was intended to be charged; and we find nothing in the defect calculated to prejudice the substantial rights of the defendant upon the merits of the case.

It is next urged that the information was defective for the reason that it did not allege that the killing itself was committed by the defendant with a premeditated design to effect the death of the deceased, citing Holt v. Territory, 4 Okla. 76, 43 Pac. 1083. The information charges, however, that the act of shooting which resulted in death was committed by the defendant with a premeditated design to kill, and that was sufficient. The .defendant did nothing further. Death resulted from the physical effect upon the deceased of the shot thus fired, and not from any further act of the defendant; and the shooting resulting in death constituted the killing. Holt v. Territory, supra, does not sustain the defendant’s contention, and would not be a correct statement of the law if it did.

Next it is contended that the demurrer should have been sustained because the verification of the information was defective. The body of the verification was as follows: “Personally appeared Geo. Gemmell, who being first duly sworn, on his oath says that the statement contained in the above information is true.” And the defendant contends that to be sufficient the verification should have stated that the statements contained in the information were true. There are three reasons why this assignment is unavailing. In the first place, even if a defective verification or the total want of one could be taken advantage of by demurrer, it could not be reached bjr a demurrer which merely alleged that the information did not state facts sufficient to constitute a public offense. In the next place, a defective verification or a total want of one cannot be reached by demurrer, but can be taken advantage of only by a motion to set aside the information. (In re Talley [infra] decided at this term.) And lastly, the information as a whole constituted one statement, and the defect complained of did not exist.

The information alleged that “the said Joseph A. Blair, on the 29th day of December, 1908, had a preliminary examination for the offense alleged above before B. F. Holding, County Judge of Caddo County, Oklahoma, an examining magistrate, and was by the said B. F. Holding held to answer the same”; and following that, at the foot of the page, appears the printed words, “contrary to the form of the statute in such cases made and provided and against the peace and dignity of the State of Oklahoma.” And the defendant contends as a further ground of demurrer that the information alleged that the defendant was held by the county judge to answer the crime charged contrary to the statutes; that is, that he was unlawfully held. The contention is without any semblance of merit; and it and some others already noticed are so palpably trivial as to induce,the conclusion that the defendant’s counsel do not believe that there is any real error in the record.

After the state and the defendant had each announced ready for trial, and after the jury had been empaneled and sworn for the trial of the case, the defendant objected to proceeding any further and to the introduction of any evidence by the state, on the ground that no copy of the information had been served upon him. This objection the court overruled, and the ruling is assigned as error. There was no error. Hnder the Constitution the defendant is entitled to a copy of the accusation, but if he be at large so that he can go to the clerk’s office, call for and examine the original accusation and copy it for himself if he desires, the state is under no obligation to make and serve a copy thereof upon him. Stack v. State, infra, 109 Pac. 126. In such case the defendant may “have a copy thereof” whenever he wants it. But if the defendant be in custody and demands a copy of the accusation, the state must furnish it; but unless the defendant demands it before announcing ready for trial, which he did not do in this case, his right to a copy is waived. Miller v. State, 45 Ala. 24; Driskill v. State, 45 Ala. 21; Dean v. State, 43 Ga. 218; Kelly v. People, 132 Ill. 363, 24 N. E. 56; Abrigo v. State, 29 Tex. App. 143, 15 S. W. 408; United States v. Shive, 27 Fed. Cas. No. 16278, Baldw. 510; Howard v. State, 37 Ark. 265; State v. Winningham, 10 Rich. (S. C.) 257; People v. Warner, 1 Wheeler Cr. (N. Y.) 140; State v. Briggs,. 27 S. C. 80, 2 S. E. 854. If the defendant be in custody, has not a copy of the information, and desires one, his demand therefor should be made in open court before announcing ready for trial; and the fact of the demand and the court’s ruling thereon should be made a matter of record, or shown by proper recitals in the case-made.

When the taking of evidence had been concluded the defendant moved the court to direct a verdict of not guilty, on the ground that the state had not proved that the defendant had had an examining trial; and the court’s refusal to do so is assigned as error. The Constitution provides that no person shall be prosecuted for a felony by information without having had a preliminary examination before an examining magistrate, or having waived such preliminary examination. But it was held in Canard v. State, 2 Okla. Cr. 505, 103 Pac. 737, that the presumption is that the information was legally- hied, and therefore that a preliminary examination was had or waived; and that the want of a preliminary examination or a waiver thereof must be raised by the defendant by a motion to set aside the information on that ground. An allegation in the information of the holding of a preliminary examination or a waiver thereof is therefore surplus-age, and the burden is on the defendant to show that none was had and that it was not waived. This assignment, therefore, is not well taken.

The deceased, shortly after the shooting, was found by two witnesses lying on the ground, covered with wounds made by forty-seven large size shot, unable to move, and in a dying condition. They asked him- what was the matter, to which he replied that he was dying. They then inquired, “Did you see who shot you?” And he answered, “Joe Blair, from ambush, two shots.” This was about five o’clock in the afternoon. The witnesses then procured a conveyance and removed the deceased to his home. On the way they met his sister, and the deceased said to her, “Come kiss me, May, I’m dying.” And the deceased died that night a few minutes before eleven o’clock. These facts were given in evidence, and thereupon the court admitted as a dying declaration the deceased’s answer to the question, “Did you see who shot you?” This ruling of the court is assigned as error on two grounds: first, that it had not been sufficiently shown that the deceased was under a sense of impending death at the time he made the declaration; and second, that the statement that Joe Blair shot him from ambush was a mere opinion or conclusion. As to the first ground, we think the evidence abundantly shows that the deceased was under the solemn conviction that death was-impending. As to the second, we regard the declaration as a statement of fact and not a mere opinion. The witness said in effect that he saw who shot him; that it was Joe Blair; that the latter was in ambush, and fired two shots; and every statement contained in the declaration on its face was one of fact and not of mere opinion. Whether, if the declaration was the expression of an opinion based on personal knowledge or observation, and not a mere guess, it would have been competent, it is not necessary to decide. But see Wigmore on Evidence, sections 1M7 and 1918.

The jury returned a verdict finding the defendant guilty of manslaughter in the first degree, but not fixing the punishment. Upon this verdict the court sentenced the defendant to be imprisoned in the state penitentiary at hard labor for a term of fifteen years. And it is urged that, inasmuch as the jury by its verdict assessed no punishment for the offense, the court could impose none. But sections 1 and 2 of an act of the Legislature approved May 12, 1908, (Snyder’s Comp. Laws, sections 2028 and 2029) provides as follows:

“Sec. 1. In all cases of a verdict of conviction for any offense against any of the laws of the State of Oklahoma, the jury may, and shall upon request of the defendant, assess and declare the punishment in their verdict and the court shall render a judgment according to such verdict, except as hereinafter provided.”
“See. 2. Where the jury find a verdict of guilty, and fail to agree on the punishment to be inflicted, or do not declare such punishment by their verdict, the court shall assess and declare the punishment and render the judgment accordingly.”

The jury having failed to agree upon the punishment to be inflicted, or at least not having declared the same in their verdict, it thereupon became the duty of the court under the statute to “assess and declare the punishment and render judgment accordingly,” and the court committed no error in so doing.

Lastly, it is urged that a new trial should be granted on account of misconduct on the part of the jurors. It was shown that before the taking of evidence ¡was concluded, and before the submission of the case to the jury, the jurors and the bailiff lined up before the courthouse, and a photographer took a picture of the group. On the hearing of the motion for a new trial it was affirmatively shown that no conversation was had between the jurors and the photographer or any one else; that the jurors did not mix or mingle with the people or the people with them; and, in short, that no prejudice to the defendant resulted. This practice, however, is not to be commended; and in such cases the court should impose a fine upon the bailiff and the jurors for the violation of his admonition. But the state has affirmatively and explicitly shown that no harm resulted to the defendant in this instance, and the matter is not therefore ground for a reversal. The judgment of the lower court will be affirmed.

FURMAN, Presiding Judge, and DOYLE, Judge, concur.


author: FUBMAN, Presiding Judge.

text:
    JIM JOHNSON v. STATE.
    No. A-297.
    Opinion Filed November 23, 1910.

      Appeal from District Court, Comanche County; J. T. Johnson Judge..

    The defendant was convicted of the crime oi burglary and sentenced to two years’ confinement in the penitentiary. Defendant appealed.
    Appeal dismissed.

      W. C. Henderson, for plaintiff in error.

      Charles L. Moore, Assistant Attorney General, for the State.
   FUBMAN, Presiding Judge.

The defendant files the following motion:

“Comes now Jim Johnson, plaintiff in error, and by leave of the court moves to dismiss his appeal in this cause, and says he will no further prosecute his appeal in this behalf. Wherefore he prays that his appeal and petition in error be forthwith dismissed and that mandate immediately issue in this cause to the District Court of Comanche County, Oklahoma.

“W. C. Henderson.
“Attorney for Jim Johnson, Plaintiff in Error.”
Motion to dismiss the appeal is sustained, and the clerk of this court, without delay, will issue a mandate-to the District Court of Comanche County to.proceed at once with the execution of the judgment.

DOYLE and BICHAEDSON, Judges, concur.


text:
    C. H. CLARK and JOHN SPARKS v. STATE.
    No. A-116.
    Opinion Filed November 23, 1910.
    (111 Pac. 659.)
    INSTRUCTIONS — Credibility of Accused. It is error for the trial court to single out the accused and instruct the jury upon the credibility, of his evidence. The accused, in respect to his evidence, should be treated in the courts charge in the same manner as other witnesses in the case.
    ('Syllabus by the Court.)

      Appeal-from* District Court, Greer County; G. A. Brown, Judge.

    C. H. Clark and John Sparks were convicted of assault with intent to kill, and appealed.
    Reversed.

      J. S. Powers and S. B. Garrett, for plaintiffs in error.

      B. G. Spilman, Assistant Attorney General, for the State.
   FURMAN, Presiding Judge.

Upon the trial of this cause the court charged the jury as follows:

“Under the law the defendants .are competent witnesses in their own behalf, and the jury have no right to disregard their testimony alone from the fact that they are the defendants and stand charged with the offense; but you should take and consider their testimony; and weigh and measure it in the same way and under the same rules as you would the testimonj'' of any either witness. In weighing and considering the testimony of any witness who has testified in the case, you have the right to take into consideration the opportunity of the witness for knowing the matters and things about which he or she testifies, his or her fairness or lack of fairness, candor or lack of candor, his or her appearance on the witness stand, his or her demeanor while in the presence of the jury, his or her interest in the result of the case, if such is shown by the evidence, and from all the facts and circumstances' appearing in evidence you shall determine how much or how little to believe of the testimony of any witness.”

The first portion of the instruction singles out the defendants and attracts the attention of the jury directly to them. This burdens their testimony with what is said in the succeeding portions of the instructions. It was equivalent to instructing the jury to particularly consider the interest of the defendants in the result of the case.. '

Defendants excepted to this charge at the time it was given, and complained of it in the motion for a new trial, and also in their brief. Similar instructions have been repeatedly condemned by this court. Green v. U. S., 2 Okla. Cr. 55, 99 Pac. 892; Banks v. State, 2 Okla. Cr. 339, 101 Pac. 610; Fletcher v. State, 2 Okla. Cr. 301, 101 Pae. 599; Mitchell v. State, 2 Okla. Cr. 442, 101 Pac. 1100. In Fletcher v. State this court said:

“We think that it is error for the court to single out any special witness, personally, and burden his testimony with any suggestions which might indicate to the jury that in the opinion of the court such witness was liable to testify falsely. Instructions as to the credibility of witnesses should be general, and apply equally to all of the witnesses for the state and the defendant alike. Because a witness may be the defendant is no reason why he should be visited with condemnation upon the one hand, or clothed with sanctity upon the other. He is before the court as a witness, and should be treated by both the court and the jury just as other witnesses are treated — no better and no worse. We trust that the courts of Oklahoma will cease to give such instructions in the future; otherwise, it will result in reversal of many convictions which, but for such instructions, would be affirmed.”

We do not think that the courts can be too careful in refraining from any actual or apparent expression of opinion with reference to the credibility of any witness, be he defendant or otherwise. This is a question for the jury alone. In argument, counsel may attack the credibility of any witness, and we can see no impropriety in the instructions containing general rules applicable to all of the witnesses, providing these general rules are not given a personal application.

For these reasons, the judgment of the lower court is reversed.

DOYDE and EICHABDSON, Judges/concur.


author: EURMAN, Presiding Judge.

text:
    STATE v. M. N. ALEXANDER.
    No. A-600.
    Opinion Filed November 23, 1910.
    (111 Pac. 655.)
    APPEAL — Jurisdiction—Removal of Officers. This court has no jurisdiction of an appeal from a judgment of the lower court in a proceeding for the removal of a person from office.
    (Syllabus by the Court.)

      Appeal from District Court, Ohmulgee County; John J. Shea, Judge.

    M. N. Alexander was indicted for misconduct in office. Accusation quashed, and the state appeals.
    Dismissed.

      Fred S. Caldwell and Joe S. Eaton, for the State.

      B. T. Potter and Belford '& Hiatt, for appellee.
   EURMAN, Presiding Judge.

A proceeding to remove a person from office seeks to deprive him of a property right. It is therefore a civil suit, and this court has no jurisdiction to consider an appeal in such case.

The demurrer of the appellee will therefore be sustained, and the appeal is dismissed.

DOYLE and RICHARDSON, Judges, concur.


author: PER CURIAM.

text:
    CLAUDE BOX v. STATE.
    No. A-299.
    Opinion Filed November 23, 1910.
    (111 Pac. 655.)
    APPEAL — Service of Case-Made — Record. The record must affirmatively sihow ‘the date upon which the case-made was served upon the county attorney or upon which the county attorney waives such service. A statement made by the county attorney that he accepted service of the case-made, but which is not dated, is insufficient.
    (Syllabus by the Court.)

      Appeal from Pawnee County Court; H. T. Conley, Judge.

    Claude Box was convicted of violating the prohibitory law, and appeals.
    Dismissed.
   PER CURIAM.

Judgment was rendered against the defendant on the 25th day of August, 1908. He was allowed by the court sixty days to prepare and serve a case-made. The record contains an acceptance of service of the case-made by the county attorney ; but it does not appear therefrom that such service was accepted within the sixty days allowed by the court or after the expiration of that time. The record must show affirmatively that the case-made was served upon the county attorney within the time allowed by the court, or that he accepted service within such time. After the time allowed by the court for serving a case-made has expired, such time cannot be extended either by the judge or by an agreement between the attorneys. The record in this case fails to show that the case-made was served within the time allowed by the court. The case-made is therefore stricken from the record. There is nothing in the record to show that notice of appeal was ever served upon the county attorney or clerk of the court in which the case was tried.

The appeal is therefore dismissed.


author: PER CERIAM.

text:
    N. J. MILTON v. STATE.
    No. A-215.
    Opinion Filed November 23, 1910.
    (111 Pac. 654.)
    INDICTMENT AND INFORMATION — Duplicity—Separate Offenses. 'Selling intoxicating- liquor and having- intoxicating liquor in one’s possession with the intention of violating any of the provisions of the prohibitory liquor law are made two separate and distinct offenses by the statute, and cannot be joined in an information or indictment.
    ('Syllabus by the Court)

      Appeal from Oklahoma Oouniy Oourl; Sam Hooker, Judge.

    N. J. Milton was convicted of violating the prohibitory law, and appeals.
    Reversed and remanded.

      Giddings & Giddings, for appellant.

      Fred S. Caldwell, for the State.
   PER CERIAM.

The statute makes it an offense for any person to- sell, barter, give away, or otherwise dispose of any spirituous, vinous, fermented, or malt liquors, or any imitation thereof or substitute therefor. It also goes further, and makes it a separate and distinct offense for any person to have in his possession any such liquor with the intention of violating any of the provisions of the prohibitory liquor law. The information in this case charged the defendant with both of the above-named offenses. The defendant demurred to the information on the ground of duplicity. This demurrer was overruled by the court. In this there was error. Our statute in express terms declares that an information or indictment must charge but one offense. See Wells v. Terr., 10 Okla. Cr. 469, 98 Pac. 483; Sturgis v. State, 2 Okla. Cr. 362, 102 Pac. 57.

Eor this error, the judgment of the lower court is reversed, and the cause is remanded.


text:
    STATE v. WILLIE RICHARDSON.
    No. A-190.
    Opinion Filed November 23, 1910.
    (111 Pac. 687.)
    APPEAL — Appeal by State — Necessity of Notice. When a county attorney desires to appeal a case upon any quesUon reserved by the state, it is necessary that notice of such an appeal be served in the manner required by section 6949, Snyder’s Comp. Laws Okla. 1909. If this is not done, the Criminal Court of Appeals will not acquire jurisdiction of the case, and the appeal will he dismissed.
    (Syllabus by the Court.)

      Appeal from District Court, Creer County; G. A Brown, Judge.

    Willie Richardson was prosecuted by information for the of-' fense of rape. The information was quashed, and the state appeals.
    Dismissed.

      Smith C. Matson, Assistant Attorney General, for the State.

      Garrett '& Stewart, for defendant in error.
   FURMAN, Presiding Judge.

The defendant has filed a motion to dismiss this appeal upon the ground that notices of appeal had not been served upon the defendant and upon the clerk of the court where the judgment was rendered. The Attorney General in answer to said motion has filed the following confession of error:

“Conies now Charles West, Attorney General, and respectfully represents and shows to the court that the appeal in this case was filed in this court on the 27th day of May, 1909; that up to and including the 27th day of May, 1910, no notice of appeal has been served by the county attorney taking this appeal upon the clerk of the trial court, and the defendant, as required by section 6949, Snyder’s Compiled Laws of 1909. The service of such notices has been held by -your honorable court in the following cases to be absolutely prerequisite to confer jurisdiction upon this court: Arispi v. Territory, 2 Okla. Cr. 79, 99 Pac. 1099; Howard v. State, 2 Okla. Cr. 6-42, 103 Pac. 864; McCullough v. State, 2 Okla. Cr. 717, 103 Pac. 1071; Ensley v. State (infra), 109 Pac. 250. The Attorney General therefore is compelled to confess that the motion of defendant in error to dismiss this cause for the reason that no notices of appeal have been served is well taken.”

The confession of error must be sustained by this court. Section 6949, Snyder’s- Comp. Laws Okla. 1909, is as follows:

“An appeal is taken by the service of a notice upon the clerk of the court where the. .judgment was entered, stating that the appellant appeals from the judgment. If taken by the defendant, a similar notice must be served upon the prosecuting attorney. If taken by the state, a similar notice must be served upon the defendant, if he can be found in the county; if not there, by posting up a notice three weeks in the office of the clerk of the district court.”

When a county attorney desires to appeal a case upon any question reserved by the state, it is his duty to see that notice of such appeal' is served in the manner required by this section; otherwise this court acquires no jurisdiction of the appeal. ■

As the record fails to show that such notices were served in this case, the appeal will be dismissed.

DOYLE and RICHARDSON, Judges, concur.