text:
    GEORGE WILLIAMS v. STATE.
    No. A-2361.
    Opinion Filed October 6, 1917.
    (167 Pac. 763.)
    J. INDICTMENT AND INFORMATION — Technical Pleading. Technical pleading in criminal cases is not required in this state, and the common-law doctrine of strict construction has been abolished by our Code.
    2. PERJURY — Insufficiency of Indictment — Inducement. Those averments in an indictment or information for perjury which form the foundation for the commission of the offense, commonly called inducement, may be pleaded in general terms. Under our Code such matters are not required to be pleaded with that precision and particularity as are averments which charge the offense itself.
    3. INDICTMENT AND INFORMATION — Lameny—Name of Defendant — Statute. The information charged the alleged perjury to have been committed in a certain case wherein the State of Oklahoma was plaintiff and Frank Wimberly and George C. Williams were defendants. The state upon the trial introduced an information against G. W. Williams and Frank Wimberly. Held, there was no material variance. The allegation in the indictment referred to the proceeding as a whole, and not merely to the information filed in the case in which the alleged perjury was committed. Under section 5775, Rev. Laws 1910, defendant was required when arraigned in the larceny ease to declare his true name, and the record of this case shows that the larceny case was prosecuted to conclusion against George 0. Williams.
    4. APPEAL AND ERROR — Trial—Limitation of Argument- — Presumption. Where the record shows that before the argument was commenced the court, over the objection of counsel for defendant, limited the argument to one hour on a side, and it does not affirmatively appear that counsel for defendant was unable to complete his argument within the time allowed, and that the court stopped and refused to permit further argument at the conclusion of one hour, no prejudicial error is shown. Under such a state of the record this' court must presume that an hour on each side was sufficient time to complete the argument, or else, if not sufficient, that the court at the conclusion of one hour further extended the time.

      Appeal from District Court/Sequoyah County; John H. Pitch ford, Judge.

    George Williams ■ was convicted of perjury, and he appeals.
    Judgment affirmed.
    See, also, 11 Okla. Cr. 628, 150 Pac. 90.

      T. F. Shackleford and Crump & Crump, for plaintiff in error.

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

It is first alleged that the trial court érred in overruling the demurrer to the information, first, in that the information does not sufficiently set forth the substance of the controversy in respect to which the alleged perjury was committed. In this connection it is contended that the information sets forth no fact showing that the district court of Sequoyah county had' jurisdiction of the cause therein pending, and does not specifically aver that said court had jurisdiction to try and determine said cause.

Without quoting from the information it suffices to say- that matters of inducement are pleaded in general terms, and not with that precision and particularity required of indictments for perjury under the common law. Sections 5746, 5758, 5791, Rev. Laws 1910, provide:

Section 5746: “The indictment or information is sufficient if it can be understood therefrom:

“First. That it is entitled in a court having authority to receive it, though the name of the court be not stated.
“Second. That it was found by a grand jury or presented by the county attorney of the county in which the court was held.
"Third. That the defendant is named, or if his name cannot be discovered, that he is described by fictitious name, with the statement that his true name is unknown.
“Fourth. That the offense was committed at some place within the jurisdiction of the court, except where the act, though done without the local jurisdiction of the county, is triable therein.
“Fifth. That the offense was committed at some time prior to the time of filing the indictment or information.
“Sixth. That the act or omission charged as the offense is clearly and distinctly set forth in ordinary and concise language, without repetition, and in such a manner as to enable a person of common understanding to know what is intended.
“Seventh. That the act or omission charged as the offense, is stated with such a degree of certainty, as to enable the court to pronounce judgment upon a conviction according to the right of the case.”

Section 5753: “In an indictment or information for perjury, or subornation of perjury, it is sufficient to set forth the substance of the controversy or matter in respect to which the offense was committed, and in what court or before whom the oath alleged to be false was taken, and that the court or person before whom it was taken had authority to administer it, with proper allegation of the falsity of the matter on which the perjury is assigned; but the indictment or infor: mation need not set forth the pleadings, record, or proceedings, with which the oath is connected, nor the commission or authority of the court or person before whom the perjury was committed.”

Section 5791: “The defendant may demur to the indictment or information when it appears upon the face thereof, either:

“First. That the grand jury by which an indictment was found had no legal authority to inquire into the offense charged, by reason of its not being within the legal jurisdiction of the county.
“Second. That it does not substantially conform to the requirements of this' chapter.
“Third. That more than one offense is charged in the indictment or information.
“Fourth. That the facts' stated do not constitute a public offense.
“Fifth. That the indictment or information contains any matter which, if true, would constitute a legal justification or excuse of the offense charged, or other legal bar to the prosecution.”

Under section 5746, supra, an indictment or information is sufficient, if it sets out the act charged as the offense “clearly and distinctly * * * in ordinary and concise language, without repetition, in such a manner as to enable a person of common understanding to know what is intended.” Technical pleading in criminal cases is not required, and the common-law doctrine of strict construction has been abolished by our Code. Section 5753, supra, is taken from St. 23, George II, c. 11. In 3 Bishop, New Crim. Proc. (2d Ed.) secs. 904, 905, regarding indictments for perjury, it is said:

“Sec. 904. The following .distinction, if borne in mind, will be helpful to a proper understanding of this entire subject. The averments are necessarily and always of two classes — those which disclose a foundation for the commission of the offense, and those which - charge the offense itself. By the universal rules of'criminal pleading, the former, commonly called inducement, may be general in terms, and be either introduced or not by ‘whereas.’ The latter must be full, direct and specific. What belongs to éach class we shall see as we proceed.”
“Keeping this distinction in mind, let us consider: First, how to set out the proceeding or course of justice wherein the perjury was committed. On principle, since, to render a false swearing perjury there must be an issue or inquiry before some legally competent person or tribunal, the same must be alleged, and in a way to show a jurisdiction. But the jurisdiction is not the complained of fault of the defendant; it is, that he delivered false testimony. Hence the allegation of the court and cause is mere introduction or inducement; and by the rules of criminal pleading, as just stated, it need not be made by direct charge or in detail; general terms will suffice.”

In the case of Reg. v. Dunning, 11 Cox, Crim. Cas. 651, it appears that a question almost identical with that raised in this case was passed upon. The indictment was held to be sufficient, although matters of inducement were pleaded only in general terms. We quote from that opinion:

“Channell, B., delivered the judgment of the court as follows: In this case the prisoner was tried and convicted at the last summer assizes held at Shrewsbury before Pigott, B., for perjury committed on the trial at the general quarter sessions of the peace for the county of Salop, of an indictment for misdemeanor against Isaac Rowlands and John Davies for an offense against the person of John Davies under section 20 of 24 & 25 Viet. c. 100. The case at the trial was fully proved in every necessary particular; but it was objected on behalf of the prisoner, and has been argued before us, that the indictment was bad in form, and that the judgment should therefore be arrested and the conviction quashed. The objection taken at the trial was that the indictment did not state, what the misdemeanor was, which was alleged to have been tried at the quarter sessions, or aver that it was one triable at quarter sessions, i. e., in other words, did not aver that the court of quarter sessions had jurisdiction to try the misdemeanor. This objection,' when developed in argument before us, seemed to fall into two objections : First, that the indictment did not set forth the substance of the offense charged upon the defendant ;■ and, secondly, that it did not either'expressly aver or show by necessary inference that the court before which false oath was taken was a competent authority to administer the same. As to the first objection, the indictment alleges that at the general quarter sessions a certain indictment for misdemeanor came on to be tried in due form of law, in which one Davies was prosecutor, and Rowland and Davies were defendants, and was then and there tried by a jury, etc., and that the prisoner appeared as a witness upon the said trial, 'and was then duly sworn, etc. The indictment then sets out the matter sworn to by prisoner, avers its materiality, and negatives its truth and truthfulness. The objection taken is, that it does not state the subject-matter of the indictment for misdemeanor which was tried at the sessions. ' But that seems rather to point out an alleged defect in not stating the substance of the offense charged against the' defendant tried at the assizes. The substance of the of-' fense charged against him is, that in a judicial proceeding he swore to the truth of certain facts which are set forth, which at the time of so swearing he knew to be false. ‘All that it is necessary to state,’ says Buller, J., in Rex v. Dowlin, 5 T. R. 311, ‘is that there was a certain cause, etc., and that it came on to be tried in due form of law,’ etc. It is true, as pointed out by the counsel for the defendant, that in that case it was alleged that one Kimber was tried upon a certain indictment for murder, etc.; but it seems to us that neither Lord Kenyon, nor Buller, J., rely upon the presence of the words ‘for murder’ in stating the proposition of law, but they mention them only in their relation of the actual facts of that case. In the case of Rex v. Callanan, 6 B. & C. 102, all that was stated was the substance of what the defendant ^swore, and that he did so upon affidavit before a commissioner. The indictment did not state the cause for or in respect of which the affidavit was madé. Yet Abbott, C. J., says that it set forth ‘the substance of the matter sworn,’ using that expression as equivalent to ‘the substance of the offense charged’ upon the defendant, and holding the case to be consequently within the Stat. 23 Geo. II, c. 11. In Lavey v. The Queen, 17 Q. B. 496, the objection taken was that it was not shown that the county court had jurisdiction over the suit in which the alleged false oath was taken, because the nature of the suit was not sufficiently described. ‘It was- argued,’ says Parke, B., in the judgment, ‘that in setting forth “the substance of the offense” it was not sufficient to state “the substance of the matter sworn to,” and aver that it was false, and to allege the authority of the judge to administer the oath.’ But the indictment was nevertheless held to be sufficient'on the ground that it appeared that there was a judicial proceeding, and that the defendant was sworn and stated certain matter which was false, and that the judge had power to administer the oath. The ground of decision is that the substance of the offense charged upon the defendant sufficiently appeared, and that the court had competent authority to administer the oath. These cases seem to us to be authority for.the correctness of the suggestion we have made as to the meaning and construction of the statute, and for holding that in the present case the substance of the offense charged against the defendant sufficiently appears.”

In the case of People v. Ah Bean, 77 Cal. 12, 18 Pac. 815, the Supreme Court pf California held:

“An information for perjury, charging that defendant was duly sworn in a certain case ‘then and there at issue, to wit, "the case of People v. Martine,’ and setting out defendant’s testimony therein, with an averment of its materiality, sufficiently ‘sets forth the substance of the controversy in respect to which the offense was committed,’ as required by Pen. Code Cal. sec. 966.”

See, also, Teague v. State, 13 Okla. Cr. 270, 163 Pac. 954; People v. Schweichler, 16 Cal. App. 738, 117 Pac. 939; State v. Gordon, 196 Mo. 185, 95 S. W. 420.

Under the reasoning of the foregoing authorities it is our opinion that the matters of inducement in the information complained of by plaintiff in error are sufficiently pleaded to have authorized the trial court to overrule the demurrer thereto.

It is also contended that there is a fatal variance between the allegations of the information and the proof. This contention is stated by counsel as follows:

“In this connection we call the court’s attention to the fact that the information upon which this defendant was. tried in this case charges the defendant to have committed perjury ‘in a certain case then ahd there pending 'wherein' the State of Oklahoma was plaintiff and Frank Wimberly: and George C. Williams were defendants,’ and the information in the case out .of which this perjury charge is alléged to have grown and upon which this prosecution is based is an information against G. W. Williams and Frank Wimberly. It will be observed that in the present information it is charged that the case out of which the perjury charge is alleged to have grown is a,gainst Wimberly and Williams, the name of Wimberly coming first, yet in the information introduced in evidence and charging the crime of larceny, the name of Williams appears first, and the in- " formation herein charges that the perjury offense was-’committed in a case against Wimberly and George C. Williams, but the information introduced in evidence charges that the case out of which the perjury charge is alleged to have grown is against G. W. Williams and Frank Wim-berly. Now, George C. Williams-and G. W. Williams could not possibly be one and the same person, and we sub-. mit that the charge in the information at bar to the effect that perjury was committed in a cause pending against .G. W. Williams and Frank Wimberly is descriptive of -the offense sought to be charged in this information. There is absolutely nothing in the information herein to identify the offense sought to be charged or.the cause in which'-it is claimed that the perjury was committed, except the style of the case as set forth in the .information.”

This contention is without merit. The allegation in the indictment referred to the proceeding as a whole, and not merely to the information filed in the case in which the alleged perjury was committed. It was immaterial as to what name was alleged to be the name of the defendant in the larceny information. Under section 5775, Rev. Laws 1910, it was the duty of the defendant when arraigned in the larceny case to declare his true name if “G. W. Williams” was not his true name. The record here shows that the defendant testified and gave his name in the larceny case as George C. Williams. The identity of the proceeding in which the perjury was committed, as well as the identity of the defendant in that case, is clearly established by the proof in this case not to be at variance with the allegations of the information.

The allegations of the information and the record in this case are ample to protect this defendant against any subsequent prosecution for the. perjury intended to be described, and the mistake of the pleader in the larceny case in failing to allege in the information the correct name of the defendant cannot avail him in this case where in the former proceeding he defends and appeals (George C. Williams v. State, 11 Okla. Cr. 628, 150 Pac. 90) in his true name, the one under which he is prosecuted in the latter. State v. Perry, 117 Iowa, 463, 91 N. W. 765; Henderson v. Commonwealth, 122 Ky. 296, 91 S. W. 1141; State v. Hester, 122 N. C. 1047, 29 S. E. 380.

It is also contended that the court erred in limiting the argument of counsel for the defendant over defendant’s objection.

The record shows that' before the argument commenced the court inquired of counsel, on both sides, what time would be required in argument. Counsel for the state announced that 45 minutes would be sufficient, whereupon counsel for the defendant objected to being limited. Thereupon the court announced that it was his opinion that one hour on a side was sufficient to argue the case, to which limitation of argument the defendant’s counsel objected. The record does not show how much time was consumed in argument either by the state or by the defendant. Under the sixth subdivision of section 5870, Eev. Laws 1910, it was error for the court to limit the argument. But it is not every error that authorizes a reversal of a judgment of conviction. There must not only be error, but error must be coupled with injury, unless the statute specifically provides that if a certain error is committed the cause shall be reversed. It is impossible to tell from this record whether or not the defendant was injured by this ruling of the' court. Injury is never presumed by this court; it must affirmatively appear from the record. The record does not indicate whether or not counsel for defendant was able to complete his argument within the time allowed by the court, and if not, that the court stopped his argument at the conclusion of one hour, or if, on the other hand, he was unable to complete his argument within an hour, that the court did not allow him additional time at the conclusion of an hour.

The mere fact that the court announced before the argument began that it would be limited to an hour on each side does not constitute a limitation of the argument to one hour. The record must show affirmatively that at the conclusion of an hour’s argument on a side the court refused to permit further argument to be made, else the presumption will be that the hour allowed was sufficient to complete all the argument that counsel desired to make and there was no injury resulting. We hold, therefore, that the record does not show affirmatively that the defendant was injured in this case by this action of the trial -court.

We have carefully examined the record in connection with alleged misconduct on the part of the county attorney during the trial, and find that the action of the court in rebuking said officer and admonishing the jury not to consider the same was sufficient under the circumstances to correct any error committed. Other matters complained of are without merit and unsupported by the citation of any authority in counsel’s brief.

An examination of the record indicates. clearly the guilt of this defendant. His punishment was fixed at five years’ imprisonment, the minimum under the statute. The crime of perjury strikes at the very foundation of justice and should never be left unpunished where the guilt of the accused is evident, and where the errors complained of are of a technical character depriving the defendant of no substantial right.

The judgment is affirmed.

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


source: Caselaw Access Project

author: DOYLE, P. J.

license: Public Domain

text:
    WILLIAM KIME et al. v. STATE.
    No. A-2442.
    Opinion Filed October 6, 1917.
    (167 Pac. 1159.)
    1. INDICTMENT AND INFORMATION — Duplicity—Demurrer. An information is bad for duplicity that charges two separate and distinct offenses in one count, and a demurrer thereto should be sustained.

      2. SAME — Repugnant Allegations. An information containing contradictory and repugnant allegations is bad on demurrer.
    3. CONSPIRACY — Sufficiency of Evidence. See opinion for evidence held insufficient .to sustain the conviction.

      Appeal from County Court, Cleveland County; B. F. Wolf, Judge.

    William Rime and F. W. Fischer were convicted of a misdemeanor, and they appeal.
    Reversed and remanded, with directions to dismiss.

      F. W. Fischer, for plaintiff in error.

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

Plaintiffs in error, William Rime and F. W. Fischer, together with Henry Willmering,- H. F. Bennett, and J. Gaylor, were, by information filed in the county court of Cleveland county, charged with entering into a conspiracy. The information charges that they did conspire, agree, and confederate together to cheat and defraud one W. W. Hinkle out of his property, consisting of hay, corn, and oats, which property was grown by the said William Rime, upon land owned by the said Hinkle, during the year 1914, and which property had been levied upon under process of the county, court of Cleveland county to enforce the landlord’s lien of the said Hinkle. for rent due from the defendant Kime, and that they “did so conspire for the perversion and obstruction of justice and the due administration of law, and that they did then and there, “well knowing that said property had been levied upon by the sheriff of Cleveland county, and was then and there- under and by virtue of said attachment levy in the custody of the said sheriff, and they did then and there cause said property to be taken from the custody of the sheriff of Cleveland county and from the custody of the law,” and that they did then and there defraud the said W. W. Hinkle out of said property. The above is the substance of a three-page information.

It appears from the record that the defendant J. Gay-lor died before the trial. Upon the trial of the other defendants the jury rendered a verdict acquitting the defendants Henry Willmering and H. L. Bennett, and “find each of the following named defendants guilty: F. W. Fischer, William Kime — and assess their punishment at a fine of $100 each.” From the judgment rendered in pursuance of the verdict, the defendants Fischer and Kime appeal.

The evidence shows that on the 4th day of September W. W. Hinkle commenced an action in the county court of Cleveland county against William Kime for the sum of $250, and filed an affidavit for attachment, alleging that said William Kime was a tenant upon his land, and that said indebtedness was for rent of said land. The affidavit, order of attachment, and the return thereto were lost, and were only shown by the recitals of the judgment rendered in said cause some time after the commencement of this prosecution.

L. P. Barber, the complaining witness, testified that as deputy sheriff he went to the farm of W. W. Hinkle, occupied by William Kime, and levied on certain personal property, consisting of straw, corn, and oats in the bin, and had the property appraised by two appraisers, who fixed the value of said property at $60; that he notified Mr. Kime that he attached the above property, but did not take said property in his possession, or post any notice that said property was attached; that he told Mr.- Kime he- was his agent to look after the property, and gave him permission to feed what stock he had there with it; that he returned in about two weeks, and found that a part of this property had been removed by the defendant J. Gaylor. H. C. Cot-teral testified that on the 7th day of September he was at the Hinkle farm, and heard the defendant F. W. Fischer say that he was going to beat Hinkle’s case against 'Mr. Kime. The foregoing is substantially all the testimony adduced by the state.

• The testimony of defendants as witnesses in their own behalf shows that the defendant Kime rented the Hinkle place for the year 1914, paying $300 down and giving his note for $300, due the following November 1st; that he paid $50 and gave Hinkle 135 bushels of oats to be credited on the rent note; that Gaylor and Willmering bought his mowing machine, stalk cutter, lister, disc, his household goods, two or three bushels of corn, about 50 bushels of oats, and some baled straw, and Gaylor took possession of the place; that Willmering and Bennett owned 240 acres of land near the Hinkle place; that F. W. Fischer is a practicing attorney at Oklahoma City, and as such advised Kime that the purported levy of the order of attachment as served by the complaining witness was void, because under the statute it was the duty of the officer executing the same to take the property into his custody and hold.it subject to the order of the court. It further appears that the defendant Willmering filed an interplea and gave bond in the case of Hinkle v. Kime, claiming said property.

The petition alleges various assignments of error. Those argued in the brief are: Error of the court in overruling the demurrer to the information, and that the verdict is not sustained by the evidence and is contrary to law.

Upon an examination of the record the conclusion of the court is that the judgment in this case cannot be permitted to stand. In the first place, the information is in-suificient to charge a conspiracy to cheat and defraud said Hinkle out of said property, because it is alleged that said property was in the possession of the sheriff by virtue of an order of attachment, and that the defendant Kime was the owner of said property. These allegations are contradictory and directly repugnant, and this renders the information fatally defective. It is manifest, also, that the information is bad for duplicity. In attempting to charge a conspiracy, it also charges a violation of section 2252, Rev. Laws 1910, making it a misdemeanor for one to willfully delay or disturb any public officer in the discharge or attempt to discharge any of the duties of his office. See Ratcliff v. State, 12 Okla. Cr. 448, 158 Pac. 293. An information should be direct and certain as to the offense charged, so that the defendant may know what he is called upon to answer, and that the court may know how to render a proper judgment thereon. For the reasons stated, the demurrer to the information should have been sustained.

We are clearly of the opinion that the verdict rendered against the defendants is wholly unwarranted. The evidence is insufficient to show the commission of a conspiracy or any other offense, and for this reason the court should have directed a verdict of acquittal. The verdict itself as rendered is not sufficiently certain to enable the court to pronounce judgment.

For the reasons stated, the judgment is reversed, and the case remanded, with directions to dismiss.

ARMSTRONG and MATSON, JJ., concur.


author: PER CURIAM.

text:
    ARNOLD BROWN v. STATE.
    No. A-3052.
    Opinion Filed October 6, 1917.
    (167 Pac. 762.)
    CRIMINAL LAW — Instructions—Reasonable Doubt — Cure by Other Instruction. A specific instruction, which requires the defendant to prove the material elements of his defense beyond a reasonable doubt, is erroneous and prejudicial, and is not cured by a general instruction that the defendant is presumed to be innocent until his guilt is established beyond a reasonable doubt.

      Appeal from, District Court, Payne County; John P. Hickam, Judge.

    Arnold Brown was convicted of manslaughter in the first degree, and he appeals.
    Reversed and remanded for a new trial.
    ‘ J. M. Springer, for plaintiff in error.

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

This is an appeal from the district court of Payne county, wherein the plaintiff in error was convicted of manslaughter in the first degree and sentenced to 12 years’ imprisonment in the state penitentiary. The appeal is by transcript of the record, and serious complaint is made of the court’s instructions, one of which is especially urged to be prejudicial.

The defense interposed was self-defense, and upon this issue the trial court gave the following instruction:

“The defendant admits striking the body and head of the deceased at the time and in the manner charged in the indictment; but claims that in doing so he was acting in self-defense, which in law means the right to protect one’s person against an attack, injury, or danger produced by another. The right to defend one’s self against danger or attack, not of his own seeking, is an inherent right, which the law not only concedes, but guarantees to all men; but the law does not permit a man to voluntarily seek or invite a combat. The right of self-defense does not imply the right' of attack, and will not avail in any case where the difficulty is sought for or induced by the defendant by any willful acts of his own, and where the accused voluntarily, of his own free will, entered into it, no matter how imminent his peril may become during the progress of the difficulty. Nor is any one justified in using any more force than is necessary, as it appears to him at the time. If you believe from the evidence in this case beyond a reasonable doubt and under these instructions that at the time the killing took place that the deceased was the aggressor, and first made an attack upon the defendant, and that at the time the defendant inflicted the mortal wound upon the deceased he had reasonable cause to apprehend on the part of the deceased a design to kill him or do him some great bodily harm, and there was reasonable cause for the defendant to apprehend immediate danger of such design being accomplished, and that to avert such apprehended danger he committed the act, that at the time he did so he had reasonable cause to believe and did believe it necessary for him to inflict such wound in the way he did to protect himself from danger, then the killing would be justifiable, and you should acquit the defendant. And in this connection you are further instructed that it was the defendant’s right, if threatened with danger, to determine from the appearances and actual state of things surrounding him as to the necessity of resisting force in self-defense, and if he acted from 'reasonable and honest convictions, measured from defendant’s viewpoint, he will not be held responsible for a mistake, as to the extent of the actual danger where other judicious mén have been alike mistaken. But if you find the defendant was the aggressor at the time of the inflicting of the mortal wound, then he is not entitled to the plea of self-defense.
“Given. John P. Hickam, District Judge.”

• It is contended that this instruction is prejudicial, in that it requires the defendant to prove, beyond a reasonable doubt, that he acted in self-defense. It is clearly evident from the instruction that the court committed prejudicial error. Evidently the court would not have given an instruction on self-defense, had there not been evidence sufficient to authorize the giving of the same. Therefore the defendant was entitled to a clear and affirmative instruction covering his defense, and one which did not place a greater burden upon him than the law required. The defendant is not required to establish the defense of self-defense beyond a reasonable doubt, as stated by the court, in the foregoing instruction; but he is only required, where the killing is admitted, to establish the defense of self-defense by evidence such as, when considered with other evidence in the case, raises a reasonable doubt of his guilt.

While it is true that the instructions of the court must be considered as a whole, and if, when so considered, they are not prejudicial to the defendant, the judgment will not be reversed, yet in .this instance the foregoing instruction was the only instruction given which touched upon the issue raised by the defendant and upon which he based his entire defense. This, then, was a specific instruction, and it would not be proper for this court to say that such an instruction given was cured by the general instruction given that the defendant was. presumed to be innocent, and that the burden was upon the state to prove his guilt beyond a reasonable doubt, because the specific instruction relative to self-defense could not under any circumstances be reconciled with the general instructions theretofore given by the court. Smith v. State, 12 Okla. Cr. 489, 150 Pac. 668, and cases jcited.

For the reasons given, the judgment must be reversed, and the cause is,remanded to the district court of Payne county for a new trial. It appears that the defendant is confined in the state penitentiary, and the warden of said' institution is hereby instructed to deliver the said Arnold Brown into the custody of the sheriff of Payne county upon proper demand by said officer.


text:
    WALT COOK v. STATE.
    No. A-2804.
    Opinion Filed October 7, 1917.
    (168 Pac. 248.)
    APPEAL AND ERROR — Dismissal for Want of Prosecution. Where an appeal from a conviction was taken by filing a petition in error with case-made, but no briefs were filed, a motion to dismiss the case for failure to prosecute the appeal will be granted.

      Appeal from County Court, Garfield County; E. L. Swigert, Judge.

    Walt Cook was convicted of a violation of the prohibitory law, and he appeals.
    Affirmed.

      H. J. Sturgis, for plaintiff in error.

      R. McMillan, Asst. Atty. Gen., for the State.
   PER CURIAM.

On information filed in the county court of Garfield county, charging that the plaintiff in error, Walt Cook, did on or about the 23d day of March, A. D. 1915, have in his possession intoxicating liquor, to wit, 12. quarts of beer, at his place of business on South Grand avenue, in a building known as the Grand Avenue Hotel Building, in the city of Enid, with the intent then and there to sell the same, he was tried and convicted, and was by-said court sentenced to serve a term of four months in the county jail and to pay a fine of $500 and costs.

To reverse the judgment an appeal was taken by filing in this court on July 31, 1916, a petition in error with case-made. No briefs have been filed. When the case was called for final submission, the Assistant Attorney General moved to affirm the case for failure to prosecute the appeal.

It appearing that the appeal has been abandoned, the judgment of the lower court is affirmed. Mandate forthwith.


text:
      Ex parte WILLIE STOVER.
    No. A-2073.
    Opinion Filed October 16, 1917.
    (167 Pac. 1000.)
    HABEAS CORPUS — Issuance of Writ — Jurisdiction—Correction of Errors. Where a prisoner in custody under sentence of convi-.:tion seeks to be discharged on habeas corpus, the inquiry is limited to the question whether the court in which he was convicted had jurisdiction of his person and of the crime charged, and if the trial court had jurisdiction to convict and sentence, the writ cannot issue to correct mere errors.
    Application by Willie Stover for writ of habeas corpus.

    Writ denied.

      Ad V. Coppedge, for petitioner.

      R. McMillan, Asst. Atty. Gen., for the State.
   PER CURIAM.

This is a petition for writ of habeas corpus. It is alleged in the petition that Willie Stover is illegally restrained of his liberty by the sheriff of Delaware county by virtue of an unlawful judgment and sentence of the county court, wherein he was sentenced to be confined in the county jail for 60 days and to pay a fine of $120, upon his conviction of the crime of transporting liquor. It is alleged that:

Said “court was without jurisdiction to try the cause for the reason that said court did .not convene at the time as fixed and required by law at the town of Grove, a court town, but not the county seat and being the only court town in Delaware county except the county seat.”

Where a prisoner in custody under sentence of conviction seeks to be discharged on habeas corpus the inquiry is limited to the question whether the court in which the prisoner was convicted had jurisdiction of the person of the defendant and of the crime charged; and, if the trial court had jurisdiction and power to convict and sentence, the writ cannot issue to correct mere errors.

To the petition in this case counsel for the state interposed a demurrer, which demurrer was sustained, and the writ of habeas corpus- was and is refused.


author: ARMSTRONG, J.

text:
    W. J. NEAL et al. v. STATE.
    No. A-2648.
    Opinion Filed October 20, 1917.
    (168 Pac. 247.)
    1. CHATTEL MORTGAGES — Disposition of Mortgaged Property— Criminal Offense — Defenses. In the trial of a person charged with unlawfully disposing of mortgaged property, be is entitled to plead as a defense the fact that the property covered by the indictment or information was disposed of according to law and the proceeds applied in the liquidation of a prior mortgage debt.
    2. SAME — Second Mortgage — Interests of Mortgagees — Consent of Second Mortgagee to Sale. The rights of the first lienholder under a mortgage on chattel property are paramount, and all that the second mortgagee is entitled to under the law is the equity remaining after the first mortgage debt is paid. The law, of course, contemplates that a sale under the first mortgage shall comply with the law, and that no fraud be perpetrated on the rights of the second mortgagee. His written consent, however, to a sale and disbursement of the funds in liquidation of the first mortgage debt, is not required.

      Appeal from District Court, Greer County; R. W. Higgins, Assigned Judge.

      W. J. Neal and B. E..Neal were convicted of unlawfully disposing .of mortgaged property, and they appeal.
    Reversed and remanded, with direction to grant a new trial.

      Frank Eagin, for plaintiffs in error.

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

W. J. Neal and B. E. Neal were convicted in the district' court of Greer county at the August, 1915, term, on & charge of unlawfully disposing of mortgaged property, and their punishment fixed at a fine of $250 each.

The information charges the plaintiffs in error with having sold four bales of cotton during the season of 1914, which had been mortgaged on the 17th day of January, 1914, to the First State Bank of Mangum, and that the said sale was made without the written consent of the said First State Bank of Mangum or its proper officers. At the trial of the case the plaintiff in error W. J. Neal testified that he did not raise any cotton during the year 1914; that he planted a crop twice, but pests destroyed it each time.

The state introduced a number of cotton tickets issued by a ginner in Greer county showing that 17 bales of cotton had been ginned in the name of W. J. Neal. This witness offered an explanation of that feature of the case by stating that all the cotton raised on the premises by him and his sons, who had separate crops, was ginned in his name, for the purpose of keeping the record clear for settling up with his landlord, whom he contended was a contentious person and hard to deal with. B. E. Neal offered to testify that the particular cotton alleged to have been sold in violation of the mortgage was raised by him, and that the sale was made and the proceeds applied on a mortgage he had given on a prior occasion, to wit, on December 13th, to H. H. Lyton, which covered the particular four bales sold and formed the basis of the prosecution, and offered the mortgage in evidence. The court declined to receive this mortgage in evidence, and to permit the plaintiff in error B. F. Neal to establish as a defense the proposition that the cotton was sold and the proceeds applied to the payment of a first mortgage debt. The-court, in his ruling on the proposition, stated that under the law, as he understood it, a person who had given both a first and second mortgage could not sell cotton and apply the proceeds of the sale to the first mortgage without the written consent of the second mortgagee, and upon this ground' excluded the evidence in question. W. J. Neal attempted to plead as a defense on his behalf that he raised no cotton as above stated, and, further, that he did not owe the First State Bank of Mangum anything on account of the fact that he had paid all the debt except the usurious interest which the said bank had charged him on the amount they claimed.

The ruling of the trial court in refusing, to admit the evidence tending to show the existence of a prior mortgage, and that the proceeds of the cotton sold were applied in liquidation of that obligation, on the ground that the written consent of the second mortgagee would have to be secured before such sale and application of the funds could be made, is fundamentally wrong. Following to its natural conclusion the argument that the written consent of the second mortgagee had to be secured before a sale could be made, the rights of the first mortgagee would be destroyed. Such is not the law. The second mortgagee had rights only after the first mortgage had been paid in full, and not until then. So if the cotton was sold at a fair market price and the proceeds fully accounted for by application upon the note due to the said first mortgagee, then no crime was committed. It was therefore the duty of the court to permit proper proof of the facts in this connection and submit the same to the jury with correct instructions, so that the.jury might determine this issue.

The rights of the second mortgagee could be protected under the statute in two ways: First. An equity in all the property covered by the second mortgage which was also covered by the first mortgage, after the liquidation of the first mortgage, would go to him and he would be entitled to receive the proceeds of the cotton sold over and above the amount required to liquidate the first mortgage. Second. The second mortgagee also had the right, in the event he desired to do so, to pay off the first mortgage debt and thereby become the first lienholder against all the property in question, in which event the view of the law by the trial court would be correct, but not otherwise. The plaintiffs in error having testified that the four bales of cotton involved in this prosecution were sold and the proceeds applied on the payment of the first mortgage debt, and nobody having testified or contended to the contrary, this case is left in such condition that the judgment of conviction cannot be upheld.

There is evidence in the record that some-17 bales of cotton were raised on the premises, but this prosecution involved only four bales, and plaintiffs in error offered to account for the disposition of the particular four bales, and since the proof offered on behalf of the plaintiffs in error would disclose that the proceeds of their sale were applied to the liquidation of the debt secured by a prior mortgage, it became vital to their defense that they be allowed to introduce the prior mortgage and the facts surrounding the execution of the same, and show the disposition of the property charged to have been unlawfully and fraudulently, disposed of, and such evidence should have been allowed to go to the jury under proper instructions.

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

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


text:
    L. P. SMALLWOOD v. STATE.
    No. A-2664.
    Opinion Filed October 20, 1917.
    (167 Pac. 1154.)
    1.- EVIDENCE — Confession. A county attorney has no authority to discontinue a prosecution except by permission of the court, and when .an agreement is made between counsel for the accused and the county attorney contingent upon the accused returning property stolen in a robbery, and to dismiss the prosecution in case the injured party, who is a nonresident, fails to return to testify at the examining trial, and thereafter the accused returns the stolen property and makes statements to the officers concerning the commission of the crime, the judgment will not be reversed on the ground that the admissions were improperly introduced, when it clearly appears that the county attorney lived up to his agreement in every respect, and that the guilt of the accused is conclusively established.
    2. SAME — Testimony of Absent Witness — Admission. Á transcript of the testimony of a witness taken at the examining trial properly authenticated and preserved, as the law requires, is entitled to be admitted in evidence, when it is established that such witness is beyond the jurisdiction of the court, and cannot be secured at the trial of the cause.

      Appeal from District Court, Carter County; W. F. Freeman, Judge.

    L. P. Smallwood was convicted of robbery, and he appeals.
    Affirmed.

      James H. Mathers, for plaintiff in error.

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

The plaintiff in error, L. P. Small-wood, was convicted in the district court of Garter county on a charge of robbery, and his punishment fixed at imprisonment in the state penitentiary for a term of five -years.

The information charges the plaintiff in error, Small-wood, jointly with Aneta Jones, W. F. Eisner, and- Mable Weeks, with the robbery of J. E. Stewart, in the city of Ardmore, on the night of March 16, 1915. One hundred and ninety dollars in currency, a small amount of -silver, a one and one-half karat diamond, and an automatic pistol were taken from Stewart. A confession was later made by Smallwood and some of the others jointly charged, and the property recovered. The property was found at places where Smallwood, in his confession, had told the officers it was located, and the principal portion of it found secreted about a. building upon which Smallwood was working at the time. It appears that he accompanied the officers in person to recover a part of the property. There is no question about his guilt. The record will be reviewed, therefore, for the sole purpose of determining whether or not there is prejudicial error of law in the proceedings.

The first proposition urged in the brief is based upon the contention that the confession obtained from Small-wood and introduced in evidence over his objection and exception was secured under promise that he would not be prosecuted. Counsel rely upon the general doctrine that a confession made'by one in custody, under circumstances which show that he was induced to make the same by promise of immunity or leniency, or that it would be m his interest to make the same, cannot be used as evidence against a person making it, and rely upon the doctrine in Hunter v. State, 3 Okla. Cr. 544, 107 Pac. 444, to support them.

The facts in this case indicate that J. B. Champion, Esq., was attorney for Smallwood and others who were jointly charged with him; that before the trial and during the time Smallwood was in jail at Ardmore, he had a conversation with the county attorney in which it was agreed between them that the property taken in the robbery would be returned to Stewart, and that if Stewart failed to return to testify in the examining trial which had been set for a future date, the case would be dismissed as against all of the parties. No agreement was made at any time by the county attorney to dismiss the prosecution against Smallwood or any of the others, except upon the condition that Stewart, the injured party, should fail to appear as a witness at the examining trial. When the examining trial was had, Stewart appeared and testified. At the time of the trial in the district court, however, Stewart was in Texas, and refused to respond to urgent efforts of the county attorney to induce him to appear and testify. The only immunity discussed or inducement offered by the county attorney to the accused, through their attorney, was to dismiss the case if the injured party failed to return and testify at the examining trial.. This presents a different proposition from that considered in the case of Hunter v. State, supra, and the doctrine therein announced, while sound, is not controlling here.

As we view the record, the county attorney lived up to his agreement with the accused and they are entitled to no just complaint against him or the other officers of the court on account of the declarations, admissions, and confessions admitted, nor is defendant entitled to complain on account of the proof of his actions in going with the officers to recover the property taken in' the robbery and surrendering it to Stewart. Under the circumstances disclosed all the proof of these facts was properly admitted in evidence.

The only other proposition to be considered is based upon the contention that the court improperly admitted the transcript of the evidence of the injured party, J. E. Stewart, taken at the examining trial, to be read in evidence. This proposition is wholly without merit, and the principle has been discussed so often that, it does not require further consideration here. Stewart was a nonresident of Oklahoma at the time of the trial in the district court and was, beyond question, without the jurisdiction of the court at the time of the trial. The transcript of the testimony was duly transcribed, signed by the witness, and filed by the committing magistrate with the court' clerk of Carter county, and was properly admitted in evidence.

Finding no prejudicial error in the proceedings, and the guilt of the accused having been established beyond question, the judgment will be affirmed.

Affirmed.

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


text:
    CLAUDE SMOOT v. STATE.
    No. A-2750.
    Opinion Filed October 25, 1917.
    (167 Pac. 1158.)
    1 INTOXICATING LIQUORS — Unlawful Conveyance — Sufficiency of Evidénce. Evidence in a prosecution for unlawfully conveying whisky, in violation of the prohibitory liquor law, held to sustain a conviction.
    ° SAME — Time of Offense. The date alleged in an information for unlawfully conveying whisky in violation of the prohibitory law is immaterial, as time is not an essential element of the offense, which may be proved on any day prior to the filing of the information, and within the statutory period of limitations.

      Appeal from County Court, Comanche County; R. J. Ray, Judge.

    Claude Smoo.t was convicted of a violation of the prohibitory law, and he appeals.
    Affirmed.

      Lewis Hunter, for plaintiff in error.

      R. McMillan, Asst; Atty. Gen., for the State.
   PER CURIAM.

Plaintiff in error was convicted in the county court of Comanche county of the crime of unlawfully conveying whiskey, and was sentenced to be confined in the county jail for a period of 30 days and to pay a fine of $50. To reverse this julgment an appeal was perfected.

The only assignment of error briefed by counsel for plaintiff in error is that the court admitted evidence of another separate conveyance on the day following the date alleged in the information to have been the date on which this.particular shipment of liquor was conveyed. We have-examined the record relative to this assignment of error, and find that the same is not supported thereby.' There was testimony by one witness who saw this defendant, together with one Clark, receive a shipment of liquor from the depot in the town of Faxon, and this witness remembered the date as that of November 30th. The records, of the express agent showed that these same parties got a shipment of liquor on the 1st day of December, but it is clear from the evidence that the shipments testified to by the two witnesses were the same transaction, and it occurred prior to the filing of the information. This is not an essential element of this offense, and the date alleged in the information was immaterial. The offense could have been proved to have' occurred on any other date prior to the filing of the information, and within the statutory period of limitations. The evidence is sufficient to sustain a conviction; the defendant making no substantial defense to the charge’.

The judgment is affirmed.


text:
    B. S. BEARD v. STATE.
    No. A-2785.
    Opinion Filed October 25, 1917.
    (167 Pac. 1160.)
    INTOXICATING LIQUORS — Unlawful Possession — Sufficiency of Evidence. Evidence, in a prosecution for tlie unlawful possession of intoxicating liquors, held insufficient to sustain a conviction.

      Appeal from County Court, Tulsa County; ■ J. W. Woodford, Judge.

    B. S. Beard was convicted of a violation of the prohibitory liquor law, and he appeals.
    Reversed, and cause remanded.

      Luther James, for plaintiff in error.

      R. McMillan, Asst. Atty. Gen., for the State.
   PER CURIAM.

B. S. Beard was convicted in the county court of Tulsa county of having the unlawful possession of intoxicating liquors, and fined $100 and sentenced to serve 30 days in the county jail. To reverse this' judgment he perfects this appeal.

It is contended, among other assignments of error, that there is a total lack of competent evidence tending to prove that this appellant had possession of the particular liquor found at Brown’s Pharmacy, in Tulsa, Okla., at the time of this alleged search on September 13, 1915. The evidence is uncontradicted that on that particular date several police officers searched the said premises and found eight gallons of whisky, four quarts of whisky, and. four gallons of alcohol thereon. The appellant was not found at said premises in possession of said liquors at that 'time. The only -connection shown between the appellant and the liquors, or even the premises where the liquors were found, was by the testimony of W. I. Reneau, who testified: That he was the owner of the premises where Brown’s Pharmacy was located, and that the appellant, Beard, and one Jones had bought out Brown, the previous occupant, and so far as he knew had been in possession of the premises; Beard paying the rent part of the time and Jones part of the time. That he never had any contract with said B. S. Beard, and that he does not remember who paid the rent in September, 1915; that he does no* know that Beard occupied the building at that time, but that he always got his rent, and that Beard had paid rent on the building some time in the early part of the summer of 1915, and that Jones had paid it at other times.

The proof amounts only to a suspicion that at some time during the early summer of 1915 Beard was occupying the premises known as the Brown Pharmacy, or at least was connected with the same in. some manner, because he had paid rent to the owner of the building. It is not shown that Beard ever at any time paid' a tax required of retail liquor dealers to the federal government, or that he had a dispenser’s certificate issued by the State of Oklahoma to dispense alcohol, or that he received shipments of liquor on. or about the time of this search, or immediately prior thereto. While he is by. circumstantial evidence connected' with the renting of the building in the summer of 1915, there is no proof that he was directly connected with the premises on the 13th day of September, 1915, or that he was in any manner connected with the liquor found there on that day. The proof connecting Beard with the possession of these liquors amounts merely to a suspicion, and, in our opinion, it would be a very dangerous precedent to permit a judgment of conviction to stand upon such proof as is disclosed by this record. Certainly with a little further investigation the county attorney would have been able to establish by more direct and positive proof the connection of this defendant with the premises.

It is the opinion of the court that the judgment should be. reversed and the cause remanded.


author: MATSON, J.

text:
      Ex parte EDWIN DE FORD.
    No. A-3088.
    Opinion Filed October 25, 1917.
    (168 Pac. 58.)
    SODOMY — Form of Offense — Statute—“Crime Against Nature.” Section 2444, Rev. Laws 1910, providing. “Any person who is guilty of the detestable and abominable crime against nature, committed with mankind or with a beast, is punishable,” etc.— includes copulation between human beings per os as well as per anum.
    Original application by Edwin De Ford for writ of habeas corpus.

    Writ denied.

      W. L. Boner, for petitioner.

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

This is an application on the part of the petitioner, Edwin De Ford, for a writ of habeas corpus to be discharged from imprisonment in the state penitentiary at McAlester.

Petitioner alleges that he is unlawfully restrained of his liberty, in -that the acts charged against him and of which he was convicted do not constitute “the abominable and detestible crime against nature” within the meaning of our statute. The information to which the petitioner entered a plea of guilty alleged that he (petitioner) did “willfully, intentionally and feloniously commit the abominable and detestible crime against nature, by then and there taking into his mouth the penis of one F. H., and sucking the same until a seminal emission ensued.” The statute (sections 2444 and 2445, Rev. Laws 1910) provides :

“Sec. 2444. Any person who is guilty of the detestible and abominable' crime against nature, committed with' mankind or with a beast, is punishable by imprisonment in the penitentiary not exceeding ten years.
“Sec. 2445. Any sexual penetration, however slight, is sufficient to complete the crime against nature.”

It follows if the act described in the information does not constitute a crime under the foregoing statute the petitioner should be discharged from custody, there being no other statute of this state on the subject. The question here involved is not one of first impression with the appellate courts of several of the states, although this is the first occasion this court has been called upon to consider the legal propositions raised by the petition. The authorities in those states where the common-law definition of sodomy has not been enlarged upon are directly in conflict. Some are to the effect that the act here charged was not intended to be, nor was it, included' within the term “sodomy” as known to the common law, while the others, .and to our mind better reasoned opinions, are to the effect that “all unnatural carnal copulation whether with man' or beast seems to come under the notion of sodomy at common law.” The precedents relied upon by counsel for petitioner apparently are based upon and may be traced to the case of Rex v. Jacobs, Russell and Ryan’s Crown Cases, p. 331.

The text-writers and courts who have followed the above case have apparently done so without thoughtful consideration or careful investigation. Their action in so doing is thus criticized by the Supreme Court of Oregon in the case of State v. Start, 165 Or. 178, 132 Pac. 512, 46 L. R. A. (N. S.) 266:

“Many precedents are cited by the defendant in support of his theory. They are all traced back to and have their origin in the case of Rex v. Jacobs, Russell and Ryan’s Crown Cases, p. 331: T,he prisoner, there'was conr victed on evidence showing ¡conclusively that, he had accomplished the act by force in the mouth of a boy about seven years old, and the question was whether this was sodomy. All that is said in answer to the question in the report of the case follows:- ‘In Eastern term, 1817, the judges met ánd were of opinion that this did not constitute the offense of sodomy, and directed a pardon to be applied for.’ The authorities cited by the defendant have implicitly followed this ipse dixit of the English court without giving any reason therefor, always controlled solely by the doctrine of stare decisis, and often with protests against the authority of the rule. Although there are no common-law crimes in this state, we must turn to that law for the definition of certain crimes where the meaning thereof is not set forth in our Code. The rule at common law was that: ‘All unnatural carnal copulation whether with man or beast seems to come under the notion of sodomy.’ 1 Hawkins, Pleas of the Crown, p. 357. In the order of nature the nourishment of the human body is accomplished by the operation of the alimentary canal, beginning with the mouth and ending with the rectum. In this process food enters the first opening, the mouth, and residuum and waste are discharged through the nether opening of the rectum. The natural functions óf the organs for the reproduction of the species are entirely different from those of the nutritive system. It is self-evident that the use of either opening of the alimentary canal for the purpose of sexual copulation is against the natural design of the human body. In other words, it is an offense against nature. There can bé no difference in reason whether such an unnatural coition takes place in the mouth or in the fundament — at one end of the alimentary canal or the other. The moral filthiness and iniquity against which the statute is aimed is the same in both cases. Each is rightfully included in the true scope and meaning of the common-law definition quoted above from Hawkins. By far the better reasoninig is found in the cases of State v. Whitmarsh, 26 S. D. 426, 128 N. W. 580; Herring v. State, 119 Ga. 709, 46 S. E. 876, and others which might be cited.”

And again in the admirable opinion and unanswerable reasoning of Mr. Justice Cox of the Supreme Court of Indiana in Glover v. State, 179 Ind. 459, 101 N. E. 630, 45 L. R. A. (N. S.) 473:

“There can be no doubt of the soundness of the general rule that penal statutes are to reach no further in meaning than the fair and plain import of their words, and that acts within the mischief and reason, but not within the letter, are to be excluded. But the crime of sodomy has always been deemed a very pariah of crimes, and the acts constituting it but seldom specifically defined. There can be no doubt that many of the definitions are amply broad to include the act.in question. The earliest mention of it in the laws of England may be found in Rotuli Parl. 50, Edward III, No. 58 (1376), where it appears that a complaint was made that the Lombards had brought into the realm a shameful vice, not to be .named, which complaint was accompanied by the suggestion that it should be punished for the safety of the realm. The vice was not more particularly described. The statute of 25 Henry VIII made the ‘detestible and abominable vice of buggery committed with mankind or beast’ a felony punishable by death, but the felony was not otherwise described. Statutes at Large, 1483-1539, p. 267.
“Coke defines the crime as ‘a detestible and abominable sin, amongst Christians not to be named, committed by carnal knowledge against the ordinance of the Creator, and order of nature, by mankind with mankind, or with brute beast, or by womankind with brute beast.’ 3 Inst. 58. The same- definition is found in Bums’ Justice of the Peace, vol. 1, p. 528. Hawkins tells us that ‘all unnatural carnal copulations, whether with man or beast, seem to come under the notion of sodomy, which was felony by the ancient common law, and punished, according to some authors, with burning', according to others with burying alive.’ 1 Hawk. P. C. 357. In Bacon’s Abridgment the definition is ‘an unnatural copulation between two human creatures or between a human and a brute creature.’ 9 Bacon’s Abr. 158. See, also, Jacob’s Law Dict. vol. 1, p. 375.
“As we have seen, the definition given by Blackstone is similar to and fully as general as that in our statute upon which the conviction of appellant rests. More modern definitions are equally as broad as many of the ancient ones. Russell on Crimes, gives it as, Peccatum, illud horrible inter christianos non nominandum’ (that horrible crime not to be named among Christians), without f urther particularity. And this is clearly merely the ancient definition. 7th Eng. Ed. vol. 1, p. 975. In Bishop’s New Criminal Law, vol. 2, sec. 1191, the definition is given as ‘a carnal copulation by human beings with each other against nature, or with a beast.’ See, also, Anderson’s Law Dictionary. In 36 Cyc. 501, it is defined as follows: ‘Sodomy, in its broadest meaning, is the carnal copulation by human beings with each other against nature, or with a beast, in which sense it includes the crime against nature, bestiality and buggery. In its narrower sense sodomy is the carnal copulation between two male human beings per anurn.’ See, also, Ausman v. Veal (1858) 10 Ind. 357, 71 Am. Dec. 331. Modern lexicographers unite in giving the word ‘sodomy’ a broad and comprehensive definition, as is shown by the definition in the Century Dictionary, which is given as ‘unnatural sexual relations, as between persons of the same sex or with beasts.’
“The original authority for the statement found in text books and some American cases that the act involved in this case is not within the common law definition of the crime is the case of Rex v. Jacobs (1817) 1 Rus. & Ry. 331. The report of the case is exceedingly short and gives no reason for the conclusion reached. It'alone has^ led a number of text-books on Criminal Law to make the statement that ‘to constitute the offense the act must be in that part where sodomy is usually committed.’ Bacon’s Abridgment, vol. 9, p. 160; 1 Russell on Crimes (7th Eng. Ed.) p. 976. This very- statement, however, is a concession that the offense is sometimes, if more rarely, committed in other ways, and justifies the broader and more comprehensive common-law definitions which we have set out. The case of Rex. v. Jacobs, supra, stands alone in England on the question, and no other expression of the courts of that country can be found to limit the broader definitions of the offense given by the great writers on the common law. In view of this fact, we think we are left free to conclude.that our Legislature, when it passed the act of 1905 (Bums’ Ann. St. 1908, sec. 2374), supra, chose rather the broad definition of the crime, which would include those abominations within the mischief of the law, rather than the narrow one which without reason would exclude from punishment a perpetrator of what might well be considered the vilest and most degenerate of all the acts within the inclusion of the broad definition. * * *
“In the well-considered case of State v. Whitmarsh, supra, in commenting on the reason given by certain writers on criminal law for the decision in Rex v. Jacobs, supra, that, ‘to constitute this offense, the act must be in that part where sodomy is usually committed,’ it is said: ‘The mere statement of the above reason shows the unsoundness of such a distinction. It concedes that the act is sometimes committed in some other part, and, by conceding that the act committed in such other part is not the usual offense, the statement concedes that the act, if committed in such other part, would be still more unnatural, because, if not more unnatural, it would not be more unusual. Certainly this unusual act is many times more “detestable and abominable” than that made criminal at common law. As was well said by the court in State v. Vicknair, 52 La. Ann. 1921, 28 South. 273: “But why, in the common-law courts, the use of the mouth should not have been considered as much against nature as though the act were committed per anwm is incomprehensible.” ’ ”

It is apparent from the authorities cited in the foregoing decisions (which were reached after most thoughtful and deliberate consideration) that the great: writers on the common law recognized sodomy to include “all unnatural copulations/ whether with man or beast,” and in such sense it includes copulation between human beings per os as well as per anum. This conclusion is also in harmony with the following cases: State v. WMtmarsh, 26 S. D. 426, 128 N. W. 580; Herring v. State, 119 Ga. 711, 46 S. E. 876; White v. State, 136 Ga. 158, 71 S. E. 135; Honselman v. People, 168 Ill. 172, 48 N. E. 304. Our statute is the same as that of South Dakota, which was construed by the Supreme Court of that state in Whit-marsh v. State, supra, wherein it is said:

“We believe the clause ‘crime against nature’ as used in our statute was so used intending to include therein every unnatural carnal copulation. The statute of this state (section 10, Rev. Penal Code) provides: ‘The rule of common law that penal statutes are to be strictly construed has no application to this Code. All its provisions are to be construed according to the fair import of their terms, with a view to effect its objects and promote justice.’ It would be an insult to the Legislature which enacted our statute to hold that from the words of our statute it appears it intended to allow the most heinous form of the crime against nature to go unpunished simply because it was an unusual form of such crime. Even if our Legislature had in such statute used the term ‘sodomy,’ still we would feel bound to give to such word the broad meaning given to it by lexicographers, which meaning was given to it by at least one common-law authority, as is evidenced by 1 Hawk. Plea of the Crown, p. 357, wherein it was said: ‘All unnatural carnal copulations, whether with man or beast, seem to come under the notion, of sodomy, which was a felony by the ancient common law.’ And we would say with the Georgia court: ‘After much reflection, we are satisfied that, if the baser form of the abominable and disgusting crime against nature — i. e., by the mouth— had prevailed in the days of the early common law, the courts of England could well have held that that form of the offense was included in the current definition of the crime of sodomy. And no satisfactory reason occurs to us why the lesser form of this crime against nature should be covered by our statute, .and the greater excluded, when both are committed in a like unnatural manner, and when either might well be spoken of and understood as being “the abominable crime hot fit to be named among Chris-tions.” ’ Herring v. State, 119 Ga. 709, 46 S. E. 876.”

For the reason that it is the opinion of this court that section 2444, Rev. Laws 1910, supra, meant to cover sodomy in its broader definition as hereinabove indicated, copulation between human beings through the mouth is included within its prohibitions, and the judgment of the district court of Bryan county pronounced on the petitioner’s- plea of guilty to the aforesaid charge • is valid. The writ is therefore denied.

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


text:
    ALFRED AULT v. STATE.
    No. A-2428.
    Opinion Filed October 30, 1917.
    (168 Pac. 58.)
    1. APPEAL AND ERROR — Verdict—Sufficiency of Evidence. Tt is the exclusive province of the jury to determine and pass upon the credibility of the testimony, and, if found sufficient to sustain the verdict, the judgment will not be disturbed on account of a conflict of evidence.
    2. LARCENY — Horse Theft — Sufficiency of Evidence. In a prosecution for horse theft, the evidence is held to support the verdict, and that no reversible error was committed on the trial.

      Appeal from District Court, Beaver County; W. C. Crow, Judge.

    Alfred Ault was convicted of horse theft, and he appeals.
    Affirmed.

      J. W. Culwell, A. S. Dickson, and Chas. Swindall, for plaintiff in error.

      S. P. Freezing, Atty. Gen., and B. McMillan, Asst. Atty. Gen., for the State.
   DOYLE, P. J.

The plaintiff in error, Alfred Ault, was convicted of the theft of a horse, the property of Robert Ridenour, and in accordance with the verdict he was sentenced to imprisonment in the penitentiary at McAlester for the term of one year.

The only question presented by the record is the sufficiency of the evidence to support the verdict and judgment. The evidence for the state was wholly circumstantial. The defendant as a witness in his own behalf testified that on his way from Beaver county, Okla., to his homestead in Baca county, Colo., he bought the horse in question, that he was well acquainted with the horse owned by Robert Ridenour, and that it was not the same horse. Under our system of jurisprudence the jury are the exclusive judges of the facts proved and of the weight to be given to the testimony. Where the evidence for the state is circumstantial, and the circumstances are such as to reasonably justify an inference of guilt, the weight of such testimony is exclusively for the jury. It is only when such evidence obviously does not warrant an inference of guilt that the conviction will be set aside.

We think the verdict of a jury, based upon circumstantial evidence, comes to us as any other verdict. Unless we can say the inference of guilt drawn from the evidence is wholly unwarranted, we will not interfere. That we cannot say in this case.. We think the evidence abundantly sustains the verdict.

Finding no prejudicial error in the record, the judgment of the district court of Beaver county is affirmed.

ARMSTRONG and MATSON, JJ., concur.


text:
    IRVIN KEARNS v. STATE.
    No. A-2438.
    Opinion Filed November 9, 1917.
    (168 Pac. 242.)
    1. INDICTMENT AND INFORMATION — Duplicity—Evidence. An information charging murder which alleges that the means used in producing death was a slung-shot or other blunt instrument, the accurate description of which is unknown to the county attorney, and an axe, is not subject to demurrer on the ground that it is duplicitous, for the reason that both such instruments could be used in the perpetration of the erime. The proof in the record under review establishes the fact that such was the condition under which the homicide involved occurred.

      2. EVIDENCE — Testimony of Absent Witness — Transcript. The transcript of the testimony of a witness who testified at the examining trial is entitled to be admitted in evidence on behalf of the state when the witness who gave the testimony is dead, has voluntarily left the state, or is otherwise beyond the jurisdiction of the court, without the consent of the proper officer.
    3. EVIDENCE — Confessions—Voluntary Character — Promise of Immunity. (a) A confession made by a person who is in custody is not admissible in evidence against him if it is induced by promises of immunity or other material advantage.
    (b) A voluntary confession, however, is admissible, and is entitled to go to the jury for what it is worth.
    4. TRIAL — Trial of Issue of Insanity — Denial of Application, (a) An application made to the court by motion to try the sanity of the accused is properly denied when no doubt of his sanity is raised by the pleadings and the proof offered in support thereof.
    (b) An examination of the record involving this proposition as it affects' the ease under consideration discloses the fact that counsel did not bring themselves within the doctrine laid down by this court in Marshall v. Territory, 2 Okla. Or. 136, 101 Pac. 139.
    5. TRIAL — Given Instructions — Requested Instructions. When the instructions of the court fairly cover all the law applicable to the issues in the case, the judgment will not be reversed because ' the court refused to give specific instructions requested. This, of course, contemplates that all material issues shall be submitted to the jury in the genefal charge.

      Appeal from District Court, Blaine County; Jas. R. Tolbert, Judge.

    Irvin Kearns was convicted of .murder, and he appeals.
    Affirmed.

      Woolman & Wishard, for plaintiff- in error.

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

Irvin Kearns was convicted at the September, -1914, term of the district court of Blaine county on a charge of murder, and his punishment fixed at imprisonment in the state penitentiary for life. The information was filed on the 1st day of June, 1914, and charges the plaintiff in error with the murder of John Y. Leigh in Blaine county, in August, 1913, by striking him upon the head with a slung-shot, or other blunt instrument, and with an axe. A demurrer was filed to the information and overruled by the court.

The first assignment of error argued in the brief is based upon the proposition that the court erred in overruling the demurrer. Counsel contend that the information should have charged that the murder was committed with a slung-shot in one count and with an axe in another count, or that the charge should have been made in the disjunctive in one count. With this contention we cannot agree. The proof clearly establishes the fact to our mind that the deceased was struck over the head with a slung-shot and rendered insensible, but not killed outright; that immediately thereafter he was struck upon the head with .an axe and the skull crushed in. The death was caused by the use of the slung-shot and the axe. The information alleges that this was the manner in which death was produced, and' the proof sustains the allegations. Counsel’s contention would be founded in merit if only one of the means set forth in the information had been used, but in this case both were used and both were contributing causes to the death of the deceased. The demurrer was properly overruled. '

The next assignment urged is based upon the proposition that the court improperly permitted the state to introduce the testimony of Dr. J. B. Leisure taken at the examining trial and preserved as provided by law. Upon the offer of this testimony the state introduced proof to establish the fact that Dr. Leisure had left the state and was in Chicago or New York at the time. From the showing made there can be no question but that Dr. Leisure was beyond the confines of Oklahoma at the time of the trial. The county attorney had caused a subpoena to be issued and served upon him. After the service of same he purchased ■ a ticket for Chicago, told his associates in business that he was going to Chicago and New York and would not return for some weeks. Proof also established the fact that letters had been received from the witness mailed at Chicago some two or three days prior to the tender of his testimony. Under the statute, the testimony of this witness taken at the examining trial was entitled to be admitted on behalf of the state. This court has uniformly so held.

The next assignment of error is based upon the proposition that the court erred in admitting, over the objection of the plaintiff in error, written and verbal confessions made by the plaintiff in error while he was under arrest and confined in the county jail. Certain written and oral statements detailing the facts and circumstances of thq homicide were made to L. A. Akin, sheriff of the county, A. L. Bloss, county attorney, and the jailer of said county. In these written and oral statements the plaintiff in error told the officers that he and Jack Dunn killed John Y. Leigh by striking him over- the head with a slung-shot, dragging him out to the lot and knocking him in the head' with an axe. He detailed the physical surroundings, the location of the body, and many other things which substantiates his knowledge of the circumstances and connection with the murder. All of those things were investigated by the officers and found to be true.

In addition to those statements, Ex-Governor Ferguson visited the prisoner while he was in the county jail. Governor Ferguson, testifying to the facts detailed to him by the prisoner, said: “I asked him particularly about each of the details.” He then follows with.an account of what occurred in the conversation between him and the plaintiff in error substantiating the written confessions made to the officers. The substance of the same was that the- plaintiff in error went to the home of Leigh upon the request of Jack Dunn; that a conversation ensued concerning some cattle, which it appears that Leigh had accused Dunn of stealing; that Dunn struck Leigh over the head with some instrument in the house; that plaintiff in error heard the blow, but did not see it; that Dunn then dragged the body of Leigh out of the house and told the plaintiff in error to help carry him to the lot; that after getting him to the lot, Leigh began to move and Dunn picked up an axe and struck him upon the head with it; that he ran to where his mule was tied, got on him, and rode away rapidly. Other witnesses testified to having seen the plaintiff in error riding rapidly from the direction of Leigh’s place to another neighbor’s house.

The plaintiff in error testified in his own behalf and contradicted practically every fact testified to by the witnesses in the case, and even denied making any statement whatever to Governor Ferguson. The. principal objection argued against the competency of the confessions is based upon the proposition that they were made at a time when the plaintiff in error had been promised leniency by the officers, and that they were, therefore, rendered inadmissible. A careful scrutiny of the entire record, which - is voluminous, leads unerringly to the conclusión that the plaintiff in error made these confessions without the influence of any promise of immunity in connection with this homicide. He says that he was in jail on a misdemeanor charge at the time the first statements were made, and that he expected leniency on that charge. All of the officers testifying on behalf of the state say that they made no promise of immunity or leniency, the sheriff having testified that the only thing he said about the matter was that a plea of guilty or a confession would probably entitle the plaintiff in error to the leniency of the court; that this statement was made in connection with the misdemeanor transaction at a time when the officers were endeavoring to connect others with the homicide. The statement made to Ex-Governor Ferguson was not made, however, under the promise of immunity, leniency, or any other inducement whatever. Ex-Goveror Ferguson says that the plaintiff in error did practically all of the talking; that he talked about 30 minutes. There is no doubt about the admissibility of this confession, for it was not made under circumstances or conditions that would entitle it to the objection urged against the confession made to the public officers. If the confessions obtained by the officers were obtained under duress or promise of immunity or other inducem'ents in connection with the crime charged, they would not be admissible in evidence. As is stated, supra, the officers testified that no promises were made nor inducement offered. Against this is the statement of the plaintiff in error only. The trial court after hearing the matter at length concluded that the inhibitions of the law against the admissions of confessions obtained by promises of immunity or other inducements had not been encroached upon, and thát the statements were voluntarily made, and therefore entitled to be introduced.

After a careful consideration of all the facts and circumstances disclosed by the record in this connection, we are unable to say that the trial court reached an erroneous conclusion in this respect, and even though the admission of the confession made to the officers was erroneously admitted, this judgment could not be reversed upon that ground alone, in the absence of other prejudicial error of law. The confession made to Governor Ferguson having been properly admitted, the error, if any, in admitting the confessions obtained by the .officers would become harmless considering all the disclosures before us.

The only other proposition which we find it necessary to consider is based upon the contention that the court erred in refusing to order a jury to try the sanity of the plaintiff in error after the rendition of the verdict of guilty. The motion filed by counsel and the supporting affidavit fail to raise an issue entitling them to try the question of sanity. The motion nowhere sets forth the fact that the plaintiff in error was insane at the time the same was filed or at any time during the trial. The affidavit of the father of the accused offered the evidence and proof of the facts and circumstances that had developed in the trial in support of the motion. The affidavit of the father of the accused contains no statement of facts in addition to those disclosed by the record. All matters,, therefore, involving this proposition were before the trial court. By him the motion was denied. Counsel argue that under the doctrine announced by this court in Marshall v. Territory, 2 Okla. Cr. 136, 101 Pac. 139, the court erred in this connection. In the Marshall Case it is said:

“Under our law, if a doubt arises as to the sanity of the defendant, the court must order a jury, and if the facts presented to the court are such as to raise a doubt as to the sanity — that is, if there are statements under' oath of a credible person, or persons, that the defendant is insane — a doubt is raised, because if the statements are true, the man is insane, and a jury must inquire into the facts as to the truthfulness of the alleged fact of insanity. It is to be observed that it is not a discretion on the part of the court, under our statute, to direct the calling of. a jury. The only, contingency is, does a doubt arise? This means, has information come to the court through a proper channel, from a proper source or party — that is, during trial — and from a credible and trustworthy source information is brought to the court that the defendant is insane, or if from personal inspection or observation of the court, such probable condition of'.the defendant is made known to the court, then the law requires that a jury should be impaneled, who shall inquire into the mental condition of the defendant. In this case there is small doubt, if any, that if the facts * * * were presented to a jury, such jury would have found the defendant insane. To say the least, the testimony established that the defendant was not in such condition mentally as to be competent to make a rational defense.”

The only question, therefore, is whether or not in the consideration of this motion a doubt as to the sanity of the accused was raised. The. trial court determined this proposition adversely to the contention of the plaintiff in error, and in so doing, in our judgment, reached the correct conclusion. The facts and circumstances disclosed by the record do not tend to indicate that the accused was insane at the time. It rather indicates the contrary. The witness was intelligent. His testimony on cross-examination indicates that he was of vicious disposition and a danger-ous criminal.

The proof in the record overwhelmingly establishes the murder of John Y. Leigh and the guilt of the accused —at least, as a participant in the crime. The disclosures in the cross-examination of the accused in his own behalf seal the correctness of the jury’s verdict and the justness of the judgment of the court.

Some complaint is made of the court’s refusal to give certain instructions requested by counsel for the plaintiff in error and of instructions given by the court. A careful examination of these disclose no prejudicial error upon the part of the court.

The judgment of conviction is in all things affirmed.

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


text:
      Ex parte F. R. WILDMAN.
    No. A-2969.
    Opinion Filed November 9, 1917.
    (168 Pac. 246.)
    1. HABEAS CORPUS — Extradition Warrant — Aecusation of Crime —Question of Law. The question as to whether the person demanded and detained on an extradition warrant is substantially charged with a crime is a question of law, which on the face of the papers is open to inquiry on writ of habeas corpus.

      2. EXTRADITION — Warrant—Evidence. The extradition warrant is prima facie proof, but not conclusive proof, that the requirements of the statute were complied with before the issuance of the warrant.
    Petition of F. R. Wildman for writ of habeas corpus to release from detention on an extradition warrant.
    Writ denied.

      J. W. Bartholomew and W. J. Davidson, for petitioner.

      S. P. Freeling, Atty. Gen., R. McMillan. Asst. Atty. Gen., and T. E. Robertson, for respondent.
   DOYLE, P. J.

On March 27, 1917, there was filed with the clerk of this court a petition for writ of habeas corpus, which was presented to the presiding judge, alleging that F. R. Wildman was unlawfully restrained of his liberty by the sheriff of Oklahoma county; that the pretense of said restraint is a warrant, issued by the Governor of Oklahoma upon a requisition from the Governor of Colorado, “predicated upon an alleged complaint or information charging the said F. R. Wildman with the crime of perjury, committed in Chaffee county, in the State of Colorado, on the 1st day of August, 1916, in an action pending in the county court of said county and state,” and “that said restraint is illegal and unauthorized, for the reason that said requisition is informal and not in compliance with and conformity to the acts of Congress in relation to extradition and governing said matter, for the reason that the said alleged complaint or information attached to said requisition is not certified as authentic by the Governor of the State of Colorado, and for the further reason that said alleged complaint or information is not positively and certainly verified as required by law,” and “that said requisition and copy of said alleged complaint and information attached thereto fails to show or to charge that the said F. R. Wildman is accused of the commission Of a felony or other crime under the laws of the State of Colorado so as to make the same the basis for a prosecution for felony, to wit, the crime of perjury, as is attempted to be charged in said information,” and that no criminal action was or is pending against petitioner in the State of Colorado, and praying that said petitioner be forthwith discharged from custody. Thereupon the Presiding Judge issued a writ of heabeas corpus, returnable before the court upon the following day, at which time the sheriff appeared with petitioner and made return that he detained the petitioner under and by virtue of an extradition warrant from the Governor of this state upon a requisition issued by the Governor of Colorado, and a warrant purporting to be issued by Charles L. Poston, a justice of the peace in and for Chaffee county, Colo., upon a complaint filed before him, wherein F. R. Wildman is charged with the commission of the crime of perjury. Upon agreement of the parties the hearing on the petition and the return thereto was set for May 1st, and the petitioner was admitted to bail in the sum of $2,500.

The Constitution of the United States, art. 4, par. 2, provides that a person charged in any state with treason, felony, or other crime, who shall flee from justice and be found in another state, shall, on demand of the executive authority of the state from which he fled, be delivered up to be removed to the state having jurisdiction of the crime. Section 5278, U. S. Rev. Stat. (U. S. Comp. St. 1916, sec. 10126), provides the steps necessary to be taken for the arrest and delivery of fugitives from justice. A careful examination of the record shows that all these steps have been complied with.- It appears that an affidavit was filed before a justice of the peace in and for Chaffee county, Colo., charging the petitioner with the crime of perjury, and said justice of the peace has duly certified that the same is a true copy of the original affidavit, and that said case is now pending before him as a magistrate. The prosecuting attorney' of Chaffee county as a witness testified that said affidavit was prepared by him as such prosecuting officer. It appears that the affidavit or complaint is duly verified by the positive oath of the complaining witness. It also appears that the requisition is in ordinary form, properly certified and attested properly by the great seal of the State of Colorado.

It is therefore ordered that the writ be discharged, and the petitioner is remanded to the custody of the respondent.

ARMSTRONG and MATSON, JJ., concur.