text:
    BEN CLEMMONS v. STATE. WILLIAM REDMOND v. STATE. WILL COPPICK v. STATE. EVERETT HUTTON v. STATE. BILL BUMGARNER v. STATE. JOHN PEMBERTON v. STATE.
    No. A-354.
    Nos. A-355, A-356.
    Nos. A-357, A-358.
    No. A-359.
    Nos. A-360, A-361.
    No. A-362.
    Opinion Filed February 6 1911.
    (113 Pac. 238.)
    1. APPEAL — Niotioe—Necessity of Written Notice. 'Under section 6949, Snyder’s Comp. Laws 1909. requiring' notice of appeal to be 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 by journal entry, is insufficient.
    2. NOTICE — Sufficiency—Statutory Provisions. Generally, where-ever a statute requires notice to be served in a legal proceeding, a written notice, capable of legal service, of proof and return, and of being filed, is intended, and especially so where service of such notice and proof thereof are jurisdictional.
    3. PROCESS — “Service”—“Service of a Notice.” The word “service,” when used with reference to summonses, writs, subpoenas, notices, and other legal processes, means the reading of the same . to the person to be served, or the delivery to such person of the original or a copy thereof; and the expression, “service of a notice.” without qualification of any kind, means a personal service of a written notice.
    4. APPEAL — Notice of Appeal — Nature. The notice of appeal in criminal cases, provided for in section 6949, Snyder’s Comp. Laws Okla., 1909, is analogous to a citation or a summons in error, and is designed to take the place thereof.
    5. APPEAL — Dismissal—Failure to Serve Notice of Appeal. Under section 6949, Snyder’s Comp. Laws 1909, notice of appeal and proof thereof, given and made within the time -prescribed for perfecting an appeal, is jurisdictional in a criminal case; and, where the record fails to show the service of such notice, the appeal will-be dismissed.
    (Syllabus by the Court.)

      Appeals from McIntosh Comity Cowtj Frank W. Bushing, Judge.

    Ben Clemmons, William Redmond, two cases, Will Ooppick, two cases, Everett Iiutton, Bill Bumgarner, two cases, and John Pemberton, were convicted of violating the prohibition law, and they appeal.
    Dismissed and remanded with directions.

      C. II. Tully, for plaintiffs in error.

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

Plaintiffs in error in each of the above entitled and numbered causes were convicted in the county court of McIntosh county for violations of the prohibition law. Appeals were attempted to be taken by filing in each of said causes a petition in error with case-made attached in this court on October 11, 1909. Briefs on behalf of plaintiffs in error were filed in due time. Said causes were assigned for final submission on Monday, January 16, 1911. On behalf of the state the Attorney General, appearing specially for this purpose alone, filed motions to dismiss the appeal in each cause, for the reason that: “No notices of appeal have ever been served and filed as provided and required by section 6949, Snyder’s Comp. St. 1909.” An examination of the record in each cause shows that the only notice of appeal given is by the following recital in each case-made: “Now comes the defendant herein by his attorney, O. H. Tully, and gives oral notice of his intention to appeal herein.” The case-mades show no service of notices of appeal upon either the county attorney, county judge, or clerk of the county court.

'The decisions upon this question are many, and this court has uniformly held that, in order to give this court jurisdiction, the notices prescribed by the statute must be served upon the clerk of the court and prosecuting attorney, and proof of service of such notices must be filed with the clerk of this court within the time in which an appeal may be taken.

The language of the court, speaking through Judge Richardson in the case of Ensley v. State, 4 Okla. Cr. 49, 109 Pac. 250, is peculiarly applicable here:

“Then all that is left for plaintiff in error to stand on is the fact that he gave oral notice of appeal to the 'proper officers in open court; and here we axe brought face to face with the real question in the case: Is oral notice sufficient? We think not. It may be laid down as a general proposition, first, that, wherever the statute requires notice to be served in a legal proceeding, a written notice, capable of 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; Rathbun v. Acker, 18 Barb. (N. Y.) 393.

“In the next place, in our opinion, a close and analytical examination of the section in question shows conclusively that only written- notice is contemplated. The statute provides that an appeal is taken by the service of a notice. The word ‘service’ itself, as used with reference to summonses, writs, subpoenas, notices, and other legal processes, means the reading of the same to the person to be served; or the delivery to such person of the original or a copy thereof. We are aware that there are times and occasions when the word is otherwise used; but, generally stated; in legal proceedings, when the expression ‘service of a notice’ is used without qualification, it means a personal service.of a written notice.

“In the next place, it will be observed that the statute provides that the appeal is taken by the service of a notice upon the clerk of the court where the judgment was entered. It does not require service upon the judge or upon the court, but only upon the clerk. There being no mandatory provision that the county court shall have a clerk, service either upon the county judge or his clerk, if he has one, is held good; but under this statute the service of notice upon the district judge or the district court in open court would not be good. The service in the district court must be upon the clerk of the court. In Baberick v. Magner, 9 Minn. 232 (Gil. 217), it is held that the purpose of requiring the notice to be served upon the clerk is that the files may be supplied with some evidence as to the character of the notice given, and that the notice served on the clerk is to be regarded as a file in the case. The statute further provides that, if the appeal be 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 court/ Suppose that the appeal be taken by the state, and that the defendant be found in the county; would oral notice to the defendant miles away from the county seat, be such service of notice upon him as is contemplated by the statute? Or would the state be required to serve a written notice upon him, and have proper proof and due return thereof made ?

. “In the next place, no provision is made in our statute for the issuance or service of citation or summons in error in a criminal case. In our opinion, notice of appeal is analogous to such summons in error, and is designed to take the place thereof. It was so held in Pacific Coast Ry. Co. v. Superior Court, 79 Cal. 103, 21 Pac. 609. And, when such purpose of' the notice is considered, we think that the conclusion must inevitably follow that the notice must be in writing, must be served, and the proof of service must be properly made. See Hunter v. Territory (Ariz.) 36 Pac. 175. The Indiana statute and our statute are identical, and in McLaughlin v. State, 66 Ind. 193, where appellant gave notice of appeal in open court and the same was entered upon the journal of the court, the Supreme Court dismissed the appeal, saying: ‘The statute provides that the appeal must be taken within one year after the judgment is rendered, and the transcript must be filed within 30 days after the appeal is taken. An appeal is taken by the service of a notice upon the clerk of the court where the judgment was rendered, stating that the appellant appeals from the judgment. If taken by the defendant, a similar notice must be served upon the prosecuting, attorney. 2 Rev. St. 1876, p. 411, §§ 151, 152. There being no proof of notice to the clerk and the prosecuting attorney, as above required, we have nothing before us to show that an appeal has been taken in the cause. It is the notice which constitutes the appeal. Winsett v. State, 54 Ind. 437; Buskirk, Practice, 417. An appeal In a criminal cause, during term time, by order of the court trying the cause, is not authorized by the statute, and does not dispense with the notice provided for in section 152, supra.' And in Buell v. State, 69 Ind. 125, the court said: ‘In section 152 of the Criminal Code of this state, it is provided that “an appeal is taken by the service of a notice upon the clerk of the court where the judgment was rendered, stating that the appellant appeals from the judgment. If taken by the defendant, a similar notice must be served upon the prosecuting attorney.” 2 Rev. St. 1876, p. 411. In the case at bar, it does not appear that the appellant has served any notice of his intended and attemptéd appeal upon either “the clerk of the court where the judgment was rendered,” or “upon the prosecuting attorney.” It does appear, however, from the record of the cause, that upon the rendition of the judgment below the appellant prayed an appeal to this court, and tendered h'is appeal bond with certain named sureties, which bond was approved. Such mode of appeal to this court, in a criminal cause, is not authorized by any provision of -the Criminal Code of this state. In the recent case of McLaughlin v. State, 66 Ind. 193, it was held by this court that an appeal in a criminal cause, during term time, was not authorized by the statute, and, though prayed for and granted in open court, such an appeal would not dispense with the notices required in and by said section 152 of the Criminal Code. In other words, it is the statutory notices which constitute the appeal. Buskirk, Prac. 417.' See, also, State v. Rogers, 71 Iowa, 753, 32 N. W. 7; Territory v. Hanna, 5 Mont. 246, 5 Pac. 250; Bailey v. Ter., 9 Okla. 461, 60 Pac. 117; Arispi v. Ter., 2 Okla. Cr. 79, 99 Pac. 1099; Howard v. State, 2 Okla. Cr. 642, 103 Pac. 864; McCullough v. State, 2 Okla. Cr. 717, 103 Pac. 1071.

“It is stated by plaintiff in error that in no decision construing this statute in this jurisdiction has it ever been said that the notice must be in writing; but we find that in Bailey v. Territory, 9 Okla. 461, 60 Pac. 117, Judge Burford said: ‘In either case the notices served upon the clerk and county attorney, with proof of service, should be filed with the record in this court, or duly authenticated copies filed in lieu thereof.' And in Arispi v. Territory, 2 Okla. Cr. 79, 99 Pac. 1099, Judge Doyle said: ‘In order to give this court jurisdiction, notice as required by the foregoing provision must be served upon the clerk of the court and the prosecuting attorney. The proof of service and the notices, or a waiver of the same, should be filed with the record in the appellate court, or in lieu thereof there should be filed duly authenticated copies/ And we are unable to perceive how an oral notice can be filed or a duly authenticated copy thereof made. We think that the construction heretofore placed upon this statute is correct. It has been uniformly followed in this court, and we see no reason why it should be changed now.”

The motions to dismiss are sustained. Said purported appeals are dismissed, and the cases are remanded to the county court of McIntosh county, with directions to enforce the judgments and sentences rendered therein.

FURMAN, PRESIDING Judge, and ARMSTRONG-, Judge, concur.


source: Caselaw Access Project

author: ARMSTRONG-, Judge.

license: Public Domain

text:
    BEN ANDREWS v. STATE.
    No. A-216.
    Opinion Filed February 6, 1911.
    (113 Pac. 241.)
    1, APPEAL — Failure to Serve Notice — Dismissal. When the record fails to affirmatively show that written notices of appeal were served on the clerk of the court and the county attorney, as the statute requires, the appeal will be dismissed.
    2. APPEAL — Record—Service of Case-Made. It is necessary for the record to affirmatively show that the case-made was served within the time allowed by the court.
    (Syllabus by the Court.)

      Appeal from Osage Oounly Court; O. T. Bennett, Judge.

    Ben Andrews was convicted of selling intoxicants, and he appeals.
    Dismissed.

      Hargis & Hill, for appellant.

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

The appellant was convicted in the county court of Osage county, on the 15th day of April, 1909, on a charge of selling intoxicating liquors. Motions for new trial and in arrest of judgment were filed and overruled and the appellant given 30 days in which to make and serve case-made. The petition in error was filed in the Criminal Court of Appeals on the 19th day of June, 1909. On the 14th day of May, 1909, the time for making and serving ease-made was extended for one day. Nowhere in the record does there appear an order extending the time in which the appellant might file his petition in error in this court. Section 6948, Snyder’s Comp. Laws 1909, provides that in misdemeanor cases the appeal must be taken within 60 days after the judgment is rendered, provided that the trial court may, for good cause shown, extend the time in which said appeal may be taken, not exceeding 60 days.

This appeal was not taken within the time provided by the statute, and the record fails to show that any notice of appeal was served on the clerk of the court or the county attorney. This court has repeatedly held that the record must affirmatively show the service of these notices in order to confer jurisdiction on this court to review the errors complained of in the court below. A number of cases have been determined by ns at this term involving this proposition. Clemmons v. State, Redmond v. State, Coppick v. State, Hutton v. State, Bumgarner v. State, Pemberton v. State, and others, ante, 113 Pac. 238.

The appeal is dismissed.

FURMAN, PRESIDING Judge, and DOYLE, Judge, concur.


author: ARMSTRONG, Judge.

text:
    GEORGE HENDRIX v. STATE.
    No. A-153.
    Opinion Filed February 6, 1911.
    (113 Pac. 544.)
    1. COURTS — Transfer of Causes — Procedure—Incomplete Transcript —'Return, (a) In order for the county court to acquire jurisdiction over causes presented by indictment in the district court, they must be properly transferred from the district court to the county court.
    (b) The transcript sent down should show all the orders of the district court, properly certified under seal by the clerk of the district court; and the county judge, upon receiving an incomplete transcript from the district court, purporting to transfer any cause, should, before filing the same, return it to the district court for proper completion.

      (c) Failing to do this and proceeding to trial on a record which fails to disclose jurisdictional facts is reversible error when the question is properly raised.
    2. SAME — Transfer of Indictment — Insufficiency—Procedure. The county court should have set aside the indictment and ordered a prosecution against the appellant by information.
    (Syllabus by the Court.)

      Appeal from Okfushee County Court; T. T, Boyle, Judge.

    George Hendrix was convicted of selling intoxicating liquor, and he appeals.
    Reversed and remanded.

      Crump, Rogers & Harris, for appellant.

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

The indictment upon which this prosecution is based, upon its face indicates that it was returned in the district court of Okfuskee county, Okla., at the March term, in the year 1908. The record nowhere discloses any order had in the district court upon the indictment, does not show that it was even filed in the district court, and there is no order transferring the same to the county court. In fact, there is no way of determining from the record how the indictment happened to be in the county court of Okfuskee county. There are no indorsements of any kind, except the names of the state’s witnesses, and nothing to indicate the authenticity of the indictment.

On the 1st day of June, 1908, the defendant, before being arraigned, filed a motion to .set aside the indictment, which motion was on the same day overruled by the court, the defendant saving exception. On the same day the appellant filed a demurrer to the indictment, which was overruled, the appellant saving exception. In both the motion to set aside the indictment, and the demurrer, the question of the improper transfer of the indictment, its sufficiency and authenticity, were raised.

There are other assignments of error, but we do not deem it necessary to consider them as they are not likely to arise again on a retrial of this cause, and are questions that have heretofore been determined by this court.-

The question of transferring indictments from the district court to the county court has been considered by this court in the case of State v. Henry Clifton, 2 Okla. Cr. 189, 100 Pac. 1124; Yaltz v. State, 3 Okla. Cr. 20, 103 Pac. 1104. The court held in those eases that the provisions of section 1, art. 2, c. 16, p. 210, Sess. Laws 1907-08, providing for the transfer of cases from the district court to the county court must be complied with in order to give the county court jurisdiction of the c'ase transferred.

The clerk of the district court should have transferred this indictment, together with a copy of all the orders made by the district court, including the order transferring the same, together with a bill of costs accruing in- the district court, properly certified under seal, to the county court of Okfuskee county. The county attorney should have seen to it that these orders were properly made and that this case was properly transferred. The county judge could have returned the papers in the ease to the clerk of the district court for proper completion before filing them, and this should have been done. It was error in the county court of Okfuskee county to proceed with the trial of this cause after those questions were properly raised by the appellant. The motion to set aside the indictment should have been sustained, and the county attorney directed to proceed against the appellant by information. The county court of Okfuskee county never acquired jurisdiction in this case. Johnson v. State, 96 Ky. 369, 79 S. W. 27; Mitten v. State, 24 Tex. App. 346, 6 S. W. 196; Yaltz v. State. 3 Okla. Cr. 20, 103 Pac. 1104.

The judgment is reversed and the cause remanded, with directions to the court below to set aside the indictment and instruct the county attorney to proceed against the appellant by information if the facts warrant a further prosecution.

FURMAN, PRESIDING Judge, and DOYLE, Judge, concur.


author: FURMAN, PRESIDING Judge.

text:
    G. A. JOHNSON v. STATE.
    No. A-379.
    Opinion Filed March 7, 1911.
    (113 Pac. 997.)
    1. INTOXICATING LIQUORS — Possession with Intent to Sell-Admissibility of Evidence. In prosecutions against a defendant for having in his possession whisky and beer with the unlawful intention of selling the same, it is not competent for the state to introduce evidence that liquors were consigned to the defendant at a time subsequent to the filing of the information or indictment against him.
    2. . SAME. Proof that liquor was consigned to a defendant who is being prosecuted for having liquor in his possession, with the unlawful intention of selling the same, is not competent, unless there is some, other testimony connecting the defendant with such liquor.

      (Syllabus by the Court.)

      Appeal from Goal County Gowrt; A. D. Brown, Special Judge.

    G. A. Johnson was convicted of violating the prohibitory liquor law, and he appeals.
    Reversed and remanded.

      J. G. Balls, for appellant.

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

On the 5th day of March, 1909, an information was filed in the county court of Coal county, Okla., charging that on the 3d day of March, 1909, in said county and state, the defendant did have in his possession wthisky and beer, with the unlawful intention on his part to barter, sell, give away, and otherwise furnish said intoxicating liquors.

Upon the trial of this cause, the state placed C. L. Lindstrom upon the witness stand, and he testified that, since the 27th day of July, 1909, he had been agent of the Missouri, Nansas & Texas railroad station at the town of Coalgate, Coal county, Okla., and that the records of his office contained copies of bills of lading showing that on the 28th day of April, 1909, two casks of beer had been reecived at said office consigned to G. A. Johnson, and that on the 22d day of April, 1909, two casks of beer had been received- at his office consigned to G. A. Johnson, and that on the 9th day of April, 1909, two casks of beer had been received at his office consigned to G. A. Johnson, and that on the 7th day of April, 1909, two casks of beer had been received at his office consigned to G. A. Johnson, and that on the 6th day of April, 1909, two casks of beer had been received at his office consigned to G. A. Johnson. This evidence was objected to by counsel for appellant upon the ground that it was incompetent, irrelevant, and immaterial, and the objections were by the court overruled. All of this evidence was improperly admitted, because it related to transactions that occurred after the filing of the information in this case, and should not have been received for the purpose of showing that the defendant had intoxicating liquors in his possession, with the unlawful intention on his part to sell the same, prior to the filing of the information. It requires neither 'argument nor citation of authorities to sustain the proposition that the. guilt of the defendant must be complete at the time when the accusation is filed against him, and that no one can be lawfully convicted of an offense which was committed subsequent to the filing of the prosecution against him. Indictments and informations are based upon past occurrences, and not upon future contingencies which may or may not happen. The mere fact that intoxicating liquors may be consigned to a given person does not of itself prove that such person has a guilty connection with such liquors. Therefore, even if these shipments had been received by the agent at Coalgate consigned to the défendant prior to the filing of the information in this case, such fact would not be admissible in evidence against him, unless there was some other testimony connecting him with such liquors.

It matters not how anxious the members of this court may be to see the laws enforced and the judgments of the lower courts sustained, we cannot ignore the flagrant disregard of the most elementary principles of law and justice which are presented in the record before us. The defendant may be guilty; but we cannot sustain a conviction based upon illegal testimony, to which objections were made and exceptions were reserved at the proper time.

For the admission of this testimony, the judgment of the lower court is reversed, and the cause is remanded.

.ARMSTRONG and DOYLE, Judges, concur.


author: PTIBMAN, PRESIDING Judge.

text:
    JOHN INGLES v. McMILLAN, Judge.

    No. A-1017.
    Opinion Filed March 7, 1911.
    (113 Pac. 998.)
    1. JUDGES — Disqualification—Bias, ffihe constitutional .provision which, guarantees to every person charged with crime a trial without prejudice, in so far as it relates -to the judge who presides at the trial, does not include the opinion of the judge as to the guilt or innocence of the defendant, hut, in order to disqualify a judge, it must he shown that he is biased against or entertains ill will or hostility toward the defendant of such a character as might prevent him from giving the defendant a fair trial, and this must be shown as a matter of fact, and not as a, matter of opinio.n of the defendant or any other person. A judge does not try the facts of a case. He simply passes upon the questions of law presented.
    2. CONTEMPT — What Constitutes — Private Interviews With Judges. It is highly improper for any person 'to approach or attempt to converse with a judge with reference to any case or matter pending before him. Such an attempt is an act of contempt of court, and subjects the person resorting to it to punishment for contempt.
    3. JUDGES — Disqualification'—Prejudice—Diligence in Urging. If a defendant, acting in good faith, really desires a change of judge upon the ground of prejudice, he should exercise due diligence in asserting his rights as soon as he can conveniently do so. after he has acquired knowledge or learns of prejudice against him on the part of the trial judge.
    (Syllabus by the Court.)
    Petition of John Ingles for a writ of mandamus to R. McMillan, Judge.
    Writ denied.

      B. B. Glaseo, for petitioner.

      Ben F. Williams, Jr., and Ben FrmMin, Co. Atty., for respondent.
   PTIBMAN, PRESIDING Judge.

Being prosecuted in the district court of McClain county by information for the crime of murder, petitioner, John Ingles, on the 16th day of February, 1911, filed with the cleric of said court an application for a change of judge, alleging, in substance, that the respondent, Hon. B. McMillan, the regular judge of said court, was so biased and prejudiced against the petitioner that petitioner could not have a fair and impartial trial in said court before said respondent. In support of this general charge, it was further alleged that petitioner had had a hearing on habeas corpus before respondent on an application for bail; that on said hearing said respondent had before him all of the evidence heard and taken at the preliminary hearing of petitioner, and also the evidence taken at coroner’s inquest held over the body of the deceased, and, after hearing all of said evidence on said habeas corpus proceedings, respondent made an order refusing bail to petitioner, and committed him to the custody of the sheriff of McClain county to await trial on said charge of murder; that thereby respondent became acquainted with the facts of the case as presented by the state, and that, by the order of respondent denying bail to petitioner, respondent had judicially acted upon and determined the probable guilt of the petitioner upon said evidence, and thereby respondent had become prejudiced against petitioner, and became incompetent and disqualified to sit upon the trial of this case*. In addition to the above general statements, petitioner alleged that some time during the month of October, 1910, at the Love Hotel, in the city of Purcell, in McClain county, the wife and mother of petitioner had approached respondent and asked him if he would not allow bail to petitioner upon said charge, and in reply thereto respondent stated that he could not give bail to petitioner as petitioner was guilty of a cold-blood murder, all of which was duly sworn to by petitioner. To this motion and affidavit was attached the affidavits of the mother and wife of the petitioner, supporting the allegations contained in the application for a change of judge. This motion for a change of judge was duly served on the county attorney, and was presented to the district judge, who, upon considering the same, declined to make an order disqualifying himself to hear and try said cause. On the 18th day of February petitioner applied to this court for a writ of mandamus requiring respondent to disqualify himself to act as judge in the trial of this cause. An alternative writ of mandamus was issued and set down for hearing on the 20th day of February, at which time respondent filed’ his reply, which is as follows:

“B. McMillan, the defendant herein, responding to the statements and allegations contained in the petition in the above cause, for his answer says: He admits that John Ingles, relator herein, is a resident of McClain county, Okla., and stands charged by information in the district court of said county and state of the crime of murder. He also admits that he, respondent herein, is the judge of the district court of McClain county, State of Oklahoma and that said cause of the State of Oklahoma versus John Ingles et at, was set for trial in said court on the 20th day of February, 1911. Bespondent admits that on the 16th day of February, 1911, the relator, John Ingles, filed his written application in this court, charging respondent herein with such prejudice against him that he cannot have a fair and impartial trial in said court; that a copy of said petition was duly served upon the county attorney of McClain county, Okla., and after the presentation of said application, and the court being fully advised in the premises, this respondent refused to disqualify himself to preside as district judge in the trial of said cause. Bespondent also admits that said application, with the affidavits thereto attached of relator, John Ingles,’ his mother, Nancy Ingles, and Myrtle Ingles, are a part of this petition, and were duly before the respondent in said application. Bespondent now for answer to said application and to the petition herein and the said exhibits, to wit, the affidavits of Nancy Ingles and Myrtle Ingles, has this to say: Bespondent admits that he was approached by Nancy Ingles and Myrtle Ingles aforesaid in the lobby of the Love Hotel in the city of Purcell as alleged, and says that they brought a conversation with him about giving the relator, John Ingles, bond, and that this conversation was after respondent had heard the proof on application for bail in said case. Respondent says that in said conversation on the request oO said wife and mother to give said John Ingles bond that he answered them that he could not give him bail; that the respondent did not know what his side of the case was and what he would prove on final trial, as he had not disclosed his side of the case; but that, as the cause then stood, the offense alleged against -the said John Ingles was murder, and he would hold him as such under the proof. He denies that he ever said that the said John Ingles was guilty of murder, and he did not and could not know upon the partial disclosure of the surrounding facts of the case as shown by the state and defense under the habeas corpus proceedings. He admits that he said in part what is contained in the two affidavits of the mother and wife of John Ingles (except he denies that he said it was a bloody murder) but made such statement in the context and conversation as stated above, and in no other way. Respondent distinctly remembers this conversation and all that was said. Respondent, further answering, says that he has another recollection of some other conversation had with one or both of these women before he had heard any part of the case for bail, and says, on being approached then for bail, he told them that he could not grant bail until he heard the case, and that the accusation against the said John Ingles and his brother, Rusty Ingles, was murder. In that conversation he may have said that under such accusation they could be found guilty of murder. Respondent here and now absolutely denies that he ever said or thought that either of said defendant, John Ingles or Rusty Ingles, were guilty of murder. He did not and could not know. He denies all bias or prejudice against either of the defendants, and avers his absolute ability, willingness, and readiness to give them a fair and impartial trial under the law and evidence of the case. Respondent refused the said John Ingles bond because homicide was admitted, the woman was killed, and he felt at the time that the extenuating circumstances were not sufficient to justify bond without his knowing more and further about the facts of the case. Therefore respondent, having fully answered hereto, prays to be hence dismissed with his reasonable costs.”

Upon the hearing of this matter, the motion and affidavits presented to the trial court for a change of judge were presented to the court, and, in addition thereto, the wife and mother of the petitioner -were introduced as witnesses. They.both testified substantially as is set out in the motion and in their affidavits attached thereto. Upon cross-examination the wife of petitioner stated that soon after her alleged conversation with respondent she informed one of the attorneys for petitioner of the statements alleged to have been made to her by respondent. She also testified that, so far as she knew, there was no unkind feeling existing between petitioner and respondent, and no ill will upon the part of respondent toward petitioner, except such as was indicated in the conversation between said witness and the respondent at the time she and her mother approached respondent for the purpose of getting him to grant bail to the petitioner, and that she based her affidavit entirely upon the alleged remarks made by respondent in reply to her request that he grant her husband bail. She also testified that this conversation took place at the noon hour, when court had adjourned for dinner. The testimony of the mother of the petitioner was substantially the same as that of his wife, except that she testified that the remarks alleged to have been made by respondent were made to the wife of the petitioner and herself in the evening after the court had adjourned for the day.

The history of the statutes in this state with reference to a change of judge upon the ground of prejudice and some of the evils and abuses growing out of these statutes were clearly and correctly stated by Judge Richardson in the case of Lewis v. Russell, 4 Okla. Cr. 130, 111 Pac. 819, as follows:

“Prior to the passage of the act approved March 22, 1909 (article 6, c. 24, Snyder’s Comp. Laws Okla.), the uncorroborated affidavit of the accused filed in a criminal case, stating in general terms that because of the bias and prejudice of the presiding judge the accused could not have a fair and impartial trial before him, of itself operated to disqualify such judge. The truth of the averment and 'the good faith of the defendant in making it were immaterial, and were not issuable anywhere at any time. A change of judge imperatively resulted from the. filing of the affidavit. Section 5427, Wilson’s Rev. & Ann. St. Okla. 1903; Lincoln v. Territory, 8 Okla. 546, 58 Pac. 730; Buchanan v. State, 2 Okla. Cr. 126, 101 Pac. 295. However moderately and justly this power of disqualifying judges may have been exercised before statehood, after the admission of Oklahoma into the Union it was greatly abused. Judges were constantly disqualified by defendants not overscrupulous in the use of their oaths, where no cause either real or apparent for change of judge existed, and where it was sought for the palpable purposes only of delaying, obstructing, and ultimately defeating justice. The affidavit was generally filed after the case was called for trial, and after a motion for a continuance and after an additional motion for a change of venue had been filed and overruled. The fact that no notice of the filing of such affidavit had been given, and that the state had gone to all the trouble and expense of preparing for trial, and had its witnesses present at the cost of the county, was immaterial. Often the trial calendar was deranged and the business of the court thrown into confusion. Either a continuance resulted, or else an exchange of districts by the disqualified judge with some other district judge was necessitated, usually involving a loss of time aggregating about two days for each judge, and always the expenditure by the state of the traveling and boarding expenses of each judge thus assigned to a district other than his own.”

The practice of disqualifying judges upon the ground of prejudice had been so much abused that it had fallen into great disrepute. In the majority of cases, it was the last resort of a desperate criminal to delay and defeat justice. Dissatisfaction with reference to this abuse became so general and pronounced that the 'Governor recommended that the Legislature enact such laws as would do away with disqualifying judges upon this ground, and the Legislature was on the point of complying with this recommendation of the Governor when they were advised that such a law would be repugnant to section 6 of article 2 of our Constitution, which is as follows:

“The courts of justice of the state shall be open to every person, and speedy and -certain remedy afforded for every wrong and for every injury to person, property, or reputation; and right and justice shall be administered without sale, denial, delay or prejudice.”

The Legislature was further advised that, while they could not abolish the right of a change of judge upon the ground of prejudice, yet they did have the power to provide reasonable and proper regulations by which the question of prejudice could be decided. In response to this advice and the demand which existed for relief, the Legislature passed the act of 1909. Our views upon this subject are fully presented in the cases of Ex parte Hudson, 3 Okla. Cr. 393, 401, 106 Pac. 540, 107 Pac. 735; Lewis v. Russell, 4 Okla. Cr. 129, 111 Pac. 818; O’Brien v. Clark (decided at this term) ante, 113 Pac. 543. It is not necessary to repeat here what was said in those cases.

The case now before us for the first time requires a decision as to what it takes under our Constitution to constitute disqualifying prejudice on the part of a trial judge. Under our system the jury try the facts and the judge tries the law. Section 6848, Snyder’s Comp. Laws Okla. 1909, is as follows:

“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.”

From this it is seen that a jury is not bound by instructions from the court as to the facts of a case and may lawfully convict a défendant in spite of the judges’ advice to the effect that the evidence is not sufficient to warrant a conviction. As the determination of the facts of a case is largely taken away from the trial judge, his opinion as to the guilt or innocence of a defendant is of very little importance, and does not at all disqualify him from giving the defendant a fair trial. If this were not true, no judge would be qualified to try any case if it had been before him either upon writ of habeas corpus or upon a former trial. The prejudice of a judge .which disqualifies him means bias or ill will, and must be personal on his part and against the defendant, and this prejudice must be proven to exist as a matter of fact, and not as a matter of opinion on the part of the defendant. A defendant is easily persuaded of the prejudice of a judge. Adverse rulings always convince him of that fact, and, if the opinion of the defendant that, the judge is prejudiced against him is sufficient to disqualify the judge, every defendant, when directly pressed, would seek delay in this manner, and that which was intended to promote fairness and justice would become exceedingly unfair to the state, and would result in the defeat of justice. A change of judge is wrong as to the public unless the necessities of justice to the defendant require it. It causes expense, it works delay, and it endangers a prosecution.

This question has been repeatedly passed upon by the appellate courts of other states. In Kansas prejudice on the part of a judge is a ground for a change of venue in a case. In the case of State v. Morrison, 67 Kan. 144, 72 Pac. 554, the Supreme Court of Kansas said:

“It is not the opinion which a trial judge may entertain as to the guilt or innocence of a defendant about to be put upon trial in his court which disqualifies such judge and entitles the defendant to a change of venue, but it is the existence of such prejudice in the mind of the judge against the defendant as may prevent defendant from having a fair and impartial trial of his cause which disqualifies, and such pxejudicé must be clearly made to appear.”

See, also, State v. Bohan, 19 Kan. 53. In the case of State v. Grinstead, 62 Kan. 593, 64 Pac. 49, that court said:

“A defendant in a criminal ease is not entitled to a change of venue on account of the prejudice of the judge against him, because he is himself prejudiced in feeling toward the judge, had violently opposed him in a political campaign for his office, had published during and subsequently to such campaign vituperative and libelous newspaper articles against him, calculated to arouse him to feelings of resentment and prejudice, and, by testimony which the judge asserted to be false, had endeavored to secure his removal from office for violations of the act to prohibit corrupt practices at elections, when the judge, notwithstanding all such unfriendly ‘conduct, by statement filed in court, disavowed all feelings of prejudice against the defendant, and when there was nothing proved against him, the judge, on the hearing of the motion for change of venue showing bias or prejudice on his part toward the defendant.”

Section 170 of the Code of Civil Procedure of California provides that no judge should sit or act in an action or proceeding "when it appears from the affidavit or affidavits on file that either party cannot have a fair and impartial trial before any judge of a court of record about to try the case by reason of the prejudice or bias of such judge.” In the case of Johnson v. Dankan, 9 Cal. App. 522, 99 Pac. 729, the Court- of Appeals of California, in construing this statute, said:

“The affidavits show that in February, 1905, the trial judge wrote a letter to the assembly while the Legislature of the state was in session, referring to certain charges pending against him, by which it was sought to impeach him, which letter contains some very emphatic expressions which are not couched in the most polite language. He refers to the charges as having been made against him by ‘a few cowardly and disreputable conspirators * * * pettifoggers and disgruntled litigants * * * vile and cowardly slanderers without reputable character or standing in the community in which they reside/ Conceding that the record shows that defendant's attorney was one of the parties seeking to have the judge impeached, the statement in the letter is general, no name is mentioned, and it was .evidently made under provocation and in a spirit of anger. It does not in any way refer to defendant, nor is there anything which would lead to the conclusion that anjr bias or prejudice or feeling had been shown by the judge toward the defendant personally. It further appears that in a previous trial of one Forgeus against this same defendant in the same court, and before, the same judge, some trouble occurred between this defendant and Mr. Cassin, an attorney of the local bar, and the judge made an order imposing a fine upon defendant, and did not fine Mr. C'assin, while it is claimed that Cassin was the one particularly at fault. Conceding that the judge erred in this, that fact of itself does not necessarily show any bias or prejudice on the part of the judge. It may have been the duty of the judge, in order to maintain the proper respect for the court, to impose the fine, and it may also have been his duty to have imposed a fine upon Mr. Cassin. If the conduct of the defendant in said matter was such as to call upon him the imposition of a fine, it would have been the duty of the judge to impose such fine even if defendant had been his best friend. The law knows no friend, no foe, and no flinching from duty. It is not at all unusual for a litigant to become angry at the judge, and in such moment of anger to believe the judge to be partial— even to abuse him — when, in fact, the judge is only doing his duty without regard to the question as to the personality of the parties. The fact that the trial judge was indebted to the Savings Bank of Santa Cruz, of which plaintiff is a stockholder and one of the directors, is not a legal disqualification, and as a matter of law we cannot say that it shows bias or prejudice. We must; presume the trial judge to be honest and solvent.”

In the case of People v. Findley, 132 Cal. 301, 64 Pac. 472, the defendant was on trial for embezzling $8,000 of public money in his hands as tax collector, etc. When the case was called for trial, he filed an affidavit of prejudice against the judge. The Supreme Court of that state, in passing upon this matter, said;

“Under subdivision 4 of section 170 of the Code of Civil Procedure, in order to obtain the change of the judge before whom a criminal case is to be tried, it is not sufficient that the affidavit of the defendant should state simply that the defendant believes that he cannot have a fair and impartial trial’ before the judge by reason of his bias or prejudice, but it must be made to appear from the facts stated in the affidavit or affidavits on file, to the satisfaction of a reasonable mind, that a fair trial cannot be bad before the judge about to try the case by reason' of the bias or prejudice of the judge.”

In the case of Vance v. Field, 89 Ky. 178, 12 S. W. 190, the Supreme Court of Kentucky decided that, in order to disqualify a judge from presiding at a trial upon the ground of prejudice, the ground of such disqualification must be such as would prevent any official of personal integrity from presiding in the case or as would prevent him affording a fair and impartial trial.

In the case of State v. Blount, 124 La. 206, 50 South. 13, that court said:

“Defendant at the same time moved the trial judge to re-cuse himself on the ground that he had formed and expressed an opinion concerning the matter in question adverse to the defendant. The motion set forth no legal cause for recusation, and was properly treated by the trial judge as frivolous. Where a motion assigns no legal grounds of recusation, it may be overruled without reference to another judge. State v. Chantlain, 42 La. Ann. 718, 7 South. 669. This court, in recently refusing the writs in State of Louisiana v. Avery Blount, In re Avery Blount Applying for Writs of Mandamus and Prohibition No. 17,461 (no written opinion filed), tacitly approved the ruling in the case of State v. Chantlain.”

In the case of Heflin v. State, 88 Ga. 151, 14 S. E. 112, 30 Am. St. Rep. 147, the Supreme Court of that state said:

“It does not per se disqualify a judge of the superior court to preside on the trial of an indictment for perjury that the same judge presided at the trial of the case in which the alleged perjury was committed, and also of a second case in which one of the witnesses in the first was convicted of perjury. Nor does any disqualification result as matter of law from the judge having by reason of his acquaintance or supposed acquaintance with the facts thus derived privately and unofficially advised the prisoner’s counsel to induce his client to plead guilty, saying that there was no doubt about his guilt and no earthly chance for him to be acquitted.”

In the case of Cochran v. State, 113 Ga. 736, 39 S. E. 337, the Supreme Court'of’that state said:

“A judge of the superior court is not disqualified from presiding at the trial of' an indictment merely because previously thereto he held a court of inquiry and bound the prisoner over.”

In the case of State v. Woods, 124 La. 738, 50 South. 671, the Supreme Court of that state said:

“The fact that a judge may have formed and expressed an opinion on the merits of a cause furnished no ground for his recusation. Such a suggestion is frivolous, and may be disregarded, without the formality of a reference to another judge.” "

In the case of Dailey v. State, 55 S. W. 821, the Court of Criminal Appeals of Texas said:

“A judge is not disqualified to preside at the trial of one indicted for keeping a disorderly house by reason of having attended a meeting of judges of the state, called for the purpose of devising ways and means for suppressing gaming and disorderly houses, and this though accused was brought under discussion at the meeting.”

In the case of Browning v. Lovett, 94 S. W. 661, the Court of Appeals of Kentucky said:

“Where the only reason assigned in an affidavit to disqualify a judge from trying an election contest was the fact that the chairman of the Republican county committee, who was alleged to be an active and unscrupulous adherent of the regular ticket, was a brother-in-law of the judge, and had openly boasted of his influence over him, and that contestants believed he would induce him to decide the contest adversely to contestants, but it did not appear that the judge authorized or approved such statements or that he was responsible for them, he properly declined to vacate'the bench.”

In the case of McDonald’s Adm’r v. Wallsend Coal & Coke Co., 135 Ky. 624, 117 S. W. 349, the Court of Appeals'of Kentucky said:

“The bias of a judge does not legally disqualify him from trying a case, unless it causes him to act corruptly or with such oppression as to be equivalent to corruption, and the cause for the removal of a judge must be such that, if he assumes to act in spite of it, it involves his personal integrity, or makes it improper that a man of integrity should preside in that matter, and the mere fact that a judge is unfriendly to personal injury does not disqualify him from trying a personal injury action.”

In the case of French v. Commonwealth, 97 S. W. 427, the Court of Appeals of Kentucky said:

“One charged with a criminal contempt demanded that the trial judge leave the bench, and showed that accused believed that the judge disliked him because of his failure to bring about a reconciliation between the judge and a third person which he claimed to have attempted some years previously at the’' request of the judge, but did not relate any fact showing such alleged dislike of the judge toward accused and mentioned no act of hostility on his part. Held, that the judge properly refused to vacate the bench on the showing made.”

We have not been able to find a single case in conflict with those above quoted where the law requires that prejudice as a matter of fact must be shown in order to disqualify a judge, and our conclusion is that such prejudice does not include the opinion of the judge as to the guilt or innocence of the defendant, but that it means that the judge must he biased against or entertain ill will or hostility toward the defendant, and this must be shown upon the trial in mandamus proceedings instituted for the purpose of disqualifying the judge. This is an entire departure from the proceedings for disqualifying a judge which existed in this state prior to the passage of the act of 1909. Under the law then in force, the uncorroborated affidavit of the accused filed in a criminal case, stating in general terms that, because of the bias and prejudice of' the presiding judge, the accused could not have a fair and impartial trial before him, of itself operated to disqualify such judge. But the statute which then controlled such matters was repealed by the act of 1909, and new and different proceedings were provided for. Upon the hearing of this case, the wife of the petitioner testified that she informed one of the attorneys for petitioner of her alleged conversation with respondent shortly after said conversation occurred. The fact that no motion for a change of judge was filed until the 16th day of February, 1911, more than three months after counsel for petitioner had notice of said alleged conversation, although the November term of the district court of McClain county had been held in the meantime, is strongly persuasive of the fact that counsel for petitioner either did not believe the statements of said witness or did not regard them as evidence of prejudice on the part of the respondent. It was further shown that, before the motion for a change of judge was presented, petitioner had had -subpoenas issued and served for witnesses to be present and testify in his behalf at-the trial of this case on the 20th day of February, 1911. This indicates that the motion for a change of judge is not now being prosecuted by petitioner in good faith, but merely for the purpose- of delaying the trial of this cause. Section 5 of the act of 1909 is as follows:

“Any party to any cause pending in a court of record- may in term time or in vacation file a written application with the clerk of the court, setting forth the grounds or facts upon which the claim is made that the judge is disqualified, and request him to so certify, after reasonable notice to the other side, same to be presented to such judge, and upon his failure so to do within three days before said cause is set for trial, application may be made to the proper tribunal for mandamus requiring him so to do.”

Under this law, if petitioner and his counsel really were of the opinion that respondent was prejudiced against petitioner, it is reasonable to believe that they would have filed the motion for a change of judge at the earliest possible moment after they learned of such prejudice, and thereby have avoided the trouble and expense of summoning witnesses arid the possible delay in the trial of the cause. The constitutional provision requiring that justice be administered without prejudice was only meant to insure a defendant a fair trial and cannot be used for the purpose of delaying and defeating justice. If a defendant desires to avail himself of this constitutional provision and the provisions of the act of 1909, he should exercise due diligence in asserting his rights as soon after he acquires knowledge of the prejudice of the judge as he can reasonably do so, and thereby save unnecessary expense and trouble to his witnesses and to the state and avoid interfering with the administration of justice. We desire to say in this connection that it is highly improper for any person to approach privately a judge and attempt to converse with him or attempt to secure an opinion from him with reference to a case pending before such judge, and we earnestly request the lawyers of this state to instruct their clients to this effect. No one should attempt to discuss a case with a judge before whom it is pending, or make remarks in the presence of such judge to influence him, except in open court, when both sides have' equal opportunities to be heard. The members of this court have been greatly annoyed and embarrassed by such attempted interviews and by receiving letters from persons interested in eases pending before us. We do not wish to be harsh or unreasonable, but to attempt to converse with or influence a judge with reference to a matter pending before him is an act of gross contempt, and, if parties interested in cases before us persist in resorting to such practices, we may be compelled to make an example of some of them, and we advise all trial judges in this state to pursue the same course. This is necessary to maintain the dignity of the courts and to protect the reputation of the judges.

Upon the hearing of the return to the writ of mandamus in this case nothing was proven to indicate bias against or ill will or hostility toward the petitioner upon the part of the respondent. We therefore find that the allegations contained in the motion to disqualify the judge are not sustained. The writ of mandamus is therefore denied.

ARMSTRONG and DOYLE, Judges, concur.


author: FURMAN, Peesiding Judge.

text:
    ROLAND WILLIAMS v. STATE.
    No. 180.
    Opinion Filed March 7, 1911.
    (113 Pac. 1060.)
    JUDGES — Disqualification—Election of Special Judge — Validity. Prior to the passage of the act approved March 22, 1909 (article 6, c. 24 Snyder’s Comp. Laws 1909), no provision having been made by law whereby a judge pro tempore could be elected in the event of the disqualification of the regular judge, a special judge elected by the members of the bar over the defendant’s objection was not a judge either de jure or de facto», and a trial had before him was a nullity.
    (Syllabus by the Court.)

      Appeal from District Court, Aiolca Countyj James H. Chambers, Special Judge.

    Roland Williams was convicted of larceny, and appeals.
    Reversed and remanded.

      J. G. Balls, for appellant.

      Smith C. Matson, Asst. Atty. Gen., for the State.
   FURMAN, Peesiding Judge.

It appears from the record that when this case was called for trial lion. A. T. West, judge of the Seventeenth judicial district, being disqualified to sit in this case, announced that it would be necessary for the bar to elect a special judge to try this case, whereupon Mr. J. G. Ralls, attorney for appellant, requested that Mr. J. PI. Gernert, who' acted as special judge on a former trial of this case and who was present in the courtroom, be permitted to preside at the present trial, which motion was by the court overruled, and the court then ordered that the bar proceed to elect a special judge to try the cause, to all of which appellant objected and excepted. The bar then proceeded to elect Mr. J. H. Chambers as special judge, and he presided during the trial of this case. Counsel for appellant in his brief says:

“The district judge had no authority to require the bar to elect a special judge, and the election held under said order, being without authority, was void. The special judge elected had no authority whatever and all actions taken are absolutely void. That part of section 9, art. 7, Const., providing for the election of a special judge, is not self-executing. It requires an act of the Legislature to give it effect.”

.Passing upon this precise question in the case of Cowart v. State, 4 Okla. Cr. 122, 111 Pac. 672, Eichardson, Judge, spealdng for the court, said :

“We think the contention sound, and that plaintiff in error’s objection should have been sustained. The constitutional provision is as follows: Tn the event any judge shall be disqualified for any reason from trying any case • in his district, the parties to-such case may agree upon a judge pro tempore to try the same, and if such parties cannot agree, at the request of either party a judge pro tempore may be elected by the members of the bar of the district, present at such term. If no election for judge pro-tempore shall be had, the Chief Justice of the state shall designate some other district judge to try such case.’ In our opinion the holding of such an election necessitates the provision of some-method of voting, of canvassing and tabulating the votes cast, and of declaring and recording the result; and the votes must be canvassed and the result determined and declared by some person or persons designated by law. Provision must be made for the time and place of holding the election, and the notice to be-given thereof; and some one must be vested with the authority to determine who is entitled to vote in such election. But the Constitution makes provision for none of these matters. It merely declares that at the request of either party a judge pro tempore may be elected. It does not provide the machinery or procedure 'for holding the election. It contains no provision for notice to the bar or any other person of the time and, place of holding it; no provision insuring its fairness, regularity, and legality; no provision insuring the correct declaration of the result. No record is required-to be made or kept, and no person is authorized or empowered to determine and declare the result. Without a requirement of notice that such an election is to be held and the time thereof with no method of voting provided for, with no person designated to conduct the election and to pass upon and determine the right of any person to vote therein, no one authorized to declare the result, no record required to be made, no minimum limit as to the number whose participation may constitute an election, no provision as to whether a mere plurality -or a majority vote is required to-elect, and no restrictions upon the right of the interested attorneys to participate therein, all sorts of fraud and wrongdoing 'could easily be perpetrated in an attempted election, and the appellate court could have no means of telling and no rule for determining whether the election was fairly, honestly, and legally, conducted, and whether the person who presided as special judge in the trial was in fact elected. An unseemly scramble for advantage in the election might easily ensue; and one side or the other, by employing three or four attorneys, might by their votes control the election and place on the bench as special judge an unfit, incompetent, or partisan person. In our opinion by every declared test this provision is not self-executing. It grants the power and creates the right to elect a special judge, but it provides no means or procedure bv which the power may be ■exercised or the right enforced or protected, and the provision of such means and procedure is necessary to give it effect. Ex parte Wagner, 1 Okla. Cr. 148, 95 Pac. 435; Id., 21 Okla. 33, 95 Pac. 435. It is probable that had the defendant and the state each consented or agreed to such an election, or participated therein without entering an objection, that might be held to be an agreeing upon a judge pro tempore within the meaning of the Constitution; that is, it might be held to be an agreement that suc’i person as might be thus designated should be the judge pro tem-pore. But no such question arises in this case, for plaintiff in error specifically objected to holding the election and refused to participate therein; and the judge pro tempore then and there elected was without right or power to try the case. As we view the matter, there being no agreement upon a judge pro tempore ■ to try the case as provided by the Constitution, and no provision made by law whereby an election could be held, Judge Woods was not a judge either de jure or de fado, and the trial was a nullity and the judgment void.” i

We still entertain the the same views expressed in the Cowart case. The judgment of the lower court is therefore reversed and remanded.

ARMSTRONG and DOYLE, Judges, concur.


author: FURMAN, PresidiNG Judge.

text:
    JOE PRICE v. STATE.
    No. A-452.
    Opinion Filed March 7, 1911.
    (113 Pac. 1061.)
    1. APPEAL — Review—Absence of Briefs. Where an appeal is taken and no briefs are filed on behalf of appellant pointing out the specific errors relied upon, this court will not do more in a misdemeanor case than examine the record for jurisdictional errors, and, if none such appear, the judgment will be affirmed.
    2. APPEAL — Presumption^. This court does not act upon the presumption that everything which was done in the lower court is erroneous until it is shown to be correct, and is not hunting for excuses to set aside verdicts and judgments, but, on the contrary, we act upon the presumption that all proceedings in the trial court are proper and regular until It is shown that such is not the case. The appellant assists in the selection of the jury, and he thereby vouches to .this court for their intelligence, fairness. and integrity. Being thus recommended the court must accept the verdict of the jury as being correct, unless the appellant clearly points out errors committed by the judge or jury.
    (Syllabus by the Court.)

      Appeal from Bryan Qonnly Court; .Charles A. Phillips, Judge.

    Joe Price was convicted of escape from jail, and appeals.
    Affirmed.

      Smith C. Matson, Asst. Atty. Gen., for the State.
   FURMAN, PresidiNG Judge.

The Assistant Attorney General has filed a motion to affirm this case upon the ground that no brief has been filed and no appearance made on behalf of appellant, and that the record fails to show that any jurisdictional error was committed in the lower court. We are at a loss to understand why it is that counsel take an appeal to this court, and fail to prosecute said appeal by. filing a brief pointing out the specific errors upon which they rely. Every facility for filing briefs on the part of those who take appeals is offered by this court. They can be prepared without expense and with very little labor, as we permit typewritten briefs to be filed. Counsel must know that in cases of this kind where an appeal is taken and no brief is filed, except in cases of the gravest character, the court will not examine the record for other than jurisdictional errors appearing therein. This rule has always been enforced in Oklahoma. See Wellman v. Territory, 2 Okla. 152, 37 Pac. 1066; Steil v. Territory, 4 Okla. 497, 46 Pac. 1117; Territory v. Brady, 4 Okla. 514, 46 Pac. 573; Foust v. Territory, 10 Okla. 214, 61 Pac. 923; White v. Territory, 11 Okla. 172, 65 Pac. 835; Hiatt v. Territory, 14 Okla. 363, 78 Pac. 81; Manning v. United States, 14 Okla. 604, 78 Pac. 92; Picklesimer v. Territory, 15 Okla. 193, 79 Pac. 777; Hance v. State, 2 Okla. Cr. 124, 100 Pac. 260; Lightle v. State, 2 Okla. Cr. 334, 101 Pac. 608; Banks v. State, 2 Okla. Cr. 339, 101 Pac. 610; Sturgis v. State, 2 Okla. Cr. 362, 102 Pac. 57; Price v. United States, 2 Okla. Cr. 449, 101 Pac. 1036; Elerick v. State, 2 Okla. Cr. 701, 103 Pac. 1038; Belt v. State, 2 Okla. Cr. 705, 103 Pac. 1069; Burgess v. State, 3 Okla. Cr. 127, 104 Pac. 916; Pulliam v. State, 3 Okla. Cr. 141, 104 Pac. 919; Meeks v. State, 3 Okla. Cr. 391, 106 Pac. 533; House v. State, 3 Okla. Cr. 467, 106 Pac. 806; Teels v. State, 3 Okla. Cr. 646, 108 Pac. 415; Stack v. State, 4 Okla. Cr. 1, 109 Pac. 126; Starr v. State, 4 Okla. Cr. 128, 111 Pac. 668; Walling v. State, 4 Okla. Cr. 414, 111 Pac. 1001; Simmons v. State, 4 Okla. Cr. 449, 109 Pac. 1117; Bonner v. State, 4 Okla. Cr. 639, 109 Pac. 1113.

Previous to statehood, if briefs were not filed in the United States Court of Appeals of the Indian Territory within the time allowed by the court, the appeal would be arbitrarily dismissed. See Poe v. United States, 6 Ind. T. 142, 89 S. W. 1020.

In the case of Knox Simmons v. State, 4 Okla. Cr. 489, 112 Pac. 35, Doyle, Judge, speaking for this court, said:

“The plaintiff in error has not been represented by counsel on his appeal, although he was ably represented and well defended upon the trial in the court below. No briefs have been filed nor argument made in this court. On May 14, 1910, the Attorney General filed a motion to affirm the judgment for want of prosecution. It is apparent that this appeal was taken merely for the purpose of delay. Counsel have no right to appeal simply for the purpose of delay, nor unless they believe there is some ground for reversal, and if there is any reason for appealing, even though doubtful and inconclusive, it should be presented to the court for consideration, or some sufficient reason given for the failure so to do.”

There are three good and sufficient reasons which support the rule requiring that briefs must be filed: First. 'The Attorney GeneraPs office is overcrowded with work, and it is unfair to that department, already burdened as it is, to be called upon to file a reply brief for the state when no brief has been filed on the part of the appellant. Every presumption must be indulged in favor of the regularity of the proceedings of the lower court, and he who complains of a want of such regularity has the burden of showing where such irregularity exists, and how he has been deprived of a substantial right thereby. When no such showing is made, the judgment of the trial court should be affirmed, unless it appears upon the face of the record that the court was without jurisdiction. Second. It is unfair to the public, when our docket is already crowded with cases which 'should be disposed of, to require the judges of this court to spend time in examining the record in each case to see if errors were not committed by the trial court, although none are .complained of. Third. It is unfair to the members of this court, who are already burdened with work to the limit of human endurance, to expect its members to search records for errors either real or supposed of which counsel for appellant ¡do not complain, and of which they think so little that they have not taken even the time and trouble to call the attention of the court to them. Where counsel perfect an appeal and fail to file briefs, it is equivalent to saying to the members of this court, “I have taken this appeal only for the-'purpose of delay,” or, “If errors occurred in the trial, of this cause, I do not know it, and I want you to get out a search warrant and see if you can find any.” This is just what we understand when a cause is submitted and we find that briefs have not been filed. Owing to the great multiplicity of appeals that have been taken, we are now over one year behind with our work, although we give it our entire and undivided time and attention. We cannot act in the double capacity as counsel for parties and as a court.

This court does not act upon the presumption that everything which was done in the lower court is erroneous until it is shown to be correct, and is not hunting for excuses to set aside verdicts and judgments; but, on the contrary, we act upon the presumption that all proceedings in the trial court are proper and regular until it is shown that such is not the case. The appellant assists in the selection of the jury and he thereby vouches to this court for their intelligence, fairness, and integrity. Being thus recommended, the court must accept the verdict of the jury as being correct, unless the appellant clearly p'oints out errors committed by the judge or jury. It is the duty of this court to decide questions properly submitted to it, and, when no briefs have been filed, except in cases of the gravest character, we will not do more than examine the record for jurisdictional errors.

We find no jurisdictional errors in the record of this case, and it is therefore affirmed.

ARMSTRONG- and DOYLE, Judges, concur.


text:
    JOHN FARMER v. STATE.
    No. A-949.
    Opinion Filed March 7, 1911.
    (114 Pac. 753.)
    1. APPEAL — Transfer of Case — Time— Construction of Statutes. Sections 6948-and 6949, Snyder’s Comp. Laws of Oklahoma, 1909, must be construed together, and they mean that an appeal in a criminal case to this court must be filed within the time prescribed by section 6948, and that if the appellant fails to file a transcript of the record or case-made in this court, or fails to serve notice thereof within the time prescribed by section 6948, that this court will not acquire jurisdiction of such appeal, and the a<ppeal will be dismissed.
    2. NEW TRIAL — Grounds— Inability to Obtain Case-made. Where • counsel for a defendant have exercised all possible diligence to obtain a case-made within the time prescribed by section 6948, and have been unable to do so through no fault of theirs, the trial court should set aside a conviction and grant the defendant a new trial.
    3. APPEAL — Inability to Obtain Case-Made — New Trial. Where a record conclusively shows that counsel for appellant have exercised every possible diligence to obtain a case-made, and through no fault of theirs have been unable to obtain such case-made, this court will reverse a conviction of the lower court upon the ground that the appellant, through no fault of his or his counsel, has been 'deprived of the constitutional right to have this court pass upon alleged errors committed in the trial court.
    4. APPEAL — Record—Correction. Under section 6077, Snyder’s Comp. Laws of Oklahoma, 1909, where a transcript of the record or case-made has been filed in this court in due time, and by proper motion it is made to appear that any matter is of record in the court from which the appeal is taken touching the cause appealed, or any evidence heard on the trial of said cause, or that any statement or certificate or motion or other matter is omitted from such record or case-made, or are insufficiently stated therein, this court will allow the appellant, a reasonable time within which to prepare such omitted parts of the transcript of the record or case-made under the direction of the trial judge, and file such corrections in this court, and when so filed such corrections or added parts will have the same force and effect as though they had been originally incorporated in the record or case-made when first filed in this court.
    5. SAME — Notice of Corrections. When attorneys desire to correct a transcript of the record or case-made, they must give reasonable notice to the opposite party, not only of the motion to correct the reoord made in this court, but also, if said motion is granted by this court, they must serve upon the opposite party a copy of the corrections desired to be made before such corrections are submitted to the trial judge, and give such opposite party an opportunity to be heard by the trial judge before such corrections are approved and certified to by such judge.
    0. APPEAL — Proceedings for Transfer — Transcription of Stenographic Notes. Where a defendant desires to appeal his counsel should promptly deposit with the court stenographer a sufficient sum of money to pay for having the notes of the testimony extended, and should then request the trial court to make a mandatory order requiring such stenographer to extend the notes of the testimony within sufficient time to allow the defendant to perfect his appeal within the time required by law.
    7. APPEAL — Proceedings for Transfer of Cause — Time for Taking— Power to Extend. No court has the power to grant an extension of time, beyond that allowed by statute, within which an appeal can be filed in this court.
    (Syllabus by the Court.)

      Appeal from District Court, Tulsa County; L. M. Poe, Judge.

    John Farmer was convicted of manslaughter, and he appeals.
    Dismissed.'
    On the 30th day of March, 1910, appellant was convicted in the district court of Tulsa county of the offense of manslaughter in the first degree, and his punishment was assessed at confinement in the penitentiary at hard labor for a period of seven years. Appellant attempted to appeal. The transcript of the record and ease-made were not filed in this court until the 18th day of November, 1910. Appeal dismissed.

      A. Nicodemus and E. G. Wilson, for appellant.

      Smith Q. Matson, Asst. Atty. Gen., for the State.
   FURMAN, PRESIDING Judge.

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

“Comes now Charles West, Attorney General, and appearing specially and for the purpose of this motion only, moves the court to dismiss the pretended appeal herein for the following reason: Because the record shows that the judgment of conviction was rendered on the 30th day of March, 1910, and the case-made herein was not filed in the office of the clerk of this court until the 18th day of November, 1910, and after the six months had expired in which to perfect said appeal as required by section 6948, Snyder’s Compiled Laws of Oklahoma, 1909. Wherefore said Attorney General says that this court is without jurisdiction in this ease, except to dismiss said pretended appeal. Charles West, Attorney General. Smith C. Matson, Assistant Attorney General.”

The record supports the statements of fact contained in the motion. The statute referred to is as follows:

“In misdemeanor cases the appeal must be taken within sixty days after the judgment is rendered: Provided, however, that the trial court or judge may, for good cause shown, extend the time in which such appeal may be taken not exceeding sixty days. In felony cases the appeal must be taken within six months after the judgment is rendered, and a transcript in both felony and misdemeanor cases must be filed as hereinafter directed.”

Counsel for appellant in their brief say:

“The position of the plaintiff in error is that the court in which the case was tried or the judge thereof has the right, when good cause is shown therefor, to extend the time in which to make and serve a case-made and to file the petition in error beyond the six months mentioned in section 6948, sufra,!’

They further contend that the statute relied upon by the Attorney General simply prescribes the time within which the notice of appeal shall be served, as provided for by section 6949, Snyder’s Comp. Laws of Okla. 1909, which 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.”

We think that sections 6948 and 6949 should be construed together, and that they mean that the appeal must be completed within the time prescribed by section 6948, and that if there has been a failure either to file a transcript of the record or case-made with the Criminal Court of Appeals, or to serve notice thereof within the time prescribed by the statute, that this court is without jurisdiction to consider such appeal. Section 6948 is an amendment, and took the place of section 5609 of Wilson’s .Rev. & Ann. St. of Okla. 1903, which is as follows:

“The appeal must be taken within one year after the judgment is rendered, and the transcript must be filed as hereinafter directed.”

This statute has been repeatedly construed by the Supreme Court of Oklahoma Territory. In the case of Henry Swan v. United States, 2 Okla. 114, 37 Pac. 1061, the defendant was found guilty of manslaughter, and judgment and sentence was pronounced upon him on the 7th day of November, 1892, and on the 4th day of December, 1893, defendant filed a transcript of the record in the Supreme Court of Oklahoma Territory. The Attorney General filed a motion to dismiss this appeal upon tire ground of want of jurisdiction. Chief Justice Dale, in rendering the opinion of the court, said:

“It is well settled that appeals will lie in those cases only where the statute provides for the appeal, and that, in order for a person to avail himself of the right of appeal, he must substantially comply with all of the reasonable requirements of the statutes. The Statutes of Oklahoma, in section 4, article 16, Procedure Criminal, provide that appeals must be taken within one year after the judgment is rendered. In the case under consideration it appears that more than one year elapsed from the time the appeal was prayed for and allowed by the district judge before the same was properly taken. The statute requiring that appeals shall be filed within one year is a reasonable statute, and where a party appealing fails to bring himself within the requirements of such statute, this court will not consider such appeal.”

In the case of John Spray v. Territory of Oklahoma, 6 Okla. 1, 37 Pac. 1074, the defendant was convicted for the offense of rape. Judgment was rendered on the 19th day of December, 1892, but the record was not filed in the Supreme Court until the 16th day of January, 1894. A motion was filed by the Attorney General to dismiss the appeal. In a per curiam opinion the court said:

“An agreement of attorneys, prescribing the time or manner of taking such appeal or bringing such writ of error here, cannot be substituted in lieu of the provisions of the statute. The appeal is dismissed.”

In the ease of John A. Cox v. Territory, 6 Okla. 581, 52 Pac. 1134, the opinion of the court, upon a motion to dismiss the appeal, is as follows:

“The appellant was indicted and convicted under section 13-, art. 5, c. 3, Laws of Oklahoma, 1893, of the crime of misbranding cattle, and was, on the 16th day of October, 1895, sentenced to imprisonment in the territorial penitentiary for a period of 18 months. 'The appeal was not filed in the Supreme Court, until March 22, 189? In Swan v. United States, 2 Okla. 114 [37 Pac. 1061] this court held that section 4, art. 16, of our Procedure Criminal Act, limits the time in which appeals may be taken to one year. We are still of the same opinion, and the appeal is therefore dismissed.”

It is seen by this that the Supreme Court of Oklahoma Territory took the same view of this question which we have talcen. The reason why section 6948, Snyder’s Comp. Laws of Okla. 1909, was adopted in lieu of section 5609 of Wilson’s Rev. & Ann. Stats, of Okla. 1903 is that when statehood came it was found to be almost impossible to enforce the prohibitory liquor law from the fact that, under the law in force prior to statehood, the defendant was allowed one year within which to perfect his appeal. Convictions would be obtained in these cases, and the defendant would have one year from the date of judgment within which to bring his case to this court for review. So the law was amended, and the intention of the Legislature was to require defendants in misdemeanor cases to perfect their appeals within 60 days, but the power was given to the trial court or judge, for good cause shown, to extend such time, not exceeding 60 days. The Legislature went further and provided that all appeals in felony cases must be taken within six months after the judgment is rendered, and that transcripts on both felony and misdemeanor cases must be filed as ‘^hereinafter directed.” This directiqn with reference to the filing of transcripts does not relate to the question of time within which an appeal shall be perfected, but merely to the manner in which appeals should be prepared and taken.

In tlie case of Ensley v. State, 4 Okla. Cr. 57, 109 Pac. 250, Judge Bichardson, speaking for the court, said:

“In 1909 the Legislature passed an act requiring appeals in misdemeanor cases to be taken within 60 days after rendition of judgment, unless the trial court, for good cause shown, should grant an extension of time for that purpose, not exceeding 60 days. Section 6948, Snyder’s Comp. Laws. This act became effective June 11, 1909. Prior to that time a defendant had a year in which to perfect his appeal. The oifen'se 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 Í9th, motions for a new trial and in arrest of judgment were filed and were overruled on October 2, 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 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 affect 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. No proceeding of any kind had been instituted at the time the act in question became effective. No right of appeal had accrued, because no trial had been ‘begun.’ ’And 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 mailing criminal tne 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 taldng the appeal, is not within either the letter or the spirit of the section quoted.”

It is true that this was a misdemeanor case, and that in misdemeanor cases the judge or court has the. power to grant an extension of time for serving a case-made, not exceeding 60 days. The fact that the Legislature granted permission to the trial court to extend the time within which an appeal might be ¡perfected in misdemeanor cases and in the same section limited the time within which appeals might be taken in felony cases, and failed to authorize the trial court in felony cases to extend such time, shows conclusively that it was the intention of the Legislature to force the attorneys in felony cases to perfect their appeals within six months. While it is true that the right of appeal is recognized by the Constitution, and therefore cannot be taken from a defendant, it is also true that it is for the Legislature to prescribe the manner and time within which such appeals must be perfected. And when such provisions are made by the Legislature as are reasonable and just, they then become jurisdictional, and no court has the right or power to disregard them.

In the case of Jones v. State, 4 Okla. Cr. 661, 112 Pac. 760, Judge Richardson, speaking for the court, said:

“Section 6948 of Snyder’s Comp. Laws provides that in misdemeanor cases the appeal must be taken within 60 days after judgment is rendered, except that the trial court or judge, for good cause shown, may extend the time for the taldng of such appeal, not exceeding 60 days. Tinder this provision the trial judge cannot extend the time more than 60 days, and any attempt on his part to extend the time for filing the petition in error and case-made in this court, so far as to permit its being filed herein after the expiration of 120 days from the date of the rendition of judgment, is inoperative and void. In this ease the petition in error and case-made were not filed in this court until March 12, 19j0, 178 daj's alter the rendition, of judgment. The state has filed a motion to dismiss the appeal on that account, and the motion will be sustained.”

In the case of Ben Hughes v. State, 4 Okla. Cr. 333, 111 Pac. 964, the defendant was convicted of grand larceny. Judgment was rendered against him on the 22d day of July, 1909, but the notice of appeal was not served until the 23d day of February, 1910. Appellant in that case resisted the motion to dismiss the appeal upon the ground that when the offense was committed the statute gave parties convicted of a felony one year within which to perfect an appeal; but this court held that section 6948 went into effect in June, 1909, and, as the defendant was convicted subse-' quent to that time, the law was applicable to his case. The appeal was dismissed. We think that six months is reasonable time for preparing and serving a case-made and filing the record in this court. . The writer of this opinion practiced law in Texas for many years at a time when, what was ¡mown as the statement of facts and bill of exceptions had to be filed within at least 10 days after the adjournment of court. This statement of facts and bill jf exceptions served the same purpose that a case-made serves in Oklahoma, viz., it brought up all matters not of record. At that time court stenographers were unknown, and these statements of facts and bills of exceptions were made up by the attorneys from memory alone. The writer never experienced any difficulty in getting up his records in time, and is of the opinion that the more time that is given to work on these records the more careless counsel become. If counsel for appellant in this case had applied to the trial court for a mandatory order requiring the court stenographer to extend his notes of the trial in time to enable them to perfect this appeal within the time required by law, the judge would doubtless have issued such an order, and this case would not be in the condition which it now occupies.

But it is contended by counsel for appellant that cases may arise in which it may be impossible for appellant to secure a case-made within the time prescribed by law, and that, too, without fault on his part, and thereby he might be deprived of his constitutional right to have his appeal reviewed on a casehnacle. Where such a contingency arises, then the defendant should be granted a, new trial, either by the trial court or on appeal by this court. See Tegeler v. State, 3 Okla. Cr. 595, 107 Pac. 949. But before this can be done, it must be conclusively shown by the record that counsel for appellant did everything within their power in an effort to obtain a case-made, and their failure to do so was not the result of their negligence or want of care. The record in this case contains the following: “Service of the above case-made is hereby acknowledged and accepted on this the 26th day of August, 1910. N. A. Breckenridge, County Attorney.” This was more than a month before sis months had expired from the date of conviction. So it affirmatively appears from the record that appellant had ample time within which to file his ease-made in this court before the expiration of the time provided by law. This matter being called to the attention of counsel for appellant, in the argument of this case, they stated that as a matter of fact the stenographer had not completed extending: his notes at the time that acceptance of service of the case-made was signed by the county attorney, and for this reason they could not file a complete ease-made within the time prescribed by law. Just such contingencies as this are provided for by section 6077 of Snyder’s Comp. Laws of Oklahoma, 1909, which is as follows:

“If, after any record or ease-made is' filed in the Supreme Court, in an'appeal in either civil or criminal cause, it shall appear that any. matter which is of record in the court from which the appeal is taken, touching the cause appealed, or that any evidence heard on the trial of said cause, or that any statement or certificate or motion, or other matter is omitted from such record or ease-made, or are insufficiently stated therein, the Supreme Court may, on its 'own motion, order; or on motion of any party to such cáuse, may within a reasonable time, to be fixed by the Supreme Court, if in session, and if not in session to be fixed by any justice of that court, other than the judge who tried said cause, prepare such omitted parts under the direction of the trial judge, and file such corrections in the Supreme Court, with like force and effect as though such corrected or added parts had been originally incorporated in the record or case-made, when first filed in the Supreme Court, and no appeal shall be dismissed by reason of such errors or omissions, until an opportunity be allowed, and then given to supply such corrections, and if ordered by the court on its own motion, the parties shall be given’ reasonable notice of the time allowed, and if made on the motion of one of the parties, the party desiring to amend must give to the opposite parties such notice as the court may by rule prescribe; or the parties, appellant and appellee, may by written agreement file such corrections. If such corrections be not made within the'time so allowed, then the appeal may be dismissed, or judgment be affirmed, as the court may deem proper, and such order to correct, or leave so to do, may be had at any time before the cause is finally decided by the Supreme Court.”

If counsel for appellant had filed in this court a transcript of the record and as much of the case-made as they had been able to prepare and serve within the .time prescribed by law, under this statute this court would have had the power, upon a proper showing, to grant them sufficient time to prepare the omitted parts of the case-made, under the directions of the trial judge, and to file such corrections in this ease, and such corrected case-made would have been just as legal and binding as though it had been originally incorporated in the case-made when first filed in this court. Attention is called to the case of Hunter v. State, 3 Okla. Cr. 535, 107 Pac. 444, where counsel for appellant availed himself of the provisions of this statute. In that case this court said:

“November 18, 1909, there was filed in this court petition in error, with case-made attached, together with proof of service of notices that defendant appeals. Whereupon an order was made, granting a stay of execution, subject to such order or judgment as may be made in said cause by this court. January 26, 1910, on motion of the defendant, he was permitted to file a corrected case-made, containing a transcript of the evidence taken on the trial and other matters omitted in the original case-made.”

The record in this case shows that the appellant was able to give bond pending an appeal. This being the case, it is safe to say that appellant, if he had tried to do so, could have furnished the money necessary to pay the stenographer for extending the notes of the testimony in this case. His counsel should have promptly deposited with the court stenographer the necessary fees -for extending the testimony, and then applied to the trial court for a mandatory order requiring the stenographer to extend said notes in time to enable them to perfect this appeal. Men must learn that it is a very serious matter to be found guilty of an offense by a jury in Oklahoma, and that those who would avoid the consequences of a conviction must exercise the utmost diligence and bring themselves within the provisions of the statute on the subject of appeals. If this had appeared in the record, a very different question would be presented for our decision than that which is now before us.

In view of the fact that more than six months elapsed from the rendition of the judgment before the case-made was filed in this court, we are without jurisdiction to entertain the appeal, and the motion of the Attorney General to dismiss this appeal must be sustained. The appeal is dismissed, and the district court of Tulsa county is directed to proceed with the execution of the judgment.

ARMSTRONG and DOYLE, Judges, concur.