author: DOYLE, J. FURMAN, J.

text:
      Ex parte GEO. CRUMP.
    No. A-2058.
    Opinion Filed October 4, 1913.
    (135 Pac. 428.)
    1. PARDON — Definition—Effect—Power to Grant. A pardon is an act of grace and mercy bestowed by the state through its chief executive upon offenders against its laws after conviction, and a full, unconditional pardon reaches both the punishment prescribed for the offense and the guilt of the offender; it obliterates, in legal contemplation, the offense itself; and hence its éffect is to make the offender a new man.
    2. SAME — Time of Taking Effect. A pardon takes effect upon delivery either to the person who is the subject of the favor or to some one acting for him or in his behalf.
    3. CONSTITUTIONAL LAW — Habeas Corpus — Grounds—Detention After Pardon. This court has no power to control or in any manner interfere with the functions of the executive department of the state government, but it ha's jurisdiction and power to inquire upon habeas corpus into the validity of a pardon under which the petitioner seeks to be discharged from the penitentiary, where after the delivery of the pardon he is detained in the custody of the warden upon an order of the Governor, purporting to revoke the pardon.
    4. PARDON' — Power to Grant — Revocation. The pardon in this case was granted by the Lieutenant Governor, acting as Governor in the absence of the Governor from the state. Held, that under the Constitution, art. G, sec. 16 (165, Williams’); in the absence of the Governor from 'the state for any purpose or for any period of time, the constitutional functions of his office devolve pro tempore upon the Lieutenant Governor, and a pardon granted and delivered by the Lieutenant Governor as acting Governor, in the absence of the Governor from the state, is a valid and effectual pardon. A fortiori the warden had no authority to disregard it, and the Governor’s order purporting to revoke such pardon was necessarily a nullity.
    5. OFFICERS — Pardon—“Officer De Facto.” An ' ‘ officer de facto” is one whose acts, though not those of a lawful officer, the law, upon principles of policy and justice, will hold valid so far as they involve the interest of the public and third persons, where the functions of the office are exercised by one who was in the actual possession of it under color of title.
    6. STATES — Governor — Exercise of Executive Authority — “Removal” — “Absent.” The word “removal” as used in Const, art. 6, sec. 16, providing that the Lieutenant Governor shall act as Governor in case of the removal of the Governor from the state, and the word “absent” as used in section 15, providing who shall act as Governor in case of a vacancy while the Lieutenant Governor shall be absent from the state, are convertible terms, the two sections being in pari materia; and hence the former term does not contemplate a permanent removal.
    Application of George Crump, Jr., for writ of habeas corpus.

    Writ allowed, and petitioner discharged.
    On behalf of George Crump, Jr., a duly verified petition for a writ of habeas corpus was presented to the Presiding Judge of this court, representing that he was illegally restrained of his liberty and unlawfully imprisoned in the state penitentiary by R. W. Dick, warden. It is further averred in said petition that:
    “The cause of said restraint according to the best of the knowledge and belief of your petitioner is that the said George Crump, Jr., was by the superior court of Pottawatomie county, Okla., convicted of the crime of forgery, said conviction on appeal to this honorable court was affirmed (7 Okla. Cr. o3o, 124 Pac. (>32), and said petitioner sentenced to said penitentiary for a period of seven years, said term of imprisonment commencing, on June -, 1912, but your petitioner alleges that said restraint is illegal and unauthorized because he says that on the 2d day of August, 1913, the Honorable Lee Cruce, Governor of Oklahoma, being absent from the state of Oklahoma, to wit, at Kansas City, Mo., the Honorable J. J. McAlester, Lieutenant Governor of the state of Oklahoma, during the absence of Governor Cruce from the state of Oklahoma, and while Governor Cruce was still absent from the state of Oklahoma, granted your petitioner a full, complete, and unconditional pardon for the offense of which he was convicted, as above set forth, said pardon being signed by the said J. J. McAlester,' acting Governor of the state of Oklahoma, and sealed with the great seal of the state of Oklahoma, and attested by Benjamin F. Harrison, Secretary of the state of Oklahoma, which said pardon was then and there delivered to the father of your petitioner, who was and is acting for and in his behalf. A duplicate of said pardon is hereto attached and asked to be taken and considered as a part of this petition.”
    The duplicate of said pardon is as follows:
    “State of Oklahoma, Executive Department. The Acting • Governor of the State of Oklahoma, to All Who Shall See These Presents — Greeting: Know ye, that I, J. J. McAlester, Lieutenant Governor of the state of Oklahoma, and as such the acting Governor of the state of Oklahoma in the absence from said state of the Hon. Lee Cruce, Governor of the state of Oklahoma, do hereby, under and by virtue of the authority vested in me by the Constitution of the state of Oklahoma, grant unto George Crump, Jr., who was convicted at the January, 3 931, term of the superior court of Pottawatomie county, Oklahoma, of the crime of forgery and sentenced to imprisonment in the state penitentiary at McAlester, Oklahoma: for the term of seven years, a full, complete and unconditional pardon for the offense of which he was convicted as aforesaid. In witness whereof, I have hereunto set my hand at Oklahoma City, the capital, this Sd day of August, 1913, and do hereby direct the Secretary of State forthwith to affix the great seal of the state of Oklahoma hereto and to attest the same with his signature. J. J. McAlester, Acting Governor of the State of Oklahoma. [Seal.] By the Governor, Benjamin F. Harrison, Secretary of State.”
    A writ of habeas corpus was . issued by Presiding Judge Armstrong directed to the respondent, who on August 14th, the day it was returnable, produced the petitioner in court and at the same time filed his return, which in part is as follows:
    “Respondent denies the allegation in petitioner’s application filed herein that he has been pardoned of the offense of which he was convicted and states that the purported pardon attached to the petition is void in that it was attempted to be granted without authority of law by the Lieutenant Governor of the state at a time when the Governor of said state was qualified and acting and when the occasion contemplated by the Constitution for the Lieutenant Governor to act as Governor had not arisen. And respondent says that on July 31, 1913, Lee Cruce, Governor, left the state of Oklahoma and went to Kansas City, Mo., to be temporarily absent from the state of Oklahoma for one day, nor was he at said time in any way incapable of discharging the powers and duties of the office of Governor of the state of Oklahoma, nor did he remove from the state of Oklahoma, nor did the said Governor before leaving the state, or at any time during his temporary absence therefrom, request or in any' manner indicate to the Lieutenant Governor any desire on the part of the Governor that the said Lieutenant Governor should perform the functions of the office of Governor during said temporary absence, nor did the said Governor at any time during his temporary absence abdicate the duties of the office of Governor of the state of Oklahoma, but before leaving the state of Oklahoma the said Governor informed the chief clerk of the Governor’s office as to his whereabouts and gave said chief clerk instructions that, if airy matter involving executive action should be presented, he should immediately communicate with the said Governor so that same might properly be attended to; that during said temporary absence the said Governor was within twelve hours run of the capital of the state of Oklahoma and within nine hours run of the boundary of said state of Oklahoma; that the said Governor returned to Oklahoma and arrived within the boundaries of said state about 5:10 o’clock a. m. on the 3d day of August, 1913, and before the purported pardon was delivered to any person, arriving at the capital of the state at the hour of 9 :05 a. m. on said 3d day of August, 1913; that upon the arrival at the capital of Oklahoma on the 3d day of August, 1913, of Lee Cruce, Governor, about 9:30 o’clock a. m., he revoked the attempted pardon of George Crump, Jr., and immediately directed respondent herein to disregard any such pretended pardon which might be delivered to respondent, further directed the respondent to hold the petitioner herein under the judgment hereinbefore mentioned. A copy of which order revoking the pretended pardon is hereto attached, marked Exhibit B and made a part hereof. Which said order of revocation was received by this respondent prior to any presentation to him of said pretended pardon issued by Lieutenant Governor McAlester.”
    The executive order of revocation is as follows: Exhibit B:

      “State of Oklahoma, Executive Department. The Governor of the State of Oklahoma, to All to Whom These Presents Shall Come — Greeting: AVhereas, on the second day of August, 1913, J. J. McAlester, Lieutenant Governor of the state, issued an order undertaking to grant unto George Crump, Jr., of Oklahoma, who was convicted at the term of the superior court of Pottawatomie count}'-, Oklahoma, of the crime of forgery, and was sentenced to imprisonment in the state penitentiary at Mc-Alester, Oklahoma, for the term of years, a full, complete, and unconditional pardon for the offense of which he was convicted as aforesaid; and, whereas, the purported pardon has not yet been delivered to the said George Crump, Jr., and has not yet become effective and is yet under the control of the Governor of the state: Now, therefore, I, Lee Cruce, Governor of the state of Oklahoma, by virtue of the authority vested in me: by the Constitution and laws of this state, do hereby revoke the order tendered by J. J. McAlester in the case and direct the warden of the penitentiary to return to the office of the Governor of Oklahoma all papers issued by the said J. J. McAlester attempting to pardon the said George Crump, Jr., and I hereby expressly revoke any pardon or attempted pardon granted by the said J. J. McAlester while attempting to act as Governor of this state in granting unto the said George Crump, Jr., a pardon as aforesaid. In witness whereof, I have hereunto set my hand at Oklahoma City, the capital of the state, this, the third day of August, 1913, and caused the great seal of the state of Oklahoma to be hereto affixed and the same to be' attested by the signature of the Secretary of State. Lee - Cruce, Governor of the State of Oklahoma. [Seal.] Attest: Benjamin F. Harrison, Secretary of State.”
    The undisputed facts shown by the testimony upon the hearing are that George J. Crump, petitioner’s father, acting for him as his agent and attorney, received the pardon in question on the 2d day of August, after' the same had been attested by the Secretary of State, under the great seal of the state, and it was so delivered' by the acting Governor at the executive office, but was not presented to the respondent, warden of the penitentiary, until after he had received the executive order of revocation.
    Counsel for petitioner also filed an exemplification of records of the office of Secretary of State showing official acts of Lieutenant Governor Bellamy, acting as Governor in the years 1908 and 1910 while C. N. Haskell, Governor, was temporarily absent from the state, in granting pardons and paroles, requisitions issued, requisitions honored, and several executive proclamations declaring the result of certain special county seat elections, also about 200 notary public appointments made at said times, and further showing official acts of Lieutenant Governor McAlester, acting as Governor during the temporary absence of Lee Cruce, Governor, from the state in the year 1911, in granting pardons and paroles and approving bonds and in appointing Jas. W. Steen, of Enid, district judge of the Twentieth judicial district. An affidavit of Governor Cruce was filed, reiterating the facts averred and the conclusions stated in the answer of the respondent.
    The case was argued orally by Judge Owen and Judge Richardson, former members of this court, representing the instant parties, and by Mr. Haskell and Mr. Forrest, representing two other persons who had been granted similar pardons. The arguments, unusually able and exhaustive, covered the case in all its phases. Upon the conclusion of the arguments and after a. recess consideration of-the case, the decision of the court was announced, and the writer, by direction of the Presiding Judge, rendered the opinion of the court; thereupon the writ was allowed and the petitioner released.

      Thomas H. Owen and George J. Crump, for petitioner.

      Charles West, Atty. Gen., Smith C. Matson and C. J. Davenport, Asst. Attys. Gen., and Ames, Chambers, Lozve & Richardson, for respondent.

      B. G. McAdams, Norman Haskell, and R. B. Borrest, amici curiae.

   DOYLE, J.

(after stating the facts as above). The power to pardon is an executive power expressly vested by the Constitution of the state in the Governor. He does not hold the power simply because he is the chief executive, but because the sole power to pardon is delegated to his office. Const, art. 6, sec. 10 (159, Williams’). “As human actions are necessarily imperfect, the pardoning power must be vested somewhere in order to prevent injustice when it is ascertained that an error has been committed.” Bouv. Law Die. see “Pardon.” A full, unconditional pardon reaches both the punishment prescribed for the offense and the guilt of the offender. It releases the punishment and blots out of existence the guilt, so that in the ej'e of the law the offender is as innocent as if he never committed the offense. It obliterates, in legal contemplation, the offense itself.

The doctrine of the authorities is that:

“In contemplation of law it so far blots out the offense that afterwards it cannot be imputed to him [the convict] to prevent the assertion of his legal rights. It gives him a new credit and capacity and rehabilitates him to that extent in his former position, and hence its effect is to make the offender a new man.” (4 Bl. Com. 404.)

In re Garland, 71 U. S. (4 Wall.) 333, 18 L. Ed. 366; Knote v. United States, 95 U. S. 149, 24 L. Ed. 442; Young v. Young, 61 Tex. 191; State v. Page, 60 Kan. 664, 57 Pac. 514.

A pardon is an act of grace and mercy bestowed by the state, through its chief executive, upon offenders against its laws. Yet a pardon properly granted is also an act of justice, supported by a wise public policy. While the power to pardon, parole, reprieve, or commute after conviction for offenses against the state is a matter of executive discretion, this discretion .should be exercised on public considerations alone. An undue exercise of the pardoning power is greatly to be deplored. It is inexcusable. It is a blow at law and order and is an additional hardship upon society in its irrepressible conflict with crime and criminals. If the Governor believes a law under which the prisoner has been convicted to be unjust or too harsh, still he should not for that reason alone exercise the pardoning power. The duty of mitigating the severity of the law lies with the Legislature. As an officer he should look upon the law as wise and just, whatever may be his private opinion. An abuse of the pardoning power may be so great as to warrant an impeachment of the officer who exercises it.

'Says Bishop:

“No official person, whatever his station or the nature of his office, is justified in performing any official acts from private motives or in pursuance of mere private views. An executive officer, asked to- grant a pardon, should neither compfy nor refuse merely because he would personally be pleased to see the prisoner suffer or to- see him go free. He should act upon public considerations. He does not sit as a court of appeal from the Legislature. If he believes the law under which a prisoner is suffering to be unwise or unjust, still this opinion cannot properly incline him to grant the pardon, because the power which makes and unmakes laws is not in him, and officially he is required to look upon the law as just and wise, however his private opinion may revolt. * * * In popular writings we often meet with injuriously false views on this subject. Nothing can be more pernicious than the opinion, sometimes afloat, which assigns to the President or Governor the authority to pardon without limit and denies to the impeaching power the right to interfere. The granting of pardons is discretionary in its nature; therefore it is necessarily the more open to control by the impeaching power. If it comes to be understood that a single man, intrusted with the high function of pardon, can open all the prisons of the country and let every guilty person go free, thus at a blow striking down the law itself and not be himself punished for the high misdemeanor, the most disastrous consequences to liberty and law will sooner or later follow. Such a conclusion is itself the annihilation of law, and only upon law can liberty repose. Still this sort of executive abuse will not authorize the courts to decline giving effect to the executive pardon.” (1 Bish. New Cr. L. secs. 922 and 926.)

A full, unconditional pardon takes effect upon delivery either to- the person who is the subject of the favor or to some one acting for him or in his behalf. After delivery, a pardon cannot be revoked. The authorities, without any conflict whatever, deny to the Governor any such power and hold the pardon, when delivered, to be irrevocable. In re Williams, 149 N. C. 436, 63 S. E. 108, 22 L. R. A. (N. S.) 238; Rosson v. State, 23 Tex. App. 287, 4 S. W. 897; Ex parte Powell, 73 Ala. 517, 49 Am. Rep. 71; United States v. Hughes, 1 Bond, 574, Fed. Cas. No. 15,418; State v. Nichols, 26 Ark. 74, 7 Am. Rep. 600; Ex parte Reno, 66 Mo. 266, 27 Am. Rep. 337. Indeed, it would not only be contrary to principle that the Governor should be invested with such authority, but the power itself would be of the most dangerous and pernicious character. Great evils would inevitably flow, in ways that may be readily suggested, from the exercise of any such power; and hence, wisely, no such power exists. Knapp v. Thomas, 39 Ohio St. 377, 48 Am. Rep. 462.

An abuse of the pardoning power does not authorize the courts to decline to give effect to a pardon, and no court has the power to review the action of the executive in granting a pardon, for that would be the exercise of the pardoning power in part, and any attempt of the courts to interfere with the Governor in the exercise of the pardoning power would be manifest usurpation of authority. Our government is one whose powers, other than those reserved by the people, have been carefully apportioned between three separate co-ordinate departments, the legislative, executive, and judicial, which emanate alike from the people, having their powers alike limited and defined by the Constitution, each of equal dignity, and within their respective spheres of action equally independent, and exclusive in respect to the duties assigned. The language of the Constitution, art. 4 (50, Williams’), is:

“The powers of the government of the state of Oklahoma shall be divided into three separate departments, the legislative, executive, and judicial; and except as provided in this Constitution, the legislative, executive, and judicial departments of government shall be separate and distinct, and neither shall exercise the powers properly belonging to either of the others.”

With these preliminary observations we will proceed to the consideration of the questions presented and state some of the reasons, without elaborating the arguments, which have led us to the conclusions and the decision heretofore announced in this case.

The pardon in question was granted, as appears from the petition and answer thereto, by the Lieutenant Governor,, acting as Governor, in the absence of the Governor from the state. The decisive question in this case is whether the pardon granted by the Lieutenant Governor, acting as Governor, to George Crump, Jr., is valid and effectual so as to entitle him to be released by the warden of the penitentiary, who holds him in confinement under the judgment and sentence of the superior court of Pottawatomie county.

The provisions of the Constitution porviding for succession to the office of Governor and for the Lieutenant Governor to become acting Governor and for the vacancy of the office of Lieutenant Governor are as follows:

“If, during a vacancy of the office of Governor, the Lieutenant Governor shall be impeached, displaced, resign, die or be absent from the state, or become incapable of performing the ■duties of the office, the president, pro tempore, of the Senate, shall act as Governor until the vacancy he filled or the disability shall cease; and if the president, pro tempore, of the Senate, for aiiy of the above enumerated causes, shall become incapable of performing the duties pertaining to the office of Governor, the Speaker of the House of Representatives shall act as Governor until the vacancy he filled or the disability shall cease. Further provisions for succession to the office- of Governor shall be prescribed by law.” (Article 6, sec. 15 [1(5-1-, Williams’].)

“In case of impeachment of the Governor, or of his death, failure to qualify, resignation, removal from the state, or inability to- discharge the powers and duties of the office, the said office, with its compensation, shall devolve upon the Lieutenant Governor for the residue of the term or until the disability shall be removed.” (Article (5, sec. 16 [165, Williams’].)

Counsel for petitioner contend that, by the express terms of the foregoing provision of the Constitution, the Lieutenant Governor was not only Governor dc facto, but de jure, in the exercise of the powers and duties of that office, and might rightfully and lawfully assume and exercise all executive functions during the temporary absence of the Governor from the state. The sole argument against this contention is that the authority to act as Governor on such contingency is not given in terms, and counsel for respondent cite the cases of State ex rel. Warmoth v. Graham, 26 La. Ann. 568, 21 Am. Rep. 551, and State ex rel. Crittenden v. Walker, 78 Mo. 139, in support of their position.

The Warmoth case was a proceeding by mandamus to compel the State Auditor to pay the warrant of the Governor for his salary from the 6th to the 19th of May and from the 26th of June to the 11th of July, 1811. The Auditor refused to pay this warrant on the ground and for the reason that during said periods the Governor was absent from the state, and that the duties of the Governor as well as his salary devolved upon the Lieutenant Governor to whom the salary had been paid. Under the Constitution of Louisiana it is provided that, in the absence of the Governor from the state or his inability to discharge the duties of the office, the powers and duties as well as the salary of the office devolve upon the Lieutenant Governor. It was held in that case that it was the duty of the Auditor to pay the warrant.

The Crittenden case was a proceeding bj' mandamus, and the only question presented was: Can the Governor, who absents himself from the state for the purpose of performing duties imposed upon him by the Constitution and laws of the state, be deprived of his salary during such absence? It was held that the Lieutenant Governor was not entitled to receive the salary of the Governor’s office during such absence.

In these cases no question as to the validity of the executive acts of the Lieutenant Governor was raised. Clearly they are not authority in support of a collateral attack on the official acts of a de facto Governor, for the salary of an officer can be recovered on the strength of a title of a de jure officer, although he has not performed the duties of the office, and a de facto officer cannot recover the salary of the office, although his official acts are valid. Constantineau on the De Facto Doctrine, secs. 220 and 236. To entitle one to claim the emoluments of an office he must show, if his right be questioned, that he is an officer de jure. 29 Cyc. 1393.

That the decision in these cases is not applicable is settled by the case of State ex rel. Attorney General and Carey v. Barrow, 29 La. Ann. 243, a case to test title to the office of tax collector, where one Carey was removed and Barrow appointed by the Lieutenant Governor, acting as Governor in the absence of the Governor from the state, and the Supreme Court of Louisiana held that:

“The Governor has discretionary power to remove a tax collector and appoint his successor. In the absence of the Governor from the state, the Lieutenant Governor has a similar power.”

And in the opinion say:

“The case contemplated by the Constitution had occurred, and, whatever power could have been exercised by the Governor had he been present, the same could have been lawfully exercised by the Lieutenant Governor in his absence.”

It is submitted by counsel for petitioner that a pardon granted by a de facto Governor is valid.

An “officer de facto” is one whose acts, though not those of a lawful officer, the law, upon principles of policy and justice, will hold valid so far as they involve the interest of the public and third persons, where the duties and functions of the office are exercised by one who' was in the actual possession of it under color of title. Numerous authorities are collated in the case of Mitchell v. Carter, 31 Okla. 592, 122 Pac. 691, and in the opinion, adopting the language of Chief Justice Fuller in Re Ward, 173 U. S. 452, 19 Cup. Ct. 459, 43 L. Ed. 765. it is said:

“The result of the authorities is that the title of a person acting with color of authority, even if he be not a good officer in point of law, cannot be collaterally attacked.”

This principle is recognized as applicable to pardons granted by a Governor de facto, and a pardon granted by a Governor de facto is valid. Ex parte Norris, 8 S. C. 471.

In the case of Territory v. Richardson, 9 Okla. 579, 60 Pac. 244, 49 L. R. A. 440, the pardon was granted by the Secretary of the Territory, acting Governor in the absence of the Governor from the territory. And see Powers v. Commonwealth, 110 Ky. 386, 61 S. W. 735, 53 L. R. A. 245.

In all regular governments there is no interregnum, and there should always be some one capable of administering the laws at the head of the government. The de facto doctrine originated in England centuries ago and was carried so far with respect to the English crown that treasons committed under Plenry VI (a King “in deed and not in right”), not in aid of the lawful claimant, were punished under Edward IV. Bacon says that “it hath been settled that all judicial acts done by Henry VI, while he.was king, and also all pardons of felony and charters of designation granted by him, were valid.” Bacon’s Abr. Prerogative, A; Constantineau on the De Facto Doctrine, sec. 5. On the same principle, when the power of Cromwell was overturned and Charles II restored, the judicial decisions under the former remained unmolested and the judiciary went on as before, still looking only to the de facto government for the time being. Hale’s History of the Com. Law.

As we think the validity Of the pardon in question is sustained on higher and more satisfactory grounds than the de facto doctrine, it would subserve no useful purpose to further' discuss this phase of the case.

It is also contended by counsel for petitioner that the contemporary construction of these provisions of the Constitution by the executive department and judicial acquiescence therein fixes the construction. From force of circumstances and conditions necessarily arising in the administration of the affairs of the government, both state -and national, it is evident that those who are charged with official duties, whether executive, legislative, or judicial, must necessarily construe the Constitutions and laws in numerous instances. Marbury v. Madison, 1 Cranch, 137, 2 L. Ed. 60. Every department of the government, invested with certain constitutional powers, must in the first instance, but not exclusively, be the judge of its powers, or it could not act; anid this practical construction by officials or departments outside of the judiciary may or may not be final, according to the circumstances and nature of each particular case.

This court takes judicial notice of the uniform construction placed by the executive department upon these constitutional provisions. This court judicially knows that from time to time, beginning almost immediately after statehood, the Lieutenant Governor has always been the acting Governor in the temporary absence of the Governor from the state and as such granted pardons, appointed and commissioned officers, including one of -the present district judges of this state, issued proclamations creating cities of the first class and declaring the results of special elections to relocate county seats, issued and honored requisitions, appointed notary publics, and performed other executive acts, none of which have been questioned until the present time. On none of these occasions was there any pretense that anything prevented the Governor from exercising the powers and performing the duties of the office, except his mere temporary absence from the state. And when, as acting Governor he pardoned petitioner and four others, the Secretary of State recognized the Lieutenant Governor as the acting Governor of the state, as is evidenced by the attestation with his signature and the great seal of the - state. And all executive acts heretofore performed by the Lieutenant Governor, as acting Governor in the absence of the Governor from the state, have been recognized by all the departments of the state government and by the public generally as valid and binding. The court also takes judicial notice that Hon. Henry S. Johnston, president pro tempore of the First Senate, and Hon. J. C. Graham, president pro tempore of the Second Senate, have each'acted as Governor during the coincident absence of the Governor and the Lieutenant Governor from the state and at such times performed the duties of that office. In all cases before the nisi prius and appellate courts arising on matters relating to and connected with the official acts of the Lieutenant Governor as acting Governor, there has been a judicial acquiescence in this contemporaneous construction. The doctrine of the authorities is that contemporaneous and practical construction of constitutional provisions by the executive department will be considered by the courts in passing' upon constitutional questions; and while they are not bound by such construction, except as to questions of a discretionary character, yet in all cases where there is doubt as to the meaning of such a provision, the courts will adopt and follow contemporaneous and practical construction by the officers whose duty it is to execute it, unless such construction is ’clearly erroneous.

It is evident that to reverse a construction put upon a constitutional provision by the department charged with its execution, after it has received such practical construction for any length of time, would be to occasion great injury to those who would be affected by such a change. 8 Cyc. 736, and cases noted; Cooley’s Const. Lim. p. 67. The Supreme Court of this state has repeatedly recognized this doctrine. In the case of League v. Town of Taloga, 35 Okla. 277, 129 Pac. 702, it is stated as follows:

“The construction placed on statutes or constitutional provisions by officers in the discharge of their duties, either at or near the time of the enactment, which has been long acquiesced in, is a just medium for its judicial interpretation.”

And see Foote v. Town of Watonga, 37 Okla. 43, 130 Pac. 597; M., O. & G. v. State, 29 Okla. 640, 119 Pac. 117; State v. Hooker, 26 Okla. 460, 109 Pac. 527. Says the Supreme Court of Oregon:

“In all cases where those persons whose duty it is to execute a law have uniformly given it a particular construction, and that construction has been acquiesced in and acted upon for a long time, it is a contemporary exposition of the statute, which always commands the attention of the courts and will be followed unless it clearly and manifestly appears to be wrong.” (Kelly v. Multnomah County, 18 Ore. 356, 22 Pac. 1110.)

And see Brown v. United States, 113 U. S. 568, 5 Sup. Ct. 648, 26 L. Ed. 1079; Hovey v. State, 119 Inch 386, 21 N. E. 890; Stuart v. Laird, 1 Cranch, 299, 2 L. Ed. 115.

The right and duty of the judiciary h> take jurisdiction and decide cases when constitutional questions are presented are both imperative and inseparable, and the authoritative exposition of the Constitution will be found in the decisions of the appellate courts. The highest function of this court is to pass upon constitutional questions arising in cases involving the life and liberty of the citizen. This is the first time that a question involving the construction of section 16, art. 6, of our Constitution, has been presented to the courts. The Constitutions of nearly all the states have similar provisions, but we have been unable to find any express adjudication construing the same, for the simple reason, as we suppose, that the language used is so clear and unmistakable and the intention so plain that it has not been questioned. The constitutional provisions already quoted are in pari materia and should be considered together. Impeachment of the Governor, his death, failure to qualify, or resignation, involves necessarily a vacancy in the office, and, if any one of said events occur, the right of the Lieutenant Governor to act is not open to question or doubt; and if, during a vacancy in the office of Governor, the Lieutenant Governor shall be impeached, displaced, resign, or die, then the right of the president pro tempore of the Senate to act as Governor is unquestionable. The question therefore arises upon the construction to be placed upon the latter clause of section 16. The language is as follows:

“ * * * Removal from the state, or inability to discharge the powers and duties of the office, the said office, with its compensation, shall devolve upon the Lieutenant Governor for the residue of the term or until the disability shall be removed.”

The offices of Governor and Lieutenant Governor are created and their tenure, compensation, powers, duties, and functions are prescribed by the Constitution, and it is ordained that:

“The supreme executive power shall be vested in a chief magistrate, who shall be styled 'the Governor of the state of Oklahoma.’” (Article 6', sec. 2 [151, Williams’].)

The duty of the courts in construing constitutional provisions is to give effect to the intent of the framers and of the people in adopting the same, and, whenever it is possible to do so, each provision must he constraed so that it shall harmonize with all others, to the end that the intent may be ascertained and carried out and effect given to the instrument as a whole. In all cases where the meaning is clear and unambiguous, the question is not what was the intention, but what is the meaning of the language used.

Much stress is put upon the word “removal,” as used in section 16, and counsel for respondent contend that the meaning of this word as used contemplates the permanent removal of the Governor from the state. We cannot agree with this contention. The word “removal,” as used in section 16, and the word “absent,” as used in section 15, are convertible terms. In Black’s Law Dictionary, “absence” is defined as “the state of being absent, removed, or away from one’s domicile or usual place of residence.”

In the case of People v. Wells, 2 Cal. 198, the precise question before us was not presented, but Mr. Justice Anderson in his opinion, discussing constitutional provisions almost identical, said:

“The latter clause of the sixteenth section of the fifth article makes provision for the vacancy of the office of Lieutenant Governor. It sums up all causes of vacancy and, whether permanent or temporary, classes them under that head and by that single word. The recital of the language will enforce what I state. I repeat the clause: Tf, during the vacancy of the office of Governor, the Lieutenant Governor shall be impeached, displaced, resign, die, or become incapable of performing the duties of his office, or be absent from the state, the president of the Senate shall act as Governor, until the vacancy be filled, or the disability shall cease.’ Here the word ‘vacancy’ is used both in. a permanent and temporary sense. It may be absolute Or become contingent .upon the determination of the disability. It is. previously provided that there shall be a Lieutenant Governor-elected at the same time and place and in the same manner as the Governor, and only one Lieutenant Governor, as there are only three judges. But he may become incapable of performing his duties, or be absent, and so- be under disability; and during this time another shall take his place. When, however, that disability ceases, he retakes his place; and from whence does he come? From that temporary vacancy. He was living, but out of his functions, either incapable or absent, and therefore disabled from the performance of his duties. It would have been absurd to have created that, or any other office, not subject to a temporary vacancy. That would have been the excess and folly of reverence and staid respect for the man, without the consideration for the public interests, to be found in the utility and necessity of the functions of the office. This train of incidents and reasonings runs through all the Constitution in relation to offices, their number, how to be occupied, how determined, and by what methods the functions shall always be kept in action. Thus the Constitution sustains the only practical doctrine, as laid down, that the vested rights of the tenure of the term attaches to the person of the elected incumbent, but that the functions of the office, in certain contingencies, separate from him temporarily and adhere to a distinct class of powers within its department for the use, benefit and protection of that great public for which the government was created. Thus, also-, the Constitution has established the' interpretation of the word ‘vacancy’ to be, as used in it, that it means either permanent or temporary. The cause and the reason go together. The absence or incapacity of performance produces the disability; the vacancy of the functions, for SO' long, follows; when the former ends, the latter are resumed by the original incumbent. For all this, the Constitution has used the word 'vacancy/ There it stands. There is no getting around it. It is the only truth; the solid and impregnable ground- of the Constitution, not incidentally formed, but constructed for a particular purpose, with premeditation, thought, wisdom, and that good, practical common sense which the objects and the occasion demanded. But I am not done with the support even in this very place of the Constitution; and, although I do not think it necessary, I hold it to be my duty to add every rivet which may make the work more secure. The seventeenth, being the next section after that T have already cjuoted, declares that: Tn case of the impeachment of the Governor, or his removal from office, death, inability ■to discharge the powers and duties of the said office, resignation, or absence from the state, the powers and duties of the office shall devolve upon the Lieutenant Governor for the residue of ■the term, or until the disability shall cease.’ There are two things which this still further demonstrates: First, that the Constitution never lost sight of the proposition that a temporary va-cancy might occur in the functions of an office, while the tenure ■of it was held by the stated incumbent; that in such event another might fill it; and that, when the disability ceased, the former should resume his constitutional functions. Can anything be plainer than this? Second, that the first section provides there shall be but one Governor, as there should be only three judges of the Supreme Court; but the section under consideration contemplates certain contingencies which may cause ■a temporary vacancy of the functions of his office, and, though he be living and holding the tenure of the term, another may ■occupy and administrate the functions. Thus the same idea is maintained throughout the Constitution, as applied to the veiw highest officer known to it. The mistake committed, usually, 'in forming an opinion upon this consists, as I have stated, in not drawing the proper distinction between the tenure of the term, which attaches to the person of the incumbent, and the functions of the office, which, under certain circumstances, he may exercise, but which belongs to the sphere of a department for the right as well as the good of the people. From that sphere they cannot be separated. The Constitution, we find, makes that distinction. The law makes it. The policy of all governments has made it. The usages of all civilized nations have incorporated it.”

In the same case Chief Justice Murray in his opinion used this language:

“It is said that our Constitution recognizes a temporary vacancy in tlie office of Governor, and that there cannot be two Governors in the abstract any more than there can be four judges. It is sufficient, by way of answer, to say that the Constitution has declared what shall constitute a temporary vacancy in the office of Governor and provided how the same shall be supplied, while it is silent with regard to every other officer. It is fair to suppose, upon every rule o'f construction, that, if vacancies for temporary incapacity in other constitutional offices had been contemplated, they would have been-provided for.”

A careful reading of the provisions (sections 15 and 16 of article O') will show that the enumeration of the causes of vacancy in the office of Governor is so complete that they are susceptible of a construction which will cover every possible contingency, whether permanent or temporary. In case of a permanent vacancy of the office, the accession of the Lieutenant Governor continues for the residue of the term; if only temporary, until the disability shall be removed. As chief magistrate he has important functions to perform that can never be safely suspended for airy period of time. As a convincing demonstration of this, it is only necessary to advert to a few of his powers, functions, and duties. He is commander in chief of the militia and as such represents the reserve force that constitutes the ultimate strength of the laws; and he shall cause the laws of the' state to be faithfully executed; he is chairman of the most important state boards; he must issue extradition warrants for fugitives from justice, and a few days’ delay would often defeat the ends of justice; without unreasonable delay he must-pass upon extradition warrants from sister states; he must approve the official bonds of certain state officers within a time certain; and under section 5970, Rev. Laws 1910, he alone can reprieve or suspend the execution of a judgment of death beyond the time allowed by tlie trial court to perfect an appeal to this court, when the appeal has not been taken within the time allowed. See Opinion of the Judges, 3 Okla. Cr. 315, 105 Pac. 684.

The functions of chief magistrate were created for the benefit of the state and are local to it; and, as the constitutional functions of this office cannot be exercised out of the state, the effect of his absence from the state is to suspend his constitutional functions, and thereupon these functions devolve upon the Lieutenant Governor, and he becomes and is de jure and de facto Governor until the absent Governor returns to the state.

It is further provided by article 6, sec. 15, already quoted, that, if during a vacancy in the office of Governor the Lieutenant Governor shall “be absent from the state, the president pro tempore of the Senate shall act as Governor until the disability shall cease, and, if the president pro tempore of the Senate be absent from the state, the Speaker of the House of Representatives shall act as Governor until the disability shall cease. In all this there is a perfect consistency pervading both sections. The unequivocal language of the latter clause of section 16 is that, upon his removal from the state, said office shall devolve ■upon the Lieutenant Governor until the disability shall be removed, and the plain intention of the framers of the Constitution :and the people in adopting it was to provide that in his absence ■from the state for any purpose or for any period of time, however short, his constitutional functions shall devolve upon the Lieutenant Governor as acting Governor. Such absence from the state is an abdication for the time being of the constitutional functions of his office, and the effect of that absence is to suspend his constitutional functions. He does not cease to be Gov-ernor by his temporary absence from the state. His vested right ■of tenure in the term of office attaches to his person and is distinct from his executive function^; it goes with him; but the constitutional functions of his office belong to the public and are confined to the state and cannot be exercised out of the state; when he leaves the state, the constitutional functions of his office devolve pro tempore upon the Lieutenant Governor; and, when he returns to the state, ipso facto, he resumes all of the powers, functions, and duties of his office, and the Lieutenant Governor, theretofore administering the executive functions temporarily under the Constitution, ceases to be acting Governor.

The true distinction is founded upon the difference existing in the nature of things between a personal vested right of tenure in the term and the functions of the office created in the interest and for the benefit of the public. We think that this is the unmistakable meaning of the language used, and that this construction is alike supported by reason, common sense, public policy, known political truths, and the contemporaneous and practical construction of the respective departments of our state government and is conformable to the history of every state in the Union.

It follows that the pardon granted and delivered by the Lieutenant Governor as acting Governor, in the absence of the Governor from the state, is a valid and effectual pardon. A fortiori the warden had no authority to disregard it. As already indicated, the Governor has no power to revoke a full and unconditional pardon that has been delivered; therefore his order purporting to revoke this pardon was necessarily a mere nullity.

It is our opinion that the petitioner is unlawfully restrained of his liberty by the respondent and that he is entitled to a discharge'from the imprisonment of which he complains, and he is therefore by the judgment of this court discharged therefrom.

ARMSTRONG, P. J., concurs.

FURMAN, J.

(concurring). The facts culminating in this proceeding arose and the writ of habeas corpus was issued and. the case determined by the court during my absence from Oklahoma City. I therefore did not participate in the consideration of this case prior to its determination. But as the decision of the court has excited some criticism, and as I have no desire to escape full responsibility for any action by the court of which I approve, I desire to say upon a full and thorough investigation I fully concur in the views expressed by Judge Doyle. Any other view would be revolutionary.

STATEMENT by DOYLE, J. The Governor of the state of Oklahoma, in a letter which was read at the conference of Governors held at Colorado Springs, Colo., explaining his nonattendance there, makes an unfounded and indefensible assault upon the integrity of this court and its decision in this case. His language as published is as follows:

“The Lieutenant Governor seems determined to overthrow all of my policies and to make wholesale delivery of criminals from the penitentiary. The Criminal Court of Appeals in this state has joined hands with the Lieutenant Governor in this raid on the penal institutions by holding that the moment I leave the state, even if my absence extends, only five minutes, the' Lieutenant Governor can do as he pleases. Under these conditions, it would be a crime for me to leave Oklahoma.”

This emanation of official arrogance and vindictive malevolence received nation-wide publicity through the public press. The reason,.we suppose, is that the spectacle of a Governor publicly assailing a high court of his state is without precedent in the annals of the republic.

It may be said that this uncalled for and unjust reflection upon the court could do no permanent injury to a court strong in the - consciousness of its own integrity and strong in the respect and confidence of the people of the state, and therefore it was unworthy of notice, and the wise course would be to ignore it. But, as a member of the court and the judge who delivered the opinion, I feel that when the chief executive officer of the state becomes so lost to the proprieties of position and a proper sense of decorum that he presumes in his official capacity and in a public manner to malign and contemn one of the courts of last resort of the state, because its decision did not conform to his views, it becomes necessaiy for the good name of the state within and without its borders and in order to preserve the respect and confidence of the people unimpaired, and its own proper self-respect, that the court should vindicate itself by property condemning such an assault upon its integrity.

It is the duty of the courts to keep the judicial reputation of the state free from even the appearance of dishonor and to prevent the growth of that distrust in the minds of our own people that would certainty follow such a reflection upon their integrity if permitted to go • unrebuked. ' The loss of public confidence in the integrity of the courts would be a calamity little less than the loss of judicial integrity itself. The pomp and circumstance which in other countries aid to clothe the courts and the law with dignity and power are not in consonance with our republican form of government. In this country the power of the judiciary rests upon the faith of the people in its integrity and intelligence. Take away this faith and the moral influence of the courts is gone and popular respect for law impaired. When confidence in the courts is gone, respect for the law itself will speedily disappear, and society will become the prey of fraud, violence, and crime. Says an able jurist:

"The one element in government and society which the American people desire above all things else to keep free from the taint of suspicion is the administration of justice in the courts. So long as this is kept pure, a community may undergo' extreme misgovernment and still prosper. But when these tribunals have become corrupt, and public confidence in them is destroyed, the last calamity has come upon a people, and the object of its social organization has failed. The protection of life, liberty, and property is the final aim of all government. This is accomplished by an honest administration of just laws. The people, by their respresentatives, may be relied upon to pass such laws, but, unless they are honestly administered, neither life, liberty, nor property enjoys the security which it is the object ox government and societv to give.”

In the word® of the immortal Marshall:

“The greatest scourge an angry heaven ever inflicted upon an ungrateful and a sinning people was an ignorant, corrupt, or a dependent judiciary.”

Let us fervently hope no such curse may ever be drawn down upon the people of Oklahoma.

This court, independent of authority granted by the Constitution and laws, has the inherent power to punish for contempt of court, and it is its duty to employ with becoming firmness and dignity this power to protect itself and the' reputation of. the state against any unfounded and scandalous accusation made against it which has a tendency to prejudice the public or to embarrass and obstruct or prevent the due administration of public justice.

It may be that the Governor cannot be made to answer at the bar for a contempt of court, but the power to punish for contempt necessarily carries with it the right to repel, rebuke, and reprimand. The Governor’s control over the judicial branch of the government is no greater than that of the humblest private citizen. The verdicts of juries and the judgments of the courts are not subject to revision by him, except that he has the power to grant after conviction, reprieves, commutations, paroles, and pardons. In the exercise of this power he has arrogated to himself the right to nullify the law prescribing the death penalty for murder at the discretion of the jury, and he has often stated in published interviews and in speeches to public assemblies that he would not permit the law prescribing the death penalty for murder to be carried into execution during his term of office, and in accordance therewith, upon the sole ground that he is opposed to capital punishment, he has uniformly commuted death sentences. In the Prather case, he, as by law provided, requested the opinion of the judges and the same was given (see Opinion of the Judges, 6 Okla. Cr. 18, 115 Pac. 1028); he commuted the sentence and in a published interview announced that he did not think that the opinion stated the law. In the case of Cotton, from Wagoner county, who without a pretense of justification killed an officer of the law, and who upon his trial was sentenced to be hanged, the Governor, without waiting to receive the transcript of the evidence required by law to be furnished by the trial court to him, or to permit this court to pass upon the legality of the sentence, commuted it. It is unnecessary to theorize or comment upon the deplorable results. The facts are only too well known. He has also invoked the military arm of-the state government to obstruct the execution of process issued upon a mandate of the Supreme Court. See t;he case of Fluke et al. v. Canton, 31 Okla. 718, 123 Pac. 1049. And his first message to the Fourth Legislature contained an unwarranted diatribe against this court. Therefore it is not strange that he assumes authority to publicly censure and criticise the courts when their decisions do not meet his views, even though it tends to destroy confidence in and excite odium against the courts and the law.

The theory of monarchial forms of government is that the reigning sovereign rules by “divine right,” and that he is the depository of all supreme power, that whatever of liberty the people possess or enjoy is a gracious grant .on the part of the sovereign, and the power to pardon is a dispensing power of the sovereign. A crime in such a country is not against the government, but against the King. With us the theory of government is different. If a man commits a crime in this state, he is prosecuted for having offended not against the executive, the legislative, or judicial branches of the government, but for having offended “against the peace and dignity of the state.” This is a government of laws, and not of men; and the doctrine of divine light and passive obedience is as foreign to our institutions as the principle that the King can do no wrong.

How well the members of this court have honored their high trust, and how well they have administered the law in behalf of the life and liberty of the citizen, is a matter for the people to determine,-but on behalf of my Associates and myself I can say that we have the consolation of knowing that we have endeavored to honor our judicial trust by a faithful regard to our official oaths and the Constitution and laws of Oklahoma.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    CHAS. NOLL v. STATE.
    No. A-1978.
    Opinion Filed October 7, 1913.
    (135 Pac. 287.)
    GAMING — Opening and Maintaining Game — Statutes—Elements of Offense. Rev. Laws 1910, see. 2498, provides that any person who deals, plays, carries on, opens, or conducts, either as owner or employee, any game of roulette, eraps, ete., is guilty of a misdemeanor, etc. Held that, in a prosecution under such section, it was essential, to sustain a conviction, to prove that accused opened up a game of eraps that was played for money, and that the game was played by some person at accused’s place of business for money, cheeks, or other representatives of value.

      Appeal from County Court, Pottawatomie County; Hal Johnson, Judge.

      Chas. Noll was convicted of conducting games of craps and roulette, and he appeals.
    Reversed.

      Pitman & Goode, for plaintiff in error.

      Smith C. Matson, Asst. Atty. Gen., for the State.
   PER CURIAM.

The plaintiff in error, Chas. Noll, was convicted at the January, 1913, term of the county court of Pottawatomie county on a charge of conducting games of craps and roulette. The Attorney General has filed a confession of error in this cause, and advises the court in his judgment the conviction should be reversed. In part the confession is as follows:

“This information charges the defendant with having on the Kith day of January, 1913, unlawfully opened, and with having unlawfully conducted as owner, a game of craps played with dice for money and a game of roulette played with table, wheel, and ball for money. We have carefully examined the transcript of the testimony of the witnesses McColghan and Durham, who were the sole witnesses giving testimony in this case, and have failed to find where either of them have testified directly to any facts or circumstances that prove that this defendant on the day charged, or on any other day, opened up a game of craps that was played for-money; nor does the evidence prove that any game, either roul.ette or craps, was played by anybody at any time in his place of business for money, checks, or other representatives of value. In our opinion, this proof was absolutely necessary to sustain a conviction on this information.”

The confession of error is well taken, and is sustained. If this conviction had been based on section '2503, Rev. Laws 3910, it could possibly be upheld; but, instead of being based on section 2503, it is based on section .2498, Rev. Laws 1910, and under the latter section the conviction as a matter of law is contrary to the evidence.

The judgment is therefore reversed.


author: DOYLE, J.

text:
    TOM BIRDWELL v. UNITED STATES.
    No. A-1580.
    Opinion Filed October 11, 1913.
    (135 Pac. 445.)
    1. STATES — Admission.—Effect — Procedure — What Law Governs. Enabling Ac”, see. 3, provides that: "AH criminal cases pending in the United States courts in the Indian Territory, not transferred to the United States Circuit or District Courts in the state of Oklahoma, shall be prosecuted to a final determination in the state courts of Oklahoma under the laws now in force in that territory.” Held, that under this provision the law in force in the Indian Territory at the time the indictment was returned, and the rules of evidence as they existed at that time, controlled in this ease.
    2. WITNESSES — Competency — Husband and Wife. Section 1974, subd. 4, Ind. T. Ann. St. 1899, provides that the husband and wife shall be incompetent to testify for or against each other. Held, that the court properly sustained an objection to the competency of the defendant’s wife to testify as a witness in his behalf.
    3. EVIDENCE — Self-Serving Declarations. Declarations of the defendant made after the homicide and in reference to it, held self-serving and properly rejected.
    4. APPEAL — Objections in Trial Court. A general exception to instructions given upon the trial of a case will not be considered. Counsel should point out to the trial court the particular instruction to which they desire to except, in order that the court may have an opportunity to correct the error therein, if any.
    5. FORMER, JEOPARDY — Getting' Aside of Judgment. A defendant, under an indictment for murder returned in a United States court of the Indian Territory, who upon • his trial was convicted of manslaughter, and who procures the judgment against him to be set aside, may be tried anew for the crime of murder.

      Appeal from District Court, Pontotoc County; Tom D. McKeoivn, Judge.

    Tom Birdwell was convicted of manslaughter on an indictment charging murder, and appeals.
    Affirmed.
    This was an indictment in the District' Court of the United States within and for the Southern District of the Indian Territory for the murder at Bebee, Ind. T., in what is now Pontotoc county, on September 10, 1907, of Jim Goodson, by shooting him with a shotgun loaded with buckshot. The case was pending in said court at the 'time of the admission of Oklahoma as a state, and upon a trial in the district court of Pontotoc county, to which the case was transferred after statehood, the defendant, Tom Birdwell, was found guilty of manslaughter, and sentenced to imprisonment for ten years. On appeal to this court the judgment was reversed. See 4 Okla. Cr. 472, 113 Pac. 205. Upon his second trial he was convicted of manslaughter, and in accordance with the verdict of the jury, was sentenced to serve a term of seven years’ imprisonment in the penitentiary, and to pay a fine of $500.
    R. L. Rollins was the first witness for the prosecution. He testified that he was engaged in the general merchandise business, and was postmaster at Bebee; that on the 10th day of September, 1907, when the sun was about an hour high, Jim Goodson, the deceased, came into his store and said he wanted a sack of flour and a piece of meat, and he told him he was out at that time. Bob Hatcher then said to him, “Jim, I want to see you,” and they turned and walked out of the south door that was in front of a partition that divided the store; that in about ten or fifteen minutes Tom Birdwell, the defendant, came into the store carrying a double-barrel shotgun, and came to the door of the partition where he was pumping coal oil; that he said to defendant, “There is no one here except myself,” and defendant went out this door. In a few minutes -he heard the shots and saw Goodson lying on the ground in front of Hinkle’s store,.“which is about 60 yards east of my store.” After the sun went down he went with some men and helped take him up. The defendant came to the post office and called for his mail, but did not say anything.
    The widow of the deceased testified: That on the day her husband was killed they were moving from one place near Bebee to another farm, and in the afternoon had loaded up two wagon-loads of household goods and' started away, her husband driving one wagon and Dock Corbitt the other. That they stopped the eams at Bebee, and her husband went to buy some groceries, and Dock Corbitt went with him, leaving her and her two children, one nineteen months old and the other two weeks old, ■srith the wagons. That a few minutes after they left her, Tom Birdwell and Blake Allen passed in a buggy. Blake Allen was driving, and'Birdwell had a shotgun, and as they passed Bird-well said to her, “ ‘Howdy,’ in a loud way like he was mad.” That she saw her husband going from Rollins’ store to Hinkle’s store, and when he was just a few steps from Hinkle’s store, the gun fired. That her husband halloed, then two shots more were fired from the direction of Rollins’ ■ store. That she laid her baby down and ran over, and Birdwell was standing over her husband cursing him when she came up, and Blake Allen was standing there with a six-shooter in his hand.
    P. L. Bowerman testified- that he was a merchant at Bebee and saw Birdwell between his house and place of business after the first shot was fired, and he fired the second time; that Bird-well walked up to Goodson’s body with a six-shooter in his hand, and he was cursing and calling Goodson hard names; that he stooped down over the body and took a pistol and tossed it off on the ground, and in a short time he came to witness’ store and wanted witness and another man to examine the pistol that had been picked up at Goodson’s body, and said to keep it until it was called for at court; that Goodson only lived a few minutes after he was shot.
    Costa Bowerman testified that he was fourteen years old, and saw the 'deceased passing from Rollins’ store, going towards Hinkle’s store, and saw the defendant going down the same way; that he heard the defendant say, “Oh, Jim!” and the deceased turned about halfway around towards him, and the defendant fired his gun and the deceased fell to the ground, and the defendant fired another shot; that as the deceased fell he said, “Oh, Lordy!”
    Mrs. P. L. Bowerman testified that she heard Blake Allen say just before the shooting, “Plere he goes, Tom”; that Bird-well had a gun in his hand, which he immediately shot; that she walked about six feet, and Birdwell shot again.
    Dock Corbitt testified: That he was helping the deceased to move that day. That they stopped the wagons in Bebee and went to the stores to get some meat and flour; that the deceased was talking to Bob Hatcher out in the back way when Tom Birdwell and Blake Allen drove up. Birdwell got out and came through the store with a shotgun in his hand, and Mr. Rollins told him, “There is no one here,” or, “He is not in here,” or something of that kind, and Birdwell went out, and witness remained in the store until it was all over.
    E. D. Hinkle testified: That he met the deceased that evening, and saw Tom Birdwell and Blake Allen drive up and stop in front of Rollin’s store, and Birdwell got out and went into the store. That he saw the deceased come towards witness’ store, and that Birdwell was following him, 60 or 70 feet behind. That the stores are about 90 feet apart. That he heard Birdwell call “Jim” twice and the deceased started to turn around and witness stepped to the other side of the store. Just then a gun fired; in two or three seconds another gun fired, and Jim Good-son was lying still on the ground, and Tom Birdwell was coming towards him with a revolver in his hand, and Birdwell said: “Oh, yes, God damn you; your gun hung on you” — and continued to curse him.
    W. E. Dunham testified that he saw the several parties that evening, and the defendant got out of a buggy and went into Rollins’ store with a shotgun; that he saw the deceased come from behind Rollins’ store, going east with the defendant following him, and Blake Allen said “Here, Tom, here 'he goes”; that the defendant was traveling fast; that the defendant called to Goodson, saying, “Jim,” and then again, “Jim, hold up”; that when the defendant shot him Goodson’s hands were down to his sides; that the defendant then walked up and took Goodson’s gun off of him and cursed him.
    W. P. Abbott testified that he was in the post office in Rollins’ store when the defendant came in with a double-barrel shotgun; that he saw him after Goodson was shot, with a sixshooter in his hand, and that Blake Allen had a shotgun in his hand; that just before the shooting he heard a voice say, “Hold up,” or “Hold on,” and that it was Birdwell’s voice; that he examined the body, and it had eleven shots in the left side and twelve shots on the right side; that he was shot in the neck and in the shoulder.

      A. B. Roberts was the first witness for the defense. He testified that he had known the deceased six or eight years, and knew his reputation. “He was tolerably rough.”
    Rish Burleson testified that he could not say that he knew deceased’s reputation as a troublesome character, but thought it was bad, but did not hear anybody except the defendant say he was a dangerous man.
    George Waldby testified that he knew the deceased’s reputation for being a troublesome man, and that “he was kinder raising disturbances around through the country,” but did not know whether he was considered a dangerous man.
    D. C. Highboger testified that he knew the deceased’s reputation for being a fussy, overbearing man, and it was bad, but that he was not considered altogether dangerous.
    Kit Guest testified that he knew the deceased’s reputation .“for being a fussy, trouble-raiser, and it was bad.”
    D. C. Highboger, recalled, testified that the deceased made a remark to him that he was having intercourse with Birdwell’s wife, or words to that effect, but that he never told Birdwell about it.
    Bob Hatcher testified that he called on Goodson to pay for some corn that he had given to Tom Birdwell, and that Good-son had stood for, and Goodson asked how much Birdwell got, and that witness answered that he did not know; that he had it on a book at home, and Goodson went on and-said, “if I wanted the money I had better get it, and get it damn quick”; that he ' was going to shoot the damn son-of-bitch’s head off; that this conversation was about 30 minutes before the killing, and that Hatcher did not tell Birdwell about it.
    J. M. Greer testified that he lived at Bebee; that three or four days prior to the killing Jim Goodson remarked to him that if Tom Birdwell owed him anything he had better get it; that he was going to kill the red-headed son-of-a-bitch; that a few days before the killing he met the defendant at the Corner saloon, and the defendant told him that while he was in jail Tom Goodson went and took possession of. a well machine, and he could not get it, and he said he had a wagon and harness at his place that belonged to Goodson, and that he told Birdwell about the threats he had heard Goodson make; that he was in Rollins' store at the time of the killing; that he knew there was going to be trouble, and he looked out and saw the deceased raising his right hand up, and walked on a few steps further and looked back, and shortly afterwards the gun fired; that he had heard the deceased say that “the defendant’s wife was not anything more than just a damn whore.”
    Guss Bobbitt testified that he was acquainted with the general reputation of the deceased for being a violent, overbearing, and dangerous man, and that it was bad.
    Bud Rawson testified that a couple of months before the killing he heard the deceased hallooing out around the defendant’s place, and there was some shooting at that time; that the defendant, Tom Birdwell, lived up close to the Corner saloon.
    Villy Wilson testified that he was working for the defendant, and the deceased came over on the defendant’s place and fired a couple of shots; that deceased then came up to the house and called for a gun he had there, his steel-ball Winchester, and Mrs. Birdwell gave it to him, and asked him not to shoot there; that he got ’ on his horse and started off and whooped and started to shooting; that the defendant was running a well drill at that time; that this was two or three weeks before the killing.
    . Blake Allen testified that on the day of the killing he went to Ada with the defendant, and they went from Ada to the Corner saloon, and there drank some whisk}'-; that they went from there to Bebee; that the defendant went there to get his mail; that the defendant got out and went into the post office, carrying a shotgun; that while he was in there witness saw Jim Goodson going in the direction of Hinkle’s store; that the defendant came out and witness said to him, “Come on and get in the buggy and let’s go home”; that Goodson turned his head and looked back and put his right hand to his bosom; that the defendant hallooed at him not to do that, to stop that, and said this once or twice; that Goodson whirled about half around and the defendant shot; that Goodson still had his hand in his bosom on bis gun, and the defendant shot again; that the defendant then said to witness, “Give me my pistol,” and he gave it to him, and the defendant walked to where Goodson was lying; that shortly after they returned to the Corner saloon.
    S. B. Bailey testified that deceased told witness he was going to have Tom Birdwell put under a peace bond of five feet of dirt, and that he was going to shoot Birdwell’s brains out as soon as he met him.; that witness told the defendant about it a short time before the killing.
    Tom Birdwell, the defendant, testified in his own behalf: That his wife told him that the deceased came there and shot and cut up and raised cane. That he had to get a doctor for one cf the children after the deceased run the children out of the field. That he was in jail at Ardmore, and the deceased had been on his bond, and the deceased turned him up on his bond, and he was put back in jail and was there two or three weeks before he made another bond. That when he came home his wife told him of an indecent proposition the deceased made to her. That he had heard of the threats the deceased made against him; that on the day of the killing he went to Ada, and from there to the Corner saloon, and from there to Bebee; that as he passed the wagon where Mrs. Goodson was he was looking for Goodson to shoot as he went by. That when he stepped out of the store he saw the deceased going in the direction of Hinkle's store. That he had started to his buggy, and the deceased put his hand in his bosom, and he said to him, “Don’t Jim,” or “Stop, Jim,” or, “Hold up, Jim”; when he saw deceased’s gun in his hand he shot him twice; that he went.over and took deceased’s six-shooter from him, and said to him: “You are a dead man, and I am in trouble; your damn gun hung on you or I would have been dead.” His wife ran up with a shotgun in shooting position, and I said, “Nora, you are a good woman, I don’t want to kill you, but don’t you shoot me.” That he went to the post office and asked for his mail, and then went to the Corner saloon and waited to give up. That he had been in the penitentiary three years on his first sentence. That both barrels of his shotgun were loaded with buckshot. Qn cross-examination be admitted that he was convicted in Texas of horse stealing, and in Indian Territory and in Oklahoma of whisky selling.
    In rebuttal several witnesses, recalled, testified that the deceased did not raise up after he fell and try to shoot the defendant.

      Crawford & Bolen, for plaintiff in error.

      Chas. West, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the United States.
   DOYLE, J.

(after stating the facts as above). The plaintiff in error was convicted of manslaughter on an indictment charging murder, and appeals to this court for a new trial.

There is no dispute whatever with respect to the fact that on the 10th day of September, 1907, at the place charged in the indictment, the defendant shot and killed Jim Goodson with a double-barrelled shotgun, having deliberately fired two shots at him, both of which took effect, killing him almost instantly.. The defense was self-defense. Aside from the testimony of the defendant and his codefendant, the state’s evidence is undisputed that the defendant followed the deceased for the purpose of assassinating him.

Two assignments of error are relied on -for a reversal of the judgment: First, the court erred in rejecting evidence; second, the court erred in giving instructions.

It is contended that the court erred in sustaining an objection to the following question propounded on cross-examination of the witness R. L. Rollins:

“Q. T will ask you to state if he did not also make a statement there that Mr. Goodson’s gun hung on him? By Mr. Wim-bish: Objected to because it is incompetent, irrelevant, and immaterial. By the Court: Objection sustained. By Mr. Bolen: The defendant excepts and expects the answer to be in the affirmative.”

It is apparent that this was an attempt to prove a self-serving declaration. It formed no part of the res gestae, and was not admissible as original evidence on behalf of the defendant. If the state had called out a part of the conversation in which this formed a part,. it may be the defendant would have been entitled to show all of the conversation, but there was no testimony from this witness in chief as to any statement having been made by the defendant at the time. We think the court very properly sustained the objection.

On the trial the defendant offered as a witness Emma Bird-well, who stated that she was the wife of the defendant, Tom Birdwell. Thereupon the state objected to the witness testifying, because as the wife of the defendant she was incompetent. The objection was sustained, and exception allowed. Of this ruling the defendant complains. The offense charged was committed before statehood., in the Indian Territory. Section 1974, subd. 4, Ind. T. Ann. St. 1899, provides that the husband and wife shall be incompetent to testify for or against each other, or concerning any communication made by one to the other during the marriage. In the amendment to Enabling Act, sec. 3 (section 438, Williams’ Ann. Const.), it is provided that:

“All criminal cases pending in the United States courts in the Indian Territory, not transferred to the United States Circuit or District Courts in the state of Oklahoma, shall be prosecuted to a final determination in the state courts of Oklahoma under the laws now in force in that territory.”

Under this provision of the Enabling Act the law in force in the Indian Territory at the time the indictment was returned and the rules of evidence as they existed at that time controlled in this case.

Various criticisms are made upon the charge of the court in the defendant’s brief. The record shows that only a genera! exception was taken to the charge, and that after the instructions were read to the jury. It is as follows: “Comes now the defendant and excepts to each and every instruction given by the court to the jury from No. 1 to .22, inclusive.” While it is undoubtedly true that this court, in the interests of justice, even where no exceptions are taken, has the right to reverse for erroneous instructions, yet this court will not encourage the practice of counsel not calling the attention of the trial court to the instructions excepted to at a time when they could be corrected. We have often held that the charge of the court must be considered as a whole; and, from a careful examination, we find that the charge of the court in this case, considered as a whole, contains a full and fair presentation of the defense, and the criticisms made thereon are not well founded. The only error apparent in the charge was in the defendant’s favor. The court on its own motion instructed the jury “that the defendant has been acquitted of the charge of murder, and now stands charged of the crime of manslaughter, which is embraced and included in the charge of murder, and to which charge the defendant has entered his plea of not guilty.”

It is well settled by decisions of the Supreme Court of the United States that a defendant who procures a judgment against him upon an indictment to be set aside, if a new trial is granted, ma)'- be tried anew for the same offense. The verdict of manslaughter rendered by the jury on the defendant’s first trial was not equivalent to an acquittal of- the defendant of murder, and was not a bar to a second trial for murder as charged in the indictment.

We find nothing in the record of which the defendant has any just complaint, and there seems to be no reason to doubt that the verdict of the jury was entirely in harmony with the interests of justice.

The defendant committed a wanton, cruel, and deliberate homicide, and a verdict of murder, if that issue had been submitted, would not have been unwarranted by the evidence.

The judgment is affirmed, and it is directed that the mandate be transmitted forthwith.

ARMSTRONG, P. J., concurs. FURMAN, J., absent and not participating.


text:
    H. C. DAVIS v. STATE.
    No. A-1660.
    Opinion Filed October 11, 1913.
    (135 Pac. 438.)
    1. APPEAL — Discretionary Ruling — Continuance. The granting or refusal of a continuance in a criminal case is largely a matter within the discretion of the trial court, and this court will not reverse a judgment on a matter which rests in the sound discretion of the court, unless it is shown that there has been an abuse of discretion.
    2. CONTINUANCE — -Application—Sufficiency. Where a defendant seeks a continuance upon the ground that he has used- due diligence to secure the attendance of an absent witness, he must set out fully in his application the facts showing diligence.
    S. APPEAL — Issues of Fact. When issues of fact are determined by the jury upon evidence which is sufficient, even though it may be capable of diverse and opposing inferences, this court has no more right than the trial court to substitute its own judgment in the place of that of the jury, or to usurp its legitimate functions.

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

    H. C. Davis was convicted of larceny of a hog, and appeals.
    Affirmed.
    On May 25, 1911, there was filed in the district court of Stephens county an information, charging the defendant with the theft in Stephens county, on or about the 5th day of March, of a hog, the property of J. Paschal. The case was called for trial on the 8th day of November, and the defendant filed a motion for a continuance, which was overruled. His trial resulted in a verdict of guilty, and his punishment was assessed at confinement in the penitentiary for the term of one year and one day.
    J. Paschal was the first witness for the state. Pie testified that he lived 250 or 300 yards from the defendant; that in March, 1911, he lost a large red sow, weighing about 300 pounds. The sow had a bobbed tail, a slit in the right ear, and hair of a cherry red color, and was running at large on the range near the defendant’s house; that he had the sow about two years and a half; that on Saturday the 5th day of March, 1911, the sow disappeared; that he made a diligent search the next day, but failed to find her; that a neighbor out hunting found the head and hide of a hog a mile and a half east of witness’ residence. Witness went there, and identified the head and hide as belonging to the sow which he had lost. That witness then got an officer and a search warrant, and started over the neighborhood searching for the hog meat. On the morning of the 8th of March he, with a searching party, went to the defendant’s house. The defendant was not at home, and his wife objected to them making any search. Witness then went and found the defendant in a field, and asked him whether or not he had any meat at his place, and he said he did not have any, and asked witness to go across the creek and search other houses that morning and come back to his place that evening. The defendant asked for the search warrant, and one Mr. Marlow read it to him, and then the defendant said: “All right; I haven’t any meat here except a piece of bacon.” The defendant said, “Come around on the south side of the house and search.” Then Mr. Marlow said he would go on the north side and the defendant objected, and Mr. Marlow went around on the north side and found a box of meat under the house and pulled it out; the meat was fresh, and had been butchered about 48 hours; it consisted of middlings, shoulders, and hams, which had been salted. The hair had not been scraped off, but the hog had been skinned. Several pieces of the hide were left on, and witness identified this as the same color of hair as that on the hog which he had lost. When the meat was found the defendant said that he had had it ten days, and that he had gotten it at Dick and Ide Norman’s. Witness examined the horse tracks and the shoe tracks where the head and hide of the hog were found, and was present when a comparison of the shoe tracks was made with a pair of shoes of the defendant, and testified that he saw the defendant wearing these shoes before this hog was killed.
    Tom Harris was the next witness for the state. He testified that he was acquainted with the defendant and with J. Paschal, and had seen Mr. Paschal’s red- sow during the month of March; that he was out hunting some cows, and had a hound with him; that the hound ran across the head and hide of the hog; that there was a slit in the ear similar to the mark that Paschal placed on his hogs.
    Mill McHenry testified .that one or two weeks before the meat had been found at the defendant’s house he was there, and at that time he noticed a big, red sow belonging to J. Paschal about the place, and the defendant said to him then: “If Paschal don’t take care of that hog, I am going to have some fresh meat.”
    Jim Norman testified that about a week after the defendant gave bond he came to witness’ house and told witness that he had killed J. Paschal’s hog with a shotgun, and that he came there to get witness to help him out of the trouble; that he is a brother-in-law of the defendant; that they were not good friends.
    George Marlow testified: That as a deputy constable he had a search warrant and searched the defendant’s hQuse and a number of other houses at that time; and when he told the defendant his business, and the defendant asked for his papers, and witness showed the papers to him, the defendant said: “All right, gentlemen; I have no fresh meat here.” That he found a box under the floor filled with five pieces of fresh meat, and he asked defendant where he got it, and the defendant said he got it at Dick Norman’s the Friday before. That the meat had been skinned and salted, but there was a piece of the hide which had hair of a reddish color. That he went to the place where the head and hide of the hog had been found, and made an examina-, tion of the horse tracks there, and noticed that the tracks were peculiar in this: That the left fore foot of one of the horses made a peculiar track showing that a piece had been broken out of the hoof. That he examined the horses about an hour later, and the tracks made corresponded with the tracks which he had just measured. That he made an examination of the men tracks at that place, and noticed a peculiarly broken place in the tracks caused by the shoe which had been worn out through the sole, and these tracks corresponded with the tracks made by the defendant’s shoes.

      J. F. Brewer testified that he was present when the comparison was made of men tracks, and that there was absolutely no difference in the tracks made bjr the defendant’s shoes and the tracks which had been made around the place where the hide and head of the hog was found.
    The testimony of Mr. Sellars and Mr. Manard was substantially to the same effect.
    The defendant as a witness in his own behalf testified that Jim Norman came to his house a week before the hog was missing, and told him that he was going to kill a hog and asked him if he would take part of it, and the defendant told him he would; that on Sunday evening Norman came to the defendant’s house and said: “I found that hog and killed it, come and go with me and we will get it.” And he said, “Jim, I am pretty tired to go down there now,” and Norman said, “It’s down here about a quarter of a mile.” That then he took an axe and scales and went with Norman. That they weighed the meat, and it weighed about 120 pounds. That he said to Norman: “Jim, I haven’t any money to pay you, and 3K>u see Dick Norman and tell him that I said ho pay you for the meat.” That Dick Norman at that time owed him some money. That he then took the meat home and salted it. That Jim Norman told him that this hog belonged to Dick Norman, and he paid eight cents a pound for the meat. He further testified that he was not at Jim Norman’s, and did not have the conversation which Jim Norman testified to.
    Mrs. Nannie Davis testified that she was present when Jim Norman came to their place and offered to sell some meat to Mr. Davis.
    C. Henry Williamson testified for the defendant that Jim Norman bought a red sow from Henry Spencer and paid him $25 for it. On cross-examination witness testified that Norman bought this hog seven or eight days after the defendant’s house had been searched and the meat found there; that witness and Dick Norman made bail for the defendant; that Spencer said he did not care to sell the sow, and that he would charge $25 for her, and Jim Norman said: “I will give it, I do not care anything about the hog, I just have to have it.”
    Heniy Spencer testified that about the middle of March he sold a red sow to Jim Norman for $25, and Jim Norman said at that time “that he did not want the hog, but that he had particular use for it.”
    Dick Norman testified that in March, 1911, he paid some money to Jim Norman for the defendant; that Jim Norman claimed that the defendant owed him for 108 pounds of meat at eight cents a pound, and witness paid Jim Norman $9.60.
    The state on rebuttal introduced Will Morris, who testified that he was at the home of the defendant when the search was made and the meat found, and heard the defendant say that he got the meat from Dick Norman, and that the meat was on the work bench at Dick Norman’s home at the time he got it.

      Woinack & Brouni and Stuart, Cruce & Gilbert, for plaintiff in error.

      Charles West, Atty. Gen., and Smith C. Matson,, Asst. Atty. Gen., for the State.
   DOYLE, J.

(after stating the facts as above). Three assignments of error are relied on for a reversal of the judgment: First, that the court erred in overruling the motion of the defendant for a continuance on account of the absence of a material witness; second, that the evidence is insufficient to support the verdict; third, that the court erred in its instructions to the jury. We shall determine these questions in the order named.

The application for continuance is supported by two affidavits. The first sets forth:

“That he is unable to proceed to trial at this time for want of material evidence, to wit, the evidence of one Jim Isam, who is a material witness in this case, and defendant has used due diligence to obtain the evidence. That this defendant only learned on November 7th that Jim Isam is at present a resident of Oklahoma, and is somewhere in the eastern part of the state, but his exact whereabouts is to this defendant unknown. That this witness has not been subpoenaed to be present at the trial of this case in this court for the reason, as above stated, this affiant was not apprised and did not know what this witness would testify, but that defendant expects to have the evidence of said Jim Isam by the next term of this court. Defendant expects to prove the following facts by said witness, to wit: That Jim Norman told him, Jim Isam, that he sold Bud Davis the meat that was taken away from Bud’s house, and further that Jim Norman came to Jim Isam’s house, on Bud Farris’ place, and asked him to go look at a hog hide, and that he went and saw the hide. That affiant believes the same to be true, and that said evidence, so far as the defendant knows, cannot be furnished by any other witness.”

The second states:

“That he is unable to proceed to trial at this time for the want of material evidence, to wit, the witness John Patterson, who is a material witness in this case; that defendant has used due diligence to procure this witness, that a subpoena was issued for said witness, but said witness has not been served, and defendant is informed that this witness resides in Stephens county, Okla. That the defendant expects to prove the following facts by said witness: That Jim Norman told him that he sold Bud Davis the meat that was taken away from Bud’s house, and after that Jim Norman came to him and asked him to go and look at a hog hide. That he went and saw the hide, and that affiant believes the same to be true. That said evidence, so far as the defendant knows, cannot be furnished by any other witness. This application is not made for delay, but that justice may be done, and asks that this cause be continued until the next term of this court.”

The mere statement of a defendant that he has used due diligence to secure the attendance of an absent witness is not sufficient to show diligence. He must set out fully in his application for continuance the facts which constitute such diligence. The delay of the defendant, as shown by the record, in procuring process for his witnesses amounts almost to indifference. A defendant should not wait until just before his trial before he begins to get ready for trial, but must exercise diligence in procuring process for his witnesses.

The rule is well settled that the granting or refusal of a continuance in a criminal case is largely a matter of discretion of the trial court, and this court will not reverse a trial court ■on a decision of a matter which rests in the sound discretion of the court, unless it is shown that, there has been an abuse of discretion.

We think the application for a continuance was property denied.

Looking at the case upon the merits, it is impossible to find any ground for the interference of this court. The questions in the case were for the jury, and the verdict is well supported by the evidence. It is the province of the jury to determine questions of fact depending upon conflicting evidence, and to declare by their verdict what the truth is. It is no more the province of this court than of the trial court to determine controverted questions of fact arising upon conflicting evidence. Neither can lawfully usurp the appropriate functions of the jury, and neither can substitute its own judgment for that of the jury, where the facts are reasonably capable of diverse and opposing inferences.

“Where the evidence is circumstantial, and the circumstances are such as to reasonably justify an inference of guilt, the weight and value of such testimony are exclusively for the jury. It is only where the evidence obviously does not warrant the inference of guilt that the court will interfere. Otherwise the weight of circumstantial evidence, and the inference to be drawn from it in almost eveiy case, would finally be determined by the appellate court. We think a verdict of a jury based upon circumstantial evidence comes to us as any other verdict; and, unless we can say that the inference of guilt drawn from the evidence was wholly unwarranted, we cannot interfere.” (Wainscott v. State, 8 Okla. Cr. 590, 129 Pac. 655.)

We do not think there is any serious ground for the contention that this is a case which-would justify this court in interfering with the facts as determined by the jury.

The record in this case fails to show that any objections were made or exceptions taken to- the instructions given by the trial court. And no instructions were requested by the defendant to be given. The objections argued in the brief are without merit. The charge of the court was exceedingly fair, and every right of the defendant was carefully guarded.

Having considered all objections to the judgment presented in argument by counsel, we discover no ground for disturbing the judgment. It is therefore affirmed.

ARMSTRONG, P. J., and FURMAN, J, concur.


text:
    H. T. GILLAM v. STATE.
    No. A-1579.
    Opinion Filed October 11, 1913.
    (135 Pac. 441.)
    EVIDENCE — Testimony of Accomplice. A verdict of guilty upon the uncorroborated testimony of an accomplice is contrary to law and to the evidence. Held, that the evidence is not sufficient to support the verdict.

      Appeal from District Court, Pontotoc County; Tom D. McKeown, Judge.

    H. T. Gillam was convicted of stealing a horse, and he appeals.
    Reversed.

      J. R. Witty and Crawford & Bolen, for plaintiff in error.

      Chas. West, Atty. Gen., and C. J. Davenport, Asst. Atty. Gen., for the State.
   DOYLE, J.

Plaintiff in error was tried on an indictment charging that he did take and steal one gelding, the property of L. T. West, P. M. West, and M. L. West. He was found guilty, and in accordance with the verdict of the jury was sentenced to imprisonment in the penitentiary for one year. He prosecutes error to have the record of his conviction reviewed and the judgment reversed.

The only question that we deem necessary to consider is the alleged insufficiency of the evidence to support the verdict. It is disclosed by the record that the state prosecuted on the theory that defendant was concerned in the theft by aiding and abetting its commission. To sustain the charge the state called P. M. West of Calvin, who testified that he and his brothers bought the horse from a man living near the defendant, and when turned out in the spring the horse went back down there; that the horse was branded “P,” and when recovered was branded “J. R.’’; that defendant told witness about the horse being with defendant’s horses, and told him about taking off a wire that fastened a bell on the horse because it was hurting the horse’s neck. J. H. Payne testified that he saw Walter and Oscar Gouge change the brand. The only testimony tending to incriminate the defendant was that of Oscar Gouge, who testified that defendant told him, if he • would bring defendant some “stuff,” defendant would give him half value for it, and would let him have some horse stock; that he took a black mare owned by Sam Ray, and let the defendant have her for $10; that defendant let him have a horse branded “P”, and after he had the horse about two weeks he changed the brand with carbolic acid, and made it “J. R.,” but witness Payne was not present.

The contention of counsel for plaintiff in error is that the conviction cannot be sustained upon the uncorroborated testimony of an accomplice. Our Procedure Criminal provides (section 5884, Rev. Laws 1910) :

“A conviction cannot be had upon the testimony of an accomplice, unless he be corroborated by such other evidence as tends to connect the defendant with the commission of the offense, and the corroboration is not sufficient if it merely show the commission of the offense or the circumstances thereof.”

A verdict of guilty upon the uncorroborated testimony of an accomplice is contrary to law and to the evidence.

The judgment appealed from is therefore reversed, and the cause remanded.

ARMSTRONG, P. J., concurs. FURMAN, J., not participating.