author: MATSON, J.

text:
    BOB HISAW v. STATE.
    No. A12461.
    Opinion Filed June 9, 1917.
    (165 Pac. 636.)
    1. PROSECUTING ATTORNEYS — Special County Attorney — Power of District Court. The district court has authority to appoint a special county attorney to act in the place and stead of the regular elected county attorney where the latter is disqualified in any particular case. Aside from any statute, this power is inherent in a count of general jurisdiction.
    2. SAME — Appointment of Special County Attorney — Ratification. Where the regular county attorney is disqualified and a special county attorney is appointed by the regular district, judge at his chambers in vacation, and said appointee thereafter qualifies according to law, and his appointment is recorded in the court’s criminal journal as a part of the proceedings in the particular case for which the appointment was made, and upon the trial the same judge over objection of the defendant recognizes the appointment made in vacation, and permits said special county attorney to proceed as the representative' of the state in such case, there is a ratification by the court of the said appointment, which is tantamount to an appointment by the court in the first instance, where no other objection is urged except that the district judge was unauthorized to appoint in vacation.
    3. INDICTMENT AND INFORMATION — Setting- Aside Indictment —Grounds—Examination of Witnesses. The grounds upon which a criminal action may be dismissed or an indictment set aside are ■clearly enumerated in the Code. The fact that the county attorney or his substitute, after the finding of the indictment and prior to the trial, examines certain witnesses under oath in the absence of tbe accused and with tbe approval of tbe county judge is no ground for dismissing an action or setting aside an indictment.
    4. INDICTMENT AND INFORMATION — Indorsement of Names of Witnesses — Service of List of Witnesses. Subdivision 2 of sec- „ tion 1, c. 68, Session Laws 1913, permits tbe county attorney, on approval of tbe district or county judge where a felony case is pending against any person triable in that county, to call witnesses before him and have them sworn and their testimony reduced -to writing at the cost of the county. The names of witnesses thus obtained 'Should be properly indorsed upon the indictment and information, and in capital cases a list of tho'se who are to be used in chief, together with their respective post office addresses, must be served upon the defendant at least two days before .the case is called for trial.
    5. JURY — Summons Upon Second Venire — Challenge to Panel. The fact that, after a challenge to a panel had been sustained on account of the bias and prejudice of the sheriff whose deputies summoned the jurors, some of the persons composing it were summoned on a second venire by an unbiased and unprejudiced officer, is no ground for challenge to the second panel.
    6. SAME — Second Panel — Fair and Impartial Jury. Where it is not made to appear that the defendant challenged any of such jurors individually for cause, or that he was required to exercise a peremptory challence to any of them by reason of which his peremptory challenges were exhausted, this court cannot hold that a fair and impartial jury was not' afforded in the trial, or that defendant’s substantia] rights were invaded by reason of the trial court permitting the names of such jurors to be placed in the trial box over his objection.
    7. TRIAL — Instruction—Accomplice Testimony. Where the facts are not disputed, and there is no evidence to show that any witness for the state is an accomplice, there is no error in refusing to give an instruction upon the necessity of corroborating an accomplice.
    8. TRIAL — Instruction—Province of Jury. Defendant requested the ' following instruction: “You are instructed that if during the course of this trial any evidence lias been offered which is capable of two constructions, one favorable to the defendant and one unfavorable, that it will be your duty to give to such evidence the construction most favorable to the defendant.” Held, properly refused as invading the province of the jury in that it tended to deprive -the jury of the right to determine -the weight of the evidence and tbe inferences properly to be drawn therefrom.
    9. APPEAL AND ERROR — Brief—Evidence. Where it is contended that incompetent evidence has been admitted over the objection and exception of the-defendant, the Inief must not only contain a statement of the evidence complained of, liuf counsel must also support their assignment of error with some argument and authority to convince this court that the defendant has been prejudiced by the trial court’s rulings.
    10. APPEAL AND ERROR — Remarks of Trial Judge — Reversal. .Record examined, and held, remarks of trial judge were not such as to authoiize a reversal of this judgment.

      Appeal from District Court, Haskell County; W. H. Brown, Judge.

    Bob Hisaw was convicted of murder and sentenced to imprisonment for life, and appeals.
    Affirmed.
    On the 13th of February, 1912, Virgil (commonly called Rex) Ray and his wife, Lizzie Ray, who had been married about a month previous to that date, separated. They had been living in a little one-room log house in the Hisaw neighborhood of Haskell county. Rex Ray was a tenant farmer, and prior to his marriage and up to the time of said separation had off and on worked' for the defendant Bob Hisaw; the defendant being a farmer and stock raiser of that neighborhood. On the afternoon of February 13, 1912, Rex Ray and his wife and her father, Dick Odom, hauled what little household goods the Rays had up to old man Dick Odom’s place. It was there that Rex Ray and his wife finally parted — Rex leaving there with a man by the name of Dink Dukes, another farm hand who had been working in that neighborhood, and when they left they said they were going across the river; this community being in the neighborhood of both the Canadian and Arkansas rivers near the junction of them. The general public never saw Rex Ray alive after dark of February 13, 1912. He was missed from that community. Along in April or May of that year it'became rumored that Rex Ray had been killed and his body buried. On the 28th day of June, 1912, Dink Dukes appeared in Stig-ler, the county seat of Haskell county, and informed the officers that Rex Ray had been killed on the night of February 13, 1912, and his body buried near the Arkansas river in what was known as the Hisaw bottoms, and that Bob Hisaw had shot and killed Rex Ray while he was asleep in bed at the home of one Rile Odom, a brother of Ray’s wife, and that Bill Hisaw came with Bob Hisaw when the killing occurred. Dink Dukes also stated that he could go with the officers and find the place where Rex Ray’s body had been buried. A complaint charging Bob Hisaw and Bill Hisaw with the murder of Rex Ray was immediately filed by the county attorney of Haskell county, and warrants issued for their arrest. The officers carried these warrants with them when they went down with-Dink Dukes to disinter Ray’s body. On their way they stopped at the home of Bob Hisaw, but could not find either him or Bill. There had been a picnic in Stigler on that day, which Bill Hisaw had attended. As soon as he heard that Dink Dukes had disclosed that Rex Ray had been murdered, and that the officers had gone to the scene to search for' the body, he got a horse and immediately rode to Bob Hisaw’s house, where he had been staying. The officers disinterred Ray’s body, and found it wrapped in a blanket and quilt, dressed in a dark coat, an old blue shirt, either one or two pairs of trousers, and one pair of overalls. The flesh was partially decomposed, but a bullet hole was discovered in the head near the nose. These parties did not make a thorough investigation of the body because of its badly decomposed condition. The officers returned to Stigler, and thereupon Rile Odom and his wife, Mary Odom, were arrested in connection with Dink Dukes as being implicated in the murder. About a week or ten days láter Bill Hisaw came to Stigler and gave himself up. A month or two thereafter he was tried for the murder and acquitted. Bob Hisaw was not arrested until about October, 1914, when he was captured in McCurtain county, Okla., on a farm about ten miles from the town of Valiant. He was at that time going under the name of R. A. Johnson. The trial of Bob Hisaw took place in December, 1914. Bill Hisaw, Rile Odom, Mary Odom, his wife, Emma Hisaw nee Odom, Lizzie Ray, nee Odom, the widow of Rex Ray, and the old lady Odom, the mother, were all witnesses for the- prosecution, and testified to a state of fácts substantially as follows:
    That Rex Ray separated from Lizzie Ray on the 13th of February, 1912, at old man Dick Odom’s house, and left traveling afoot with one Dink Dukes. That he was dressed at that time in a dark coat, an old blue shirt, and a pair of overalls over a couple of pairs of trousers, and was wearing ordinary work shoes. Rile Odom says that he was at his father’s house that day and learned of the separation of Rex Ray from his (Odom’s) sister, and that along in the afternoon he started home riding horseback. That on his way home he overtook Rex Ray and Dink Dukes, and that they told him they were leaving the country, and were going across the river if they could find some place to ford that night. Odom says that he told them if they couldn’t get across the river that night to come and stay all night at his house and wait until next morning and go across. That he separated from them near the Hisaw store and postoffice, their intention being to ford the river, and his to return home. He says that about an hour, or near that time, after he returned home, Rex Ray and Dink Dukes appeared at his house, stating that they could not find a way to ford the river that night. That Odom lived in a small two-room log house not far from the west bank of the Arkansas river. That they all went to bed in one room; Rex Ray and Dink Dukes and Rile Odom sleeping in one bed, Rile’s wife, Mary, and her two children sleeping on another bed, and Emma Odom sleeping on a pallet close to these beds. They state: That about 12 o’clock that night somebody came to the front of their house and halloed, “Hello!” That Rile Odom lighted a lamp and opened the door. That Bob Hisaw and Bill Hisaw came into the room. That as soon as he came in Bob stated, “There is going to be hell here in a few minutes.” Rile says that he told Bob that he didn’t want any hell there that night. That Bob immediately walked over to the bed in which Dink Dukes and Rex Ray were lying, turned the covers 'back, and with the remark to Rex Ray, “Wake up, old boy!” commenced to shoot him in the breast with loads from a pistol. That Bob Hisaw shot Rex Ray five times in the breast, and then stepped back from the bed toward the fireplace, remarking in substance, “Now, I guess you will burn my barn, and poison my horses, and sneak up behind me and cut my throat, and take me away from my little children,” to which Rex Ray is alleged to have replied, “No, no, Bob,” whereupon Bob said, “Well, I guess you need another,” and reloaded his pistol, stepped back to the bed, and fired another load into Ray’s head. The witnesses then say that Bob turned around to each of them with his drawn pistol, stating that if they said anything about it'they would go the same way. That he then directed Dink Dukes and Bill Hisaw and Rile Odom to help him put Ray’s clothes on, which was done, and the body wrapped in a blanket and quilt, carried out and placed on a horse which Bob Hisaw led and Dink Dukes rode, holding the body in front of him across the horse, and Bill Hisaw walked beside the horse out to a field about 200 or 300 yards from Rile Odom’s house, where the body was thrown into a gap and covered up with brush. Just when and by whom the body was buried does not appear from the record. Rile Odom did not accompany the parties away from the house. Some time after these parties left with' the body of Rex Ray they again appeared at Rile Odom’s house and washed their hands, stood around and talked, and finally Bill Hisaw and Bob Hisaw and Dink Dukes left. The next morning Rile Odom and his wife and children and Emma Odom all went up to old man Dick Odom’s house. They stayed around' there two or three days, and afterwards moved to a little house on Bob Hisaw’s place, about a quarter of a mile from where he lived, and were still living there at the time of their arrest on the 28th day of June, 1912. Dink Dukes stayed around in that neighborhood for a while, and then disappeared. Bill Hisaw stayed on the farm there with Bob up until the day that Ray’s remains were disinterred. Bob Hisaw also stayed there until that time. Old man Odom and his wife and Lizzie Ray testify that on the night of the 13th of February, 1912, Bob Hisaw and Bill Hisaw came to their house; that Bob .asked if Rex Ray was there, and was told , that he had left that evening; that Bob was drinking, and had some whisky with him, and offered them a drink of whisky, and then left. This was about an hour before he is said , to have appeared at Rile Odom’s house. Dick Odom and Rile Odom lived about four miles apart. There is some evidence in the record to the effect that Bob Hisaw and Rex Ray had had some trouble over a hog which either Bob had lost or it had been stolen, and there is evidence to. the effect that Rex Ray had made threats against Bob Hisaw just a short time before the homicide to the effect that' there would be trouble between him and Bob if Bob came over to Rile Odom’s to a dance that Rile intended to have, and danced with his (Rex Ray’s) wife. It appears that Bob Hisaw and Rex’s wife had been neighbors and friends ever since they were boys and girls, together. There is also some evidence to the effect that Rex Ray had been married previous to his marriage to Lizzie Odom, and that his first wife had died mysteriously, and that Rex Ray was tried for killing her. This evidence, we presume, was admitted for the purpose of indicating that Lizzie Ray was afraid that Rex would kill her, and that she instigated her brothers and his friends to kill Rex and bury him. On the-other hand, the theory of the state is that there was hard feeling between Bob Hisaw and Rex Ray, and that Rex had indicated that he intended to do Bob some injury, both to his person and his property, and that Bob was infuriated thereby, and on this occasion was drinking, and concluded he would put Rex out of the way in order to prevent any future trouble. The jury adopted the latter theory of the killing, and there is ample evidence in the record to support the conviction.
    The defense relied upon was an alibi, Bob Hisaw testifying that he was at home from a little after Nlark on the evening of the 13th of February, 1912, all the balance of the night, and that he sat up with a sick child of his until after midnight, and that his wife and Hiram Thomas and Jeff Rainwater, his cousin, and Idus George were all at his house that night sitting up with the sick child. He is corroborated by all of these witnesses, who were shown to be either relatives or very intimate friends of his, at whose places and with whom he counseled and conversed during the time he was scouting from the 28th day of June, 1912, up until October, 1914. Bob explains the fact that he went on the scout by stating that he had heard that the Odoms were going to testify that .he killed Rex Ray, and that he did not know just when they would say it was done, and ran off until he could find out what their testimony would be. It appears, however, that after Bill Hisaw was tried and acquitted and the testimony of all these state witnesses became public, even after that time Bob returned to near the scene of the homicide and counseled and advised with those people who afterwards corroborated- him in his alleged alibi. This was either late in the year 1912 or early in the year 1913, and yet after all that happened Bob again went on the scout and stayed for a period of over a year, and never did surrender himself to the officers.

      A. L. Beckett, R. C. Roland, and E. 0. Clark, for plaintiff in error.

      S. P. Freeling, Atty. Gen., and R. McMillan, Asst. Atty. Gen., for the State.
   MATSON, J.

(after stating the facts as above). The regularly elected county attorney being disqualified' by reason of having been employed by the defendant as counsel in his defense, prior to his election to the office of county attorney, the regular district judge of the district while holding court in another county in the district appointed Mr. Guy A. Curry, an attorney of the Haskell county bar, as special prosecuting attorney in this cáse. This appointment was made some two years after the return of the indictment; the special prosecutor being appointed merely for the purpose of preparing the state’s case for, and conducting, the trial.

The counsel for defendant filed numerous motions and took various exceptions, all based upon the action of the district, judge in appointing a special county attorney while not in open court in Haskell county. It is contended that our statutes require that a special or substitute county attorney must be appointed by the court, and that an appointment by the presiding judge in vacation is void, and all subsequent proceedings conducted by such an appointed special county attorney are an absolute nullity. Counsel cite the case of Dodd v. State, 5 Okla. Cr. 513, 115 Pac. 632, in support of their contention that this appointment was void. However, in the Dodd Case the special county attorney was appointed by a district judge who had, prior to the appointment, become disqualified, and the special county attorney himself failed to properly qualify according to the laws of this state.

In this case it is nowhere contended that the district judge making the appointment was disqualified to act, of that the special county attorney failed to take the required oath of office before acting. On the contrary, it is made to appear affirmatively that the district judge was qualified to make the appointment, and that before taking any action in the case the special county attorney properly qualified.

The sole contention in this case is that the appointment was void because not made in open court and the order entered upon the minutes. Section 1558, Rev. Laws 1910, provides:

“The district court, whenever there shall be no county attorney for the county, or when the county attorney shall be absent from the court, or unable to attend to his duties, or disqualified to act, may apoint, by an order to be entered in the minutes of the court, some suitable person to perform for the time being the duties required by law to be performed by the county attorney, and the person so appointed shall thereupon be vested with all the powers of such county attorney for that purpose. Such attorney shall be paid • a reasonable compensation for his services by the county for which he is so appointed.”

The foregoing statute was intended to give the district court the power and authority to appoint temporarily a county attorney to act in the place and stead of the regular county attorney -under the circumstances enumerated in the statute. Prior to the adoption of the Rev. Laws, 1910 the words “or disqualified to act” were not contained in this statute. They were inserted by the codifiers of that Code. Independent of the statute, however, the court would have the inherent power to appoint a special county attorney under any of the circumstances therein enumerated. It is essential to the very life of the court that the proper officers be in attendance upon it. The power to appoint such officers is necessary for the protection and existence of the court and absolutely essential to the administration of justice and the enforcement of all our laws. It would be an indefensible reproach upon our institutions if crimes should go unpunished and the public business remained unattended to for want of power in a court of general jurisdiction to appoint some one to supply the place of the regular elected officer when absent from court or disqualified to act. The courts of this state are not powerless to this extent. They have the right and power to preserve their life, and the machinery of the court cannot be kept in motion without its proper officers. It is therefore an inherent power of the presiding judge of the court to supply these officers when there is a temporary vacancy or a disqualification in any particular case. We conceive it our duty therefore to give the foregoing statute a broad, practical, and commonsense construction in order to carry into effect the purposes for which it was enacted, and to give expression to this inherent power of courts of general jurisdiction in this state. We admit that it was intended that the special county attorney should be appointed by the court; but should an irregularity in the appointment destroy its effect and render void all the acts of this special officer where it appears conclusively from the record that with the knowledge and consent of the court the officer proceeded to his duty? In this case, while the original appointment was made by the judge in vacation, yet when the case was called for trial, and objection made to that appointment, the judge in open court before proceeding to the trial of this case announced that the appointment had •been made by him, and permitted the special county attorney thus appointed to proceed as the representative of the state in this action. It is admitted also by counsel for the defendant that the regular county attorney was disqualified in this case; that the special county attorney who represented' the state was qualified to act, and the very judge who made the appointment in vacation presided at the trial. It is our opinion, therefore, that the action of the trial judge in permitting the special county attorney to act under these circumstances amounted in itself to an appointment made by the court, and was a specific ratification by the court of everything that the presiding judge had done in vacation and at his chambers. The purpose of having the appointment made by the court is to permit a judicial determination of the fact that some ground exists under the statute which permits an appointment to be made. That such a ground did exist clearly appears from the record of the trial and proceedings in this case. The purpose of having the order of appointment noted in the minutes of the court' is to supply a record thereof, and in our opinion it is a substantial compliance with that provision of the statute if the order of appointment be recorded on the journal of the court and made a part of the proceedings of the case, as was done in this instance. In the case of State v. Duncan, 116 Mo. 288, 22 S. W. 699, it was held:

“Where there was no prosecuting officer in attendance ón the trial, the court had the power, aside from Revised Statutes 1889, sec. 643, to appoint a temporary representative of the state; and the fact that, in the absence of the circuit attorney, the trial court permitted another to represent him, was .tantamount to an appointment.”

And again, section 5908, Rev. Laws 1910, provides:

“If the county attorney fails, or is unable to attend at the trial, or is disqualified, the court must appoint some attorney at law to perform the duties of the county attorney on such trial.”

The latter statute permits the court to appoint a special county attorney for the trial of any particular case where the regular county attorney is disqualified. These statutes are merely expressive of the inherent powers of a court of general jurisdiction, and when it is made to appear, as it does in this case, that a contingency arose under which it was proper for the court to appoint a substitute for the county attorney, although the appointment be made in vacation, if afterwards in open court the same judge recognizes the appointment and permits a qualified person to act upon the trial in the place and stead of the disqualified county attorney, there has been a sufficient compliance with the statutory requirements to validate said appointment.

It is also contended that the court erred in denying the motion to dismiss the action because the special county attorney held a court of inquiry in which certain of the witnesses for the state were examined under oath relative to the commission of this offense. Counsel for appellant have cited us to- no statute which makes such action a ground for dismissing a criminal action or setting aside an indictment. The grounds upon which an action may be dismissed and an indictment set aside are cleárly set out in the statute, and the fact that the county attorney or his substitute examines certain witnesses under oath in the absence of the defendant is not among the grounds eumerated therein. Subdivision 2 of section 1 of chapter 68 of the Session Laws of 1913 permits the county attorney,

“on approval of the county judge or district judge, [to] issue subpoenas in felony cases and call witnesses before him and have them sworn and their testimony reduced to writing and signed by the witnesses at the cost of the county. Such examination must be confined to some felony committed against the statutes of the state and triable in that county, and the evidence so taken shall not be receivable in any civil proceedings.”

We are not concerned with the wisdom or policy of this statute. That was a matter for the Legislature to determine, and, having determined that such examinations were necessary in felony cases, it becomes only the province of this court to construe such statute and pass upon its constitutionality if questioned. In this case it is not contended that the statute is unconstitutional, but only that the county attorney is powerless to hold such an examination in the absence of the defendant, or his counsel, and that his action in so doing is prejudicial to the substantial rights of the defendant in that it has a tendency to intimidate the witnesses thus .examined and compel them to testify to facts to which they otherwise would not testify. We cannot appreciate the logic of the reasoning that such an examination would be prejudicial to the substantial rights of a defendant. Upon the trial of a criminal case defendant has a constitutional right to be confronted with the witnesses against him, but prior to the trial the Legislature has the power to provide for the discovery of evidence showing the commission of crime. Neither the defendant nor his counsel has the right to be present at a grand jury investigation. It ofttimes happens that after an indictment has been returned, or .a preliminary examination into a felony has been had, the county attorney hears of other evidence which, if true, would be valuable in the trial of the case, and for the purpose of permitting the county attorney, in cases where such reports come to him, to examine the witnesses who are supposed to have knowledge of these facts, it is essential to the administration of justice, and the Legislature has seen fit so to provide, that when the district or county judge approves thereof, those witnesses may be examined under oath and at the expense of the county. In a capital case it is essential that the county attorney indorse the names of these witnesses upon the indictment or information and serve a list of them with their respective post office addresses upon, the defendant at least two. days before the case is called for trial. The defendant, therefore, is provided with a means by which he may be informed as to what witnesses will be used by the state, and in that way have opportunity to determine what their testimony will likely be. This is a privilege that is accorded him by the Constitution, and there was full compliance with that provision in this case. The defendant- upon the trial had the right to be confronted with these witnesses who were thus examined in his absence. He had the right to fully cross-examine them as to anything that happened at the proceeding wherein the county attorney had examined them, under oath, and if they had been intimidated or compelled by the county attorney to make disclosures which were not true, or if any undue influence had been exerted upon them at such examination,' those matters were proper to be. elicited upon the examination at the trial. The objection here interposed, therefore, in our opinion, is directed more to the credibility of witnesses thus obtained, and does not contravene any of the constitutional or statutory rights of the defendant. The court did not err, therefore, in overruling the motion to dismiss the action and set aside the indictment on this ground.

Other alleged errors are assigned as causes for reversal, based upon the invalidity of the appointment of the special county attorney, but in view of what we have heretofore said it is unnecessary to discuss these assignments.

The regular panel of jurors being insufficient from which to select a jury to try this case, the court issued an open venire, directed to the sheriff, for 25 qualified men, to be selected from the body of the county. The defendant contended that these jurors should have been drawn from the regular jury box. This contention is without merit, for the statute specifically provides that:

Under circumstances such as these “the jury may be completed from talesmen, or the court may direct that an open venire be issued to the sheriff or other suitable person, for such number of jurors as may be deemed necessary, to be selected from the body of the county, or from such portion of the county as the court may order.” (Section 3606, Rev. Laws 1910.)

However, when the special panel of jurors summoned by the sheriff were returned into court, counsel for- the defendant moved to quash the panel, upon the ground that the sheriff was disqualified to act, being a probable witness for the state in the casé and having offered a reward for the apprehension of the defendant. The court sustained this motion. Thereupon it was agreed between counsel for the defendant and the special cpunty attorney that Mr. Neil B. Gardner should be appointed as a special officer to bring in another jury. The court appointed Mr. Gardner, and he took the required oath in the presence of the court, and received instructions from the court. Mr. Gardner was to serve an open venire of 30 names, and summoned as a part of the panel 18 of the jurors who hqd previously been summoned by the sheriff. There was no collusion between the sheriff and Mr. Gardner in summoning these particular jurors. The record discloses that Mr. Gardner summoned them without any knowledge that they had theretofore been summoned by the sheriff, without any directions from the sheriff or any other person to summon those particular persons, but that they were mostly farmers living in various parts of the county, some of whom he met upon the streets and some around the courthouse; that in addition to these men he went out over the county and summoned 12 more qualified men. The record also shows that Mr. Gardner-made no improper remarks to any of these jurors at the time they were summoned.

Counsel for the defendant interposed a motion to-quash the entire panel summoned by Mr. Gardner, which motion was by the court overruled, and thereupon counsel objected to the placing- of the names of these 18 jurors, who had previously been summoned by the sheriff, in the jury box for the trial of this case. This motion was also overruled by the court and exceptions taken by counsel for defendant. Both the refusal to quash this second panel and the action of the court in permitting the names of these 18 jurors to be placed in the box are alleged as grounds for reversal of this judgment. In our opinion, these contentions are without merit. It is not ground for quashing the entire panel that some of the jurors on the panel had. been previously served by an officer held to be disqualified to act. When brought into court on this panel they were served, by a qualified officer, and one whom both the state arid the defendant had agreed upon. The entire panel' may only be quashed when it is served by an officer who is disqualified within the meaning of section 5848, Rev. Laws 1910, which provides:

“When the panel is formed from persons whose names are not drawn as jurors, a challenge may be taken to the panel on account of any bias of the officer who summoned them, which would be good ground of challenge to a juror. Such challenge must be made in the same form, and determined in the same manner as if made to a juror.”

Was it error, however, for the trial court to permit the names of these jurors to be placed in the box and used upon the trial? Was the action of the court in so doing prejudicial to the substantial rights of the defendant? None of the conditions which were shown to exist in the cases of Harjo v. State, 1 Okla. Cr. 590, 98 Pac. 1021, 20 L. R. A. (N. S.) 1013, and Schuford v. State, 4 Okla. Cr. 513, 113 Pac. 211, are shown to exist in this case. In the.Harjo Case it was shown that the officer who summoned the talesmen did not act impartially, but would only select those whom he thought were. favorable to the prosecution. In the Schuford Case, after the sheriff was disqualified the special officer summoned the very jurors that the sheriff had theretofore summoned, and this was done by express direction from the sheriff. This, of course, was practically a resummoning of the same jury by the sheriff. Not so in this case. These 18 men who were summoned by the special officer were summoned by him without any direction from the sheriff, or without any knowledge on the part of the sheriff that they were being summoned a second time, and without knowledge by the special officer that the sheriff had previously summoned any of them. If they Were disqualified it was not because of any improper conduct on the part of the officer in summoning them. In our opinion, they stood upon the same basis as any other member of this special panel that was brought in by a qualified officer. If defendant had any legal ground for challenge it was to the individual jurors, and not to the panel, and after these names were permitted to be placed in the box it was the duty of counsel for defendant to challenge them as individuals. This was not done. Therefore any objection to these individual jurors on the ground that they had previously been served by a disqualified officer was waived. In the case of People v. Vincent, 95 Cal. 425, 30 Pac. 581. the only instance in which, after a diligent search, we can find the exact question here passed upon was ever decided, it-was held:

“The fact that, after a challenge to a panel had been sustained on the ground of bias and prejudice of the deputy sheriff summoning the jurors, a few of the persons composing it were summoned on a second venire, is no ground for challenge to the second panel, but the objections should be made to the individual jurors.”

We hold, therefore, that the trial court did not err in overruling the challenge to the panel of jurors served by the special officer, and also that by reason of the failure of the defendant to object individually to the 18 men who had previously been served by the sheriff on the ground that they were disqualified. to act, he has waived the error, if any, occasioned by the trial judge permitting the names of these men to be placed in the jury box. So far as is disclosed by the record in this case, each of the men who served upon the jury, out of the 18 complained of, was accepted as an individual juror without further objection by the defendant. Neither does the record show that the defendant exhausted all of his peremptory challenges to individual jurors, or that he was required to exercise a peremptory challenge to any of the jurors previously summoned by the sheriff: Under such circumstances this court cannot hold that a fair and impartial jury was not afforded the defendant in the trial of this case.

It is also contended that the court erred in refusing to give instructions Nos.- 2 and 3 requested by the defendant, which are as follows:

2. “You are instructed that a conviction cannot be had upon the testimony of accomplices unless they be corroborated by such other evidence as tends to connect the defendant with the commission of the offense, and the corroboration is not sufficient if it merely show the commission of the offense or the circumstances thereof.”
3. “In this connection you are instructed that an accomplice is one whose connection with the commission of the crime is such that he could be indicted for the offense of which the accused is- being tried.”

If there is doubt as to whether, from the evidence, a witness is or is not an accomplice, then the trial court should define an accomplice and leave the determination of that fact to the jury, together with a proper instruction that the defendant cannot be convicted upon the uncorroborated testimony of an accomplice. In this case, however, it was not error for the trial court to refuse to give these requested instructions. We have carefully examined the evidence adduced both by witnesses on behalf of the state and by those for the defendant, and it nowhere appears that any of these witnesses for the state were accomplices under our statutes. The testimony shows that perhaps some were accessories after the fact, and were guilty of a separate and distinct offense from that for which the defendant was tried. Under our Code all persons who are concerned in the commission of a crime, whether they directly commit the act constituting the offense or aid and abet in its commission, though not present, are principals. Section 2104, Rev. Laws 1910.

“All persons who, after the commission of any felony, conceal or aid the offender, with knowledge that he has committed a felony, and with intent that he may avoid or escape from arrest, trial, conviction, or punishment, are accessories.” (Section 2105, Rev. Laws 1910.)

There is no evidence in this record to the effect that any of the witnesses who testified for the state either aided, abetted, or encouraged the defendant to commit this crime, although some of them were present when the crime was committed, and after its commission aided and abetted the defendant in concealing the same. Had there been a question of doubt as to whether the evidence shows that these parties were or were not accomplices, then the court should have given the instructions requested, or proper ones along the same lines; but where the fact is not disputed, and there is no evidence to show that any witness for the state was an accomplice, there is no error in refusing to give an instruction upon the necessity of corroborating an accomplice.

It is also contended that the court erred in refusing to give the following instruction:

“You are instructed that if during the course of this trial any evidence has been offered which is capable of two constructions, one favorable to the defendant and one unfavorable, that it will be your duty to give to such evidence the construction most favorable to the defendant.”

This instruction was properly refused because it invaded the province of the jury and tended to deprive the jury of the right to determine the weight of the evidence and the inferences properly to be drawn therefrom. In the case of Dunn v. State, 125 Wis. 181, 102 N. W. 935, the court said:

“The court was requested to instruct the jury: ‘Where evidence is offered which is susceptible of two constructions, one of which tends to guilt and the other to innocence, it is the duty of the jury to adopt the latter.’ We are satisfied that this request does not embody a correct rule for the guidance of the jury' in considering the evidence before them. It would amount to a direction to,the jury that any evidentiary fact submitted to their consideration must be considered as tending to prove innocence if it can possibly be so construed. This would deprive juries of the right to give evidence the significance which they find and believe to be its natural and reasonable interpretation, in view of all the facts and surrounding circumstances of the case. The duty of interpreting evidence and drawing inferences therefrom in criminal trials is peculiarly within the province and the good judgment of the jury, and should not be infringed upon by artificial rules for determining its weight, and limiting the inferences they might reasonably draw therefrom.”

See, also, Kennedy v. State (Ala.), 40 South. 658.

Counsel for appellant also contend that there was error by the trial court in admitting certain incompetent and irrelevant evidence, and in making certain remarks-which are alleged to be prejudicial to the accused. There is embodied in the brief long excerpts from the testimony of several of the witnesses, but it is nowhere ’ pointed out by counsel why the admission of this evidence was incompetent, or irrelevant. No reasons are given why the trial court should have rejected the same, nor is it shown wherein the remarks of the trial court injured the accused. Counsel leave it up to this court to guess that the admission of this evidence was prejudicial, and that the remarks of the trial court were injurious. We have examined this entire record, read the evidence carefully, and given due consideration to all the remarks made by the trial court; we cannot say that there was error in this particular which would authorize this court to reverse this judgment.

This killing, according to the testimony of the state’s witnesses, was as cold blooded, cruel, and malicious as any of which we have read. If there ever was a case deserving of the death penalty this is one. A defenseless man shot in the bed while asleep without warning, without opportunity to defend himself, or even to say good-bye, and then the defendant, after shooting him five times, and after reloading h.‘s pistol, returned to the bed because he was still alive, and put a final bullet into his brain, and then, after threatening the lives of those who were present, compelled some of them to dress the corpse and help load him onto a horse and conceal him in a deep ravine near the Arkansas river, where he whs afterwards buried.

After a full and careful consideration of all the points urged by counsel for the appellant and assigned as reasons for a reversal of this judgment, we conclude that none of the errors complained of were of such a fundamental nature or so prejudicial as to deprive the accused of that fair and impartial trial which is guaranteed to him under the Constitution and laws of this state.

The judgment is therefore affirmed.

DOYLE, P. J., and ARMSTRONG, J., concur.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    EARL WATKINS v. STATE.
    No. A-2658.
    Opinion Filed June 9, 1917.
    (165 Pac. 621.)
    INTOXICATING LIQUORS — Unlawful Conveyance — Intent. It is unlawful for any person to convey from place to place within this state intoxicating liquors which said person has previously purchased within this state, and it is immaterial whether the person so purchasing such liquor and conveying the saíne intended to use such liquor lawfully or unlawfully. Intent is not a material ingredient of the offense of conveying intoxicating liquors.

      Appeal from County Court, Oklahoma County; Wm. H. Zwick, Judge.

      Earl Watkins was convicted of unlawfully conveying intoxicating liquors, and he appeals.
    Affirmed.

      Charles H. Ruth and Geo. P. Glaze, for plaintiff in ■error.

      S. P. Freelmg, Atty. Gen., and R. McMillan, Asst. Atty. Gen., for the State.
   PER CURIAM.

There is no dispute in the testimony in this case. The evidence on the part of the state is to the effect that the appellant was seen riding in a Ford car from the home of his brother at 228 East Fifth street, in Oklahoma City, to his own residence at 320 East Third street. When he drove up to the latter residence a city detective and a city attorney in another car came up to him and asked him if he had any whisky with him. He replied that he did not, but, upon search, a half pint bottle of whisky was found in his hip pocket wrapped up in a handkerchief. This bottle was unopened. Another city detective who had been stationed at 228 East Fifth ■street had, just before that time, seen the appellant leave that place in the automobile. He came from that direction at the time he was accosted and the whisky discovered. The appellant took the witness stand in his own behalf and testified that he had bought this whisky some two or three hours before he was apprehended from a negro porter at the corner of Third and Broadway in Oklahoma City, and had carried it with him in his pocket around over town to various places up until the time of his arrest. Upon his own statement he is clearly guilty of a violation of the law.

It is contended that there was error committed by the trial court in permitting the court stenographer to read from his stenographic notes certain testimony given by this defendant at another trial covering this transaction which was instituted on behalf of the city of Oklahoma City. Various grounds are asserted why this evidence should not have been permitted to be introduced, but, in view of the fact that the defendant himself took the witness stand and testified to exactly the same state of facts disclosed in the previous proceeding, if there had been error in its introduction, it was cured by his subsequent testimony.

It is also contended that the court erred in giving the following instruction:

“You are instructed that by the term ‘lawful purchase,’ as used in these instructions, is meant the purchase of intoxicating liquors from a point outside of the State of Oklahoma, to be shipped to a place within the State of Oklahoma, which purchase would be an interstate shipment and in which event the purchaser would have a lawful right to carry or transport said intoxicating liquors •from the office of the common carrier at its destination, to his home or place of business.”

In view of the testimony of the defendant that he got the liquor from a bootlegger in Oklahoma City,, the giving of this instruction was perhaps unnecessary in this case irrespective of the fact of whether or not it is a correct definition of a lawful purchase under our Constitution and laws. This case was not defended upon the theory that the appellant was conveying a lawful purchase of liquor, but upon the theory that, having purchased it for his own use, although unlawfully, he had a right to 'convey the same from place to place. Such is • not the law of this state. The testimony of the defendant amounts virtually to a plea of guilty, and it would be a travesty upon justice to reverse a judgment in the face of his own testimony.

It is argued that, if the construction is given to the statutes that, before a person will be permitted to convey intoxicating liquors from place to place in this state, he must purchase the same outside of the state, and have them shipped to him by means of interstate commerce, one neighbor could not borrow whisky from another for medicinal purposes and carry it to his home. Argument of that kind might appeal to the-court where such a state of facts existed, but this is not a case of that kind. If a man may purchase a half pint of whisky from a bootlegger and carry it indiscriminately from place to place within this state, he may purchase a quart, or a gallon, or five gallons, or any other quantity, and carry it about with him over the state. The purpose of our prohibitory statutes goes to absolutely destroy the manufacture; sale, and trafficking in intoxicating liquors within the boundaries of this state, and incidental to the destruction of that traffic, the Legslature saw fit to make it a crime for any person to carry about with him any liquor so unlawfully purchased. It is no defense that he has purchased such liquor for his own use, and does not intend to dispose of it. When he purchases liquor in this state he does so at his own peril, and if he is caught in the act of conveying same he is guilty of crime.

The judgment is affirmed.


author: ARMSTRONG, J.

text:
    VIRGIL SHAW v. STATE.
    No. A-2526.
    Opinion Filed June 11, 1917.
    (165 Pac. 617.)
    1. LARCENY — Evidence—Possession of Recently Stolen Property— Effect. The possession of recently stolen personal property is a . circumstance to be considered in connection - with, other competent evidence in the trial of a larceny case; but such possession alone is not sufficient proof of ithe crime to warrant a conviction, when a reasonable explanation of the possession of same is made and the circumstances tend to support the explanation.
    2. SAME — Sufficiency of Evidence. When the whole evidence fails to establish the commission of the offense charged, a verdict and judgment of guilty are contrary to the evidence.

      Appeal from District Court, Comanche County; Cham Jones, Judge.

    Virgil Shaw was convicted of larceny, and appeals.
    Reversed.

      J. F. Thomas and J. A. Hughes, for plaintiff in error.

      R. McMillan, Asst. Atty. Gen., for the State.
   ARMSTRONG, J.

Virgil Shaw was convicted in the district court of Comanche county on a charge of larceny, and his punishment fixed at imprisonment in the state penitentiary for a term of two years. To reverse this judgment, he has brought this appeal.

The proof offered on behalf of the state tends to show that Priscilla Scott, a negro woman living in Law-ton, Okla., owned a red calf about three months old; that she had loaned the same to a neighbor, who had tied it with a rope near his house in. Lawton; that on the night of September 17th the calf was stolen; that the calf was found at the home of the plaintiff in error in the mountains about 25 miles from Lawton; that plaintiff in error was seen about 2 o’clock in the afternoon driving a wagon in the direction of his. home with the calf in question in the wagon. That after reaching home, this calf, together with two or three others, was offered for sale to different neighbors; among them, Deputy Sheriff W. T. Herring. The calf was kept in a pasture along a public highway. When prosecuting witness went to the place and claimed the calf, she was told by the plaintiff in error that he had purchased it from a negro man in Lawton and that he had paid $8 for it. He would not give it up, so she instituted a replevin suit. A redelivery bond was executed by the plaintiff in error, and the calf retained by him until such time as investigation showed conclusively that the calf had been stolen from the negro woman. It was then returned to her by him.

At the close of the state’s testimony, a demurrer to the evidence was interposed and a motion requesting the court to advise the jury to return a verdict of not guilty on the ground that the evidence failed to establish the crime of larceny against plaintiff in error. This motion was overruled, and exceptions reserved.

The plaintiff in error took the witness stand in his own behalf and introduced a number of witnesses. He testified that he bought the calf at a certain place in Law-ton from a negro man; that the negro man helped-him load it in the wagon; that he paid $8 for it and hauled it home; that he did not steal it and did not know that it was stolen; that he left Lawton about 2 o’clock in the afternoon. He introduced a number of witnesses who testified that they saw him on his way home, one or two of whom testified they tried to buy the calf from him; that he told them he bought it in Lawton and had paid $8 for it. He offered other testimony to the effect that he had tried to find the negro from whom he purchased the calf, but had been unsuccessful.

The propositions urged in the brief are based upon the contention that the court erred in overruling the demurrer to the evidence and refusing to advise the jury to bring in a verdict of not guilty, and that the verdict and judgment are contrary to the evidence.

We think that the court should have sustained the demurrer to the evidence and should have discharged the plaintiff in error at the close of the state’s testimony. The only thing established by the state’s testimony is the fact that the plaintiff in error was in possession of this calf 25 miles away from Lawton; that it was held in a small pasture near the home of the plaintiff in error in full view of the public highway; that it had been offered for sale to the deputy sheriff residing in the community and others; that he hauled it from the city of Lawton to his home in the daytime along the public road with no apparent effort at any time to conceal the same or to .mislead any one as to his claim of ownership.

The possession of stolen property is always a circuim stance to be considered in connection with the charge of larceny, but possession of a stolen animal alone is not sufficient proof of the crime to warrant a conviction when a reasonable explanation of the possession of the same is made and the circumstances tend to support the explanation. Cox v. Territory, 2 Okla. Cr. 668, 104 Pac. 378; Howard v. State, 9 Okla. Cr. 337, 131 Pac. 1100.

The proof offered by the state fails to disclose conduct on behalf of the plaintiff in error which indicated that he had. stolen this calf. It would be unreasonable to believe that a man would drive into a city the size of Lawton, steal a calf in broad daylight and haul the same home, stop along the road and talk to different individuals concerning the calf, then place it in a pasture near a public highway, and send for a deputy sheriff and offer to sell it to him.

In our judgment, the court should have sustained the demurrer and motion to advise the jury to return a verdict of not guilty. The verdict and judgment are contrary to the evidence.

The judgment is.reversed, and the cause remanded, with directions to grant a new trail.

DOYLE, P. J., and MATSON, J., concur.


text:
    WILLIAM BREWER v. STATE.
    No. A-2582.
    Opinion Filed June 11, 1917.
    (165 Pac. 634.)
    1. APPEAL AND ERROR — Discretion of Trial Court — Application for Continuance. An application for continuance is addressed to the sound discretion of the trial court, and when such application is 'based upon the proposition that counsel have had insufficient -time to prepare for trial, this court will review the record and consider all of the circumstances in connection with the employment of attorneys from the time the arrest was made; and when it is made to appear that capable lawyers had been employed, and had withdrawn from the case because fees were not paid, and that other capable counsel was employed, and a part of the fee paid some time prior to the calling of the case for trial, and the remainder on the date the same was called for trial, but that no effort had been made to prepare the case for presentation to the jury, a reversal will not be granted on the ground that the court abused its discretion in refusing a continuance for the term, which would amount to a delay of six months.

      2. APPEAL AND ERROR — Conviction Without Fixing Punishment —Reversal—Modification and Affirmance, (a) When a person is tried on a charge of murder, and convicted of manslaughter in the first degree, and the jury fails to fix the punishment, this court will review all of the record, with a view of determining ■the correctness of the findings of the jury, and, if the verdict is a correct and proper one, a reversal will not be granted on the ground that the. punishment is excessive.
    (b) When a review of all the record indicates that substantial justice would be conserved by modifying the punishment fixed by the itrial court to a lesser term of years than that imposed, this court will make such modification, and affirm the judgment as modified. The entire record, the instructions of the court, and all of the circumstances disclosed, will be considered for the purpose of enabling the court to reach a just conclusion on this phase of the case.
    3. . TRIAL — Time to Prepare Instructions. Trial courts should give reasonable opportunity for counsel to prepare requests for instructions, and to examine and file exceptions to the instructions given, when, in good faith, counsel seek such opportunity.

      Appeal from- District Court, Wagoner County; George C. Crump, Assigned Judge.

    William Brewer was convicted of manslaughter in the first degree, an‘d appeals.
    Modified and affirmed.

      Joseph S. Dickey, Jr., for plaintiff in error.

      R. McMillan, Asst. Atty. Gen., for the State.
   ARMSTRONG, J.

William Brewer, the plaintiff in error, was tried in the district court of Wagoner county on a charge of murder, and convicted of manslaughter in the first degree. His punishment was fixed by the court at '25 years’ imprisonment in the state penitentiary.

The homicide occurred at a hotel conducted by C. Silver-horn at Rex, in Wagoner county, on the night of December 24, 1914. It appears that the people in- the community had gathered at the hotel for the purpose of having a Christmas tree celebration; that a dance was in progress in the dance hall; that 14-year-old Red Pell had been annoying the deceased, whose name ■ was Cartright; that he had been stepping on his feet and spitting on him. That Cartright slapped the boy, who went into another room, crying, and, upon inquiry, he said that he had been slapped by deceased. The plaintiff in error, Brewer, used vile language, and told the boy to tell Cartright to jump on somebody his size. Janie Pell urged the boy to carry the message to Cartright, which he did. Very soon the Pell boy came back from the dance room, and almost immediately Cartright came in, walked by those congregated, turned around, and asked who it was that wanted to clean up on him. All the witnesses for the state testified. that Brewer said he could whip him, and struck Cartright simultaneously with the statement.

The plaintiff in error, testifying in his own behalf, denied striking the first blow. He says that Cartright came in and asked, “Where is the fellow that wanted to clean up on me?” and struck him; that he didn’t know who Cartright was talking to at the time. In the scuffle that followed, the parties clinched and fell to the floor. Some effort was made to separate them. Cartright was apparently on top of the plaintiff in error, pounding him. Carl Silverhorn, a son of the proprietor of the hotel, pulled the deceased off of the plaintiff in error, whose face was bleeding when he got up. Mrs. Silver-horn, wife of the proprietor, came into the room and was talking to Cartright, and advised him to go back to the kitchen and wash the blood off his face. A shot was fired, arid she started to leave. Two more shots were fired. Cartright followed her into the kitchen, and exclaimed that he was shot or killed, and asked that a doctor be called, which was done. He was sent to a hospital at Muskogee, where he died.

The state’s witnesses all testified that Cartright was standing not over 10 feet away, talking to Mrs. Silver-horn, at the time he was shot; that the father of the deceased and other persons were endeavoring to control and hold him. The plaintiff in error himself testified that, when he got up, he drew his gun and saw Cartright coming towards him, as if to assault him the second time, and that he shot him. He testified that he knew Cartright was in the habit of carrying a pistol, but did not say that he knew he was armed upon this occasion, or that he made any demonstration as if to use firearms or any other weapon. .

The testimony of the plaintiff in error does not' disclose a sufficient defense to a charge of murder. Taking his statement as true, this homicide amounted to manslaughter in the first degree.- The jury convicted him of that offense, but failed to fix the punishment. A review of the assignments of error and an examination of the record, therefore, will be for the purpose of determining whether or not the conviction of manslaughter should stand. '

It is first contended that the court erred in refusing a continuance in this case. The .affidavits of the plaintiff in error and his counsel were filed in support of the request, for continuance. These affidavits disclose, the fact that C. G. Watts, now a district judge, and S. M. Rutherford, of Muskogee, were employed by the plaintiff in. error, and after some time they withdrew from the case because their fee was not paid. A short time prior to the trial Joseph S. Dickey, Jr., was employed. One hundred dollars' was paid him on the fee, but the remainder was not paid until the day the case was called for trial. Mr. Dickey had made no effort to prepare for trial, because his fee had not been fully paid. Upon completion of the financial arrangements on the date assigned for trial, a motion for continuance was immediately lodged in the trial court and by the court denied. The cause was assigned for 1:30 in the afternoon, and the trial was begun and. concluded. The record shows that all the witnesses desired by both sides were in attendance upon the court, and no contention is made that additional evidence in the defense of the accused could have been made available. The continuance asked for was for the term, which meant a delay of some six months. The motion for continuance is not based upon any statutory ground, but rather addressed to the sound discretion of the trial court. We are not prepared to say, after a careful review of the récord, that the court abused his discretion in refusing to grant a continuance until the next term of court. The entire record is to be considered in this connection.

The cases cited and relied upon by counsel indicate that an injustice probably resulted by reason of the court failing to continue those cases. Not so in the case at bar. The verdict of the jury was just. The punishment inflicted by the court may be too severe, but this court can remedy that. No capable jury of honest men could be assembled who would have found a verdict of less than manslaughter in this case under the proof offered. If a delay had been sought for three or four days, in order to enable counsel to prepare to introduce his testimony, we would feel very much inclined to reverse this judgment. No such request was made of the trial court, and we are therefore not called upon to pass upon a record disclosing that condition.

The remaining assignments of error are based upon criticisms of the instructions of the court; The court’s instructions are subject to criticism. If this conviction had been murder, it would be necessary to reverse the judgment, on the ground that the instructions do not fairly submit the law of murder. As abstract propositions of law, the instructions in many respects are correct; but, as applied to the facts in this case, there are a number of criticisms which would not permit a judgment for murder to stand. Rules of law must necessarily be applied to the facts in the case they are intended to cover. No good purpose could be served by setting out the instructions at' length and discussing them here.

It is next contended that the court erred in refusing to give counsel an opportunity to prepare written requests for instructions at the close of the testimony. The record discloses the fact that the trial court, on the day before the case closed, advised counsel to have their instructions prepared; that, when the evidence was in and the case closed, defendant asked ten minutes for this work. We think reasonable time should have been granted, but do not find that this is error sufficient to warrant a reversal of the judgment.

Having reviewed all the evidence offered in this case, the instructions of the court, and the proceedings attendant upon the trial, we conclude that this judgment should be modified from 25 to 15 years, and, as modified, affirmed.

If is so ordered.

DOYLE, P. J., and MATSON, J., concur.


text:
    H. W. JACKSON v. STATE.
    No. A-2655.
    Opinion Filed June 11, 1917.
    (165 Pac. 619.)
    INTOXICATING LIQUORS — Unlawful Conveyance — Evidence—Identity —Sufficiency. When a person is charged with unlawfully conveying intoxicating liquors from one place within the jurisdiction of the trial court to another place therein, and the proof fails to identify the defendant as the person committing the offense, by positive evidence or by circumstances which exclude every other reasonable hypothesis than that of guilt, a judgment of conviction cannot be sustained.

      Appeal from County Court, Okmulgee County; Mark Bozarth, Judge.

    H. W. Jackson was convicted of unlawfully conveying intoxicating liquor, and appeals.
    Reversed.

      E. M. Garter, for plaintiff in error.

      R. McMillan, Asst. Atty. Gen., for the State.
   ARMSTRONG, J.

The plaintiff in error, H. W. Jackson, was convicted in the county court of Okmulgee county, on a charge of unlawfully conveying intoxicating liquors from one place to another in said county, and his punishment fixed at a fine of $400 and imprisonment in the county jail for 120 days.

The state introduced seven witnesses, none of whom connect the plaintiff in error with the crime charged.

Witness Thompson, conductor on a St. Louis & San Francisco Railroad Company passenger train, testified that a negro giving his name as H. J. Jackson was a southbound passenger on his train a few days before this crime is alleged to have been committed; that this negro lost his grip and gave him his name and address; that he was not able to say that the H. W. Jackson on trial and H. J. Jackson, his passenger, were one and the same.

Witness Burns was also a conductor on the St. Louis & San Francisco Railroad Company’s pássenger train running between Sherman, Tex., and Sapulpa, Okla. This witness testified that defendant, Jackson, was on his train at Sherman, Tex., and told him he was going to get off at the railroad crossing north of Okmulgee; that he never saw the negro any more after passing the crossing. This conductor did not see any suit case with the defendant and did not see him leave the train.

Witness Chisholm was a porter on Burns’ train. He testified that he knew the defendant Jackson; that he did not see him get off the train and did not know whether he had any suit case with him or no.t.

Witness Black, a deputy sheriff, testified that he sometimes knew the defendant and sometimes did not; that he captured 40 quarts of whisky, a case of beer, and a number of pint bottles of whisky; that the whisky was put off the train at the -railroad crossing; that he started towards where it whs; that some one started away with a case of beer on his shoulder; that he ordered him to stop and fired .his gun in the air; that the party dropped the case of beer and ran; that he could not say that this man carrying the whisky was H. W. Jackson, the defendant on trial; that he was about the same size as defendant and resembled him.

This is the only testimony in the case, introduced .by the state, which tends to connect the plaintiff in error with the crime of conveying whisky, and, in our judgment, is insufficient to establish the crime charged.

There are certain assignments of error based upon the instructions of the court and the action of the county-attorney in attempting to introduce improper evidence. These raise no new questions a,nd it is unnecessary to discuss them. The failure to connect the plaintiff in error with the crime charged by positive proof, or by circumstances which would exclude every other reasonable hypothesis except that of guilt, is fatal to this conviction.

The judgment is reversed, and the cause remanded, with directions to grant a new trial.

DOYLE, P. J., and MATSON, J., concur.


author: DOYLE, P. J.

text:
    MINNIE ALLEN et al. v. HUSTON, District Judge.

    No. A-2580.
    Opinion Filed June 14, 1917.
    (165 Pac. 742.)
    MANDAMUS — Jurisdiction of Criminal Court of Appeals — Acts of Inferior Court. The Criminal Court of Appeals has jurisdiction to issue the writ of mandamus directed to an inferior court, in the exercise or in aid of its appellate jurisdiction, when the same is a proper proceeding in a •criminal case.
    Mandamus by Minnie Allen against A. H. Huston, Judge of the Eleventh Judicial District, sitting as Judge of the District Court in and for the County of Payne and State of Oklahoma.
    Upon full compliance with alternative writ by respondent, writ discharged.

      J. M. Springer and Robert A. Loiory, for petitioner.

      R. McMillan, Asst. Atty. Gen., for respondent.
   DOYLE, P. J.

This was a petition for writ of mandamus to the Honorable A. H. Huston, judge of the Eleventh judicial district, sitting as judge of the district court of Payne county, to command him to correct the record in a certain case wherein the petitioner had been convicted of manslaughter in the first degree, and was sentenced to imprisonment in the penitentiary for the term of eight years.

The petition alleges that after the jury had retired to deliberate upon their verdict, the presiding judge left the county of Payne, and that he had refused to correct the record to'show such absence. The material allegations of said petition are as follows:

“That thereafter, and while said jury were yet in charge of said bailiff and were, deliberating of their verdict and before said jury had agreed or returned a verdict into court and at 8:14 o’clock a. m. on the morning of October 16, 1915, the said Hon. A. H. Huston, judge of said district court, left the city of Stillwater, which said city is the county seat of Payne county, State of Oklahoma, and the place provided by law in and where the district court in and for said Payne county must be held, and traveled by passenger train upon the Atchison, Topeka & Santa Fe Railway from said city of Stillwater to the city of Guthrie, in the county of Logan and State of Oklahoma, and that said Hon. A. H. Huston, so absented himself from said city of Stillwater.
“That about 9:30 o’clock a. m. on the said 16th day of October, 1915, the jury in said cause finally agreed upon a verdict and in charge of the bailiff was brought into the district court room in, the city of Stillwater, county of Payne, State of Oklahoma. That at said time the said judge of the district court had passed without the county of Payne and was at some point in the county of Logan and State of Oklahoma, in his said passage to the city of Guthrie.
“That at the adjournment of court on the evening of the 15th day of October, 1915, it was agreed in open court between the attorneys for the plaintiff and the county attorney and in the presence of said district judge that in the event said jury should not agree before the departure of said district judge for Guthrie the next morning that one Robt. A; Lowry, an attorney of said Payne county bar, should act as special judge, and should receive said verdict, approve the same, and cause the clerk to read and enter the same of record.
“That no affidavit of disqualification was filed and no certificate of disqualification was filed by said district judge, and that said agreement was the oral agreement made by said persons and said parties in said court. That by reason of the fact that no affidavit of disqualification had been filed or no certificate of disqualification had been filed by' said district judge and for the reason that the said Robt. A. Lowry was of the opinion that he had no authority, upon the record in said cause to act as such district judge, said Robt. A. Lowry refused to accept such áppointment or to so act, and so notified the said district judge before his departure from Stillwater on the morning of the 16th day of October, 1915.
“That it was thereupon proposed by said district judge that if the said county attorney and this plaintiff and her attorneys should agree and in the event said jury returned a verdict, the said Robt. A. Lowry should receive said verdict, approve the. same and direct the clerk of said court to read and record said verdict and take such further procedings as said district judge might have done, if personally present, and that the record in said cause should be made to state and recite the presence of said Hon. A. H. Huston, judge of the said district court, and that all proceedings so had and done by said Robt. A. Lowry were in fact had and done in open court before said Hon. A. H. Huston, as judge of said district eourt and by him and in his presence!
“That after said jury had agreed upon a verdict in said cause and had been produced at said courthouse by the bailiff having them in charge, the said Robt. A. Lowry stated to the said county attorney and to the attorneys for this plaintiff the proposition so made by said district judge, and thereupon the said county attorney and the attorneys for this plaintiff agreed that the said Eobt. A. Lowry should proceed in accordance with such agreement, and that the record in said district court, should be made in all respects as though said proceedings were had and done by the said district judge then present and presiding, but that said agreement was not made in open court, nor was said agreement made in the presence of said district judge, nor was said agreement made while said district judge was in the county of Payne, State of Oklahoma, and that such agreement was in fact an agreement only between the county attorney of said Payne county and the attorneys for the plaintiff herein, made out of court and conveyed no judicial authority or power whatever upon the said Eobt. A. Lowry, and did not in law authorize the making and entering into the records of said district court of Payne county of the trial record falsely showing the presence of said district judge, and that proceedings were had and done by him.
“That thereafter and at a time after said district-judge had passed beyond the boundaries of Payne county, the said Eobt. A. Lowry, so acting upon the agreement hereinbefore set forth, caused the sheriff to make a proclamation that said district court was convened and inquired of said jury, if they had agreed upon a verdict and upon said jury answering that they had, he caused said verdict to be passed to him, and, having examined said verdict,- passed said verdict to the clerk of said court and directed said clerk to read and record said verdict, and thereupon inquired of counsel for plaintiff herein if they desired said jury be polled, and thereupon at their request he polled said jury, and each of said jurymen having separately answered that he was satisfied with said verdict, informed said jury that by order of the said district judge they were excused until the reconvening of said district court at 9 o’clock a. m. on the 18th day of October, 1915, and thereupon said jury separated and returned to their homes at various points in said county of Payne, and have not since said time reconvened or appeared in said court as a jury body in said cause against this defendant.
“That said persons so appearing as a jury in said cause produced a paper writing, which was a pretended verdict against this plaintiff finding her guilty of the charge of manslaughter in the first degree, and fixing her punishment as imprisonment in the penitentiary for a period of eight years.
“That the records of said district court were on said 16th day of October, 1915, falsely made to show the presence of said district judge during all proceedings had and done in said cause on said date, and that said records wholly fail to show and now fail to show that said proceedings in fact were had and done by a substitute for said district judge, and that said district judge was absent from said court during said entire day.
“That thereafter, on the 18th day of October, 1915, because of the premises hereinbefore set forth and in order that the records of the district court in said cause might show the truth, and for the purpose of protecting the plaintiff in her rights to her day in court, and for the purpose of causing said record to show the facts and the truth in order that she might present her motion for a new trial in said cause and might thereafter appeal said cause to' the appellate court, and in order that she might present the full facts and truth in said cause to the proper court upon a petition of habeas corpus, the plaintiff herein, filed in said court and in said cause her motion for an order reauiring the clerk to cause the record in said cause to show the truth and the facts as to all proceedings had and done in said cause or purporting to have been had and done in said cause on said 16th day of October, 1915, a true, correct, and certified copy of which motion, together with the affidavits made a part thereof and presented therewith is hereto attached, marked Exhibit C, and made hereof a part.
“That thereafter and on the 19th day of October, 1915, and on .a regular judicial day of said court, her said motion came duly on to be heard, and the court having heard and considered the same, overruled plaintiff’s said motion, to which the plaintiff at the time duly excepted. That a true, correct, and certified copy of the record and the journal entry of the overruling of said motion is hereto attached, marked Exhibit D, and made hereof a part. That thereafter, and upon the same day, plaintiff being desirous of preserving in the record of said cause all of the matters and things hereinbefore set forth and complained of, and in order that she might either upon habeas corpus or upon an appeal to the Criminal Court of Appeals present from the record in said cause the actual facts and the truth as to all proceedings had and done of pretended to have been had or done in said cause preceding her sentence to the penitentiary therein filed with the clerk of said court and presented to said court her application and motion for the settling and allowance bv said court of her bill of exceptions in said causé', a true correct, and certified copy of which bill of exceptions is hereto attached, marked Exhibit E, and made hereof a part.
“That thereafter and upon the same day plaintiff’s motion for the settling and allowance of her said bill of exceptions came on before said court for hearing, and the court, having heard and considered the same, overruled plaintiff’s application and motion, and refused to either consider, correct, settle, or sign any bill of exceptions whatever for plaintiff in said cause. That proceedings were had and done by said court upon said motion as shown by a true, correct, and. certified copy of'the journal entry of record in said cause hereto attached, marked Exhibit E, and made hereof a part.
“That plaintiff herein has exhausted all of her remedies in said district court of Payne county, Okla., and that she has no speedy or adequate remedy or relief at law, and that plaintiff herein is entitled as a matter of right to have her said bill of exceptions considered, settled, allowed, and signed in order that she may preserve the error of the said district judge of Payne county, Okla., in the record, and may prepare an appeal to the Court o+' Criminal Appeals for the purpose of testing the illegality of her present custody and confinement.
“That plaintiff herein further states that she is now in the custody of the sheriff of Payne county, Okla., and being confined in the county jail at Pawnee, in Pawnee county, Okla., under a pretended sentence in said cause of State of Oklahoma v. Minnie Allen et al., rendered and entered in said district court of Payne county, Okla., on the 19th day of October, 1915. That she is unable to give a bond in the sum of $8,000 and unable to fully perfect her appeal in said cause or to present to this said court her petition in habeas corpus until said A. H. Huston, as judge of said district court, shall have acted upon her said bill of exceptions.
“That plaintiff herein further states that on thé presentation of said bill of exceptions, under the requirements of the statute of the State of Oklahoma, it became and was the duty of said district judge to fully and fairly consider said bill of exceptions, together with all the evidence thereto attached and made a part thereof, and if he found said bill of exceptions to be true and correct to sign the same and cause the same to be made a part of the record in said cause, and if he found said bill of exceptions in any respect to be incorrect, to correct said bill of exceptions so that the same should show the truth of and concerning all matters therein alleged,' and to so settle said bill of exceptions and sign the same and cause the same to be made a part of the record in said cause. That the plaintiff’s motion hereinbefore set forth to cause said record to be corrected so as to show the facts is not a part of the record proper in a criminal procedure, and the error of said district judge in overruling the same c?nnot be presented to the Appellate Court upon a transcript, and that the plaintiff herein desires on her appeal to present her cause to said Appellate Court upon a transcript of the proceedings had and done therein .without being compelled to go to the expense of making up a case-made therein.
“Wherefore the plaintiff herein, Minnie Allen, moves the court for a peremptory writ of mandamus requiring said Hon. A. H. Huston, as judge of the Eleventh judicial district, sitting as judge of the district court in and for the county of Payne, State of Oklahoma, in said district to consider the said bill of exceptions heretofore filed and presented by her in the case of State of Oklahoma v. Minnie Allen et al., pending in the district court of Payne county, State of Oklahoma, and if it appear to him therefrom that the allegations contained in said bill of exceptions are true and correct upon the affidavits and evidence, to sign said bill of exceptions as a true and correct bill of exceptions and cause the same to be made a part of her record in said cause, and, if he find said bill of exceptions untrue or incorrect in any matter or thing therein recited, to correct said bill of exceptions sc that the same shall show the truth and the facts as to matters and things therein set forth and to so settle and sign said bill of exceptions and cause the same to be made a part of the record in said cause, or, if this honorable court shall, hold that plaintiff is not entitled to a peremptory writ of mandamus, that an alternative writ of mandamus issue, and that the said defendant.be cited to appear before this honorable court at the time to be by it fixed and show cause why such writ of mandamus should not be issued and enforced against him.”

An alternative writ of mandamus issued, to which the following return was duly made:

“Comes now A. H. Huston, defendant above named, and makes return upon the alternative writ of mandamus issued by the Hon. Thos.. H. Doyle, Presiding Judge, of the said Criminal Court of Appea]s'in the above-entitled cause on the 17th day of November, A. D. 1915, and states: That he has complied with the order of said court and writ, and has on this date signed a bill of exceptions in accordance with the facts, a true and correct copy of which is hereto attached and made a part of this return:
“Be it remembered, that the trial of the above-entitled cause was commenced in the above-entitled court before the Hon. A. H. Huston, district judge of the Eleventh judicial district of the State of Oklahoma, in and for Payne county, on the 14th day of October, 1915. That thereafter on- the 15th day of October, 1915, the evidence, instructions, and argument of counsel in said cause was. duly completed and said cause submitted to the jury, and the jury retired in charge of a sworn bailiff to deliberate upon their verdict, and the court thereupon recessed pending the return by said jury of said verdict.
“Be it remembered, that at the time of the adjournment of said court on said 15th day of October, 1915, and during the night .following and the next morning, the said honorable district judge was ill, infirm, and sick, and that by reason of such infirmity it became necessary for the said honorable district judge to return to his home at Guthrie, on the morning train on Saturday, the 16th day of October, 1915, which train left the depot at Still-water on said date at 8:18 a. m.
“Be it further remembered that on the evening of Friday, the 15th day of October, A. D. 1915, and in view of such illness, it was agreed between A. W. Turner, county attorney of Payne county, and the attorneys for the above-named defendant in said cause, that in the event it became necessary for the said honorable district judge to return to Guthrie on the morning train on October 16, 1915, and in event the jury in said cause at said time had not yet agreed and returned a verdict, that Robert A. Lowry, an attorney at the bar of Payne county, should act as special judge, in absence of said honorable district judge for the purpose of receiving the verdict of said jury when returned, and that said Robt. A. Lowry was consulted and agreed so to do.
“Be it remembered, that said jury remained in session' and deliberated upon their verdict from the time said ■cause was submitted to them until 9:20 o’clock a. m. on .said 16th day of October, 1915, at which time they notified the clerk of said court that they had agreed and were ready to return a verdict. That said Robt. A. Lowry was immediately notified and immediately went to the courthouse. That thereupon it was further agreed between said county attorney and J. M. Springer for defendant and for his co-counsel that the said Robt. A. Lowry should convene said court and receive said verdict and order the clerk of said court to read and record the same and take such further proceedings as the honorable district judge might have had and done had he been personally present, and that the record in said cause should be made on its face to show the presence of said district judge, and that all proceedings had and done in said matter were to be had and done by said district judge. That in accordance with said agreement, the said Robt. A. Lowry, by virtue of said agreement, convened said court, inquired of the jury if they had agreed upon their verdict, and that said jury answered that they had, and thereupon he caused said verdict to be passed to him, and, having examined the same and finding it in due form, delivered said verdict to the clerk of said court, and ordered that said vérdict be read and the clerk place the same of record, and that said clerk make a record in accordance with said agreement, showing that all proceedings had and done by Robt. A. Lowry were in fact had and done by the honorable district judge, present in his own proper person.
. “Be it further remembered, that said honorable district judge left the city of Stillwater, which is the county seat of Payne county, Okla., for a continuous trip from .said city of Stillwater, at 8:18 a. m. of said 16th day of October," 1915. and traveled by continuous passage from .said city of Stillwater to said city of Guthrie, in Logan •county, Okla., a distance by railway - of about 50 miles. That the jury in said cause came into the courtroom ready to return their verdict at 9:25 o’clock of said date, .and that said verdict was actually received by said Robt. A. Lowry from said jury, and so read by the clerk at 9:40 o’clock a. m. of said date.
“Be it further remembered, that no exceptions were taken or objections made by the above-named defendant to any of the proceedings so had and done as recited herein, and that the said' Robt. A. Lowry so convening said court and before receiving said verdict made statement from the bench in .the presence of said defendant and of said county attorney, and of said J. M: Springer, of the agreement which had theretofore been made between said patties, and that he was acting in pursuance, to said agreement only, and that no dissent was made by said defendant or by said J. M. Springer, and no objections made to said procedure so had by the said Robt. A. Lowry, and no exceptions taken to such proceedings or to the direction of said Robt. A. Lowry to the clerk of said court to make the record of said .proceedings, showing the presence of said honorable district judge as here-inbefore set forth. A. H. Huston, Judge.”

It appearing from respondent’s return to the alternative writ of mandamus that he has made full compliance,, affording in full the relief sought in relator’s petition, and relator urging no objections to said return, the writ has accomplished the purpose for which it was issued and is therefore functus officio. Since there can be no further proceedings under it, the writ will be discharged and the proceeding dismissed.

ARMSTRONG and MATSON, JJ., concur.