author: McADAMS, Special Judge FURMAN, Presiding Judge,

text:
    Ran Wood v. State.
    No. A-142.
    Opinion Filed March 18, 1910.
    (107 Pac. 937.)
    1. INDICTMENT AND INFORMATION — Prosecution of Felony by Information. It is well settled in this state, that a person charged with a felony may be tried in a court having jurisdiction of such offense by information, having first had a preliminary examination before an examining magistrate, or haying waived such preliminary examination.
    2. SAME — Allegation of Preliminary Examination. It Is not necessary for an information charging a felony to allege that defendant has had a preliminary examination before an officer authorized by law to hear the same, and has been bound over to await trial thereon, or has waived such examination.
    3. SAME — Surplusage. A charge in an information that W„ on the 4th day of April, 190S, had a preliminary examination on said charge before T., a duly elected, qualified, and acting magistrate of Roger Mills county, state of Oklahoma, and he, the said W., was by said T., on the 4th day of April 1908, committed and held in the common jail of said county and state to await the action of the district court on said above charge, is not in conflict with that portion of article 7, sec. 1.9, of the Constitution of the state, which provides, “All indictments, informations and complaints shall conclude ‘Against the peace and dignity of the state,’ ” but is a matter wholly foreign and irrelevant to the information, and may be treated as surplusage.
    4. .Jury — Challenge to Panel — Grounds. A challenge to a petit jury panel must be predicated on facts from which defendant has suffered material prejudice.

      5. SAME — Challenge to Panel — Sufficiency of Challenge. While it is the duty of a trial court, when a challenge to a petit jury panel is presented to it, to try the issue of fact when the same is properly denied, yet it is not error for the court to overrule such challenge where it fails to state facts sufficient to justifj' the court in dischaging the jury, if true.
    6. HOMICIDE — Manslaughter — Self-Defense—Provocation. If W. provokes an altercation between himself and H., or challenges H. to a mutual combat, without intending to kill H., but intending an ordinary battery merely, and H. assaults W., or by some act done gave W. reasonable apprehension of loss of life or great bodily harm, and W. kills H. to protect himself from the apprehended danger, the killing under such circumstances would not be justifiable, but would be manslaughter.
    7. APPEAL — Review—Argument of Counsel. Remarks of counsel in the course of their argumentó objected to as improper shall be considered and construed in reference to the evidence, and in order to constitute reversible error the impropriety indulged in must be such as to influence the verdict. 'Section 6957, Snyder’s Comp. Laws, requires this court to “give judgment without regard to technical errors or defects, or to exceptions which do not affect the substantial rights of the parties.” The letter and spirit of the statute is that, if the court can say, after carefully considering the entire record, that the conviction is sufficiently supported by competent evidence, and that the verdict was not reached by error or as a result of passion and prejudice, the conviction should be affirmed.
    (Syllabus by the Court.)

      Appeal from District Court, Roger Mills County; James R. Tolbert, Judge.

    Ran Wood was convicted of murder, and be appeals.
    Affirmed.
    On the 9th day of June, 1908, W. H. Mouser, the duly qualified and acting county attorney of Roger Mills county, Oída., filed in the district court of said county his information, charging Ran Wood (who is hereinafter called defendant) with murder, which information, omitting the caption, is as follows:
    “Conies now W. Ii. Mouser, county attorney for the said county of Roger Mills, in the name and by the authority of the state of Oklahoma, and information makes that one Ran Wood, late ofothe county aforesaid, on or about the 29th day of March, 1908, in the county of Roger Mills and state of Oklahoma, did then and there unlawfully, purposely, willfully, deliberately, ma-lieiously, feloniously, and of his deliberate and premeditated malice, and without authority of law, and with a premeditated design to - effect the death of one Jesse Hungate, with a dangerous and deadly weapon, to wit, a pistol, then and there charged and loaded with gunpowder and leaden balls,'which said pistol he, the said Ban Wood, then and there had and held in his hand, and with which said pistol so held and had, he, the said Ban Wood, did shoot the said leaden balls into the body and person of said Jesse Hungate, and so inflicted and so made a mortal wound in the body and person of the said Jesse Hungate, of which mortal wound, so inflicted and so made upon the said Jesse Hungate in manner and form and for the purpose aforesaid, he, the said Jesse Hungate, on and from the 29th day of March, 1908, until the 80th day of March, 1908, in the said county and state, did languish, and languishing did live, on which said 30th day of March, 1908, he, the said Jesse Hungate, in the town of Elk City, Beckham county, Okla., of the mortal wound aforesaid did die, as was intended by the said Ban Wood that he, the said Jesse Hun-gate, should do; and so the said Ban Wood in manner and form aforesaid did purposely, willfully, deliberately, maliciously, felon-iously, and with malice aforethought, and without authority of law, and with a premeditated design to effect the death of the said Jesse Hungate, him, the said Jesse Hungate kill and murder, contrary to the form of the statute in such case made and provided, and against the peace and dignity of the state of Oklahoma. The said defendant, Ban Wood, having on the 4th day of April, 1908, had a preliminary examination on said charge before E. E. Tracy, a duly elected, qualified, and acting examining magistrate of Boger Mills county and state of Oklahoma, and he, the said Ban Wood, was by said E. E. Tracy on the 4th day of April, 1908, ordered committed and held in the common ;jail of said county and state to await the action of the district court on said above charge. W. H. Mouser, County Attorney.”
    This information was properly subscribed and sworn to by one J. M. Evans, before W. P. Madden, clerk of the district court, on the 9th day of June, 1908. To this information the defendant filed his motion to =et the same aside, which was by the court overruled, and the defendant reserved an exception. The defendant thereupon filed a demurrer to said informal ion, which was also overruled by the court, to which ruling the defendant reserved an exception. On June 10th, 1908, defendant was duly arraigned upon said information, and entered bis plea of “Not guilty.”
    On September 21, 1908, defendant filed his challenge to the panel of jurors, which challenge, omitting caption, is as follows:
    “Comes now the defendant in the above-entitled action and challenges the panel of the jury returned for service at this term of the court for material departures from the forms prescribed by law in respect to the selection, drawing, and return of the jury, from which the defendant has suffered material prejudice, and alleges: (1) That Joe Moad, one of the jury coiiimissioners who selected the names from which this jury panel was made up, was at the time of 'selecting the names fof use as jurors herein interested in this case, and was by law disqualified to act in respect to this case as jury commissioner. (2) That the said Joe Moad, one of said jury commissioners, lives in the immediate vicinity of the alleged offense charged against this defendant, and lived in said vicinity at the time of the alleged offense; that he from the first took a prominent and active part in the prosecution of the defendant herein; that he took part in employing Henry Furman as counsel to assist in the prosecution of this case, himself sending the telegram that brought the said Henry Fur-man to this county, and himself meeting the said Henry Furman at Elk City, Okla., and bringing him to the scene of the alleged offense with a view to his employment to prosecute in this case; that he, the said Joe Moad, jury commissioner as aforesaid, assisted the state by conference with the witnesses for the prosecution; that he, the said Joe Moad, took and kept a copy of the evidence adduced at said examining' trial, as defendant is informed and believes, and has used same as a basis for further working up the case of the prosecution against this defendant; that afterward he acted as such jury commissioner, and on or about the 6th day of July, 1908, participated in selecting the,names of jurymen from which this jury was made up. (3) That the said Joe Moad, acting as jury commissioner as aforesaid, assisted in selecting said jurymen for service in this court; having and taking an active and powerful interest in this prosecution; that the names selected by him were so selected with a view to a conviction in this case; that he, the said Joe Moad, was an influential member of said board of jury commissioners, and his selections were placed in the lists from which this jury was drawn; that by reason of the said Joe Moad's interest, the selection of the jurymen from which this jury is made up Avas not, as to this defendant a fair and impartial jury list, and- this panel contains names of jurors selected by the said Joe Moad with a view to-the conviction of defendant in this ease. Wherefore defendant prays that his challenge to said panel be allowed, and said jury.be discharged as to this case. Gilkerson & Tracy, Attorneys for Defendant.
    "Ban Wood, after being duly sworn according to law, upon his oath says that he is the defendant in the above-entitled cause; that he knows the contents of the above and foregoing challenge to the panel of jurors; that he knows of his own personal knowledge that the said Joe Moad is interested in this prosecution; that he is informed and verily believes that the extent of such interest is correctly stated in said challenge. B. T. Wood.
    “Subcribed in my presence and sworn to before me on this 21st day of September, 1908. W. P. Madden, District Clerk, by W. C. Tyler, Deputy.”
    The record discloses that on the same day the above challenge was presented to the court the following proceedings in reference thereto were had:
    By Counsel for the Plaintiff-:
    “The plaintiff denies each and every material allegation in the motion.”
    By Counsel for Defendant:
    “We ask permission to furnish proof supporting the motion.”
    By the Court:
    “I will hear proof if you have it.”
    The court at this time asked if the- defendant had any proof to support their motion to suppress the panel of the petit jury.
    By Counsel for Defendant:
    “I think we have some proof present. We ask for subpoena on the jury commissioner Moad, who can be brought to testify, showing his interest in this case.”
    By the' Court:
    “It appearing to the court that the witness Moad is in Elk City, some 35 miles away, the court will refuse the request, but will'hear any other evidence the defendant may have, but will not delay the ease in order to hear this evidence. If counsel have no evidence present, the motion is overruled, and exceptions allowed.”

      Thereupon the defendant was placed on trial, and was on the 24th day of September, 1908, convicted of manslaughter in the ' first degree, and his punishment fixed by the jury at 16 years’ imprisonment in the state penitentiary, at hard labor. On the same day defendant filed his motion for a new trial and arrest of judgment, which were by the court overruled, and defendant reserved an exception. Defendant thereupon waived two days’ time to show cause why he should not receive sentence, and judgment was by the court pronounced and entered of record in accordance with the verdict of the jury.
    W. F. Luttrell was the first witness for the state. He testified in substance that about 8 o’clock on the morning of the homicide the deceased came to his store. In about 15 minutes the-, defendant came, and each spoke to the other, saying “Good morning.” In a short time the deceased stated, in the presence of defendant, that he believed that he would go up to Uncle Bill Lock-hart’s. Deceased then went out of the store, got on his horse, and rode away. In about 30 minutes he returned to the store, and purchased a pair of cuff buttons, and again went out, got on his horse, and rode off, going in the direction of his home. In a few seconds the defendant left the store, got on his horse, and started towards his home, which was the same direction from the store the deceased was going. At this time deceased was about 175 yards from the store. The deceased was riding (in what was termed by the witness) in a “saddle trot.” Defendant was riding a part of the time in a saddle trot and in a lope, until he reached the deceased. They then rode 150 to 200 yards along by the side of each other, to where the deceased turned out into a road leading to a Mr. Ford’s residence. This was about 100 yards from where the defendant would have had to turn in order to go to his father’s house. The shooting took place about 700 yards from the store. After deceased had turned towards Ford’s residence, defendant got off his horse, took a step to the east, and just as he did that drew his revolver and fired, and in three or four seconds deceased fired. Several shots were exchanged between deceased and defendant. Deceased remained on his horse during the shooting. The witness also testified that deceased did not turn his horse from the direction in which it was going at the time the defendant dismounted from his horse and began shooting at the deceased. That he was standing in his storeroom looking out of a window in plain view of the deceased and defendant during all of this time.
    George Lacy was the next witness for the state. He testified in substance that he was at Luttrell’s store on the morning of the homicide; that he saw deceased leave the store, going in the direction of Bill Lockhart’s; was there when he returned; saw him buy the cuff buttons; saw him leave; also the defendant; saw deceased and defendant riding along together for quite a distance, to where the deceased turned towards Ford’s residence. Defendant then jumped off his horse, and defendant and deceased commenced shooting at each other. The first smoke witness saw was from defendant’s gun; could not tell how long between firsthand .second shots, but there was a longer time between the first and second shots than the others. Witness also testified that deceased did not stop or get off his horse during the shooting. On cross-examination witness corroborated the witness Luttrell as to how the deceased and the defendant were riding from the time they left the store until the homicide. Witness also testified that deceased did not turn his horse from the direction in which it was going, either before or after the shooting began.
    W. A. Ford was the next witness for the state. He testified in substance that on the day of the homicide he was at home and heard some five or six shots. .Looking out of the window of his residence, he saw the deceased and defendant about 50 yards away. Deceased was on his horse, galloping up to witness. Deceased got down off his horse, went into • witness’ house, and he and witness •examined the wound. Deceased was shot near the hip bone. In about two minutes after the shooting the deceased made the following statement to the witness:
    “He said he crossed the bridge, and he said the defendant •overtook him and asked him why he drove so bad for his brother, .and he said he told the defendant it was because his brother stole his father's hcfrse, and the defendant told him he did not know he had stole his horse, and the deceased told the defendant he knowed he did steal him, and the defendant said if you have got it in that b.ad, to get down and we will have it out here, and he said the defendant jumped off his horse, and as he turned around the defendant ‘reached for his gun, and as he reached for his gun I reached for mine.' ”
    Dr. M. H. Levy, the next witness for the state, testified that the deceased was shot right above the edge of the hip bone on the right side, and passed obliquely through the abdomen, and the bullet lodged between the abdomen and the left side, causing peritonitis, which caused death.
    Roy Whalen was the next witness for the state. He testified in substance that he was at Luttrell’s store on the morning of the homicide. He was there at the time the deceased and defendant left. He saw what took place between them from the time they left1 the store until the shooting, and corroborated in every particular the testimony of Mr, Luttrell and Mr. Lacy.
    Defendant undertook to establish by several witnesses that there were trees and shrubbery of different kinds between Lut-trell’s store and where the homicide took place, so as to obstruct the view of the ej'e-witnesses in such a manner as to prevent them from seeing the entire transaction.
    Defendant took the stand in his own behalf; and, in view of his statements, we deem it immaterial to quote any of the testimony offered on his behalf other than his own. He testified in substance that he met the deceased on the morning of the homicide between 8 and 9 o'clock at Luttrell's store. He admitted .that he was there when the deceased left to go to Lockhart’s. He was there when he returned and purchased the cuff buttons, as testified to by the witnesses for the state. He admitted that after the deceased had left the store, and was about 150 yards away, he got on his horse and rode in a fast trot until he overtook deceased; that he rode quite a distance along by the side of the deceased. He testified that when he rode up by the side of the deceased he said to. him:
    “ ‘Pretty cool this morning jut,’ and he said, ‘Yes,’ and I said, ‘It will about clear off and frost to-night and kill off the fruit/ and he said ‘Yes, I am afraid so/ and I said, ‘I am intending to start over to Ford’s’, and he said, T don’t think Ford is at home/ and I said, ‘Yes, I saw him a while ago/ and he said, ‘I thought he went over to Lacy’s/ and I said, No, he said he would be at home/ and he asked me then ‘Why did Ira go up and pay a fine?’ and I said, ‘Jesse, I don’t know anything about that at all; I have taken no sides in it at all’ — and he said, ‘There was no use of it, for there was nobody at the schoolhouse that seen it that would say anything/ and I told him that I did not know anything about it, and he said, ‘I will tell you right now it ain’t quite over yet/ and I said, ‘Why have you got a drove at my folks so?’ and he says, ‘Because'Ira is the son of a bitch that stole pa’s horse.’ I said, ‘Do you 3mow for certain he stole that horse?’ and he says, ‘I do; that Lula told Alexander’s folks and they told my Ma.’ And I told. * * * I said I didn’t know that. * * * I told him I did not think that; * * * that any man would hold up for a thing like that. Q. What then was done ? A. By that time we got to the forks of the road and I pulled behind him to go into Ford’s. He rode out a little piece to the forks of the road and pulled right across in there. Q. In the gate*? A. Yes, sir; * * * in the gate, * * * and I-pulled my horse right across and starting on to get away from him. * * * Q. What was then said or done? A. He turned around and said, ‘You are a thieving son of a- bitch yourself/ and I told him if he wanted to fight, ‘let us get down and fight it out.’ Q.1 What did you do then? A. In the meantime we had both stopped, and when I told him Net us get down and fight it out/ he says, ‘All right/ and commenced pulling off his gloves. I got down off my horse then. Q. How did you get down? A. I got down jrist like a body would. Q. State which leg you put over the saddle, and which side? A. I got down on the left side of the horse, * * * the north side. Q. Go ahead. A. I took the reins over the horse’s head. When I turned around and looked at Jesse, why he had his gun out and he was riding south back towards me. Q. What position in the gate did he get, * * * or about the gate did he get before he pulled up: Was he inside? A. He was inside of the gate, * * * on the north side of the gate when he pulled up. Q. State what occurred. A. When I saw him coming back I tried to run around the horse then. Q. Why did you do that? A. I was afraid he would shoot. Q. How was he holding his gun? A. Holding it in his right hand. * * * Q. Go ahead. A. And he rode up to me, and as I run around my horse run backwards, and when T turned back around he throwed down to shoot. Q. What did you do then? A. I commenced pulling my gun. Q. State whether or not when he pulled down did he shoot? A. When he pulled down it looked to me like his gun was cocked, and I believe it was just half cocked. Q. What did you do then? A. I pulled my gun, and as I brought it out it went off accidentally. * * * I shot the first shot.”
    Defendant also admitted on cross-examination that he told the sheriff of. the county that he fired the first shot, and it was the first shot that hit Jesse Htmgate. He admitted practically everything testified to by the witnesses Luttrell, Lacy, and Whalen for the state. The only material difference from his testimony and that of the witnesses for the state was that deceased turned his horse and rode back toward defendant hefore the shooting commenced. This was denied by the. state’s witnesses.

      Cillcerson & Tracy, for plaintiff in error.

      Chas. West, Atty. Gen., and Chas. L. Moore, Asst. Atty. Gan.,, for the State.
   McADAMS, Special Judge

(after stating the facts as above). Defendant under his first assignment of error, contends that he could not be placed upon trial charged , with a felony by information. We have read with a great deal of interest the ingenious argument presented by counsel for defendant in support of this contention, but are unable to agree with their reasoning. This question was decided adversely to the contention of defendant by this court, in Re McNaught, reported in 1 Okla. Cr. 528, 99 Pac. 241, and again by the Supreme Court of this state in the case of Ex parte McNaught, 1 Okla. Cr. 260, 100 Pac. 27. It is well settled in this state that a person charged with a felony may be tried in courts having jurisdiction of such offense by information properly verified, having first had a preliminary examination before an examining magistrate, or having waived such .preliminary examination.

Defendant assigns as his second assignment of error that the information does not conclude, as required by that portion of article 7, § 19, of the Constitution, which provides, “All indictments, informations and complaints shall conclude ‘against the peace and dignity of the state/ ” and is therefore void. Counsel for the defendant in their argument contend that the information is in violation of that portion of the Constitution just quoted, in that stating the offense of which the defendant was charged, “contrary to the form of the statute in such case made and .provided and against the peace and dignity of the state of Oklahoma,” contains before the name of the county attorney, the following:

“The defendant, Ban Wood, having on the 4th day of April, 1908, had a preliminary examination on said charge before E. E. Tracy, a duly elected, qualified and acting examining magistrate of Boger Mills county, state of Oklahoma, and he, said Ban Wood, was by said E. E. Tracy on the 4th day of April, 1908, ordered committed and held in the county jail of said county and state to await the action of the district court on said above charge.”

The contention of counsel for defendant is wholly without merit. The information in this case in a clear, concise and specific manner charges the defendant with the crime of murder, stating in detail the manner in which such homicide was committed, and charges that the killing so alleged by. the defendant was contrary to the form of the statute in such case made and provided, and against the peace and dignity of the state of Oklahoma.

In the ease of Canard v. State, 2 Okla. Cr. 505, 103 Pac. 737, decided by this court July 27, 1909, it was held:

“In the prosecution of a defendant by information for a felony it is not necessary that the information should allege that there was a preliminary'hearing before a committing magistrate, or a waiver of the same, although such facts must exist in order to authorize the filing of such information.”

Again in the case of Caples v. State, ante, p. 72, 104 Pac. 493, decided by this court October 18, 1909, it was held:

“It is not necessary for an information charging a felony to allege that the defendant has had a preliminary examination before an officer authorized by law to hear the same, and has beeai bound over to await final trial thereon, or has waived such examination. If these things have not been done, the defendant can present this question to the court by plea in abatement.”

If it is not necessary for an information charging a felony to allege that the defendant has had a preliminary examination before an officer authorized by law to hear the same, and has been bound over to await the final trial thereon, or has waived such examination, then the question arises: Does such an allegation to an information as in this case render it in conflict with article 7, § 19, of the Constitution of the state, which provides, “All indictments, informations and complaints shall conclude ‘against the peace and dignity of the state’ ” such as to render said information void, or is such allegation mere surplusage? The question, therefore, arises: What constitutes surplusage?

Mr. Bouvier, in volume 2 of his Law Dictionary (page 699), defines surplusage to be: ^

“Allegations of matter wholly foreign alud impertinent to the case. All matter beyond the circumstances (necessary to constitute the action is surplusage. When the whole of an allegation is immaterial to the plaintiff’s right of action, it may be struck out as surplusage.”

Bapalje & Lawrence’s Law Dictionary (page 1245), says:

“Surplusage is where there is something in excess. In pleading surplusage is the allegation of unnecessary matter, and is forbidden. In most eases such matter will not vitiate the pleading, but will be disregarded.”

Anderson’s Law Dictionary (page 997) :

“Matter, in any instrument, foreign to the purpose; whatever is extraneous, impertinent, superfluous, or unnecessary. Whatever may be stricken from the record without destroying the plaintiff’s right of action, as0 in a suit for a breach of warranty, that goods were not such as' the defendant warranted them, * * * ‘and that he knew this.’ ”

Cyclopedia Law Dictionary (page 888) :

“Allegations of matter wholly foreign and impertinent to the cause. All beyond the circumstances necessary to constitute the action is surplusage. Cowp. 683; 5 East, 278; 10 East, 205; 2 Johns. Cas. (N. Y.) 52; 1 Mason (U. S.) 57; 16 Tex. 656.”

Black’s Law Dictionary (page 1143) says.

“Allegations of matter wholly foreign and impertinent to the canse. All matter beyond the circumstances necessary to constitute the action.”

Broom's Legal Maxims (8th Ed.) p. 626;, says':

“It is a rule of extensive application with reference to the construction of written instruments, and, in the science of pleading, that matter which is mere surplusage may be rejected, and does not vitiate the instrument or pleading in which it is found. * * * 'Surplusagium non nocet’ is the maxim of our law.”

In Commonwealth v. Peto, 136 Mass. 151, the Supreme Court of that state said:

“The second ground assigned in the motion to quash should not have been sustained. If the complaint was defective, it was so in form only, and the motion was filed too late. Pub. St. c. 214, § 25; Commonwealth v. Emmons, 98 Mass. 6; Commonwealth v. Blanchard, 105 Mass. 173; Commonwealth v. Doherty, 116 Mass. 13. But we do not perceive that the complaint was legally defective, even in form. It averred the keeping of intoxicating liquors with intent to sell the same, without being authorized so to do by virtue of St. 1869, c. 415, an act which was then repealed; but it further averred that these liquors were thus kept without any legal authority whatever. . The allegations as to St. 1869, c. 415, were therefore superfluous, and might properly be treated as surplusage.”

In State v. Elliott, 14 Tex. 426, it is said:

“But it is objected in effect that too much was attempted, and that the indictment is bad by reason of the recitals. If these contained anything contradictory or repugnant to the body of the indictment, or were of a character to render unintelligible any of the material, traversable matters constituting the charge, there might be force in the objection. But such manifestly is not the ease. The grand jury have undertaken, very needlessly, it is true, to recite the history of the lost indictment. And it is ai.so true, as suggested in the argument, that this was quite foreign to their appropriate province. It was matter wholly foreign and irrelevant. And that it was so brings it, in the strictest sense, within the definition of surplusage, which does no injury. For, in general, ‘surplusagium non nocet,’ according to the maxim ‘Uthe per in uiile. non vitiatur.’ Matter which is merely useless never vitiates.”

In State v. Sarlls, 135 Ind. 200, 34 N. E. 1130, the Supreme Court of Indiana said:

“If the language quoted could be treated as surplusage, the motion to 'quash should not prevail. By statute, ‘surplusage5 or ‘repugnant allegation5 does not render an indictment insufficient, ‘when there is sufficient matter alleged to indicate the crime and person charged. Clause 6, § 1756, Rev. St. 1881; State v. McDonald, 106 Ind. 233 [6 N. E. 607] ; Myers v. State. 101 Ind. 379; State v. Judy, 60 Ind. 138."
“It is a general rule, irrespective of statute, that surplusage does not vitiate, and, to aid the sense, it may be rejected. (State v. Judy, supra.)

In State v. Pierce, 8 Nev. 296. the court aid:

“It is again objected that the indictment is insufficient. A careful perusal Satisfactorily shows it to be perfectly good, though, perhaps, through excess of caution containing more than the statute demands: but in this superfluous matter, if so it be, there is nothing to perplex one of ordinary understanding, nor to injure this appellant.55

In Travis v. Commonwealth, 96 Ky. 77, 27 S. W. 863, the court said:

“The indictment reads as follows: ‘The said Travis and Hendricks heretofore, to wit, on the - day of December, A. D. 1893, in the county aforesaid, did unlawfully and feloniously take, steal, and carry away, with the intent to convert to their own use, from J. L. Ewell, $30 in good and lawful currency of the United States of Kentucky, a better description of which is not here given because the same is to the grand jury unknown, said $30 then and there belonging and was in the possession of said J. L. Ewell, and the said Travis and Hendricks did felon-iously convert the same to their own use, and deprive the said Ewell of same,5 55 etc.

The court then proceeds as follows:

“In an indictment for the larceny or embezzlement of money or United States currency or bank notes, it is sufficient to allege the larceny or embezzlement of the same, without specifying the coin, number, denomination, or kind thereof. Section 135, Criminal Code. The indictment meets all the requirements of the Code, and the offense is specific and complete; the words ‘of Kentucky5 being mere surplusage and meaningless, and in no way calculated to mislead defendant to his prejudice.55

In State v. Noble, 15 Me. 477, the court said:

“It may be regarded as a general rule, both in criminal prosecutions and in civil actions, that an unnecessary averment mat be rejected, where enough remains to show that an offense has been committed, or that a cause of action exists.”

In State v. Webster, 39 N. H. 96, the court said:

“All unnecessary words in an indictment may, on trial or arrest of judgment, be rejected, as surplusage, if the indictment will be good upon striking them out. State v. Bailey, 31 N. H. 521; Wharton’s Cr. Law, 165; 1 Ch. Cr. Law, 238; Rex v. Edwards & Morris, Leach, 127; Commonwealth v. Arnold, 4 Pick. [Mass.] 251; Commonwealth v. Hunt, 4 Pick. [Mass.] 252. By striking out in this indictment the words, ‘certain persons unknown, of whom/ and the words ‘was one/ and again the words,' ‘said persons unknown, of whom/ and ‘was one,’ and the indictment is in proper form, as founded upon section 5, c. 217, Rev. St., for assaulting and obstructing the officer.”

In Castles v. McMath, 1 Ala. page 328, the court said:

“The duplicity complained of in the declaration is that, after setting forth that the bill was protested for nonacceptance, it goes on to allege a protest for nonpayment also. In Evans v. Watrous, 2 Port. 205, it was determined ‘that under our statute, which prohibits special demurrer where there is a clear and substantial cause of action set forth in a declaration, though it may contain irrelevant or superfluous matter, or though it may contain duplicity, yet the defendant shall be held to answer it.’ It is not pretended that the declaration does not contain a good cause of action; but the objection is that some of its allegations are superfluous, and consequently affords no cause for reversal.”

In Commonwealth v. Rowell, 146 Mass. 130, 15 N. E. 155, the court said:

“The complaint must allege all the material elements which constitute the offense charged, and they must be proved. And if the complaint unnecessarily alleges anything which is descriptive of the identity of the offense, it must be proved as alleged. But any allegations not descriptive of the identity of the offense, which earn be omitted without affecting the charge against the defendant, and without detriment to the complaint, may be treated as surplusage, and need not be proved.” (Commonwealth v. Pray, 13 Pick. 359; Commonwealth v. Cooley, 10 Pick. 37; Commonwealth v. Lewis, 1 Metc. 151.)

We could multiply authorities to the same effect without limit upon this question, but we deem the foregoing to be sufficient. So far a.s the information against the defendant in this case is concerned, charging the offense, it closes with the words “against the peace and dignity of the state.” The allegation following this was matter wholly foreign and irrelevant to the information. It neither added to nor took from any of the material matters constituting the charge. It is therefore surplusage pure and simple. It constitutes no part of the information. Under the'authorities above cited, it should be disregarded and treated as a nullity.

The third assignment of error is that the court erred in overruling defendant’s challenge to the panel of jurors. Chapter 89, art. 8, of Snyder’s Comp. Laws Okla. provides the manner in which a challenge to the petit jury may be made. Section 6795 provides that:

“A challenge to the panel can be found only on a material departure from the forms prescribed by law, in respect to the drawing and return of the jury, or on the intentional omission of the sheriff to summon one or more of the jurors drawn from, which the defendant has suffered material prejudice.”

Section 6796 provides:

“A challenge to the panel must be taken • before a jury is sworn, and must be in writing, specifying plainly and distinctly the facts constituting the ground of challenge.”

Section 6799 provides:

“If the challenge is denied, the denial may, in like manner, be oral, and must be entered upon the minutes of the court, and the court must proceed to try the questions of fact.”

Section 6800 provides:

“Upon the trial of the challenge, the officers, whether judicial or ministerial, whose irregularity is complained of, as well as any other presons, may be examined to prove or disprove the facts alleged as the ground of challenge.”

It will be seen from section 6795 of this act that the challenge to the panel must be founded on facts from which the defendant has suffered material prejudice. In this case the challenge simply charges that the jury commissioner Joe Moad was interested in the prosecution of this case, and undertakes to set out to what extent he was so interested. It nowhere charges that any member of the jury taken from the jury list selected by him as such jury commissioner was in any way biased or prejudiced against the defendant, or that the jury commissioner Moad had, at any time prior to the selection of them for. jury service, ever conversed with them concerning this prosecution, or otherwise attempted to any way influence their action. While it. is the duty of the trial court, when a challenge to the jury panel is presented to it, to try the issue of fact when the same is properly denied, yet it is not error for the court to overrule such challenge where it fails to state facts sufficient to justify the court in discharging the jury, if true. The grounds of challenge in this cause were insufficient to warrant the court in discharging the jury. Therefore no error was comitted in overruling the challenge.

The court charged the jury in part as follows:

“Thirteenth. If you believe from the evidence in this case beyond a reasonable doubt that the killing of Jesse Hungate by the defendant was not justifiable, as justification and self-defense are explained in these instructions, it will then be your duty to determine the degree of the felonious homicide. It you believe from the evidence beyond a reasonable doubt that the defendant in the county of Boger Mills and state of Oklahoma, on the 39th day of March, 1908, shot the deceased and wounded him, from the effects of which he soon thereafter died, and that the defendant fired the fatal shot at the deceased with the premeditated design to effect the death of said Jesse Hungate, you will then find the defendant guilty of murder and fix his punishment at death, or by imprisonment in the state penitentiary at hard labor for life, at your discretion. But if you have a reasonable doubt, after considering all the evidence in the ease, as to whether the killing was perpetrated with a premeditated design to effect death, and do find and believe from the evidence beyond a reasonable doubt that the killing was done in the heat of passion by means of a dangerous weapon, then you will find the defendant guilty of manslaughter in the first degree. Or if you find that the killing was unlawful, and that it was neither murder, manslaughter in the first degree, nor justifiable homicide, you will find the defendant guilty of manslaughter in the second degree.”
“Sixteenth. The defendant has interposed the defense of justifiable homicide or what is commonly known as self-defense. It, therefore, becomes my duty to instruct you in relation to this defense. If a person is assaulted in such a manner as to produce on the mind of a reasonable person a belief that he is in actual danger of losing' his life, or suffering great bodily harm, he will be justified in defending himself, though the danger be not real, but only apparent. Such person will not be held responsible .criminally if he acts in self-defense from real and honest convictions as to the character of the danger reasonably induced by reasonable evidence, though he may be mistaken as to the extent of the real danger; and, where one without fault is attacked by another, and kills his assailant, if the circumstances furnish reasonable ground for apprehending a design to take his life or do him some great bodily harm, and if he believes the danger imminent and such design will be enforced, homicide is justifiable.
“Seventeenth. In considering the evidence in the case for the purpose of determining whether or not the defendant acted in good faith and fired the fatal shot under the belief that he was in danger of losing his life or receiving great personal injury, it will be your duty to view the circumstances and -the evidence from the standpoint of the defendant and as they reasonably appeared to him at the time he fired the shot that killed the deceased.”
“Nineteenth. If you find and believe, however, from the evidence that the defendant on the morning of the killing overtook and rode with him in the .public road without any intention of provoking a difficulty with the deceased until they arrived at the place of the killing, and that the defendant on turning to leave the deceased heard the deceased using insulting words towards him, and at the time the deceased used such insulting words, if you find such words were used, the defendant had no intention of provoking a difficulty with the deceased, but upon hearing such insulting words, if any, from the deceased was angered by the same, and halted and challenged the deceased to mutual combat, and if you find that the deceased responded to such challenge in the affirmative, whereupon the defendant dismounted from his horse, and in good faith intended to combat or fight the deceased without using any deadly weapon, when he discovered a pistol in the deceased’s hands, and that then and there the defendant stepped behind his horse and drew his pistol and fired at the deceased, and at the time of so firing from the attitude and manner of the deceased the defendant had reason to believe, and did believe, that the deceased was about to take his life, and that the defendant fired the fatal shot under these circumstances, then he would be justifiable regardless of which shot of the defendant killed the deceased, and it will be your duty to acquit him. If, however, you should find from the evidence that the defendant challenged the deceased to mutual combat with their revolvers, and pursuant to such challenge several shots were fired by the deceased and the defendant towards each other, one of which struck and killed the deceased, then the defendant would be guilty of murder, and it would be immaterial as to which one of the combatants fired the first shot, and you should say so by your verdict.”

Counsel for the defendant contend that the thirteenth instruction is erroneous in that it practically directs the jury, if they •found that the defendant' killed the deceased while in a heat of passion and by means of a deadly weapon, then the defendant would be guilty of manslaughter in the first degree. This position of counsel is wholly untenable. The court in this instruction, in its beginning, charged the jury:

“If you believe from the evidence in this case beyond a reasonable doubt that the killing of Jesse Hungate by the defendant was not justifiable, as justification and self-defense are explained in these instructions, it will then be your duty to determine the degree of felonious homicide.”

This instruction must be considered as a whole, and, construing it as such, the court properly charged the jury that they must consider the other charges relevant to the justification and self-defense as explained in the" instruction. Reading this instruction in connection with the other instructions, the jury could not have been misled. There was no error in giving this instruction.

Counsel for defendant criticizes that portion of the sixteenth instruction which says:

“If a person is assaulted in such a manner as to produce, on the mind of a reasonable person a belief that he -is in actual danger of losing his life, or suffering great bodily harm, he will be justified in defending himself, though the danger be not real”— and contends that it is erroneous in that it consists in substituting the mind of some hypothetical reasonable person for the mind of the person assaulted. This instruction is somewhat inaccurately drawn, but in view of the other instructions, we cannot hold, as a matter of law, that it is erroneous. This instruction must be considered in connection with the other instructions. The court in the' seventeenth instruction charged the ¡jury that they must view the circumstances and the evidence from the standpoint of the defendant as they reasonably appeared to him at the time he fired the shot that killed the deceased. It will be seen from this instruction that the jury was directed not to consider the facts and circumstances from the standpoint of a reasonable person, but from the standpoint of the defendant alone. We find no error in this instruction.

Counsel for defendant, in criticizing the nineteenth instruction, sa3rs:

“From the entire instruction, it will be seen the court made the right of defendant to self-defense, depend upon the absence of any intention to provoke a difficulty. It thus would say to the jury, in substance: Tf you do not believe that he was without intention to provoke a difficulty, whatever else transpired, you cannot give him the benefit of the law of self-defense.’ Besides, it would say that if this defendant intended to have a fist fight with the deceased, he could not defend himself against the most deadly, sudden, and violent of assaults.”

We have carefully examined this instruction of the court, and have reached the conclusion that it is far more liberal to defendant than the law demands. Under this instruction, if the jury found and believed from the evidence that the deceased spoke insulting words to the defendant, and the defendant, being angered thereb3>-, challenged the deceased to a mutual combat, without intending to use any deadly weapon, but intending merely an ordinary battery, and the deceased responded to such challenge with a pistol, and from his attitude and manner led the defendant to believe that deceased was about to take his life, defendant would, under these circumstances, be justified in killing the deceased. This is not the law. A person cannot challenge another to a mutual combat, although without intending to kill, but intending an ordinary battery merely, and avail himself of the right of self-defense, even though his adversary may respond to such challenge with a deadly weapon, and cause him to believe that his life is in danger, or that he is in danger of great bodily harm, without first notifying him by word or act that he intends to abandon the combat; and, if he kills his adversary without notifying him by word or act that he intends to abandon tne combat, such killing constitutes manslaughter.

In this ca§e the defendant himself admitted that,* while armed with a 45-calibre revolver, he challenged deceased to fight him, got down off his horse for that purpose, and, seeing the deceased with a revolver in his hand, and in an attitude which caused the defendant to believe he was about to be killed, drew his revolver and commenced firing at the deceased. Defendant may not have intended to draw his revolver when he challenged deceased to fight him, and may have intended only an ordinary battery, yet this intention did not give him the right to invoke the law of self-defense, because at the very time he fired the fatal shot he was carrying out his design and purpose to fight the deceased. He had not, by word or act, given the deceased reason to believe that he intended to abandon the combat. Conceding that defendant, at the time he fired the fatal shot, believed he was in danger of losing his life or suffering great bodily harm, he is estopped, under his own version of the affair, to invoke the law of self-defense, because he did that which' in the very nature of things was calculated to induce the deceased to do just what he did do, and the defendant must have knowln, and did know, that his own conduct caused the deceased to act as he did, and this was known to defendant before he shot. Therefore, if the defendant provoked an altercation between himself and the deceased, or challenged the deceased to a mutual combat, without intending to kill deceased, but intending an ordinary battery merely, and the deceased assaulted defendant, or by some act done gave defendant reasonable apprehension of loss of life or great bodily harm, and the defendant killed the deceased to protect himself from the apprehended danger, the killing under such circumstances would not be justifiable, but would be manslaughter.

' ' In the twenty-eighth assignment of error defendant complains of the conduct of counsel for the state, in that Hon. W. I. Gilbert, who assisted in the prosecution, in his closing argument to the jury (addressing defendant) said:

•“You know you shot poor Jesse Hungate ifi. cold blood, and committed cold-blooded murder. What did he -say? You know that he made a statement there that you have not told. Oh, you may sigh and swallow, but you- know that it is so.”

That further in said argument, counsel stated:

“Gentlemen of the jury, it has come to a point when murder must be stopped in this country; murders have been altogether too frequent. I will tell you of a case where a man committed cold-blooded murder and was released by a jury.”

■ And that further in said argument the said W. I. Gilbert argued to the jury that the defendant had applied for bail, and that it had been refused. To these remarks defendant duly excepted, and it is now claimed that this argument constituted such misconduct on the part of the state as to cause a reversal of this cause. This court has repeatedly held that as to remarks of counsel in the course of their arguments, objected to as improper, in order to constitute reversible error, the impropriety indulged in must be such as to influence the verdict. Section 6957, Snyder’s Comp. Laws Okla., is as follows:

“On an appeal the court must give judgment without' regard to technical errors -or defects or to exceptions which do not affect the substantial rights of the parties.”

The letter and spirit of this statute is that if this court can-saj7, after carefully considering the entire record in the case, that the conviction is sufficiently supported by competitive evidence, and that the verdict was not reached by error or as a result of passion and prejudice, the conviction should be affirmed. From a careful investigation of the record in this cause this court cannot come to any other conclusion, considering the version of the facts from the standpoint and testimony of the defendant alone, but that he was guilty of manslaughter. The jury were jutifled under his own statement in rendering the verdict which they did. In view of this statute and defendant’s testimony we are compelled to hold that the remarks of counsel did not in anyway or manner influence the verdict of the jury; and, while such remarks were highly improper, yet they will not work a reversal of this cause.

After a careful consideration of all the other assignments we are of the opinion that no error was committed affecting the substantial rights of the defendant.

For the reasons herein given, the judgment of the lower court is affirmed, with directions to the sheriff of Roger Mills county to carry the same into execution.

DOYLE, and OWEN, Judges, concur.

FURMAN, Presiding Judge,

having been of counsel in the case, and being thereby disqualified as one of the judges to hear and determine the same, and this fact being duly certified to Governor C. N. Haskell, he thereupon appointed E. G. McAdams as special judge of the Court of Criminal Appeals for the hearing and determination of this ease.


source: Caselaw Access Project

author: OWEN, Judge.

license: Public Domain

text:
    Davis Miller v. State.
    No. 143.
    Opinion Filed March 22, 1910.
    (107 Pac. 948.)
    1. HOMICIDE — Murder—Instructions. The homicide in this case having been committed prior to statehood in that portion of the state formerly Indian Territory, the defendant was entitled tc¡ an instruction defining manslaughter as defined by the United States statute, and it was error to omit the word “willfully’ from the definition of manslaughter; the defense being- lack of criminal intent.
    (Syllabus by the Court.)

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

    The plaintiff in error, Davis Miller, was tried in the district court of Pushmataha county on February 8, 1908, on a charge of murder. He was convicted of manslaughter and sentenced to imprisonment for ten years.
    Reversed and remanded for new trial.

      C. E. Dudley and Wm. M. Cravens, for plaintiff in error.

      Chas. West, Atty. Gen., and Chas. L. Moore, Asst. Atty. Gen., for the State.
   OWEN, Judge.

This is a companion case with that of Nelson v. State, ante, p. 468 (106 Pac. 647). The homicide was the result of wounds inflicted on Sam Wright in a fight in which this defendant and Will Nelson engaged. Many of the objections urged here are identical with and were disposed of in the Nelson Case. In addition to the questions in that case, it is urged here that the court erred in giving the following instruction defining manslaughter :'

“Manslaughter is the unlawfully killing of a human being without malice either express or implied, and without deliberation.”

This is the definition as found in Mansfield’s Digest of the Statutes of Arkansas, and the trial court evidently intended to give that statutory definition.. The homicide of which this defendant was on trial was committed prior to statehood in that part of the state formerly Indian Territory. At the time of the commission of the offense, the United States statute, as to murder and manslaughter, was in force in the Indian Territory, and this case should have been tried under that statute. The United States statute (section 5341, U. S. Comp. St. 1901) defines manslaughter as follows:

“Every person, who unlawfully and wilfully, but without malice, strikes, stabs, wounds, or shoots, at, or otherwise injures another, of which striking, stabbing, wounding, shooting, or other injury such other person dies, is guilty of the crime of manslaughter.”

The defendant in this case was entitled to an instruction defining manslaughter as defined by this statute. The instruction as given omits the word “wilfully.” The defense in this case was that the defendant was intoxicated at the time of the homicide, and too drunk to form a criminal intent. This court in construing a similar instruction in the case of O’Barr v. State, ante, p. 319, 105 Pac, 988, said:

“The word ‘wilfully/ in the sense in which it is used in this statute, means not merely voluntarily, but with a bad purpose. It is a synonymous term with ‘intentional^/ ‘designedly/ ‘without lawful excuse’; that is, not accidentally. Thomp. on Tr. 2209; Commonwealth v. Brooks. 9 Gray (Mass.) 303; Commonwealth v. McLaughlin, 105 Mass. 463; Roberts v. U. S., 126 Fed. 897, 61 C. C. A. 427. Tn the last-named case the United States Circuit Court of Appeals, in defining the word ‘wilfully/ as used in section 5341, Rev. St. U. S. [U. S. Comp. St. 1901, p. 3628], the section under which this prosecution was had, said: ‘In a penal statute the word “wilful” means more than it does in common parlance. It means with evil intent or legal malice, or without reasonable ground for believing the act to be lawful’ — citing State v. Preston, 34 Wis. 675; State v. Clark, 29 N. J. Law, 96; Savage v. Tullar, Brayton (Vt.) 223; United States v. Three Railroad Cars. 1 Abb. U. S. 196, Fed. Cas. No. 16,513; Thomas v. State, 14 Tex. App. 204; Sam Lane v. State, 16 Tex. App. 172. This court, in the ease of Thurman v. State, 2 Okla. Cr. 718, 104 Pac. 67, defines the word ‘wilfully/ citing Harrison v. State, 37 Ala. 154, and Felton v. U. S., 96 U. S. 699, 24 L. Ed. 875, and quoting from Felton v. United Slates, as follows: ‘Doing or omitting to do a thing, knowingly and wilfully, implies not only a knowledge of the thing, but a determination with a bad intent to do it or omit doing it. “The word ‘wilfully/ ” says Chief Justice Shaw, “in the ordinary sense in which it is used in statutes, means not merely voluntarily, but with a bad purpose.” Commonwealth v. Kneeland, 20 Pick. (Mass.) 220. “It is frequently understood,” says Bishon. “as signifying an evil intent without justifiable excuse.” ’ ”

The defendant saved an exception to the giving of the instruction at the time it ivas given. For this error, the case is reversed and remanded, with directions to grant the defendant a new trial.

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


text:
    Jim Sandlin v. State.
    No. A-67.
    Opinion Filed March 22, 1910.
    (107 Pac. 946.)
    1. JUSTICES OF TH'E PEACE — Appeal—Trial De Novo. On appeal to the county court from the justice of the peace court, there shall be a trial de ndvo on questions of both law and facts.
    , (Syllabus by the Court.)

      •Error from Sequoyah County Court; W. N. Littlejohn, Judge.

      The plaintiff in error, Jim Sandlin, was tried on the 24th day of November, 1908,- in the county court of Sequoyah count}1', •charged-with using profane and obscene language. He was convicted and brings error.
    Affirmed.

      T. T. Shaclcelford, for plaintiff in error.

      Chatties West, Atty. Gen., and Chas. L. Moore, Asst. Atty. Gen., for the State.
   OWEN, Judge.

The prosecution in this case originated before a justice of the peace. The defendant demurred to the complaint. The demurrer was overruled and defendant convicted on a trial before a jury. The case was appealed to the county court •of Sequoyah county. The defendant demurred there to the information. The demurrer was sustained and the c'ounty attorney given leave to amend the complaint by interlineation.. The case was tried to a jury, and the defendant convicted and sentenced to pay a fine of $10 and costs.

Counsel for the defendant urges that the county court erred in permitting the county attorney to amend the information, and that such amendment in effect charged the defendant with a different crime from that charged before the justice of the peace. Section 14, art. 7, of the Constitution (section 186, Bunn’s Ann. Ed.), provides that the county court shall have jurisdiction of all eases appealed from the judgment of the justice of the peace in civil or criminal cases, and in all cases appealed from the justice of the peace to the county court there shall be a trial de novo on questions of both law and fact. Under the provision of this section, the trial in the county court will be had as if there had been no trial in the justice’s court. A “trial de novo” as we understand it, means a new trial in the same manner, with the same effect, and upon the same issues as the case was tried in the lower court. The county court did not pass on the question as to whether the justice erred in overruling the demurrer. The case was presented anew to the county court, and, when in his opinion the information did not state a causé of action, it was proper to permit the county attorney to amend so that it would state a cause of action. Of course, the county attorney would not be permitted to allege facts that did not exist at the time the information was filed before the justice of the peace. There is no contention here that this was done. Thé information, as filed before the justice of the peace, attempted to charge the defendant with violating section 2056, Comp. Laws Okla. 1909 (section .1959, "Wilson’s Rev. and Ann. St.), which makes it a misdemeanor to utter or speak any obscene or lascivious language in a public place or in the presence of a female. The information, as originally filed, did not allege the language to have been uttered in the presence of a female, and the county court properly held this information to be bad, and properly permitted the county attorney to interline the allegation that the language was uttered in the presence of a female. Section 6645, Snyder’s .Comp. Laws 1909, authorizes the amendment in the following language:

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

There is no contention here that the defendant was surprised, ,and no effort was made to continue the case to enable him to meet the issues which were raised by the amended information.

Judgment of the lower court is affirmed.

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


text:
    Paul Antonelli v. State.
    No. 29.
    Opinion Filed March 22, 1910.
    (107 Pac. 951.)
    1. JURISDICTION — District Courts — Misdemeanors. The district courts of the state, under section IS of the Bill- of Rights, have the implied jurisdiction to receive and dispose of indictments for misdemeanors, and the proper exercise of this jurisdiction is to transfer the cases to the court having jurisdiction to try and determine the same.
    2. INTOXICATING LIQUORS —Indictment — Sufficiency — Venue. An indictment alleging the unlawful sale of intoxicating liquor in Pittsburg county is sufficient as to venue. It is not necessary that the indictment allege the particular place in Pittsburg county where the liauor was sold.
    3. INDICTMENT AND INFORMATION — Duplicity. An indictment which alleges that the defendant did unlawfully sell, barter, give away ,and otherwise furnish intoxicating liquor, beer,’ ale, and wine is not subject to demurrer for duplicity.
    4. INTOXICATING LIQUORS — Illegal Sale of “Beer" — Burden of ■Proof. When the word “beer” is used without restriction or qualificaton, it denotes an intoxicating malt liquor, and, being included by the constitutional provision among intoxicating liquors, one who sells beer has the burden of proof to show it is not intoxicating, if he so claims.
    (Syllabus by the Court.)

      Error from Pittsburg County Court; B. W. Higgins, Judge.

    The plaintiff in error, Paul Antonelli, was indicted in the district court of Pittsburg county on the 15th day of January. 1908, charged with violating the provision of the Constitution against the sale of intoxicating liquors. On motion of the county-attorney the case was transferred to the county court of Pittsburg county. Defendant was convicted and sentenced to imprisonment in the county jail for a term of six months and to pay a fine of $500. The case is before us on appeal.
    Affirmed.

      J. Q. Harley, for plaintiff in error.
    — On question of duplicity: State v. Messenger, 58 N. H. 348; Harvey v. State, 80 Ind. 142; Gommw. v. Fleece, 3 Ky. L. Eep. 429.

      Fred 8. Galdweil, for defendant in error.
   OWEN, Judge.

Counsel for defendant insist that because section 12, art. 7, Const, (section 183, Bunn’s Ann. Ed.), gives to the county court exclusive jurisdiction to try misdemeanor cases of this character, the district court was without jurisdiction to receive the indictment in this case, and, therefore the county court did not acquire jurisdiction on removal of the case from the district court to the county court. With this contention we cannot agree. Section 18 of the Bill of Eights (section 27, Bunn’s Ann. Ed.), after providing for a grand jury in the district court, contains this provision:

“When so assembled such grand jury shall have power to investigate and return indictments for all character and grades of crime, and such other powers as the Legislature may prescribe.”

Under this section the district court had the implied jurisdiction to receive and dispose of the indictments returned by the grand jury, and a proper exercise of this jurisdiction was to transfer the case to the court having the jurisdiction to try and determine the same.

It was urged on demurrer that the indictment was too indefinite and uncertain, in this: that it does not sufficiently advise the accused in what place in Pittsburg county the liquors are alleged to have been sold. The only allegation of place is that the offense was committed in Pittsburg county, state of Oklahoma. The weight of modern authority is to the effect that this is sufficient under a statute of this character. If the defendant had been indicted under a statute prohibiting dramshops, ox the sale of liquor within a certain distance of schools or churches, or within certain prohibited districts, then there would have been some reason for the allegation as to the exact place, but, under this statute, he could not lawfully sell at any place within Pitts-burg county. Therefore he could not have been misled by the failure of the indictment to state in what particular place he did violate the law.

Another reason urged for reversing the lower court is that the indictment charges more than one offense. The charging part of the indictment is as follow's:

“One Paul Antonelli did, then and there, unlawfully sell, barter, give away, and otherwise furnish intoxicating liquor, beer, ale, and wine to one Joe Match.”

The provision of the Constitution under which this indictment was returned is as follows:

“Any person, individual or corporate, who shall manufacture, sell, barter, give away, or otherwise furnish any intoxicating liquor of any kind, including beer, ale, and wine,” etc.

The objection to this part of the indictment was raised lu demurrer, which the lower court overruled. We find no error in the action of the court in overruling the demurrer. In the case of State v. Nolan, the Supreme Court of Rhode Island (15 R. I. 529, 10 Atl. 481) passed on a similar objection under a statute which provides:

“If an}' person shall offer to sell, sell, or suffer to be sold, by any person by sample or otherwise, any alé, wine, rum, or other strong or malt or intoxicating liquors,” etc.

The court in passing on this question said:

'“Where several cognate acts are forbidden, disjunctively, the complaint or indictment may ordinarily charge them all con-junctively in a single -count.”

In the case of State v. Schweiter, 27 Kan. 499, a similar question was presented to- the Supréme Court of Kansas. The chief- justice in delivering the opinion of the court used this language:

“The rule is well settled that where the statute makes either of - two or inore distinct acts connected with the same general pílense, and subject,to the same measure and kind of punishment, indictable separately and as distinct crimes, when each shall have been committed by different persons, and at different times, they may, when committed by the same person and at the same time, be coupled in one count as constituting all togtlier but one offense. In such cases the several acts are construed as so many steps or stages in the same affair, and the offender may be informed against as for one combined act in violation of the law, and proof of either of the acts mentioned in the statute and set forth in the information will sustain a conviction.”

In the case- of State v. Pittman, 76 Mo. 56, the syllabus by the court is as follows:

“Where a criminal statute uses disjunctive language in defining 'an offense, an indictment under it may be drawn in the conjunctive. Thus a statute made it an offense to ‘sell or give away” intoxicating liquors under certain circumstances. An indictment charged that defendant did ‘sell and give away’ such liquors. Held that it was not bad for duplicity.”

These cases are supported by the weight of authority, and in our opinion announce the correct rule.

It is next urged that the court erred in the instructions given to the jury, which are as follows:

“The indictment in this cause alleges that Paul Antonelli, the defendant, did on or about the 8th day of December, 1907, unlawfully sell, barter, give away, and otherwise furnish intoxicating liquor to one Joe Match in Pittsburg county, Olda.
“The court will read the law to you upon which this indictment is based: ‘Any person, individual or corporate, who shall manufacture, sell, barter, give away or otherwise furnish any intoxicating liquor of any kind, including beer, ale, and wine contrary to the provisions of this section shall be punished on conviction thereof by a fine of not less than $50.00, and by imprisonment for not less than thirty days for each offense.’
“In order to sustain the conviction, it is necessary that you gentlemen find from the evidence that the liquor, if any was sold, or furnished, was sold or furnished in Pittsburg county, Okla., and since the proclamation of statehood and prior to the filing of the indictment, which ivas on the 25th day of January, 1908, and that the liquor ivas intoxicating. I don’t mean by that that you must find that it intoxicated Joe Match, but you are required to find that if drunk in practical quantities that it would render one either entirely or partially intoxicated.
“The defendant in a criminal action is presumed to be innocent until the contrary is proved, and, in case of a reasonable doubt as to whether his guilt is satisfactorily shown, he is entitled to be acquitted. The court, furthermore, instructs you that beer without qualification in its ordinary acceptation imports a malt and intoxicating liquor and is intoxicating.
“If you find from the evidence that beer was sold, then the burden is on the defendant to show that it was not intoxicating. If from the evidence that he shows the liquor, if any was sold, was not intoxicating, then he is entitled to an acquittal.
“Toiu, gentlemen, are to be the judges of the weight of the testimony and the credibility of witnesses.”

'It is urged that these instructions constitute prejudicial error, for the reason that the jury is told that beer is an intoxicating liquor, and that the burden is placed on the defendant to show that the liquor sold was not intoxicating. The provision of the Constitution under which the indictment was had includes beer as one of the liquors prohibited, and defines it as intoxicating. The preponderance of authority is to the effect that when the word “beer” is used, without any 'restriction or qualification, it 'denotes an intoxicating malt liquor, and when this occurs in an indictment or complaint, or in the evidence, it is presumed to include only that species of beverage. It is true there are some courts which hold that the court will not take judicial knowledge that beer is an intoxicating liquor, and that the indictment must allege and the proof show the beer was in fact intoxicating. In the ease of State v. Cloughly, 73 Iowa, 626, 35 N. W. 652, this identical question was involved. The second syllabus by the court is as follows:

“Beer is included by the statute among intoxicating liquors; and where, upon a call for beer, a pharmacist sells liquor to a customer, he has the burden to prove that it was not intoxicating, if he so claims.”

In passing on the question, the court' used this language:

“It was proven that on one occasion a person applied to defendant to purchase a bottle of beer, and that defendant sold and delivered to him a bottle of liquor which had the appearance of beer. The customer, who was examined as a witness on the: trial, was not able to testify with certainty that the liquor in the bottle was beer. It is insisted that there was not sufficient evidence either as to the kind of liquor sold, or that it was intoxicating. As the defendant by delivering it to the customer in answer to bis request for beer represented it to be that kind of liquor, the presumption as against him is that it was beer, and the statute classes beer as an intoxicating liquor. If there are kinds of beer not in fact intoxicating, the burden was on defendant to show that the beer in - question was of that kind, if he claimed such to be the fact. It is clear that we ought not to disturb the judgment on this ground.”

The record discloses that the court properly instructed the jury as to the presumption of innocence, and that the state must prove the defendant’s guilt beyond a reasonable doubt. That having been clone, we are of the opinion, that the instruction to the effect that the burden of proof was on the defendant to prove that the liquor was not intoxicating does not constitute prejudicial error. The burden on the defendant was only to the extent of raising a reasonable doubt as to whether the beer was intox-cating. The instructions must be construed as a whole, and, the court having instructed the jury that, in case of a reasonable doubt as to his guilt, defendant must be acquitted, we find no error in the instructions given or in the refusal of the court to give the instructions requested by defendant.

The judgment of the lower court is affirmed.

FUEMAN, PRESIDING 'Judge, and DOYLE, Judge, concur.


author: OWEN, Judge..

text:
    Paul Antonelli et al. v. State.
    No. A-30.
    Opinion Filed March 22, 1910.
    (107 Pac. 953.)
    1. JUiRISDICTION — District Courts — Misdemeanors. The district courts ol the state, under section 18 of the Bill of Rights, have the implied jurisdiction to receive and dispose of indictments for misdemeanors, and the proper exercise of this jurisdiction is to transfer the cases to the court having jurisdiction to try and determine the same.
    2. INTOXICATING LIQUORS — Indictment — Sufficiency — Venue. An indictment alleging the unlawful sale of intoxicating liquor in Pittsburg county is sufficient as to venue. It is not necessary that the indictment allege the particular place in Pittsburg county where the liquor was sold.
    3. INDICTMENT AND INFORMATION — Duplicity. An indictment which alleges' that the defendant did unlawfully sell, barter, give away, and otherwise furnish intoxicating liquor, beer, ale, and wine is not subject to demurrer for duplicity.
    4. INTOXICATING LIQUORS — Illegal Sale of “Beer” — Burden of Proof. When the word “beer” is used without restriction or qualification, it denotes an intoxicating malt liquor, and, being included by the constitutional jirovision among intoxicating liquors, one who sells beer has the burden of proof to show it is not intoxicating if he so claims.
    (Syllabus by the Court.)

      Error from, Pittsburg County Court; B. IF. Higgins, Judge.

    The plaintiffs in error, Paul Antonelli and A. H. Dreyfus, were indicted in the district court of Pittsburg county on the 29th day of January, 1908, charged with violating the provision of the Constitution against the sale of intoxicating liquor, were convicted and sentenced to imprisonment in the county jail for a term of six months and to pay a fine of $500.
    The case is before us on appeal.
    Affirmed.
    The plaintiffs in error were indicted in the district court of Pittsburg county on the 29th day of January, 1908, charged with violating the provision of the Constitution against the sale of intoxicating liquor, were .convicted, and sentenced to- imprisonment in the county jail for a term of six months and to pay a fine of $500. The case is before us on appeal.

      J. G. Harley, for plaintiffs in error.

      Fred 8. Caldwell, for the State.
   OWEN, Judge..

The questions involved in this case are in all things identical with the case of Paul Antonelli v. State, (No. A-29, decided at this term.) ante, p. 580, 107 Pac. 951, and the decision of this court in that case determines the questions here. In disposing of this case, we deem it unnecessary to do more than to refer to that ease, together with the authorities there cited.

The judgment of the lower court is affirmed.

FUKMAN, PhesidiNg'Judge, and DOYLE, Judge, concur.


text:
    John Petitti v. State.
    No. 218.
    Opinion Filed March 22, 1910.
    (107 Pac. 954.)
    1. JURISDICTION — District Courts — Misdemeanors. The district courts of the state, under section 18 of the Bill of Rights, has the implied jurisdiction to receive and dispose of indictments for misdemeanors, and the proper exercise-of this jurisdiction is to transfer the cases to the court having' jurisdiction to try and determine the same.
    2. INTOXICATING LIQUORS — Illegal Sale of "Beer” — Burden of Proof. When the word “beer” is used without restriction or qualification, it denotes an intoxicating malt liquor, and, being included by the constitutional provision among intoxicating liquors, one who sells beer has the burden of proof to show it is not intoxicating if he so claims.
    3. EVIDENCE — Opinion—Character of Liquor — Preliminary Proof. Where witnesses testified to having drunk a drink known as “long horn,” and that the liquor sold had about the same effect on them as did the drink “long horn,” it was not error for the court to refuse to permit the witnesses to testify that, in their opinion, .“long horn” was not an intoxicating liquor; there being no proof that “long horn” and the liquor sold were in fact the same.
    4. APPEAL — Plea of Former Acquittal — Failure to Interpose on Arraignment. A plea of former acquittal will not be considered by this court where it was not interposed on arraignment and incorporated in the case-made.
    (Syllabus by the Court.)

      Error from Pittsburg County; B. W. Fig gins. Judge.

    The plaintiff in error, John Petitti, wais tried and. convicted in the county court of Pittsburg county charged with' selling intoxicating liquor, and sentenced to imprisonment in the county jail for a period of 30 days and to pay a fine of $150 and the cost of prosecution. From that judgment he appeals.
    Affirmed.

      J. E. Whitehead, for plaintiff in error.

      Fred 8. Caldwell, for defendant in error.
   OWEN, Judge.

The petition in error filed in this case contains 10 assignments of error. The first four are to the jurisdiction of the lower court to try and determine the case. The defendant was indicted by the grand jury in the district court of Pittsburg county at the March term, 1908. Upon motion of the county attorne}', the indictment was transferred to the county court of Pittsburg county, where the defendant was tried and convicted. Under these four assignments, -it is urged that the district court had no jurisdiction of this case, and therefore the county court did not acquire jurisdiction upon the removal of the case from the district court. This question was presented to this court in the case of Paul Antonelli v. State, (decided at this terms), ante, p. 580, 107 Pac. 951, and settled there adverse to counsel’s contention. • We deem it unnecessary to discuss this question here more than to refer to the decision in that case with approval.

Under the fifth assignment of error, it is urged that' the lower court erred in not sustaining the defendant’s demurrer to the testimony offered on the part of the state, for the reason that the evidence fails to show that the drink sold was intoxicating. The evidence is to the effect that the defendant sold beer.

Under the eighth assignment, practically the same question is raised by objection to the instruction of the court that “beer” without any qualification in its ordinary acceptation' 'imports a malt and intoxicating liquor, and is intoxicating. This question was also presented in the case of Antonelli v. State, supra, and settled against the contention of counsel. We think the conclusions in that case are correct, and so hold here.

Under the sixth assignment, counsel insists that the court erred in refusing to permit witnesses on part of the defendant to answer the questions asked them by the attorney for the defendant as to whether the drink known as “long horn” is intoxicating. These witnesses, it appears, had testified that the beer sold by the defendant had about the same effect upon them as the drink known as “long horn.” The defendant then sought to prove that “long horn” was not intoxicating. Counsel does not undertake to point out under what rule of evidence tins testimony was competent. There was no proof of a chemical analysis that the beer sold and the drink known as “long horn” were the same, neither were the witnesses qualified as experts. "We find no error in the action of the court in refusing to permit the witnesses to answer these questions.

TJnder the seventh assignment of error, counsel urges that the court erred in refusing the instructions requested by the defendant. The instructions given by the court clearly state the law, and for that reason it was not error to refuse' the instructions requested by the defendant.

The ninth and tenth assignments are directed to the action of the court in overruling the motion in arrest of judgment and the motion for new trial, and raise no questions other than those presented under the other assignments!

Counsel for the plaintiff in error filed a supplemental brief in this case, in which he insists that plaintiff in error was tried and acquitted in a case, numbered 115, in the county court of Pittsburg ■ county, and that his acquittal in that case was a bar to the prosecution in this case. It does not appear from the case-made that the acquittal in the first case was pleaded as a bar in the second. On the contrary, on page 4 of the case-made, appears the following :

“And thereupon, on the same day, defendant being called to the bar of the court for arraignment, he waived the arraignment and for his plea to said indictment states that he is not guilty.”

Section 5418, "Wilson’s Bev. & Ann. St. 1903, in providing for the three different pleas allowed to an indictment, contains the following provision:

“If he plead a former conviction or acquittal: * * * The defendant pleads that he has already been convicted [or acquitted, as the case may be], of the offense charged in this indictment, by the judgment of the court of-[naming it], rendered at-[naming the plaec], on the-day of - — .”

The plea of former aeqiiittal not having been entered as required by statute, it cannot be considered by this court. The judgment oí the lower court is affirmed.

FURMAN, PResidingi Judge, and DOYLE, Judge, concur.


author: FURMAN, PRESIDING Judge

text:
      Ex parte W. O. Moody.
    No. A-552.
    Opinion Filed March 28, 1910.
    (108 Pac. 431.)
    JUSTICES OF THE PEACE — Jurisdiction—Misconduct in Office. A justice of the peace is without jurisdiction to try any action against any officer for misconduct in office.
    (Syllabus by the Court.)
    Application by W. 0. Moody for writ of habeas corpus.

    Writ granted, and defendant discharged.
    On the 12th day of January, 1910, the county attorney oí Woodward county, Olda., filed the following information against W. O. Moody, before 13. B. Smith, Esq., a justice of the peace for the city-of Woodward:
    “State of Oklahoma, Woodward County. Information. In Justice Court, before B. B. Smith, Justice of the Peace for City of Wooward, Woodward County, Oklahoma. State of Oklahoma v. W. O. Moody, County Weigher. In the Name and by .the Authority of the State of Oklahoma: Now comes B. F. Willett, county attorney, in and for the state and county afo.resaid, and gives the court to know and be informed that one W. 0. Moody, county weigher, late of the county of Woodward and state of Oklahoma, on the 11th day of January in the year of our Lord one thousand nine hundred and ten, at and within the said county and state,- did then and there, being the duly elected, qualified, and acting county weigher of Woodward county, Oklahoma, unlawfully, willfully, while acting as county weigher, weigh one wagon load of eight hogs incorrectly for one K. D. Lively, by then and there weighing the said load of eight hogs at one thousand sixty-five pounds, when in fact and in truth the said load of eight hogs weighed only one thousand fifteen,'contrary to the form of the statute in such case made and provided and against the peace and dignity of the state of Oklahoma. B. F. Willett, County Attorney.”
    A warrant was issued on this information and the said justice of the peace was preparing to place the defendant upon trial on said charge. A writ of habeas c.orpus was applied for upon the ground that said justice of the peace is without jurisdiction to try and determine said cause.

      David P. Marurn for petitioner.
   FURMAN, PRESIDING Judge

(after stating the facts as above). Section 12 of article 7 of the Constitution, among other things, provides that the county court shall not have jurisdiction in. any action against officials for misconduct in office, and shall have appellate jurisdiction of the judgments of justices of the peace in misdemeanors. Section 14 of article 7 provides that upon such appeals from justice courts the trial shall be de novo on questions both of law and of fact. Section 18 of article 7 of the Constitution is as follows:

“The office of justice of the peace is hereby created, arrd, until otherwise provided by law, courts of justices of the peace shall have, coextensive with the county, jurisdiction as examining and committing magistrates in all felony cases, and shall have jurisdiction, concurrent with the county court, in civil cases where tlie amount involved does not exceed two hundred dollars, exclusive of interest and costs, and concurrent jurisdiction with the county court in all misdemeanor eases in which the punishment does not exceed a fine of two hundred dollars or imprisonment in tfie county jail for not exceeding thirty days, or both such fine and imprisonment; but justices of the peace shall in no event-have jurisdiction in actions for libel and slander. Until otherwise provided by law, appeals shall be allowed from judgments of the court of justices of the peace in all civil and criminal cases to the county court in the manner now provided by the laws of the territory of Oklahoma governing appeals from the courts of justices of the peace to the district court. In cities of more than two thousand and five hundred inhabitants, two justices of the peace shall be elected.”

The prohibition contained in the Constitution against the exercise by the county court o£ jurisdiction in actions against officers for misconduct in office is not limited to actions for the removal of such officers from the positions which they occupy on account of the official misconduct, but extends to and includes any and all actions against such officers for misconduct in office, it matters not what the nature of the action or the punishment inflicted may be. It certainly will not be claimed that the justices of the peace have superior jurisdiction to that enjoyed by county courts. If a justice of the peace can try an officer for official misconduct, what would become of the case in the event of a conviction and appeal to the county court? How could that court try a case de novo on appeal of which it had no jurisdiction? Any statute attempting to give jurisdiction to the county courts or justices of the peace to try such cases would be unconstitutional and void. Such jurisdiction is in district courts. Justices of the peace have the power to sit as examining and committing magistrates in felony cases only. As the act of official misconduct charged against this defendant is not a felony, the justice court did not have jurisdiction over the offense- charged as an examining magistrate.

The writ of habeas corpus is therefore granted as prayed for, and it is ordered that the defendant be released from custody on said charge, and that said justice court be directed to dismiss the case therein pending against him.

DOYLE and OWEN, Judges, concur.


author: FURMAN, PRESIDING Judge.

text:
    Jonas Jones v. State.
    No. A-178.
    Opinion Filed March 30, 1910.
    (107 Pac. 738.)
    STATUTES — Trial—Procedure — What Law Governs. A defendant charged with the commission of a crime' is entitled to be tried and dealt with under the laws as they existed at the time of the alleged commission of the offense of which he stands charged in all matters where such laws vouchsafe to him a substantial protection.
    (Syllabus by the Court.)

      Appeal from District Court, Atoka County; W. S. Farmer, Special Judge.

    Jonas Jones was convicted of crime, and appeals.
    ^Reversed and remanded.

      J. M. Humphreys and Balls Bros., for appellant.

      Charles L. Moore, Asst. Atty. Gen., for the State.
   FURMAN, PRESIDING Judge.

The Attorney General filed the following confession of error:

“The accused was indicted by a United States grand jury prior to statehood for an alleged offense charged to have .been committed in the Indian Territory. That the same was tried after statehood by the district court of Atoka county, before a judge pro tempore selected by the bar. That the court as constituted denied the accused the right of trial under the laws of the United States in force in the Indian Territory at the time of the commission of the alleged offense, although the same was demanded, and exceptions saved to the court’s said denial. That the court held that the trial should be had and proceeded with according to the laws of the state of Oklahoma relating to crimes and punishment, and accordingly allowed the accused but nine peremptory challenges to the jury, all of which were exhausted and additional challenges demanded, exceptions being properly saved. The court refused to the accused, before trial, a list of the jurors, although the same was demanded, and exception saved to such refusal. Such action of the court being in the opinion of the Attorney General manifest error, calculated to deprive the accused of substantial rights, error is accordingly hereby confessed for and upon behalf of the state.”

The Attorney General is correct in each of the grounds upon which his confession of error is based. See State v. Caruthers, Okla. Cr. 428, 98 Pac. 474; Sharp v. State, ante, p. 24, 104 Pac. 71.

The confession of error is therefore sustained, and the cause is reversed and remanded for a new trial.

DOYLE and OWEN, Judges, concur.


author: PEE CUBTAM.

text:
    Morris Gibson v. State.
    No. A-236.
    Opinion Filed March 30, 1910.
    (107 Pac. 739.)
    APPEAL — Dismissal—Defects in Record. When the case-made is not served upon the county attorney, in the time allowed by the court, and the clerk of the court does not certify to the trans-script of the record, the appeal cannot be considered either upon the case-made or The transcript of the record, and will be dismissed.
    (Syllabus by the Court.)

      Appeaíl from District Court, Le Flore County; M. E. Rosser, Judge.

    Morris Gibson, the defendant, was convicted of the offense of manslaughter, and sentenced to seven years’ confinement in the penitentiary and a fine of $500. Motions for a new trial and in arrest of judgment were filed and overruled on the 11th day of November, 1908. Defendant was given 90 days in which to prepare and serve a case-made, and appeals.
    Appeal dismissed.

      J. E. Whitehead, for appellant.

      Charles L. 'Moore, Asst. Atty. Gen., for the State.
   PEE CUBTAM.

In so far as the record discloses, the ease-made was never served upon the county attorney. We must therefore sustain the motion of the Attorney General to strike frotn the record what purports to be the case-made. There is no certificate of the clerk of the court to the transcript of the record. We therefore are without jurisdiction to consider this attempted appeal either as upon a ease-made or upon a transcript of the record.

The appeal is therefore dismissed.