author: BICHAEDSON Judge.

text:
    B. B. MOSS v. STATE.
    No. A-60.
    Opinion Filed November 23, 1910.
    1. INTOXICATING LIQUORS — Detectives—Entrapment. The state is not estopped from prosecuting- a violation' of the prohibition law because the purchase of the liquor was made at the instance of the prosecuting attorney and for the purpose of instituting a prosecution thereon.
    2. INFORMATION — Verification — Conclusiveness. Where an information in legal form is verified as true in positive térms, such verification constitutes a sufficient showing of probable cause to authorize the issuance of a warrant of arrest and to put the defendant on trial; and on a motion to quash the information no issue can be made as to the knowledge or want of knowledge of the facts charged on the part of the person who verified ifche information; nor can the information be set aside on the ground that the person who verified it had no personal knowledge of the facts alleged.
    3. INTOXICATING LIQUORS — “Beer” Presumed Intoxicating. Where a defendant is prosecuted under sec. 7, art. 1, of the state Constitution for selling intoxicating liquor, to wit “beer,” and the state proves that the defendant sold beer, the presumption is that the same was intoxicating, and the burden is on the defendant to rebut the presumption by evidence. If no evidence • is adduced upon that question by either side, the presumption that the beer sold was intoxicating is conclusive on the jury, jury.
    4. SAME — Reasonable Doubt — Duty to Instruct Jury. In rebutting the presumption arising in such case that the beer ^old was intoxicating, the defendant is required to produce only sufficient evidence to raise a reasonable doubt as to its intoxicating quality. When that is done it devolves upon the state to show beyond a reasonable doubt that the beer sold was in fact intoxicating; and it is error to refuse to so instruct the jury when properly requested by the defendant, provided evidence has been produced tending to show that the beer sold was not intoxicating.
    5. INTOXICATING LIQUORS — Constitutional Offense — Allegations and Proof. Under sec. 7, art. 1, of the state Constitution, forbidding the sale of “intoxicating liquor, including beer, ale and wine,” it is necessary to allege that the liquor sold was intoxi--eating, and to prove that fact either by evidence of its intoxicating quality or effect, or by evidence showing that the liquor sold was of that kind presumed by law to be intoxicating.
    6. SAME — Statutory Offense. Under sec. 1 of art. 3 of the Act approved March 24, 1908, (sec. 4180 of ‘Snyder’s Comp. Laws.) forbidding the sale of “any spirituous, vinous, fermented or malt liquors or any imitation or substitute therefor,” it is necessary neither to allege nor prove that the liquor sold -was 'in- .“ toxicating. The allegation and proof that the liquor sold was a spirituous, vinous, fermented or malt .liquor, as the case may be, or an imitation of or a substitute for one or the other of those liquors is sufficient-, and it will be no defense to show that the liquor was not intoxicating.
    7. SAME — Percentage of Alcohol. The further provision of sec. 4180 of ’Snyder’s Comp. Laws forbidding the sale of “any liquors or compounds of any kind or description whatsoever, whether medicated or not, which contain as much as one-half of one per centum of alcohol measured by volume, and which are capable of being used as a beverage,” etc., is intended to prohibit the sale of patent medicines and medicated drinks and compounds which contain alcohol and are capable of being used as a -beverage, and in no sense modifies or qualifies the preceding provision forbidding the sale of “spirituous, vinous, fermented or malt liquors or any imitation or substitute therefor.”
    8. INSTRUCTIONS — Requests — Substance Already Given. It is not error to refuse a requested instruction where the court has already given the substance of the request in other proper instructions.
    9. INTOXICATING LIQUORS — Information—Purchaser Unknown. Where an information charges that the defendant sold intoxicating liquor to some person whose name is unknown to the informant, the information is not demurrable on account of the failure to state the name of the purchaser.
    10. SAME — ^Purchaser Known — Variance. Where an information alleges that defendant sold intoxicating liquor to some person whose name is unknown to the informant, in the absence of any evidence on the question, the verity of the allegation that the name of the purchaser was unknown at the time of filing the information will be presumed. But if the evidence affirmatively shows that the name was known to the informant at the time of filing the information, the variance 'between the allegation and the proof is fatal.
    11. SAME — Variance—Presumptions—Evidence. If there is no evidence adduced by either side tending to show that the name of the purchaser was known to the informant at the time of filing the information, the presumption of the verity of the allegation that it was unknown becomes conclusive on the court and jury. If the possession of such knowledge by the informant at the time of filing the information is admitted by the prosecution or conclusively and indisputably shown, then the question is one for the court only; but if there is evidence tending to show the fact of knowledge on the part of the informant, but which falls short of conclusive proof, then the question is one for the jury under proper instructions.
    12. SAME — Name of Purchaser Known — Necessity of Allegation. A county attorney and an enforcement attorney each represented the state in the enforcement of the prohibition law, and each had authority in the county; the enforcement attorney knew of a sale of liquor and the name of the purchaser, the purchase being made at his instance; the county attorney prepared and signed an information charging the defendant with the sale and alleging the name of the purchaser to be unknown to him; the enforcement attorney then and there verified the information, and assisted in the prosecution, and the information was never amended. Held, that the enforcement attorney could not lawfully withhold from the county attorney the name of the purchaser, if he in fact did so, thus- making the allegation that the purchaser’s name was unknown to the informant a mere subterfuge to avoid disclosing the name; and that a showing of such facts constituted a fatal variance between the allegation and the proof, entitling the defendant to an acquittal.
    (Syllabus by the Court.)

      Appeal from Oklahoma, County Court; 8am Hooker, Judge..

    B. B. Moss was convicted of violating the prohibition law, 'and he appeals.
    Beversed and remanded.

      Burwell, Orockett '& Johnson, for plaintiff in error.
    On necessity of instruction on “reasonable doubt” as to intoxicating character of liquor: Mass v. Territory, 10 Oída. 714; People v. Ah Gee Yung (Cal.) 24 Pac. 860. On necessity of alleging name of purchaser when known: U. 8. v. Riley, 74 Fed. 210; U. 8. v. Scott, 75 Fed. 213; 22 Cyc. 465, sec. 11; 10 Ene. PI. & Pr. 507; Cameron v. State, 13 Ark. 712; Oxier v. TJ. 8. (Ind. Ter.) 38 S. W. 331; State v. Wisebeck (Mo.) 40 S. W. 946; State v. Stowe
      (Mo.) 33 S. W. 799; Boren v. State (Tex.) 4 S. W. 463; McOloy v. State (Tex.) 80 S. W. 524; Sault v. People (Colo. App.) 34 Pae. 263; State v. Garey (Wash.) 46 Pac. 1050; Terry v. State (Ala.) 26 So. 776; Wells v.-Stale (Ala.) 7 So. 272; Comm. v. Thornton, 14 Mass. 41; Comm. v. Stoddard, 9 Mass. 280.

      Fred S. Caldwell, for the State.
    On prosecution through entrapment: De Graff v. State, 2 Olda. Cr. 519. On verification of information: De Graff v. Stale, supra; Salter v. State, 2 Olda. Cr. 464; Ex parte Flowers, 2 Olda. Cr. 430.
   BICHAEDSON Judge.

The evidence in this case tended to show that H. C. Burwick and S. W. Fenton, at the instance of an enforcement -attorney representing the state in cases arising under the prohibition laws, went to plaintiff 'in error and purchased from him two bottles of beer, the purpose being to ascertain whether plaintiff in error was engaged in selling liquor and to bring him to account if he was. Upon that sale this prosecution was predicated; and it was contended both here and below that under those circumstances the state was estopped and precluded from prosecuting or punishing plaintiff in error for doing that which the state through its duly commissioned prosecuting officer had solicited him to do.

This same question" has already been decided by this court adversely to plaintiff in error’s contention in three cases. De Graff v. State, 2 Okla. Cr. 519, 103 Pac. 538; Caveness v. State, 3 Okla. Cr. 729, 109 Pac. 125; and Stack et al. v. State, ante, p. 1, 109 Pac. 126. The law alleged to have been violated was enacted for the benefit and protection of all the people, for the promotion and preservation of their health, sobriety, thrift, peace and safety; it was not enacted in the special interest of the prosecuting officers, and a violation thereof is an offense not against the prosecuting attorney but against the state. Prosecutions for offenses of this character are in the interest of the public solely, and the prosecuting officer can neither repeal the law, pardon the offender, nor grant indulgences; nor can he lawfully give immunity except in those instances provided for by law. It is no less an offense to sell intoxicating liquor for any purpose to a sheriff or prosecuting attorney, or to an agent or representative of either, than it is to sell to any one else; and a sale made to such officer or his agent, though solicited by him for the purpose of detecting the commission of the offense and of instituting a prosecution therefor, is punishable, and the officer’s solicitation works no estoppel to a prosecution. The pith of the matter was well stated by Justice Vann in People v. Mills, 178 N. Y. 274, 70 N. E. 786, when he said:

“We are asked to protect the defendant, not because he is innocent, but because a zealous public officer exceeded his powers and held out a bait. The courts do not look to see who held out the bait, but to see who took it.”

We are aware that there are some decisions which apparently uphold the doctrine contended for by plaintiff in error, but the overwhelming weight of authority, and in our opinion all the reasoning, is on the other side, especially in that class of cases where the offense is one of a kind habitually committed, and the solicitation merely furnishes evidence of a course of conduct. See Onondaga County Com’rs v. Backus (N. Y.) 29 How. Pr. 33; Tripp v. Flanigan, 10 R. I. 128; People v. Murphy, 93 Mich. 41, 52 N. W. 1042; People v. Liphardt, 105 Mich. 80, 62 N. W. 1022; People v. Everts (Mich.) 70 N. W. 430; People v. Rush (Mich.) 71 N. W. 83; City of Evanston v. Meyers (Ill.) 50 N. E. 204; State v. Jansen, 22 Kan. 498; State v. Stickney (Kan.) 36 Pac. 714; People v. Mills, 178 N. Y. 274, 70 N. E. 786; United States v. Whittier, 5 Dill. 35; Bates v. United States, 10 Fed. 92, and note; United States v. Moore, 19 Fed. 39; United States v. Dorsey, 40 Fed. 752; Shepard v. United States, 160 Fed. 584; Grimm v. United States, 156 U. S. 604; Goode v. United States, 159 U. S. 663; Andrews v. United States, 162 U. S. 420; Price v. United States, 165 U. S. 311. In many instances habitual and flagrant violations of the liquor laws can be detected by noi other means. The officer or his agent may furnish the defendant in such cases the opportunity to sell, but he does not furnish the defendant the liquor or the intent to sell; and the sale to an officer is not more meritorious or less criminal than if made to some other person. We find nothing in the law or in public policy forbidding the detection of both the offense and the offender in this manner; and we have no criticism to- expend upon a public officer who may find it necessary or expedient to adopt this means of discovering infractions of this law.

The information in this case was signed by the county attorney of Oklahoma County, and was verified in positive form by the affidavit of the enforcement attorney at whose instance Bur-wick and Fenton are said to have purchased the beer. During the trial of the cause it developed that said enforcement attorney had no personal knowledge of the matters charged, and that his only information with respect thereto was obtained from the report of said Burwick and Fenton. When this fact was developed, plaintiff in error filed a motion to quash the information on that ground, alleging that he did' not know, until it was shown by the testimony given in the course of the trial, that the person who verified the information had no personal knowledge of the facts charged. The court overruled this motion and the ruling is assigned as error.

We think there was no error in the court’s ruling. An information which is not verified at all, or which on its face shows that it is verified only on information and belief, should be quashed or set aside on a timely motion for that purpose, for the reason that such verification constitutes no sufficient showing of probable cause. But where the information is verified in positive terms as true, it constitutes a showing of probable cause, even though it may subsequently develop- that the affiant had no personal knowledge of the facts alleged. Such verification makes a prima facie showing, which is all that is required; and on a motion to quash ■no issue can be made as to the knowledge or want of knowledge of the person who verified the information. The verification supports the information as the testimony taken before the grand jury supports an indictment. The want of a verification or a verification insufficient on its face will justify the quashing of the information on a seasonable motion, just as a showing that an indictment was found and returned upon no testimony or upon wholly insufficient, testimony before the grand jury, will justify setting the indictment aside. But, just as an indictment cannot be set aside on a showing that the testimony upon which it was found, though competent and apparently sufficient, was in fact false and perjured, so an information properly verified on its face cannot be set aside on a showing that the affiant had no personal knowledge of the matters to which he swore in verifying it. The sufficiency of the verification must be determined from what is stated therein, and not from evidence aliunde.

Plaintiff in error has cited no authorities sustaining his position, and after a diligent search we have been able to find none. The adjudicated cases are all against his contention.- Thus in Holt v. People, 23 Colo. 1, 45 Pac. 374, the court said:

“By bill of exceptions, so much of Radford’s testimony, taken on the trial, is presented as shows that he was not in the town where the killing occurred until the Saturday following. It by no means follows from this fact alone that the affiant was not in possession of sufficient knowledge to enable him to swear that the offense had been committed, and that the defendants were probably guilty of perpetrating it.
“To say that the probable cause contemplated in section 7, article 2, of our bill of rights, must be shown by the oath or affirmation of an eye witness to the perpetration of an offense, or by one who has actual knowledge, from personal observation, of the commission of the crime, would preclude the people from legally prosecuting a large proportion of the crimes usually committed, and prevent the enforcement of the criminal law in all cases where resort must be had to circumstantial evidence, since the oath or affirmation required by this section of our bill of rights is an essential prerequisite „to an arrest, whether a preliminary examination is to be had, or the warrant is to issue on an information. Nor are we prepared to say that when ah affidavit is made in conformity to the requirements of the statute, that it is within the power of the accused to attack, by counter affidavits or otherwise, the truth of any of its essential statements. Certainly no authority for such a practice is found in the statute, and, in our opinion, ought not to be tolerated.”

In Bergdahl v. People, 27 Colo. 302, 61 Pac. 228, we find the following :

“In support of the second ground, attacking the sufficiency of the verifications of these informations, it is urged that inasmuch as the testimony disclosed that the party who verified them did not have personal knowledge of the guilt of the plaintiffs in error, therefore they were not properly verified. Whether or not an affidavit upon which an information is based complies with the statute must be determined from the context of the affidavit itself, and its statements cannot be attacked by extraneous evidence.”

And in Barr v. People, 30 Colo. 522, 71 Pac. 392, the syllabus reads as follows:

“Where an affidavit upon which a criminal information is based states that affiant has personal knowledge that the offense was committed and that he is a competent witness to testify in the ease, the truth of such statement cannot be put in issue by defendant, and the fact that it was shown on the trial of the case that affiant had not personal knowledge of the commission of the offense, but only such knowledge as he had gained from the report of others, is not ground for reversing a conviction.”

And again in Overland Cotton Mill Co. v. People, 32 Colo. 263, 75 Pac. 924, 105 Am. St. Rep. 74, the same court said:

“During the progress of the trial it developed from the testimony that the party who made' the affidavit supporting the information did not have personal knowledge that the defendants had committed the offense charged. Thereupon they moved to quash the information. The motion was denied. There was no error in this ruling. Whether or not an affidavit to support an information states the facts required by the statute, must be determined from the affidavit itself. Its statements cannot be attacked by extraneous evidence, or upon the ground that the testimony may disclose that the party who verified it did not have the knowledge relative to the offense charged which the statute requires.”

In State v. Carey, 56 Kan. 84, 42 Pac. 371, the syllabus b.y the court is as follows:

“An objection to a warrant that the person who verified the complaint, although in positive form, had no knowledge of the ■facts, save such as were based upon rumor, hearsay, information, and belief, and a subsequent plea in abatement to an information for a felony on the same -ground, were properly overruled without any evidence thereon.”

In the City of Holton v. Bimrod, 8 Kan. App. 265, 55 Pac. 505, which was a prosecution for selling intoxicating liquor, the court said:

fiThe complaint in this case was sworn to positively, and it was not error 'to refuse to hear evidence to impeach such complaint by showing that the prosecuting witness had no knowledge of the facts,- except such as were based on rumor, hearsay, information and belief.”

This cause was then appealed from the Court of Appeals to the Supreme Court of Kansas, and that court in 61 Kan. 13, 58 Pac. 558, said:

“The original complaints, upon which warrants were issued by the police judge for appellants’ arrest, were sworn to positively and not on information and belief. The appellants sought to introduce testimony showing that the prosecuting witnesses had no personal knowledge of _ the facts stated in the complaints, for the purpose of proving want of probable cause. Such testimony was not entitled to consideration. The verifications being positive in form, the requirements of the bill of rights were wholly satisfied. The secret reasons of the prosecuting witnesses -for making the -complaints could not be inquired into for the purpose of invalidating the warrants. -Sufficient probable cause was made to appear to the magistrate for the'issuing of the warrants by the charges made and the positive form'of the verifications. (The State v. Moseli, 49 Kan. 142, 30 Pac. 189; The State v. Brooks, 33 Id. 708, 7 Pac. 591; The State v. Dugan, 52 Id. 23, 34 Pac. 409; The State v. Carey, 56 Id. 84, 42 Pac. 371.)”

This question was also passed upon by the Court of Appeals of Missouri in the case of State v. Pitts, 70 Mo. App. 446. The court said:

“The defendant was tried and convicted of an assault on a child. The information was filed in the St. Louis Court of Criminal Correction.' It was signed by the prosecuting attorney and was supported by the affidavit of a competent witness. The defendant moved io quash it, upon the ground that the subscribing witness had no personal knowledge of the commission of the offense. On the hearing of the motion the conrt permitted the defendant to introduce evidence which tended to show that the witness did not see the defendant commit the assault, and that his only knowledge of it was the admission of the defendant that he had whipped the child. The court overruled the motion, and the defendant excepted.
“The information was filed in a court of record and hence is governed by section 4057 of the Eevised Statutes of 1889. That section provides, that- all informations shall be signed by the prosecuting attorney, and shall be verified by his oath, or by the oath of some person competent to testify as a witness in the case, or be supported by the affidavit of such person. In the impeachment of such an information it might probably be shown that the person who made the affidavit is not a competent witness, or that his signature was a forgery. The case of State v. Grady, 84 Mo. 220, would seem to authorize this. There it was held competent to show that an indictment was found without hearing any evidence. In the case at bar the defendant attempted to show that the information was based on insufficient evidence, which the Supreme Court in the Grady Case, supra, expressly decided could not be done. We, therefore, hold that the motion to, quash the information was properly overruled.”

The same question was before the Supreme Court of Florida in Lee v. Van Pelt, Sheriff, 48 So. 632, and the court there held that a verification in due and legal form was not subject to be impeached, saying:

“We have found no case in which, an attack has been sustained upon an affidavit charging a specific offense in positive terms, on the ground that the affiant had no knowledge of the facts.”

The foregoing are all the cases we have been able to find on the question, and as will be seen they are all of one accord. When we consider the great variety of criminal cases, the widely different forms in which they arise, and in many instances the various and disconnected sources from which fragmentary pieces of evidence must be obtained, conclusive when considered together but no portion of which is sufficient alone, and the further fact that the circumstances are often such that no one witness in the ease can truthfully say that, he has personal knowledge that all the facts necessary to be charged in the information are true, it may well be doubted whether the law contemplates that the verification of an information must be made by one having personal knowledge of all the essential facts charged. In any event- we are in accord with the cases cited above, and we hold that where the verification of. an information is in due form, no issue can be made as to the knowledge or want of knowledge of the person who verified it for the purpose of quashing or setting aside'the information, either before the trial or during its progress.

This prosecution was instituted under that provision of section 7 of article 1 of the state Constitution which provides that, "Any person, individual or corporate, who shall manufacture, sell, barter, give away or otherwise furnish any intoxicating liquor of any kind, including beer, ale and wine, contrary to the provisions of this section, shall be punished,” etc. The information in this case charged plaintiff in error with selling "intoxicating liquor, to wit, beer”; and plaintiff in error requested the court to give the jury the following instruction:

"You are further instructed that the word ‘beer/ as used in this information and for the sale of which the defendant is now being prosecuted, means a fermented liquor, chiefly made of malt, and denotes a beverage which is intoxicating and refers to such beverage as is sold, used, and drank as such, and the word ‘beer’ as used in the Constitution of the State of Oklahoma, and as used in the information in this case does not include any beverage which although made of malt, in connection with the other ingredients, is not intoxicating.”

The court refused to give this instruction, and plaintiff in error excepted and has assigned such refusal as error. We think that the instruction requested was a proper instruction, and that it would not have been error to have given it; but upon an examination and consideration of the instructions given by the court we are also of the opinion that it was not error to refuse it. The court told the jury that before 'they could convict the defendant, they must find from the evidence beyond a reasonable doubt that be sold intoxicating liquor, and that the said intoxicating liquor so sold was beer. This covered all that was contended for by plaintiff in error in the instruction requested, for his whoie argument is directed to the fact that to warrant a conviction, the liquor sold must have been intoxicating. It is true the court did not tell the jury that beer was a fermented liquor made chiefly of malt; but there could have been no error in this, for all the evidence on that question, both on the part of the state and on the part of the plaintiff in error, tended to show that the liquor alleged to have been sold in this instance was made of malt, and that it had progressed to a certain dejgree of fermentation, and the only question as to the character of the liquor was whether or not it was intoxicating. The court gave to the jury in substance the material part •of the requested instruction, and there was no necessity for repeating it in the form requested.

The court further instructed the jury as follows:'

,“No. 7. If you find 'from the evidence in this case that the ■article alleged to have been sold by the defendant Moss to the witness Fenton was beer, then it is presumed that the same was intoxicating, and it is not incumbent upon the state to establish its intoxicating qualities, but if the defendant contends that the same was not intoxicating, then it devolves upon him to remove this presumption by evidence.”

In connection with this instruction plaintiff in error requested and the court refused to give this additional instruction:

“But you are further instructed that if after considering all the evidence in the case, you entertain a reasonable doubt of the ingredients in the two bottles claimed to have been purchased by the prosecuting witness Fenton being intoxicating, then and in that event the defendant would have met the requirements of the law, and you should acquit him, for in this case the defendant having offered some evidence tending to show that the ingredients of the two bottles were not intoxicating, if such evidence has been sufficient to and does raise in your mind a reasonable doubt as to whether the liquid in the. bottles contained such quality, then the burden would be upon the state to overcome such doubt and establish by evidence beyond a reasonable doubt that the ingredients of such bottles was not only beer, but that it was at the time of the alleged sale thereof an intoxicating liquor.”

The instruction given by the court was correct, for the reason that the information was drawn under that section of the Constitution- which prohibits the sale of “intoxicating liquor, including beer, ale and wine.” The Constitution classes beer as an intoxicating liquor; this makes it presumptively so, and it is therefore incumbent upon the defendant, when it is shown that the article which he sold was beer, to remove by evidence the presumption thus created that it was intoxicating, and if no evidence as to its intoxicating quality is introduced by either side, the presumption that it was intoxicating is conclusive upon the jury. Antonelli v. State, 3 Okla. Cr. 580, 107 Pac. 951; Antonelli v. State, 3 Okla. Cr. 585, 107 Pac. 953; Petitti v. State, 3 Okla. Cr. 587, 107 Pac. 954. But in this case considerable evidence was introduced tending to show that the liquor in question was not intoxicating; and that being true, in connection with the instruction given by the court we think he should also have given the instruction requested by plaintiff in error or some instruction substantially its equivalent. How far must a defendant go to remove the presumption that the beer sold was intoxicating? Must he prove beyond a reasonable doubt or by a preponderance of the evidence that it was not, or is he required only to introduce evidence sufficient' in quality and quantity to raise a reasonable doubt as to whether or not the liquor sold was intoxicating? We think the latter is the extent of his burden; and if he produces evidence sufficient to raise a reasonable doubt in the minds of the jury as to whether or not the beer sold was in fact intoxicating, then before the state is entitled to a conviction it must overcome such reasonable doubt thus engendered by proof beyond a reasonable doubt that the beer so sold was in fact intoxicating. Antonelli v. State, supra. In the absence of a specific request for an instruction such as was made in this case, the general instruction on ■the presumption of innocence and the burden of proof would be held sufficient as limiting the extent to which the defendant must go in rebutting the presumption. But where there is evidence tending to rebut the presumption, and a specific request for an explanatory instruction is made as in this case, it is error to refuse the request unless the matter is substantially covered by some other instruction.

There is a vast difference between the constitutional provision and the statutory provision in regard to the sale of liquors, and 'both the constitutional provision and the statutory provision (Acts 1907-8, page 603) are in force. Under the former the liquor sold must be intoxicating; the Constitution creates the rebuttable presumption that all beer, ale and wine are intoxicating, and the courts take judicial notice that alcohol and whisky are intoxicating. The proper allegation in an information drawn under the constitutional provision is that the defendant did barter, sell, give away, etc., intoxicating liquor, naming or describing it. The statutory provision (section 4180, Snyder’s Comp. Laws) provides that, “It shall be unlawful for any person, individual or corporate, to manufacture, sell, barter, give away or otherwise furnish except as in this act provided, any spirituous, vinous, fermented or malt liquors or any imitation or substitute thereforUnder this provision it is necessary neither to allege nor prove that the liquor sold was intoxicating. All that it is necessary to allege is that it was spirituous, vinous, fermented or malt, as the case may be, or that it was an imitation of or substitute for one or the other of those liquors; and proof of that fact will warrant a conviction, and it will be no defense to show that the liquor was not intoxicating. Immediately following that provision of the statute we find also the further provision, “Or to manufacture, sell, barter, give away or otherwise furnish any liquors or compounds of any kind or description whatsoever^ whether medicated or not, which contain as much as one-half of one percentum of alcohol, measured by volume, and which is capable of being used as a beverage, except preparations compounded by any licensed pharmacist, the sale of which would not subject him to the payment of the special tax required by the laws of the United States.” This provision is intended to forbid the sale of patent medicines and medicated drinks and compounds which contain alcohol and are capable of being used as a beverage. It has no reference to the provision immediately preceding it; and the requirement found in this provision that the liquor must contain as much as one-half of one per centum of alcohol measured by volume to fall within the inhibition of the statute, is not a requirement of the provision prohibiting the sale of spirituous, vinous, fermented or malt liquors or any imitation thereof or substitute therefor. But whenever the prosecutor elects to institute the prosecution under the constitutional provision instead of the statutory one, then the liquor sold must be 'intoxicating; and wherever the legal presumption arises that the liquor sold was intoxicating, that presumption is not conclusive but is subject to be rebutted by evidence on the part of the defendant. And where there is rebutting evidence, the jury should be specifically instructed, if the defendant requests it, that if upon a consideration of all the evidence they entertain a reasonable doubt as to whether or not the liquor sold was intoxicating, then they should give the defendant the benefit of that doubt and acquit him. The court therefore committed error in refusing this instruction requested by plaintiff in error.

The information in this case charged that plaintiff in error “did then and there unlawfully, wrongfully and wilfully barter, sell and give away certain intoxicating liquors, to wit, beer, to divers persons unknown to the informant.” Plaintiff in error on being arraigned demurred to the information, and at the beginning of the trial objected to the introduction of any evidence, on the ground that the information did not state the name of the person or persons to whom the sale was made. The demurrer and objection were properly overruled. The information should state the name of the purchaser if it is known; but if his name is in fact not known, the information may properly charge that the sale was made to some person whose name is unknown to the informant; and it will not be demurrable on that account.

The particular sale relied on in this prosecution was one alleged to have been made to S. W. Fenton on July 21, 1908. The evidence-for the prosecution disclosed that said Fenton and one Bur-wick, under the direction of the enforcement attorney already mentioned, went together to plaintiff in error for the purpose of purchasing the beer in question; that Fenton purchased two bottles of beer which he and Burwick immediately delivered to the enforcement attorney, who marked the bottles for identification in the witnesses’ presence and put them in his safe, and that this informa-ion was filed against plaintiff in error on that day. At the conclusion of the evidence for the state plaintiff in error moved the court to instruct the jury to acquit for the reason that the evidence did not sustain the allegations in the information, which motion was overruled. In many jurisdictions it is held that where the name of the person injured or of any person who was an essential actor in the transaction out of which the offense arose is alleged to have been unknown to the grand jury or the informant, and the name is known and shown during the trial, the truth of the allegation that it was unknown to the grand jury or officer 'making the accusation at the time of returning or filing the same must be specifically proven as one of the essential averments of the charge; and the omission by the state to prove that fact is held to be a failure of proof as to an essential allegation entitling the defendant to-an acquittal. But the better rule seems to be that in the absence of any proof on the part of the state or the defendant touching the matter, the verity of the allegation will be presumed, and the burden is on the defendant to show affirmatively that the accusing officer or tribunal did in fact know the name of such person. This rule was announced by the Supreme Court of the Territory in Reeves v. Territory, 10 Okla. 194, 61 Pac. 828; it was declared by the Supreme Court of the United Stages in Coffin v. United States, 156 U. S. 432; it is the rule in many of the states in the Union, and we shall follow it as the law in this jurisdiction. But where the evidence adduced either on the part of the state or the defendant affirmatively shows that the name of an essential person alleged in the accusation to have been unknown was in fact known to the grand jury or informant, there is a fatal variance and the defendant is entitled to an acquittal. For where the information charges a sale of liquor to a person whose name was unknown to the informant, and the proof shows a sale to a person whose name was in fact known to the informant at the time of filing the information, the variance is as fatal as though the sale were alleged to have been made to John Doe and the proof showed a sale to Kichard Eoe. If there is no evidence adduced by either side tending to show that the name was known at, the time of filing the information, the presumption of the verity of the allegation becomes conclusive upon the court and the jury. If the possession of such knowledge at the time of filing the information is admitted by the prosecution or conclusively and indisputably shown, then the question is one for the court only; but if there is evidence tending to show the fact of knowledge on the part of the informant, but which falls short of conclusive proof, then the question is one for the jury under proper instructions.

In this ease the information was signed by the county attorney, who was the informant. It was verified by an enforcement attorney to whom the statute gives all the powers of county attorneys in their respective counties in the enforcement of the prohibition laws, and who assisted in the prosecution of this case. The evidence for the prosecution shows positively that the enforcement attorney knew when he verified the information that one alleged sale was made to Fenton; and the enforcement attorney was acting as a sworn prosecuting officer concurrently with the county attorney, both representing the state. If he did not disclose to the latter the name of the person to whom the sale was made, he should have done so. At the time the information was drawn, verified and filed, and at every subsequent stage of the proceeding, the name of the person to whom the sale was supposed to have been made was known to the state through its duly commissioned representative acting in conjunction with, the county attorney in the enforcement of this law, in the institution of this prosecution and in the trial of this case; and the requirement that the name of the purchaser must 'be stated if known to the informant cannot be evaded by permitting an enforcement attorney who has authority in the county concurrent with the county attorney in this class of cases, who knows the facts, verifies the information, and acts in conjunction with the county attorney in preparing, instituting and carrying on the prosecution, to withhold that knowledge from the county attorney who signs the information, thus making the allegation that the purchaser’s name was unknown to the informant a mere subterfuge to avoid disclosing the name, and thereby withholding from the defendant important information respecting the charge against him which the accusation' ought to furnish. Under the facts shown and admitted in this case, there was a fatal variance between this allegation and the proof, and the court should have directed a verdict of acquittal in accordance with plaintiff in error’s motion to that effect.

For the errors indicated, the judgment of the county court is reversed and the cause remanded with directions to grant plaintiff in error a new trial.

FUEMAN, Presiding Judge, and DOYLE, Judge, concur.


source: Caselaw Access Project

author: BICHABDSON, Judge.

license: Public Domain

text:
    S. F. SAUNDERS v. STATE.
    No. A-25.
    Opinion Filed November 23, 1910.
    1. JURY — 'Formation of Lists — Change of Procedure. Where a jury list is made up in conformity with the law in force at the time, and subsequently the law respecting the selection of jury lists is changed, 'but with a provision that any jury box filled in accordance with the old law should not be affected, the jury list previously made up is valid.
    2. SAME — Statutes—Presumption of Regularity. An act which became effective on December 31, 1907, provided that the jury commissioners should meet on the first Monday in January and the first Monday in July of each year to select a list of jurors, and that the jurors should be selected from the poll books of the county. A subsequent act, which became effective on February 20, 1908, repealed the former act, and provided that the jurors should 'be selected from the tax roll, but that any jury box filled under the former act should remain unaffected. On May 11, 1908, defendant filed a challenge to the panel of petit jurors on the ground that they were drawn from a list selected from the poll books and not from the tax roll, hut did not allege or show when the list was made up. The lower court overruled the challenge. Held, that the chaHeng'e and proof thereunder were insufficient, and that the challenge was properly overruled.
    3. ARPE A,L AND ERROR — Case-Made—Showing Error. A matter assigned as error in the motion for a new trial and in the petition in error, 'but not shown toy the case-made to he true, cannot be considered in the appellate court.
    4. JURY — Service of Venire by Deputy Sheriff. A duly appointed, qualified and acting deputy sheriff, having n° special personal disqualification, is as competent to serve a venire for jurors as is the sheriff himself; and a defendant has no legal right to require that the sheriff and not his deputies serve the venire.
    5. JURY — Service of Venire — Bias of Officer — Challenge. Under Section 6801 of Snyder’s Comp. Laws, the fact that a venire for special jurors was served by a biased, prejudiced or incompetent person, should be taken advantage of by a challenge to the special venire.
    6. APPEAL AND ERROR — Improper Argument — Preserving Exceptions. The argument of attorneys to the jury is a part of the trial, and improper statements made by an attorney in the argument of a cause in open court and in the presence of the trial judge, to be reviewed in the appellate court, must be shown toy proper recital in the case-made or bill of exceptions, and cannot toe shown toy affidavits.
    7. SAME — Case-Made—Scope of Certification. The trial judge’s certificate to the case-made attests the truthfulness and correctness of everything recited therein as having in fact taken place, tout it does not attest the truthfulness of affidavits filed in support of or in opposition to matters alleged in the motion for a new trial.
    8. HOMICIDE — Murder—Evidence — Clothing of Deceased. On a trial for murder, where the plea is self-defense, a coat worn by deceased at the time of the homicide and which shows the point of entrance of the fatal bullet, is admissible in evidence.
    9. INSTRUCTIONS — “Reasonable Doubt.” Por a correct definition of reasonable doubt, see opinion.
    10. HOMICIDE — Self-Defense — Threats — Admissibility. On a trial for murder, where the plea is self-defense, and where there is some evidence other than threats tending to support the plea, proof of threats, communicated and uncommunicated, is admissible; the latter as a circumstance to be considered in connection with all the other evidence in the case in determining the state of deceased’s feelings toward the defendant and who was the probable aggressor in the fatal difficulty, and for no other purpose; the former, not only for that purpose, but also as a circumstance in determining what, the defendant might reasonably have apprehended from the overt acts and demonstrations of the deceased, if he made any, at the time of the fatal difficulty.
    11. SAME. Proof of bare threats made by the deceased, either , communicated or uncommunicated, will not mitigate a homicide; ‘ and such proof is not admissible at all unless there is first introduced some evidence other than that of the threats themselves tending to show that the deceased at the time he was killed was making some overt act or demonstration which furnished the defendant reasonable cause to believe that he was in danger of being killed or of receiving great bodily injury at the hands of the deceased.
    12. APPEAL AND ERROR — Misconduct of Jury — New Trial — Discretion. When an allegation in a motion for a new trial, that one of the jurors was intimidated and unduly influenced by his fellow jurors to agree to a verdict of guilty, is supported by affidavits on the one hand and controverted by affidavits on. the other, the lower court’s determination of the issue cannot be disturbed unless it reasonably appears that the court abused his discretion in the matter, or that his determination of the question was wrong.
    13. CONTINUANCE — Hearing on Motion — Absence of Acoused. Where the court sustains a motion for a continuance filed by the defendant, the fact that the defendant was not present at the hearing thereon is non-prejudicial.
    14. TRIAL — Oath of Jury Bailiff — Sufficiency. Where a jury bailiff has been duly sworn, it is not necessary that he he resworn when he is directed to take the jury out of the room during air argument to the court on a question of law, no recess or adjournment being taken. An admonition to the bailiff and the jury suffices.
    15. TRIAL — Conduct of Jury — Articles of Evidence in Jury Room. There is no error in allowing the jury to take with them to- their jury room a coat worn by the deceased when he was shot, which was introduced in evidence, where the defendant through his ( attorney in open court consents thereto. And in such case 'there is no error in some of the jurors putting on the coat in their jury room for the purpose of observing the location of the bullet holes therein.
    (Syllabus by the 'Court.)

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

      S. F. Saunders was convicted of tbe crime of murder, alleged t'o have been committed on one William Edward Carnahan on December 9, 1907, and his punishment was assessed at imprisonment at hard labor in -the state penitentiary for and during the term of his life.
    The evidence on the part of the state tended to show that the deceased, during the year 1907, was a tenant under the defendant on a farm0claimed by the latter; that the farm was in litigation, and a few days before the homicide the deceased had entered into a rental contract for the same land for the following year with some parties claiming adversely to the defendant; that this had angered the defendant, and he had declared that the deceased should not stay on the farm. On the morning of the homicide the deceased was in the field cutting corn stalks with a $talk-cutter, a two-wheel implement, drawn by two mules. The deceased’s son, a boy about 14 years old, and a hired man were cutting wood some little distance from where the homicide occurred; but the brow of a hill hid the deceased and the defendant from their view at the 'particular time of the homicide. . They heard some shots in the direction where the deceased was, and on going to the place found the deceased lying on his back dead. This was about nine o’clock in the morning. The neighbors were notified, the news spread and large crowds came to view the body during the day. The body remained there until the coroner came, about dark. The evidence shows that the weather was cold, and that the deceased at the time he was shot had on an undershirt, a top shirt, a vest and two coats; that the tinder coat was buttoned up and the outer coat was fastened with safety pins. The deceased also had on a pair of heavy leather gloves. All these remained on the body untouched until they were removed by the coroner. The deceased was shot twice, each of the shots taking effect in the back. Although troops of people came to the scene of the killing and examined the surroundings, yet no weapon was found on or near the deceased until just about dark. One Henry Pruitt and one Bone Woolsey had come and gone to and from the body several times during the day, and were there between sun down and dark. While they were standing around close to the body Bone Woolsey pointed toward Henry Pruitt’s feet and said, “Why, there is a pistol,” and the sheriff, who had arrived, stooped and picked up a bright niekle plated 38 caliber pistol. It was shown that the deceased’s pistol, and the only pistol which he was known to possess, was at his home, under the pillow at the head of his bed at the time of the shooting. Blood was found on the blades of the stalk cutter and on the lines with which the deceased drove the mules to the cutter, showing that he was shot while seated on the cutter.
    The defendant admitted the killing, but contended that the same was done in his necessary self-defense; that he rode up to the deceased, and had some words with him in regard to the possession of the farm, and that the deceased got off of the stalk cutter, drew a pistol and said, “We will settle it right here”; that thereupon the defendant drew his pistol; that the deceased fired first, and then the defendant fired, the shots being very close together; that the defendant fired three shots and the deceased two. The deceased was struck twice, each of the shots going into the back and neither of them going through the body. The evidence of the sheriff tended to show that the pistol which he picked up near the body had not been fired, and the state contended that it was dropped there late in the afternoon by a friend of the defendant; and that the deceased was unarmed and was shot without warning while he was driving the stalk cutter. The defendant filed a motion for a new trial, which was heard'and overruled, and he appeals.
    Affirmed.

      Cruce, Cruce & Bleahmore and Gilbert & Bond, for plaintiff in error.

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

Plaintiff in error, hereinafter called the defendant, has filed in this court a petition in error praying a reversal of the judgment against him, and assigning the commission in the low.er court of fifty-two different errors prejudicial to him. Of these assignments only fourteen have been noticed in the defendant’s brief, and to these we shall confine our attention.

1. The defendant filed a challenge to the panel of petit jurors, praying that the panel be quashed, vacated and set aside, on the ground that the list of jurors from which the panel was drawn were selected ofrom the poll books of Stephens County, and not from the tax roll as required by law. On proof being offered of the facts alleged, the prosecution admitted that the jurors were selected from the poll books and not from the tax roll; and the court after hearing argument, overruled the motion. The case-made does not show when the jury list was made up from which the panel in question was drawn. The first state Legislature passed an act approved December 21, 1907, which carried the emergency clause. and therefore became immediately effective, by section 2 of which it was provided that the jury commissioners should meet for the purpose of selecting jurors on the first Monday in January and the first Monday in July of each year and at such other times as the district judge might order, and that the names of jurors should be selected from the names on the poll books of the last preceding state election in the various voting precincts of the county. Art. 2, chap. 48, Session Laws 1907-08. The same Legislature subsequently passed another act, which provided that the jury commissioners should meet for the purpose of selecting jurors on the first Monday in January and the first Monday in July of each year, and that, “after the tax rolls of any county shall have been made up, the jury list shall be selected from such tax rolls, and such list shall be selected from the various municipal townships in each county as nearly as practicable in proportion to the voting strength of such municipal township.” This latter act expressly repealed the former one, but provided that, “Any jury box filled, or any jury heretofore selected and summoned under the provisions of an act to provide for the selection of grand and petit juries, approved December 21, 1907, shall in no wise.be affected by the provisions'of this act * * This act carried the -emergency; it was approved February 20, 1908, and is in force at this time. Art. 3, chap. 48, Session Laws 1907-8; chap. -55, Snyder’s Comp. Laws. The panel in question was drawn and summoned for the May, 1908, term of the District Court of Stephens County, and the challenge to the panel was filed and overruled on May 11, 1908.' The presumption is in favor of the regularity of the proceedings and the correctness of the lower court’s ruling. If the jury commissioners met on the first Monday in January, 1908, and selected from the poll books the jury list from which the panel in question was drawn, in accordance with the act approved December 21, 1907, and which was in force until February 20, 1908, then under the saving clause contained in said subsequent act approved February 20, 1908, said list remained unaffected and valid until exhausted, or at least until the first Monday in July, 1908. As the challenge to the panel contained no allegation as to when the jury list was selected, and as the time of its selection was neither proved nor admitted, we must presume that the jury list was made up by the commissioners on the first Monday in January, 1908, as the law directed. That being true, the list came within the saving clause of the last act; and the court therefore did right in overruling the challenge. Whether under the present act the failure of the jury commissioners to select the jury list from the tax roll would be ground for a challenge to the panel, it is not necessary to decide.

2. The regular panel of jurors being insufficient from which to obtain a trial jury, the court ordered a special venire for sixty additional jurors issued and served. The defendant complains that the deputy sheriffs and not the sheriff served the special venire; and that this was due to the fact that one of the attorneys for the prosecution stated to the trial judge that, “We don’t propose for Cates (the sheriff) to summon this special venire; he is not only a witness in the case, but a partisan.” This is assigned as reversible error. There are a number of reasons why this assignment is unavailing. In the first place the case-made contains no showing of any kind or character that the deputy sheriffs and not the sheriff summoned the special jurors, or that any such remark was made to the trial judge by counsel' for the prosecution. This was alleged in defendant’s motion for a new trial as one of the grounds for a new trial; but the truth of the allegation is not shown by the affidavit or oral testimony of a single person; and we áre asked to find that this was true because of the naked and unsupported allegation of the fact in • defendant’s motion for a new trial. This we cannot do. In the next place the sheriff himself testified on the hearing of the motion for a new trial that there was no action on the part of the prosecution to prevent him from summoning the special jurors, but that on account of certain relations existing, presumably between him and the defendant, he voluntarily took the matter up with the county attorney and the trial judge and asked to be excused from summoning the special jurors. Whether he was excused or not the record nowhere shows, but the journal entry recites that "the sheriff presented to the court the return of the special venire heretofore issued, and returned his list of 51 names, the venire being 9 short of the number required on said venire; thereupon the defendant waived all rights and exceptions thereto.” In the next place it is not contended that the deputy sheriffs were incompetent to summon the jurors. Unless some special personal disqualification existed, which is not shown, they were competent to do so; and we are unable to find where the defendant has a legal right to have this work done by one competent and legally authorized person in preference to another equally competent and authorized. Certainly it would be a needless and wasteful' consumption of time to require the sheriff personally to summon sixty jurors from the body of the county while his deputies and the court sit idle awaiting his return. And lastly it is not shown that the special jurors were summoned by a biased, prejudiced or incompetent person; and if they were, the matter could have been raised only by a challenge to the special venire. .Sec. 6801 of Snyder’s Comp. Laws.. As it was, this matter was never raised until the motion for a new trial was filed.

3. ' Tbe defendant alleged in Ms motion for a new trial that E. E. Morris, counsel for the state, in his argument to the jury said: “Gentlemen of the jury, who found this pistol and picked it up ? Bone Woolsey and Henry Pruitt, a man who has been arrested so many times for murder that it would take Mm a week to tell how many times he has been arrested. You know you had him brought here as a witness; why didn’t you put him on the stand?” The motion for a new trial also says that the court did not instruct the jury to disregard said statement of 'the attorney, and that the defendant by his counsel then and there duly excepted. And this alleged statement to the jury is assigned as error. The case-made contains no proper showing that the attorney in fact made that statement, that the court did not admonish the jury to disregard it, or that the defendant excepted. The ease-made shows none of these matters, unless it must be taken as so because it is assigned as ground for a new trial in the motion for a new trial. The only showing of any kind or character in regard to the matter contained in the case-made are two affidavits filed in opposition to the motion for a new trial, one being that of E. E. Morris himself in which he swears: “I remember during my argument to .have made a statement in substance that Henry PrMtt, who found the gun near Carnahan’s dead body, had been arrested so many times that it ivould take him a week to tell it had he been subpoenaed as a witness in this case for the defendant. And I had not more than finished my sentence until I was interrupted both by counsel for defendant and his Honor on the bench, and I immediately asked leave of the court to withdraw the statement and the court thereupon in the presence of the jury admonished me to refrain from any statements not supported by the record, and the court then and there instructed the jury not to consider the said remarks.” And one W. A. Little also made and filed an affidavit to the same effect. No affidavits were filed in behalf of the defendant’s contention. If these affidavits could be held to fulfill the requirements of the law in regard to the manner of showing the statements made by an attorney in the course of his argument to the jury, still they do not show the saving of an exception by the defendant, and they affirmatively show that the court admonished the jury to disregard the attorney’s statement. But the statements of attorneys made in’the argument of the ease in open court in the presence and hearing of the judge cannot be shown to this court by affidavits either on the part of the state or the defendant; the argument of the cause to the jury is a part of the trial, and statements made therein, to be reviewed, must appear by a proper recital of fact in the case-made so that the certificate of the trial judge will be a certificate to the correctness of the recital. The judge 'must settle the case-made and thereby determine what was said, so that his' certificate will attest the truthfulness and correctness of the recital in the case-made. But the trial judge’s certificate does not attest the truthfulness of affidavits offered in support of or in opposition to matters alleged in the motion for a new trial. There is no recital in the case-made that this matter ever took place; the trial judge has never certified that it did take place, and there is therefore nothing before us on this .question. Newly discovered evidence and prejudicial matters not occurring in the regular trial of the cause in open court may be shown to the trial judge and on appeal to this court by affidavits as exhibits to the motion for a new trial; but there is no more reason or excuse for showing by affidavit what statement an attorney made to the jury in the argument than there is in showing in that manner the evidence introduced or excluded during the trial, or the rulings of the court thereon.

In State v. Drake, 11 Or. 396, 4 Pac. 1204, where the defendant complained of improper argument on the part of the prosecutor, alleged the same in his motion for a new trial, and supported the allegation with affidavits, the court said:

“It is not thought that chapter 2, tit. 7, p. 151, of exceptions in our Code has innovated or affected in any substantial particular the practice as it existed at the common law. 'The purposes and objects of a bill of exceptions under the Code is to subserve the same end, and to introduce matter which the record would not otherwise ■ disclose, for the information of the court having cognizance of the cause in error. Now it is perfectly clear that the matter alleged in the affidavit of the defendant could in no way constitute any part of the record except through the instrumentality of a bill of exceptions. It is not intended in such cases that a party may make a statement in writing of what he conceives to be his grievances, and, by swearing to it and filing it, and then moving for a new trial, and the court overrules the motion, he has incorporated the matter into the record, so as to make it á part thereof, and to enable this court to review it. If this can be done, the statement of exception provided by the Code to be settled, signed, and allowed by the court before whom the cause was tried, to bring such matter into the record, and lay the foundation .for appellate review, becomes a useless and meaningless thing. The whole business may be accomplished without the aid of the court and untrammeled by its authority. It has always been supposed that the record of a court is made up under the solemn sanction of the court, and to make exceptional matters occurring during the progress of the trial a part of such record it must be so ordered by the court. _ Irrelevant language addressed to the jury is no part of the record of that cause until made so by bill of exceptions under judicial order. But when made so, and properly before ns, we have not failed to condemn it when its harmful results were manifest. Tenn v. Mulvaney, 8 Or. 520. But without putting such matter in a bill of exceptions, and authenticating it in the manner required by law, the court cannot receive it because there is no legal evidence before the court that it contains a correct record of the proceedings. Edwards v. Kearney, 13 Neb. 533, 14 N. W. Rep. 536.”

See, also, Hannum v. State, 90 Tenn. 647; Turner v. State, 4 Lea. 309; Starr v. United States, 4 Ind. Ter. 550, 76 S. W. 105.

4. The defendant assigns as error that the county attorney in his address to the jury used the following language: “The jurors of this county must put a stop to the numerous crimes of murder that have been and are being committed.” This assignment cannot be considered for the reason that the ease-made nowhere shows that the county attorney used the language imputed to him.

5. Next it is contended that the county attorney entered into an agreement with the sheriff and his deputies by which no person was to be summoned as a juror in this case from the towns of Comanche and Duncan in Stephens County; but the case-made also fails to show in any manner that any such agreement was made or that no jurors were in fact summoned from those two towns, and therefore this assignment cannot be considered.

6. The court admitted in evidence over the defendant’s objection the two coats and the pair of heavy gloves .worn by the deceased at the time of the homicide; and this is assigned as error. It is contended that there was no dispute as to the character, location and fatality of the wounds inflicted on the deceased; that the clothes served to throw no light upon that issue, and that they were calculated to prejudice the jury against the defendant. Wo think the coats were competent for the purpose of showing the exact location of the two wounds, and of enabling the jury to form an estimate of the relative situation of the parties when the shots were fired; and the gloves were competent for the purpose of enabling the jury to determine whether or not the deceased, with those gloves on his hands would likely have been able to draw a small pistol from his pocket and fire it. When the clothes were offered in evidence neither the court nor the prosecution could know that there would be no dispute as to the location. of the wounds; and if the testimony of the defendant and his witness Abe Paul be true, then the wounds could not within any reasonable probability have been inflicted on that part of the body where the coats showed them to be. The coroner, who was also a physician, testified that one bullet entered about six inches below the angle of the scapula and about four inches to the right of the spine; the other wound was in the buttock. The garments were competent in corroboration of this evidence and for the purpose.of showing exactly what was inexactly stated. Nor is the state required in such eases to stand on the oral testimony of one or two witnesses without supporting their testimony by demonstrative evidence; nor can the state be precluded from offering such evidence by a general statement made by the defendant’s attorney, in objecting to the. evidence that “there has been no dispute raised as to the mortality or location of the wounds.” Mr. Wigmore in his work on Evidence says that the objection that the sight of deadly weapons or'of cruel injuries tends to overwhelm reason and to associate the accused with the atrocity without sufficient reason, cannot be entirely overcome; “but,” says he, “it is to be doubted whether the necessity of thus demonstrating the method and results of the crime should give way to this possibility of undue prejudice. No doubt such an effect may occasionally and in an extreme case be produced; and no doubt the trial court has a discretion to prevent the abuse of the process. But, in the vast majority of instances where such objection is made, it is frivolous, and there is no ground for apprehension. Accordingly, such objections have almost invariably been repudiated by the courts.” Here the issue was whether or not the defendant acted in self-defense, and the ■ exact point of entrance of the bullets was a very material circumstance in determining that question. And it would seem that if the average jurors are so unreasoning, their sensibilities so readily affected, their faculties so easily overcome, and their minds so quickly inflamed with prejudice and passion, as to require the withholding from them of evidence to which all reasonable persons concur in giving probative value, then the jury system must be a frail and fragile thing indeed, and a jury’s verdict the very essence of inconclusiveness and uncertainty, a veritable “blind man’s guess.”

In State v. Wieners, 66 Mo. 13, the court said:

“So of the exhibition to the jury of the bones of the vertebral column of the deceased. It served to show to the jury the attitudes and relative positions of the parties when 'the shot was fired. It was not an unnecessary parade of the bones of the dead man to excite prejudice against his slayer, but was legitímale ana proper evidence, and a party_ cannot, upon the ground that it may harrow up feelings of indignation against him in the breasts of the jury have competent evidence excluded from their consideration.”

In People v. Fernandez, 35 N. Y. 49, 64, which was a prosecution for murder, the court said:

“The exhibition of the articles in the condition in which they were found was more satisfactory in connection with the other circumstances, than any description of them that could have been given by the witnesses. It is said by Starkie, in relation.to evidence of this nature, that ‘upon the trial of a prisoner, on a charge of homicide or burglary, all circumstances connected with the state of the body found, or house pillaged, the tracing by stains, marks or impressions, the finding of instruments of violence or property, either on the spot or elsewhere, in short, all visible vestigia, as part of the transaction, are admitted in evidence, for the purpose of connecting the prisoner with the act. Such facts and circumstances have not improperly been termed inanimate witnesses.’ (1 Stark. Ev. 66.) Our laws are not specially framed to shield guilt from detection; they exclude nothing legitimately connected with the res gestae oí crime. In cases of this nature, such proof is uniformly received, and is equally admissible, whether it tends to inculpate or exonerate the.party accused. (1 Green]. Ev. p. 108; Campbell v. State, 21 Ala. 40, 44; People v. Larned, 7 N. Y. 445, 452.)”

In King v. State, 13 Tex. App. 277, where the defendant was charged with murder and pleaded self-defense, the court said:

“Upon the trial of this case, the State, over defendant’s objections, was permitted to introduce and exhibit to the jury a coat and pair of pants which were proved to have been on the person of deceased at the time he was shot. Testimony of this character is often times pertinent, material and admissible. (Hubby v. The State, 8 Texas Ct. App. 806; Early v. The State, 9 Texas Ct. App. 485.) In this instance it is not made to appear by the defendant’s bill of exceptions, or otherwise, that the exhibition of this clothing to the jury was improper and inadmissible. It is disclosed by the evidence that the position of the person who fired the fatal shot, at the time it was fired, was a material inquiry on the trial, and was left in doubt. This being the case, the clothing in question, which probably had been perforated by the leaden messengers which produced the death of deceased, might furnish most convincing proof of the exact position of the slayer when he fired the shot. Viewing the matter as presented by the record, we are not prepared to sá)' that the court erred in’ admitting the clothing before the jury.”

See, also, Rex v. Reason, 16 How. St. Tr. 42; Holley v. State, 75 Ala. 14; Watlcins v. State, 89 Ala. 82; Horsey v. State, 107 Ala. 157, 18 So. 199; People v. Howes, 98 Cal. 648, 33 Pac. 791; Painter v. People, 147 Ill. 444, 35 N. E. 64; Henry v. People, 198 Ill. 162, 65 N. E. 120; Story v. State, 99 Ind. 413; Davidson v. State, 135 Ind. 254, 34 N. E. 972; Thrawley v. State, 153 Ind. 375, 55 N. E. 95; State v. Jones, 89 Iowa, 182, 56 N. W. 427; State v. Stair, 87 Mo. 268; Gardiner v. People, 6 Park Cr. C. (N. Y.) 155, 201; State v. Symmes, 40 S. C. 383, 19 S. E. 16; Turner v. State, 89 Tenn. 547, 15 S. W. 838; Hubby v. State, 8 Tex. App. 597; Early v. State, 9 Tex. App. 476, 485; Hart v. State, 15 Tex. App. 202; Barkman v. State, 41 Tex. Cr. 105, 52 S. W. 73; Bennefield v. United States, 2 Okla. Cr. 44, 100 Pac. 34.

In the instant face the articles of clothing introduced were thoroughly identified by the coroner; there was nothing dramatic cr spectacular in the identification or introduction of them; they were evidence of a relevant and material fact, and were admissible.

7. It is also urged that the court erred in admitting in evidence the pistol with which the defendant killed the deceased. There was no error in this.

8. The court in his instructions defined a reasonable doubt as follows:

“‘You arc instructed that you cannot convict the defendant of any crime or degree of crime, unless his guilt is proven to your satisfaction beyond a reasonable doubt. By the term reasonable doubt, I do not mean a possible doubt, a mere speculation, or a captious quibble, suggested for the purpose of evading the performance of an honest duty, but by a reasonable doubt is meant that-state of mind, which, after a fair comparison and consideration of all the evidence in the case, both for the state and for the defense, leaves the mind of the jury in that condition they cannot say they feel an abiding conviction to a moral certainty of the truth of the charge. If you have such doubt, if your conviction of the defendant’s guilt of the crime as alleged in the indictment does not amount to a moral certainty from the evidence in the case, then you should find the defendant not guilty.”

This definition is complained of, and the defendant says that it wai condemned in Abbott v. Territory, 1 Okla. Cr. 1, 94 Pac. 179, and in Price v. State, 1 Okla. Cr. 358, 98 Pac. 447. The vice in the instructions given in those cases, however, as stated by the court was the fact that the jury were told that a reasonable doubt was a doubt for which they could give a reason, or for which a reason could be given. We find no such statement in this instruction. No particular error in the instruction has been pointed out, and we perceive none.

9. The court in an instruction on threats told the jury that evidence of threats might be considered by them in connection with all the other evidence in the case in determining who was the probable aggressor and in determining what apprehension might reasonably arise in the mind of the defendant from the conduct of the deceased. The defendant complains of this instruction as being too narrow and limited in its scope; and in support thereof he cites the case of Price v. United States, 1 Okla. Cr. 391, 97 Pac. 1056, in which Judge Baker said:

“Threats made by the deceased against the accused are admissible, upon the trial of the accused for the killing of the deceased: To show that the deceased manifested an angry and revengeful spirit toward the prisoner, and a determination to do violence to his person; to shed light upon the mental attitude of the prisoner towards the deceased when the homicide occurred; to show a mitigation of the offense charged; to show the condition of the mind of the deceased, and the condition of mind of the defendant at the time of the homicide; to show the purpose and motives of the deceased in making the attack; to show whether or not the killing was done in self-defense; to show reasonableness of the fears of the defendant at the time of the homicide that he was in danger of losing his life, or of receiving great bodily harm, at the hands of the deceased; to show who was the aggressor; and, as part of the res gestae, where they tend to excuse or palliate the conduct of the accused; and to establish the state of feeling entertained by the deceased towards the accused. Uncommunieated threats are evidence of the mental attitude toward the prisoner.' Communicated threats shed light upon the mental attitude of the prisoner toward the deceased when the homicide occurred. Both are clearly admissible.”

Every true statement in the foregoing is reducible to two rules often announced and uniformly adhered to, namely: (1) That proof of an uncommunieated threat is admissible, where the 'plea is self-defense, as a circumstance to be considered in connection with all the other evidence in the case in determining who was the probable aggressor in the fatal difficulty, and for no other purpose; (2) and proof of a communicated threat is admissible not only for that purpose, but also as a circumstance in determining what the defendant might reasonably have apprehended from the overt acts and demonstrations of the deceased, if he made any, at the time of the fatal difficulty. Every statement made by Judge Baker above, except that threats are admissible to mitigate the offense, and to show the purpose and motives of the deceased in mailing the attack, is only another manner of stating one or the other of the two rules so often announced. And the statements that threats are admissible to mitigate the offense and to show the purpose and motives of the deceased in making the attack, are not true except in a very qualified sense. Proof of bare threats made by the deceased will not mitigate a homicide in the least; nor does a bare threat to kill or injure throw any more light upon the motive than does the assault itself. Threats made by the deceased are not admissible at all unless there is first intnodnced some evidence other than the threats themselves tending to show that the deceased at the time he was killed was making some overt act or demonstration which furnished the defendant reasonable cause to believe that he was in danger of being killed or of receiving great bodily injury at the hands of the deceased. If one kill another merely because the other has threatened him, it is murder. Where the plea is self-defense, and where there is evidence other than mere threats tending to show that the deceased was the aggressor and that the defendant acted in his real or apparent necessary self-defense, then evidence that prior to the fatal difficulty the deceased had made threats of violence against the defendant is admissible, and may be considered in connection with all the other evidence in the case in determining the state of the deceased’s feelings toward the defendant and who was the probable aggressor in the fatal difficulty, Also, if under such circumstances it is shown that prior to the fatal difficulty the defendant had been informed that the deceased had made threats of violence against him, and in good faith believed the information, whether such information was in fact true or not, then the defendant is entitled to have the fact that he received that information considered, together with all the other facts and circumstances in evidence in the case, for the purpose of determining the state of the defendant’s mind and what he might reasonably have apprehended from the overt acts and demonstrations of the deceased, if he made any, on the occasion in question. But mere threats alone, though actually made and communicated, and however violent they may be, will not justify, excuse or mitigate a homicide. The law does not permit one to kill another merely because the other has made threats against him. And unless the deceased at the time of the fatal difficulty, without being willfully provoked thereto by the defendant, and without the defendant having sought the difficulty or having voluntarily entered into it, made some overt act or demonstration indicating to the defendant as a reasonable man an intention to kill him or do Mm some great bodily injury, then any threats previously made against or communicated to the defendant are immaterial for any purpose in the case; and the jury should be so instructed. We therefore find no error in the instruction given. Morris v. Territory, 1 Okla. Cr. 617, 99 Pac. 760; Reed v. State, 2 Okla. Cr. 589, 103 Pac. 1042; Wigmore on Evidence, vol I, sections 110 and 111.

10. On May 18, 1908, the defendant filed a motion for a new trial to which were attached certain affidavits in support of two assignments in the motion. On May 21, 1908, the county attorney filed certain controverting affidavits, and^ asked leave to file an answer to those assignments and to file additional affidavits. The court granted this leave, and in the presence of the defendant and his counsel made an order continuing the hearing on said motion for a new trial until May 23rd. On the last named day the state filed its answer to defendant’s motion, and also filed additional affidavits in support of the answer. The court on that day heard the motion for a new trial and overruled the same. The defendant contends that the court should not have permitted the state to file its answer and the additional controverting affidavits on the day on which the motion for a new trial was heard. We do not know and the ease-made does not disclose whether the state could have filed them earlier or not. The answer and controverting affidavits went squarely to the issues tendered by the motion; the court was present, had the parties before him, and we presume was familiar with the circumstances. The matter rested in the sound discretion of the court, and wé cannot say from an examination of the record that the court abused this discretion. It appears also that the 23rd day of May was the last day of the term and the court ordinarily could not have been required to continue the hearing on the motion for a new trial beyond the term. It is stated in the brief that the state’s answer to the motion and the additional ¡controverting affidavits were filed just one hour and forty-five minutes 'Before sentence was passed upon the defendant. The case-made nowhere shows that this was true, and we cannot assume that it is true merely because it is so stated in the brief; and if it were true, still we could only say that that matter also rested within the sound discretion of the court, and that the issues tendered in the motion for a new trial and to which the affidavits related, considering the state of the record, are not such as to show that the court abused its discretion in the premises.

II. It was alleged in the motion for a new trial that one of the jurors was intimidated and unduly influenced by his fellow jurors to agine to a verdict of guilty in this case, and certain affidavits were filed in connection with the motion for a new trial for the purpose of showing this fact. These were controverted by affidavits on the part of*the state, and made an issue which the lower court heard and determined; and the court’s finding upon this issue and determination thereof could not be disturbed unless it should reasonably appear that the court had abused his discretion in the matter, or that his determination of the question was wrong. It does not so appear. On the contrary, from an examination of the various affidavits filed pro and con, we have no hesitancy in holding that the lower court determined the issue correctly. Whether or not a. juror or jurors may impeach their verdict by affidavits in regard to the manner in which they reached it, is a question which we do not find it necessary to determine in this case.

12. It is also alleged by the defendant that the record did not show the defendant’s presence on March 3, 1908, a day of a previous term, when the court passed on a motion for a continuance filed by the defendant; and it is stated that this was such an error as to require a reversal of the cause. We find upon an examination of the record, however, that the court granted the continuance, and the defendant having had the relief which he desired, we do not see wherein he was prejudiced by not being present, if in fact he was not present. His presence there could have been beneficial to him only for the purpose of giving his testimony upon the motion, of counseling and assisting his attorneys in presenting the same, and of making whatever efforts he could to further the procuring of the relief which he desired. The relief having been had, every end was obtained which his presence could have served. The law does not require the presence of the accused on the hearing of a motion of this character merely to afford him the pleasure of ob-serviug the court render a decision; and his motion having been sustained, the fact that he was not present when the same was passed upon is immaterial. Whether this would be so had the motion been denied, it is not necessary to determine. But if we should hold this proceeding to have been erroneous and should reverse the cause on that account, how could the error be cured? The continuance was granted, and that term of court has long been a thing of the past. The act is irretrievable. If the cause should be reversed and remanded, would not this assignment be as ■ available on another appeal, and on still another, as on this one? A moment’s reflection makes the absurdity of the proposition apparent. It is as though asking the reversal of a judgment rendered at ,a second trial because of some error committed during the first one. It is proper to state, however, that the court caused the journal entry to be corrected by nunc pro tunc orders showing that the defendant was personally present and was represented by attorneys at the time the motion in question.was passed upon, and at every other stage of the proceeding.

13. It is also urged as error that during the argument of a question of law to the-court, the-court allowed the jury to retire from the court room in charge of the bailiff without having the bailiff re-sworn. It was not.necessary to have the bailiff re-swom. Whenever the court takes a recess the officers must be sworn to keep the jury together until the next meeting of the court and to suffer no person to speak to. or otherwise communicate with them, nor to do so themselves on any subject connected with the trial of the cause, and return them into court at the next meeting thereof. But where the bailiff has already been sworn, it is not necessary that this oath be readministered every time the court sends the jury out of the court room while the attorneys are discussing a question of law, and when the court has not taken a recess. The oath already taken is binding and is sufficient, and an admonition to the bailiff ancl the jury suffices. Moreover the journal of the court shows that the jury was duly admonished and the bailiff duly sworn as required by law at each and every recess and adjournment of the court during the trial of the cause.

14. Lastly it is assigned that the court erred in permitting the clothing of the deceased to be taken to the jury room. There is no recital or statement in the ease-made to the effect that the • jury-took the clothing of the deceased to the jury "room. The first mention we find of this in the ease-made is the statement of the fact in the motion for a hew trial. The state filed the affidavit of certain jurors to tire effect that, at the conclusion of the argument of counsel and before the jury retired to deliberate upon their verdict, the jury in open court requested permission to take the clothing of the deceased with them to the jury room; that Mr. Gilbert, attorney for the defendant, stated that he had no objection to the clothing being taken, but that he did not want the pistols taken to the jury room; and that accordingly onl-y the clothing was taken. Having consented that the clothing might be taken to the jury room, the defendant cannot now be heard to say that it was error for the court to permit it. It is also urged that the jurors were guilty of misconduct in that some of them put on one of the coats in the jury room for the purpose of ascertaining the exact location of the bullets’ entrance into the body. We can conceive of no other purpose for which the jurors could want the coats. Certainly they did not request permission to take the coats to their jury room merely to throw them down in a corner. If these coats had been taken to the jury room without the defendant’s permission;, it might have been error ; but the defendant having consented thereto, the error, if any, was waived. Consensus tollit errorem. Misconduct on the part of the bailiff is alleged; the court heard the evidence pro and eon upon this matter, and correctly found, as we think, that there was no misconduct on the part of the bailiff.

We find no reversible error in the proceeding. In our opinion the evidence in this ease shows beyond any character of doubt that this defendant committed a cold-blooded assassination by maliciously and premeditatedly shooting an unarmed man in the back. The judgment of the lower court will be affirmed.

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