text:
    THOMAS MONAGHAM v. STATE.
    No. A-1868.
    Opinion Filed August 14, 1913.
    (134 Pac. 77.)
    1. APPEAL — Continuance. 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 the trial court on the question of a matter which rests in the sound discretion of the court, unless it is shown that there has been an abuse of discretion.
    2. ROBBERY — What Constitutes — Evidence. To constitute ‘ robbery, ’’ as distinguished from "larceny from, the person," there must be force, violence, or intimidation in the taking. Therefore, where there is no evidence tending to show that the defendant obtained or retained the personal property alleged to, have been taken by force and violence or by putting in fear, the crime is grand larceny, and not robbery, and a verdict of guilty of robbery in the first degree is contrary to law and the evidence.
    3. SAME. Merely snatching the property from the person of another, without violence or putting in fear, is not robbery, except where there is some injury or violence to the person of the owner, or where the property snatched is so attached to the person or clothes of the owner as to afford resistance.
    4. SAME — Elements. The force and violence which is essential to the crime of robbery must be concomitant with the taking of property from the person of another.
    5. TRIAL — Instructions—Question of Pact — -"Presumption of Innocence.’’ The jury are bound to take the law from the court, and questions of fact are to be decided by the jury. The charge of the court must not invade the province of the jury, and should not extend beyond a plain statement of the law applicable to the case. Philosophic disquisition on the "presumption of innocenee" or dissertation upon the nature of evidence should always be omitted.

      Appeal from District Court, Craig County; Preston S. Davis, Judge.

    Thomas Monaghan was convicted of robbery, and appeals.
    Reversed.

      O. L. Rider, for plaintiff in error.

      Chas. West, Atty. Gen., and Smith C. Matson and C. J. Dozen port, Asst. Attys. Gen., for the State.
   DOYLE, J.

This appeal is prosecuted from a conviction had in the district court of Craig county, in which the defendant was found guilty of robbery in the first degree, and sentenced to imprisonment at hard labor in the penitentiary at McAlester for a term of ten years.- The judgment and sentence was rendered and entered’on the 17th day of June, 1912. The appeal was perfected by filing in this court December 11, 1912, a petition in error with case-made attached. The Attorney General has filed a motion to strike the case-made and consider this appeal on the transcript of the record, because said case-made was not served on the county attorney within the time allowed by the trial court. The record shows that at the time of entering judgment the court extended the time for making and serving case-made GO days, and thereafter on the 27th day of July granted an additional extension of GO days, and thereafter on the 17th day of October granted an additional extension of GO days, and that the case-made was served on the county attorney on the 21st day of November, and was settled and signed on the 7th day of December. The certificate of the trial judge recites:

“I do hereby certify that the within and foregoing case-made, and the amendments thereto, have been served in due time, and the same duly submitted to me for settlement and signing, as required by law.”

Thus it appears that the orders extending the time for making and serving the case-made were in addition to the statutory time of 30 days as provided by section G951, Comp. Laws 1909, Rev. Laws 1910, secs. 5994-7. The motion to strike is therefore overruled.

The information charged, in substance, that on or about the 19th day of December, 1911, the said Thomas Monaghan, did willfully, unlawfully, and feloniously, with force and violence, take from the person of one J. E. Armstrong, and against his will, personal property, to wit, $2.50, and one railroad passenger ticket from Vinita, Okla., to Boonville, Mo., of the value of $6.50, said personal property then and there being in the possession of said J. E. Armstrong, with the intent on the part of him the said Thomas Monaghan to then and there rob the said J. E. Armstrong.

The testimony in the case was substantially as follows:

J. E. Armstrong, the complaining witness, testified: That he lived in Cooper county, Mo., and came to Vinita on the Katy Flyer on the 19th day of December, and while waiting at the depot to take the 4 o’clock train to Blue Jacket, he'was talking to several fellows there and was drinking “right smartly.” That he went to sleep and caught the defendant trying to steal something from him, and a short time after that he was in the closet with his clothes unloosed, and while he was unbuttoning his suspenders, the defendant “socked” his hand into his pocket, and said: "God damn you; give me that pocketbook”' — and he got the pocketbook and got away from him. That he had too much whisky to defend himself, or he could not have got away so easy. That he followed him a little piece, and saw two fellows starting after him, and he hallooed to them: “Arrest him! He robbed me” — and they caught him. That there was a $5 bill and a little change and a ticket from Vinita to Boonville, Mo„ in the pocketbook. That he did not consent to the defendant’s taking his pocketbook. That they put him in jail, but released him the next morning. On cross-examination he stated that he was drinking when he arrived at Vinita; that he had a little square grip with a quart of whisky, a jar of honey and some cakes in it, and he had a bottle of whisky in his pocket; •that he gave the defendant and one or two others a drink of whisky in the toilet room; that he did not know how many drinks he gave the defendant; that he also visited some negro joints across the track near the depot; that when they drank his whisky the fellow with the defendant wanted him to give him a dollar to get some more whisky, and he told him he did not have any money.

J. W. May testified that he saw the defendant running from Armstrong, and followed him with a fellow named Pyatt, who caught him about 300 yards from the depot; that Pyatt let him go, and said, “I seen him throw something out of his pocket as he came around that corner”; that witness then took Armstrong to jail.

Jake Smith testified that he was present when the sheriff arrested the defendant, and heard them say that a man was robbed, and went to see if he could find anything, and found a pocketbook with a ticket in it to Boonville; that a fellow named Pyatt gave him directions where to look.

Charles A. Davidson testified that he saw witness Armstrong near the depot so drunk he could hardly stand; he hallooed that he had been robbed, “Catch him,” and a man that he did not know caught the defendant and threw him down; that the defendant had a knife in his hand, and he ran over and took the knife away from him.

Dee R. Mitchell, clerk of the district court of Craig county, ■over the defendant’s objection, was permitted to identify a subpoena issued to' the sheriff of Muskogee county, commanding W. B. Pyatt to appear as a witness for the state in the case on trial, together with the signed order of the court for W. B. Pyatt to appear, and the return of the sheriff of Muskogee ■county, showing that said W. B. Pyatt was not found in said county.

C. Caldwell, county attorney of Craig county, testified that the W. B. Pyatt named in said subpoena is the man referred to as Pyatt by the witness who testified, and over the defendant’s objection was permitted to state on Monday last “I finally got in communication with Mr. Pyatt, in Muskogee, and endeavored to get him here as a witness.” Thereupon the defendant moved that the statement be withdrawn from the consideration of the jury. The motion was overruled; the court saying to the jury that:

“This testimony is only permitted and will only be considered by the jury as showing or tending to show what effort the county attorney made to get this witness. That’s the sole purpose of this particular testimony, and you will consider it for no other. The defendant may have an exception.”

H. E. Ridenhour, sheriff, testified that when he arrested the defendant, he had one dollar in silver and three half dollars.

On behalf of the defendant, G. A. Whitney testified: That he was with the defendant in the waiting room of the depot, and the complaining witness Armstrong invited them to go in the toilet and have a drink with him; and they went with him, he had a four-ounce bottle of whisky, and they drank it up. Armstrong then said: “I would buy some more, but I have only got 15 cents.” .That he had a little telescope, and they opened it up and it had a little can of something and a big black bottle. That they had been in there about 20 minutes when witness left. That he saw the defendant have $2 or $3 in his hand at a drug store just before they went to the depot.

The defendant, as a witness on his own behalf, testified: That he went to the depot with Whitney, and they went into the smoke-room and sat down. Armstrong was talking to a couple of negroes, and then commenced a conversation with Whitney. They got up and went into the closet, and Armstrong produced a bottle of whisky, and they drank it. Armstrong said he wanted to eat a little, and that he had a lunch in his grip, and asked us to open it for him, and we found a bottle of whisky and a little jar of jam and some cakes. That Armstrong commenced' eating the cakes, and witness said to Whitney, “I am going to get that bottle of whisky.” That Whitney left, and he then slipped the bottle of whisky into his shirt, and a man named Bowen came in and Armstrong pulled another bottle of whisky out of his pocket and they all drank. That he then went out and hid the bottle of whisky that he had taken from the grip under the depot, and then went back to the closet. As he went in Bowen came out, and Armstrong followed him out, saying he had been robbed, and he ran because he thought he meant that he was robbed of his whisky. That a fellow named Pyatt caught him and knocked him down, and he took his knife out and made him turn him loose. That Davidson came and took the knife away from him, and he started across the street, and the sheriff arrested him. He denied taking the pocketbook or anything except the bottle of whisky.

It is contended, first, that the court erred in denying the motion for continuance made when the case was called for trial. The affidavit contained all the formal allegations, required by law, and is in part as follows:

“That the defendant on the 20th day of May, 1912, caused subpoena to be issued for Ed Bowen, who lives at Bartlesville, on which subpoena was indorsed an order of the court commanding attendance of said witness; that the return of the sheriff of Washington county this day filed is ‘not found in my county’; that the said Ed Bowen, if present, would testify that at the time of the alleged robbery the said Armstrong and this defendant and the said Bowen were at the Missouri, Kansas & Texas depot, in Vinita; that this defendant and Bowen and the said Armstrong were in the toilet drinking, and no robbery occurred during said time; that this defendant left said toilet, and that the said Bowen and said Armstrong remained therein; that about 15 minutes later this defendant returned, and just as this defendant was entering the said toilet room, said Bowen left the .same, and was immediately followed by said Armstrong; that said witness, if present, would also testify that the said Armstrong told him he had lio money, and would have to borrow some from W. H. Kornegay in order to get to Blue Jacket, and that this defendant prior to going to said depot had money amounting to about $2.50 ; that the facts set forth are true, and that he cannot prove them by any other witness; that if he is granted a continuance, he can secure the testimony of said Bowen by the next term of this court, and that the said Bowen is not absent by the advice, procurement, or consent of affiant.”

No rule is more fully established than that this court will not reverse a judgment of the trial court upon the ground that it refused to grant a continuance, unless it appears that such court has manifestly abused its discretion in refusing it. We think the affidavit does not disclose such diligence on the part of defendant to procure the attendance of this witness as made it the duty of the court to grant the continuance.

The principal question presented is the sufficiency of the evidence to sustain the verdict and judgment. It is not pretended that the-prosecuting witness was put in any fear of injury to his person, and there was no evidence conducing to show that the defendant obtained or retained possession of the pocketbook by force and violence.

Section 236-1- (Rev. Laws 1910) of our Penal Code defines robbery as follows : ■

“Robbery is a wrongful taking of personal property in the possession of another from his person or immediate presence and against his will, accomplished by means of force or fear.”

Section 23(55, Id., provides:

“To constitute robbery, the force and fear must be employed either to obtain or retain possession of the property, or to prevent or overcome resistance to the taking. If employed merely as a means of escape, it does not constitute robbery.”.

Section 236(1, Id., provides:

“When force is employed in either of the ways specified in the last section, the degree of force employed is immaterial.”

Section 2655, Id., defines grand larceny as follows:

“Grand larceny is larceny committed in either of the following cases: First. When the property taken is of value exceeding twenty dollars. Second. When such property, although not of value exceeding twenty dollars in value is taken from the person of another.”

The larcenous taking of property from the person of another constitutes grand' larceny, except when the taking is accomplished by either force or by putting in fear; it is then robbery. Says Bishop:

“Every robbery requires either actual violence inflicted on the person robbed, or such demonstrations or threats as under the circumstances create in him reasonable apprehension of bodily injury.” (2 Bish. New. Cr. Law, par. 11(5.)

Says Wharton:

“The snatching a thing is not considered a taking by force, but if there be-a struggle to keep it, or any violence, or disruption, the taking is robber)', the reason of the distinction being that, in the former case, we can infer neither fear nor the intention violently to take in face of resisting force. If putting in fear be proved, the offense is robbery. And so where the thing is torn from the person,, as an earring from the ear.” (1 Wharton, Cr. Law, par. 854.)

“The violence or intimidation in robbery must precede or be contemporaneous with the taking of the property. The violence which constitutes an essential element of the crime of robbery must be actual, personal violence, but the degree of force used is immaterial, except under statutes which provide for a punishment varying with the violence which accompanies the taking. All the force that is required to make the offense a robbery is such force as is actually sufficient to overcome the victim’s resistance. The mere snatching of an article from the person of another, without violence or putting in fear, is not robbery, except where there is some injury or violence to the person of the owner, or where the property snatched is so attached to the person or clothes of the owner as to afford resistance.” (34 Cyc. p. 1799, and cases cited.)

The prosecuting witness was the only person to testify to the circumstances attending the taking of the pocketbook. He admitted that he was helplessly drunk at the time, and his examination discloses the fact that he only knew that the pocketbook was taken against hi's will. His testimony also shows that he was not only violating the prohibition law of' the state, but also the federal law, prohibiting the introduction of whisky into the Indian country. The subsequent struggle of the defendant with other persons in attempting to escape cannot be considered to determine whether the taking was forceful or furtive. It would seem, and we would suggest, that always in a case of this character, where the line of demarcation between offenses, as in this case, has a veiy narrow margin, the safe practice, where the proof may be uncertain, is to charge the lesser offense. Upon a careful review it is our opinion that the evidence did not show either force or fear in the taking of the property in question, and that the crime charged was not proved.

The charge of the court contains 21 instructions, and submitted only the issue of robbery in the first degree. The rules of law applicable to a case of this character are simple and plain, and the practice of incumbering the record with so many useless instructions is of doubtful propriety, and ought not to be encouraged.

The instruction on the presumption of innocence concludes with the following disquisition:

“But the court charges you that the presumption, of innocence is no't evidence, and does not partake of the nature of evidence, and that it remains with the defendant only until it is overcome by competent evidence, which convinces your minds of his guilt beyond a reasonable doubt.”

The defendant’s counsel contends that by this statement “the court completely destroys the presumption of innocence.” Our Procedure Criminal provides, section 5875 (Rev. Laws 1910) :•

“A defendant in a criminal action is presumed to be innocent until the contrary is proved; and, in case of a reasonable doubt as to whether his guilt is satisfactorily shown, he is entitled to be acquitted.”

The “presumption of innocence” is founded upon the first principles of justice; it is the same presumption of law which obtained in behalf of the accused at common law. It is a principle so just, and so undoubted and universal, as to stand upon the recognition of all the times wherever the common law is respected. Our statute provides, as a rule of law, the state’s burden of proof beyond a reasonable doubt, and the presumption of innocence will, therefore, sustain the burden of evidence until the defendant is proven guilty by the evidence beyond a reasonable doubt. While the presumption of innocence is not evidence in the true sense, it may in a sense be called “an instrument of proof” or something “in the nature of evidence,” in that it determines from whom evidence shall come, and it should continue to have its logical weight in the case, not only during the taking of the testimony, but during the deliberations of the jury until they have arrived at a verdict. The defendant is entitled in every instance to an instruction on the presumption of his innocence, and that the state must prove the charge against him beyond a reasonable doubt. The jury are bound to take the law from the court, and questions of fact are to be decided by the' jury. The charge of the court must not invade the province of the jury, and should not extend beyond a plain statement of the law applicable to the case. Philosophic disquisition on the presumption of innocence or dissertation upon the nature of evidence should always be omitted. We think that the jury could be easily confused and misled by the qualifying statement in the instruction “that the presumption of innocence is not evidence, and does not partake of the nature of evidence.” Ordinarily they would understand the coitrt to mean that the presumption of innocence amounts to nothing, and that they should only consider any inference of the fact of innocence that may arise upon the evidence. In other words, that they should not consider that the defendant was presumed to be innocent. It may also be construed as a comment upon the weight of evidence. The law requires the court, not only to abstain from positive expression as to the weight of the evidence, but to avoid even the appearance of an intimation as to the facts, and to so guard the language of its charge to the jury, which is the law of the case, that no inference, however remote or obscure, may be drawn by the jury as to the weight of the evidence. It is our opinion that the exception to the instruction was well taken.

In'view of the fact that the judgment must be reversed for the errors already indicated, we deem it unnecessary to enter into a discussion of the other questions raised.

For the reasons indicated the judgment appealed from is reversed. The warden of the penitentiary is directed to deliver the defendant to the sheriff of Craig county, who will hold him in custody until he shall be discharged therefrom, or as otherwise ordered according to law.

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


source: Caselaw Access Project

author: ARMSTRONG, P. J.

license: Public Domain

text:
    HENRY BLOODSWORTH v. STATE.
    No. A-1788.
    Opinion Filed August 15, 1913.
    (133 Pac. 1131.)
    1. APPEAL — Good Faith of Appellant. , An appeal should not betaken - from a judgment of conviction in a trial court, unless it is taken in good faith, and is prosecuted to final determination in the appellate court.
    2. SAME — Prosecution. When an appeal is taken in this court, and no brief is filed on behalf of the plaintiff in error and no appearance made for oral argument, the judgment will be affirmed,, in the absence of fundamental error.

      Appeal from District Court, Garvin County; R. McMillan, Judge.

    Henry Bloodsworth was convicted of larceny, and appeals.
    Affirmed.

      Patchell & Henderson and Blanton & Andrews, for plaintiff’ in error.

      C. J. Davenport, Asst. Atty. Gen., for the State.
   ARMSTRONG, P. J.

The plaintiff in error, Plenty Bloods-worth, was convicted at the January, 1912, term of the district-court of Garvin county on a charge of larceny of live stock, and his punishment fixed at imprisonment in the state penitentiary for a year and a day.

The appeal was filed in this court on the 15th day of July, 1912, more than a year prior to the time it was placed on the assignment to be heard. No brief has been filed on behalf of the plaintiff in error, and no appearance was made for oral argument when the cause was set for hearing in this court. All persons convicted of crime in the courts of this state are entitled to appeal to this court under the law. This fundamental right is given, not for the purpose of delaying justice, but in order that no injustice or wrong be done such persons. An appeal should not be taken unless it is taken in good faith, and is to be prosecuted to final determination in the appellate court. Counsel who appeal causes for clients are charged with the duty of following that appeal by a brief or argument in the appellate court. When this is not done, it is evident that such appeals so neglected were taken only for delay, and are wholly without merit. Occasionally this neglect is due to oversight, but all cases are set for oral argument before this court, and counsel of record are notified by the clerk. When no brief is filed, and no appearance made for oral argument, the record will be examined for the purpose of determining whether or not jurisdictional facts are disclosed, and when such facts are disclosed, and no fundamental error appears, the judgment of the trial court will be affirmed.

This record has been so' examined, and, no fundamental error appearing, the judgment of the trial court is affirmed, with directions to that court to cause it to be executed.

DOYLE and FURMAN, JJ., concur.


text:
    ANTHONY PATE v. STATE.
    No. A-1740.
    Opinion Filed August 15, 1913.
    (133 Pac. 1132.)
    PERJURY — Evidence—Sufficiency. On a trial of a person charged with perjury, the state is required to show, not only that the testimony given was false and corruptly given, but must also show that it was material to the issue joined in the cause on trial in which such testimony was given. When this is not done, a judgment of conviction cannot be sustained.

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

    Anthony Pate was convicted of perjury, and appeals.
    Reversed.

      Crawford & Bolen and W. I. Cruce, for plaintiff in error.

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

Anthony Pate, the plaintiff in error in this cause, was convicted at the November, 1911, term of the the district court of Pontotoc county on a charge of perjury, and his punishment fixed at imprisonment in the state penitentiary for a term of ten years.

The conviction is based upon an allegation that the plaintiff in error gave certain false testimony in a cause tried in the district court of Pontotoc county, wherein one Mack Lee was charged by the state with the murder of E- M. Putnam. It is alleged in the information that it became and was a material issue in said case whether or not the said Mack Lee was in Coal county, Okla., on the 23d day of February, 1909, or at some other place, and that said Anthony Pate willfully and corruptly testified that Mack Lee was at the home of this plaintiff in error in Coal county, Ókla., on said 23d day of February, 1909. It appears from the record that the plaintiff in error gave the testimony complained of, and also that said testimony was false. The testimony was unqualifiedly given, and, as said by the Assistant Attorney General in his confession of error, if this was material to the issue — that is, the testimony complained of — it was undoubtedly perjury. We fail, however, to see from the record before us wherein it was shown that said testimony was material to any issue presented on the trial of Mack Lee. Putnam was killed on the 16th day of January, 1909, and just how the whereabouts of Mack Lee on the 23d day of February, 1909, became material to the issue in that trial we are unable to discover from the record before us.

On the trial of a person charged with perjury the state is required, not only to show that the testimony given was false and corruptly given, but also that it was material to the issue joined in the cause then being determined. No such proof was offered, and it cannot be presumed. If the state can show the materiality or pertinence of this testimony to the issues tried in the Mack Lee case, then this cause should be retried.; otherwise it should be dismissed.

The judgment is reversed, with directions to grant a new trial.

DOYLE and FURMAN, JJ., concur.


author: DOYLE, J.

text:
    CARL SAMPLES v. STATE.

      No. A-1728.
    Opinion Filed September 9, 1913.
    (134 Pac. 838.)
    1. LARGENY — Evidence. In a prosecution for larceny of live stock, the circumstantial evidence is held sufficient to support the verdict and judgment.
    2. APPEAL — Sufficiency of Evidence. It is the exclusive province of the jury to determine and pass upon the credibility of the testimony, and, if found sufficient to sustain the verdict, the judgment will not be disturbed on account of a conflict of evidence.

      Appeal from District. Court,, Custer County; James R. Tolbert, Judge.

    Carl Samples was convicted of larceny, and appeals.
    Affirmed.

      George T. Webster, for plaintiff in error.

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

Plaintiff in error was convicted of the larceny of two head of cattle, belonging to George H. Rernund, and was sentenced to imprisonment in the state reformatory at Granite for a period of four years and five months. The judgment and sentence was rendered November 21, 1911. An appeal was properly perfected.

The only question presented by the record is the sufficiency of the evidence to support the verdict and judgment.

The proof on the part of the state showed that George H. Rernund lived on a farm about foul' miles west of Weatherford; that on the night of May 1-1, 1909, he had two head of cattle stolen from his pasture, one a shorthorn cow, the other a shorthorn heifer. His pasture was about one mile east of his home, the cattle had been taken out across the fence into the highway, and he found the cattle in the stock pens at Weatherford about noon the next day in the possession of D. C. Lindley, a cattle buyer at Weatherford. Mr. Lindley testified that the defendant sold him the cattle that morning, requesting that he make the check in payment of said cattle to Ike Hannah; that he had been engaged in the cattle buying business for fifteen years at Weatherford, but had never before heard of Ike Hannah. It was further shown that on the day prior to the theft of the cattle the defendant, in company with one Ness, was seen in that neighborhood, and he was seen to dismount hear the gate.of the pasture and walk in and look at these cattle and then ride away. The proof further shows that Jap Sackett, an acquaintance of the defendant, was seen in the stock pens feeding hay to these cattle, when Lindley went there with the defendant to buy them, and that he absconded.

The defendant, as a witness in his own behalf, testified that he lived with his father, who conducted a livery business in the town of Weatherford; that he went out to his aunt’s the night before the cattle were taken and returned the next morning, intending to go to Elk City for his father; that he was walking along the street, and a fellow walked up to him and asked if he knew any cattle buyers, and if any were in town, and the defendant told him that he knew several, but did not know whether or not they were in town, and he wanted to know whether the defendant would sell some cattle for him that he had in the stock pens; that he would give him $•> for selling the cattle, and that if he could not sell them to put them in a pasture, as he had to leave on the train that was then almost due, and that he would be back the following Tuesday or Wednesday; that soon after he met Mr. Lindley and went with him to the stock pens and sold him the cattle for and asked him to make the check out to I. Hannah; that a few hours later he was arrested 'while driving the cattle to Air. Lindley’s pasture. In addition 'to this remarkable explanation of his possession of the cattle, there was also testimony tending to prove an alibi.

The jury are the exclusive judges of the facts proved and of the weight to be given to the testimony. Where the evidence for the state is circumstantial, and the circumstances are such as to reasonably justify an inference of guilt, the weight and value of such testimony are exclusively for the jury. It is only where such evidence obviously does not warrant the inference of guilt that a conviction will be set aside. We think the verdict of the jury, based upon circumstantial evidence, comes to us as any other verdict, and, unless we can say the inference of guilt drawn from the evidence is wholly unwarranted, we will not interfere. That we cannot say in this case. It having been made to appear that after the appeal was perfected the defendant was surrendered by his bondsmen, and has since been confined in the county jail of Custer county, the judgment and sentence of the lower court is hereby modified by reducing the punishment to three years’ imprisonment in the state reformatory at Granite, such sentence to' commence from the day the warden of said reformatory shall receive said defendant.

The judgment and sentence, as modified, is hereby affirmed, and the cause remanded to the district court of Custer county, with direction to cause the judgment and sentence, as modified, to be carried into execution.

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


author: FURMAN, J.

text:
    CORLEY et al. v. ADAIR COUNTY COURT.
    No. A-2049.
    Opinion Filed September 9, 1913.
    (134 Pac. 835.)
    1. PROHIBITION — Criminal Court of Appeals — Jurisdiction. Upon a proper showing the Criminal Court of Appeals has the right and power to issue a writ of prohibition in a criminal ease.
    2. GRAND JURY — Prohibition—Presence of Unauthorized Persons —Issuance of Writ — Grounds, (a) The faet that an unauthorized person was present when the grand jury was deliberating upon a ease would not authorize the issuance of a writ of prohibition prohibiting the trial court from trying the defendant upon an indictment found under such circumstances.
    (b) Appellate courts should not interfere by writ of prohibition with, the trial of causes where a trial court has jurisdiction of the subjeet-matter and the person of the defendant; but such trial courts should be permitted to proceed to judgment, and any irregularities should only be reviewed upon appeal.

      Application of W. A. Corley and others for writ of prohibition to the County Court of Adair County.
    Writ denied.
    On the 10th day of March, 1913, the district court of Adair county being in regular session, an order was entered upon the record, by the judge, reciting that the county attorney of Adair county was disqualified from appearing in his official capacity before the grand jury of said court in some matters which would be investigated by said grand jury and appointing R. Y. Nance, a regular practicing attorney of Adair county, as special county attorney to appear before and advise said grand jury with reference to such matters. Said R. Y. Nance was then sworn in as special county attorney of Adair county. To all these proceedings the regularly elected county attorney of Adair county protested. The grand jury returned an indictment against petitioners charging them with a conspiracy, which indictment, being for a misdemeanor, was transferred to the county court for trial. Petitioners filed a motion in the county court to set aside the indictment upon the ground that it was returned by a grand jury attended by an unauthorized person, This motion was overruled by the court, and upon trial petitioners were convicted, and the court set a day for pronouncing judgment. Thereupon a petition for writ of prohibition was filed in the Criminal Court of Appeals asking that the county court of Adair county be prohibited from rendering judgment against petitioners upon the verdict rendered by said grand jury finding petitioners guilty of said conspiracy.

      S. M. Rutherford and W. L. Curtis, for petitioners.

      C. J. Davenport, Asst. Atty. Gen., W. W. Hastings, Pete Helton, and Arnold & Chase, for the State.
   FURMAN, J.

(after stating the facts as above). First. Has this court power to issue a writ of prohibition?

Section 187, Williams’ Ann. Const. Olcla., is as follows:

“The appellate jurisdiction of the Supreme Court shall be coextensive with the state, and shall extend to all civil cases at law and in equity, and to all criminal cases until a Criminal Court of Appeals with exclusive appellate jurisdiction in criminal cases shall be established by law.”

This provision of the Constitution is subject to but one rational construction, and that is: When the Criminal Court of Appeals was established by law with exclusive appellate jurisdiction in criminal cases, such jurisdiction ceased on the part of the Supreme Court, and the Criminal Court of Appeals became in fact and in law the Supreme Court of the state in all criminal cases and was vested with all the power and authority exercised in criminal cases bjr the Supreme Court prior to that time. By necessary implication the Criminal Court of Appeals has the exclusive right and power to issue all writs and do all things which are incident or essential to the complete exercise of its appellate jurisdiction in criminal cases. Any other construction of this provision would result in conflicts and confusion in the administration of the criminal laws of the state upon the well-recognized principle that two bodies of equal density cannot occupy the same space at the'same time. This is evidently the construction placed upon the foregoing provision of the Constitution by the Legislature, as is shown by section 1770, Rev. Laws 1910, which is as follows:

"Said court and judges thereof shall have the power to issue writs of habeas corpus; and, under such regulations as may be prescribed by law, issue such writs as may be necessary to exercise its jurisdiction; and may prescribe and promulgate such rules for the government of said court as it may deem necessary.”

In harmony with these views, in the case of State ex rel. Ikard v. Russell, Judge, 33 Okla. 141, 124 Pac. 1092, the Supreme Court of this state, speaking through Mr. Justice Kane, said:

“It is the settled policy of the Supreme Court to follow the .construction given to criminal statutes by the Criminal Court of Appeals, since the enforcement of such statutes must be in accordance with such construction. Ex parte Justus, 26 Okla. 101, 110 Pac. 907; Flood v. State ex rel., 27 Okla. 852, 113 Pac. 914; Herndon v. Hammond, County Judge, 28 Okla. 616, 115 Pac. 775.”

In construing the section of the Constitution providing for the creation of the Criminal Court of Appeals above quoted, Mr. Justice Williams, speaking for the Supreme Court of Oklahoma, in the case of Ex parte Anderson, 33 Okla. 216, 124 Pac. 980, said:

“The Criminal Court of Appeals in certain cases has jurisdiction in prohibition, mandamus, and habeas corpus proceedings. Herndon v. Hammond, County Judge, supra; Eubanks v. Cole, 4 Okla. Cr. 25, 109 Pac. 736; State ex rel. Sims v. Caruthers, Judge, 1 Okla. Cr. 428, 98 Pac. 474; Ex parte Show, 4 Okla. Cr. 416, 113 Pac. 1062; Ex parte Adair, 5 Okla. Cr. 374, 115 Pac. 277; Ex parte Martin, 6 Okla. Cr. 224, 118 Pac. 155; State ex rel. v. Russell, Judge, supra.”

"Without further elaboration, we áre of the opinion that upon a proper showing in a criminal case this court has the power and right to issue a writ of prohibition.

Second. What are the conditions under which a writ of prohibition should be issued in a criminal case? This question is fully and correctly answered by Mr. Justice Williams, of the Supreme Court of Oklahoma, in the case of Evans v. Willis, 22 Okla. 310, 97 Pac. 1047, 19 L. R. A. (N. S.) 1050, 18 Ann. Cas. 258, as follows:

“The next question arises as to whether or- not the writ of prohibition herein sought is the proper remedy. Such writ will not be issued on account of errors or irregularities in the proceedings of a court having jurisdiction, or- on account of insufficiency of averment or pleading, or upon matters of defense which may be properly raised in the lower court. Ex parte Branch, 63 Ala. 383; Epperson v. Rice, 102 Ala. 668, 15 South. 434; Clark v. Superior Court, 55 Cal. 199; 16 Enc. Pl. & Pr. p. 1126, and authorities cited in footnotes 2-4. The better rule appears to be that the writ will be issued where the lower court appears to be without jurisdiction upon the record and admitted facts. 16 Enc. PL & Pr. p. 1128, and authorities cited in footnotes 1 and 2. Such extraordinary writ will not be awarded when the ordinary and usual remedies provided by law, such as appeal, writ of error, certiorari, or other modes of review or injunction, are available. Ex parte Smith, 23 Ala. 94; Ex parte Smith, 34 Ala. 455; Ex parte Scott, 47 Ala. 609; Ex parte Reid, 50 Ala. 439; Ex parte Mobile, etc., Ry. Co., 63 Ala. 349; Weaver v. Letherman, 66 Ark. 211, 49 S. W. 977; 16 Enc. Pl. & Pr. p. 1130, and authorities cited in footnote 2. There is no general rule by which the adequacy or inadequacy of a remedy can be ascertained, but the' question is one to be determined upon the facts of each particular case. The ’writ will not be issued on account of the inconveniences, expense, or delay of other remedies, but will be granted where the remedy available is insufficient to prevent immediate injury or hardship to the party complaining, particularly in criminal cases. 16 Enc. PI. & Pr. p. 1131, and .authorities cited in footnotes 1 and 2. It appears that in criminal cases neither appeal, habeas corpus, nor certiorari would be a plain, speedy, or adequate remedy. 16 Enc. PI. & Pr. p. 1132, and authorities cited in footnote 1. The undisputed facts showing the indictment upon which the prosecution was based to be absolutely void, the writ of prohibition was declared to be the proper remedy. Bruner v. Superior Court, 92 Cal. 239, 28 Pac. 341; People v. Spiers, 4 Utah, 385, 10 Pac. 609, 11 Pac. 509; People v. Carrington, 5 Utah, 531, 17 Pac. 735; People v. Southwell, 46 Cal. 141; People v. Colvy, 54 Cal. 37; People v. Hunter, 54 Cal. 65; Levy v. Wilson, 69 Cal. 105, 10 Pac. 272; Ex parte Brown, 58 Ala. 542; 16 Enc. Pl. & Pr. p. 1132, and authorities cited in footnotes 1 and -2.”

The fact that an unauthorized person was present when the grand jury was deliberating upon this case would simply constitute a defect or irregularity which might be taken advantage of by the defendant or might be waived; therefore it would not make the indictment void. Where a county attorney is disqualified, the trial court has the right and it is its duty to appoint a special attorney to represent the state either before the grand jury or in open court. As to whether or not this power was properly exercised in the present case is a question which cannot be considered upon a petition for a writ of prohibition. Where the court has jurisdiction of the subject-matter and of the person of the defendant, the writ of prohibition will not lie on account of any irregularities in the action of the trial court. Appellate courts should not interfere with trial courts in such instances, but the courts should be permitted to proceed to judgment, and the matters complained of should be reviewed only upon appeal, when the entire transcript of the record can be brought up for conisderation. It would paralyze and defeat the enforcement of criminal law if writs of prohibition were issued on account of irregularities where the trial court had jurisdiction of the subject-matter and of .the person of the defendant. In other words, -a writ of prohibition cannot be used for the purpose of appealing cases upon the installment plan. For these reasons we will not consider the question as to whether or not the action of the trial court in appointing. Hon. R. Y. Nance as special county attorney was regular or irregular, but remit petitioners to their right to bring this cáse on appeal upon the entire record, when all questions involved can be settled in one decision.

The writ of prohibition, being an extraordinary remedy, can only be invoked in extreme cases; and, to prevent irreparable injury. The writ of prohibition is, therefore, denied.

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


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    GEORGE FAIRGRIEVE v. STATE.
    Nos. A-1681, 1682.
    Opinion Filed September 9, 1913.
    (134 Pac. 837.)
    EVIDENCE — Evidence of Accomplice — Instructions — Corroboration. Where the state relies upon the testimony of an accomplice to secure a conviction, the trial court, if requested,' must instruct the jury that they cannot find the defendant guilty .upon such evidence, unless it is corroborated by other evidence which tends to connect the defendant with the commission of the offense, and that the corroboration is not sufficient if it merely shows the commission of the offense or the circumstances thereof. See section 5884, Eev. Laws 1910.

      Appeal from County Court, Garfield County; Winfield Scott, Judge.

    George Fairgrieve was convicted of selling intoxicating liquors, and appeals.
    Reversed.

      D. W. Buckner, for appellant.

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

Appellant was convicted in the county court of Garfield county, charged with the offense of selling intoxicating liquors. Upon the trial of the cause the state placed one Lee Crews upon the stand, who testified that he was in .the employment of appellant when the intoxicating liquors in ■question were sold, and as such employee he sold the liquors in ■question. When the cause was submitted to the jury, counsel for the defendant requested the court to instruct the jury with ■reference to accomplice’s testimony as follows:

“You are further instructed that, if you'find from the evidence that any person who has testified in this case is the accomplice, then you would not be at liberty to convict the defendant on the uncorroborated testimony of such accomplice, and this corroboration must extend to every essential element necessary to be proven as to the defendant’s guilt.”

Which instruction was properly refused by the court.

It is not the law that the testimony of an accomplice must be corroborated in 'every essential necessary to be proven as to the defendant’s guilt. See Alderman v. Territory, 1 Okla. Cr. 562, 98 Pac. 1026. Section 5884, Rev. Laws 1910, covers this question as follows:

“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, arid the corroboration is not sufficient if it merely show the commission of the offense or the circumstances thereof.”

The court, therefore, did not err in refusing to give the instruction requested; but, as the attention of the court was directed to this matter, it was his duty to charge the law correctly. See Morris v. Territory, 1 Okla. Cr. 617, 99 Pac. 760, 101 Pac. 111. If this had been done, the conviction in this case would have been affirmed, as in the light of the evidence the other errors . committed were not material; but the law with reference to the testimony of an accomplice is a material paid of the statutes of this state; whenever the state uses the testimony of an accomplice, the court has not the right or power to refuse to charge the law laid down in the statutes upon any material question. It matters not how anxious a jury may be to believe the testimony ■of an accomplice; they are prohibited by law from convicting a defendant upon such evidence unless it is corroborated by other testimony tending to connect the defendant with the commission of the offense; and such an instruction must be given, when requested, in cases where the state relies upon such evidence.

The judgment of the lower court is therefore reversed and the cause remanded for a new trial.

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


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    WALTER FAUCETT v. STATE.
    No. A-1207.
    Opinion Filed September 9, 1913.
    (134 Pac. 839.)
    1. WITNESSES — Immunity—Question for Court. The question of immunity is one for the court alone, and should never be submitted to a jury.
    2. SAME — Immunity—Powers of Justice. A jiistiee of the peace, acting as coroner at an inqixest for murder, is without power to compel a witness to answer questions which might incriminate such witness, and is without power to grant immunity to any witness for answering self-incriminating questions.
    3. COEONEES — Inquest. A justice of the peace is without jurisdiction to hold an inquest except over the bodies of persons the causes of whose death are unknown, and who are supposed to have died from unlawful means.

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

    Walter Faucett was convicted of manslaughter, and appeals.
    Affirmed.
    After a jury was impaneled and sworn to try the case, counsel for appellant filed the following special plea:
    “The defendant, Walter Faucett, further pleads that, after the deceased, John Cox, was stabbed, and after this defendant had been arrested on a warrant issued by John J. Slack, justice of the peace of Tulsa township in Tulsa county, Okla., charged with the offense of cutting and stabbing the said John Cox, with intent to kill the said John Cox, and while said prosecution was pending against said defendant, he was compelled to testify under legal process concerning said killing over his objection, and, after he had claimed the protection of section 21 of article 2 of the Constitution of the state of Oklahoma, that he was so compelled to testify at the coroner’s inquest, held before John J. Slack, justice of the peace of Tulsa township, Tulsa county, Okla., in the city of Tulsa, Okla., for the purpose of legally and judicially determining how the said John Cox came to his death, and by what means, and for the purpose of prosecuting criminally the parties so found to have caused his death, and that the defendant was compelled to appear before said justice of the peace at said inquest in obedience to a subpoena issued by said John J. Slack, justice of the peace and ex officio coroner of Tulsa county, Okla., commanding him to appear at said hearing to testify concerning the death of said John Cox, which subpoena was duly and legally served upon this defendant by a legally appointed, qualified, and acting deputy sheriff of Tulsa county, Okla.; that, in response to said subpoena, this defendant appeared before the said justice of the peace and ex officio coroner at said inquest, and was compelled by said justice of the peace and ex officio coroner to testify before the coroner’s jury, there duly legally impaneled and constituted, concerning the killing and the death of said John Cox, after he had objected to so testifying, and had claimed the protection of the said constitutional provision, and that, under the compulsion aforesaid, the defendant then and there detailed to said jury all the facts and circumstances surrounding the cutting and death of the said John Cox, so far as known to this defendant; and that, by reason of the foregoing facts and circumstances, this defendant became immune from this prosecution by virtue of section 27 of article 2 of the Constitution of Oklahoma, and the state of Oklahoma has thereby lost its right and power to prosecute this defendant upon this charge, or under this information. Walter Fau-cett.”
    The court inquired of counsel for appellant if he desired to offer any evidence in support of the special plea. Counsel for appellant stated that he thought it would be proper to establish the allegations on the trial, and submit the matter in the instructions to the jury. The following evidence was then introduced:
    G. H. Butler testified for the state that he was a physician, and attended John Cox when he received the injury from which he died; that Cox had received a knife wound in his left side between the tenth and eleventh ribs; that the wound was one and one-half to two inches in length, and ranged downward to the right; that deceased lost a great deal of blood and a part of the contents of his bowels, consisting of undigested food, which came through the wound; that the wound extended almost entirely through his abdominal cavity, and passed almost through the said Cox, ranging downward and backward; that deceased died from the effects of the wound.
    J. Harlow testified for the state that he knew John Cox, the deceased, and was also acquainted with appellant; that appellant was interested in a barbecue stand in the city of Tulsa; that on the day of the difficulty witness went with John Cox to this barbecue stand; that a fight occurred in the barbecue stand between John Cox and appellant; that witness does not know how the fight began; the first thing he knew they were fighting, and that appellant got deceased down on the floor, when appellant was pulled off of the deceased by the crowd present, and deceased was put out of the house; that after the deceased was put out of the house witness saw appellant coming out with a knife; that appellant went outside of the house, and this was all that witness saw; that witness did not see any of the fight outside of the house.
    J. W. Cox testified that he was acquainted with the deceased; that on the day of the difficulty with J. Harlow he entered the barbecue restaurant kept by appellant for the purpose of taking a drink with said Harlow; that the deceased attempted to come into the restaurant also and stepped in the door; that witness said to deceased, “John, get out of the door, this man (referring to appellant) wants to get out.” Deceased says, “If he wants out any faster than I am getting out, let him put me out”; that when deceased said this appellant struck deceased a lick in the butt of the ear, and then deceased and appellant began to fight; that witness left the place, and did not see any of the trouble, because he did not want to be a witness in police court.
    J. C. Selser testified for the state that he saw appellant stab the deceased; that witness first noticed the deceased on the sidewalk by the barbecue restaurant of appellant, bareheaded, and that some cine inside of the house handed deceased his hat from the door; that deceased took his hat and started to walk on across the sidewalk; that appellant came out of the house with a knife in his hand; that deceased started in a kind of a run; that appellant overtook the deceased about half way across the street and stabbed him with a knife; that deceased was not doing anything except trying to get away when appellant overtook him and stabbed him with a butcher kni'fe; that witness was about 90 feet away from the place of the stabbing.
    W. T. Downs testified for the state that he saw appellant stab the deceased; that deceased came out of the building occupied by appellant as a barbecue restaurant, and that appellant came out after him with a knife in his hand; that appellant overtook the deceased just after he got off of the side-walk; that deceased was trying to go away; that appellant overtook him and stabbed him with a butcher knife; that deceased had nothing in his hand at this time; that after appellant stabbed deceased appellant went back into the building; that when deceased was stabbed by appellant deceased grabbed his sides with his hands and came on across the street.
    Albert Nance testified for the state that he remembers the occasion when the deceased was killed by appellant; that witness was standing on the platform of Mr. Osborn’s feed store and saw deceased when he was put out of the house of appellant; when deceased was put out of the house of appellant he did not do anything except go back to the door to get his hat, and then attempted to go away; that deceased had walked about 20 to 25 feet from the door when appellant cante out with a knife in his hand and stabbed deceased; that when deceased was stabbed he was walking away from the door; that after deceased was stabbed appellant went back into the house; that deceased had not offered any violence toward appellant at the time appellant stabbed him, and that if deceased had anything in his hands witness did not see it; that deceased was at least twenty feet from the door of appellant’s house at the time appellant stabbed him.
    Mrs. A. Arthur testified that she was at her husband’s place of business when appellant stabbed deceased, standing in the door and looking out; that she saw deceased come out of the door of 'appellant’s place of business; that some one opened the door and threw deceased’s hat out to him; that deceased picked up his hat and put it on his head; and started, across the street; that after this witness saw appellant come out with a long knife in his hand; that appellant walked after deceased; that appellant overtook the deceased and struck him with a knife; that when deceased was struck with the knife he took two or three steps and took hold of his sides with his hands; that appellant then turned around and ran back into his house; that deceased was off of the sidewalk and on the street at the time he was stabbed by appellant.
    Thereupon the state rested.
    Ed Coffee testified for appellant that he was interested with appellant in running the barbecue restaurant; that he saw the deceased attempt to enter the door of the restaurant in a boisterous manner; that appellant said to deceased, “Come in”; that deceased replied, “What in the hell have you got to do with it”; that appellant replied, “Nothing, only I want to get out of the house”; that one word brought on another between them, and they began to fight; that deceased had appellant bent back over the counter, and finally they fell to the floor; that the parties were separated and deceased was put out of the house; that witness handed his hat out of the door to him; that deceased attempted to enter the house again; that appellant grabbed a knife off of the side shelf; that deceasecl and appellant then went together ; that deceased then walked off.
    Three other witnesses and appellant testified substantially to the same facts. Appellant also introduced a number -of witnesses who testified that the deceased was a man of bad character as a violent and dangerous man. Appellant then introduced J. J. Slack, who testified that he was justice of the peace and acting coroner of Tulsa county, and as such justice of the peace and acting coroner of Tulsa county, and as such justice of the peace he held an inquest over the body of the deceased; that appellant was subpoenaed as a witness to attend said trial, and placed upon the stand and ■ examined, and gave testimony as to the manner in which the deceased came to his death; that counsel for appellant objected to appellant being sworn as a witness and placed upon the stand, which objection was overruled by the court.
    R. L. Davidson testified that he was attorney for appellant, and represented him at the inquest held by the justice of the peace and ex officio coroner, and as the attorney of appellant he objected to his testifying, upon the ground that such testimony might incriminate him; that this objection was overruled by the justice of the peace, and appellant was placed on the stand and forced to testify.

      Davidson & Williams, for appellant.

      C. J. Davenport, Asst. Atty. Gen., for the State.
   FURMAN, J.

(after stating the facts as above). The only contention presented in behalf of appellant in the brief of counsel is that, when an inquest was being held to ascertain the cause of the death of the deceased, appellant was summoned as a witness by the justice of the peace, who was acting as coroner, and placed upon the stand and compelled to give evidence of the entire transaction which resulted in the death of the deceased; that all of this evidence was given over the objection of his counsel, and that thereby appellant had by said justice of the peace been granted immunity under the Constitution of the state.

;The position of counsel for appellant is based upon the assumption that a justice of the peace has the power to grant immunity in murder cases. It is expressly provided by our statute that the court, either upon its own motion or upon the application of the county attroney, and in furtherance of justice, may order the dismissal of any indictment or information against a defendant, and that in such cases the reasons of the dismissal must be set forth in the order, and must be entered upon the minutes. See section 6099, Rev. Laws 1910. Section 6100 takes from the county attorney the common-law right of entering a nolle prosequi in any case, without the consent of the court. Section 6101 provides that, although the judge may order a case to be dismissed, such dismissal is not a bar to any other prosecution for the same offense.

Discussing this question in the case of Andy Scribner v. State, 9 Okla. Cr. 465, 132 Pac. 933, this court said:

“If a county attorney cannot discontinue or abandon a prosecution for a public offense, except with the consent and approval of the court, and if a case can be renewed, and if such dismissal, though made with the approval of the court, does not bar another prosecution for the same offense, with what show of reason can it be said that a county attorney or any inferior tribunal can grant a defendant immunity, and absolutely bar a court of competent jurisdiction from prosecuting and punishing a criminal? Such a construction would enable a county attorney, or a justice-of the peace, or a county judge, to absolutely bind the district-court and conclude its action, which would often result in the-defeat of justice. One illustration will demonstrate this: Suppose A. and B. engage in a mutual combat, in which each tries to kill the other. Suppose they are both arrested and have an examining trial before a committing magistrate, and such committing magistrate requires A. to testify against B., and then requires B. to testify against A. If such action is legal, then. Both A. and B. would secure immunity. This would reduce the law to an absurdity, and defeat the very purpose which was had in view when it was adopted. But it may be said that, if a justice of the peace has the right to hold an examining court, he also has the right to enforce the attendance of witnesses, and compel answers to questions. Within reasonable bounds this is true. But if a justice of the peace permits illegal questions to be asked a witness, and attempts to force answers to them, and commits the witness for contempt for refusing to answer such questions, the remedy of the witness is by habeas corpus. See Ex parte Gudenoge, 2 Okla. Cr. 110, 100 Pac. 39. But if a witness answers illegal questions, and such answers are not voluntary, this would not grant the witness immunity, and such evidence could not be used against him in any other proceeding, becattse it would not be a voluntary statement freely-made.

“While a justice of the peace, if there is no evidence against a_ party charged with murder, from which it appears that he is probably guilty, may discharge the defendant, certainly no one will contend that a justice of the peace can enter any order which would amount to an acquittal of a defendant charged with murder and prevent his subsequent prosecution. If he cannot do this directly, but if a witness be allowed immunity on account of being compelled to answer questions in a justice court which may incriminate him-, and on account of such answers receives immunity, it would be permitting a justice of the peace to do indirectly that which he cannot do directly. This' would be an absurdity upon its face. There is no logical escape from the conclusion that under our constitutional provisions and our statute immunity can only be secured by the action of a court having jurisdiction to finally try the matters with reference to which the immunity is claimed. In a trial before a justice of the peace he ■may compel a witness to answer questions which would incriminate such witness as to any matter within the jurisdiction of the justice of the peace, for final trial; but beyond this he can-mot go. If he could, he would have power to bind the county -court, the superior court, the district court, and this court. In •states in which a county attorney may enter a nolle prosequi ■without the consent of the court, he may grant immunity by •contract without the approval of the court; but he cannot do so in this state. Under our system immunity is a judicial question which must be passed upon and decided alone by the court having jurisdiction to finally try the matters involved in the immunity claimed. If a witness has secured immunity by answering incriminating questions upon the order of a court of competent jurisdiction, or if a witness has an agreement with the prosecuting attorney approved by such a court, then this court will see that he is protected in his rights; but this court is not going to permit the doctrine of immunity to be used as an avenue of escape to guilty men, or as a cloak of protection for criminals.”

We think that the decision in Scribner’s case is decisive of 'the question now before us. Even if a justice of the peace in a regular trial has the power to compel a witness to answer incriminating questions as to matters beyond the jurisdiction of the court, appellant could not have received immunity in this case, because under section 1671, Rev. Laws 1910, it is expressly provided, “In no- case shall the coroner hold any inquest, unless the cause of the death is unknown.” In the case at bar the cause of the death of John Cox was well known. There was, therefore, not only no necessity for holding said inquest, but it was expressly prohibited by statute, and the justice of the peace had no power or jurisdiction to- hold such inquest, and all of his actions thereon are absolutely without jurisdiction and void. We are therefore of the opinion that the trial judge did not err in holding that appellant had not been granted immunity by an officer authorized to make such an order. This is a question for the court alone, and should never be submitted to a jury. See Scribner’s case, supra.

There was a square conflict in the evidence in this case. The testimony for the state would have supported a conviction for murder. The testimony for appellant makes a plain case of justification, upon the ground that appellant was defending his place of business. The credibility of the witnesses was a question for the jury to determine. In finding appellant guilty of manslaughter in the first degree, the jury were probably influenced by the fact that the deceased was proven to be a man of bad character for peace, and the further fact that the instructions of the trial court were very liberal in behalf of appellant.

We find no material error in the record. The judgment of the lower court is in all things affirmed.

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


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    FRED HUNTER v. STATE.
    No. A-1657.
    Opinion Filed September 17, 1913.
    (134 Pac. 1134.)
    1. STATUTES — Witnesses—Competency—Husband and Wife — Parent and Child- — Construction of Penal Statutes — “Offense Against the Wife” — -“Crime Committed One Against the Other.” (a) The doctrine of a strict construction of penal statutes has no place in the criminal jurisprudence of Oklahoma; but, on the contrary, such statutes will be liberally construed so as to enable them to reach and destroy the evils at which they are aimed.
    (b) In a prosecution against a father for willfully failing to supply his children with necessary food, clothing, shelter, or medical attendance, his wife is a competent witness against him.
    2. APPEAL — Objection Below — Reception of Evidence. Where the testimony of a wife is received without - objection against her husband, such matter cannot be complained of upon appeal.
    3. PARENT AND CHILD — Prosecution for Nonsupport — Defense. Where a father is upon trial charged with having failed to furnish his child with necessary food and clothing, it is no defense to show that such food and clothing were not necessary because they were voluntarily furnished by other persons.

      Appeal from County Court, Oklahoma County; John W. Hayson, Jiidge.

    Fred Hunter was convicted of willfully failing to properly support his minor child, and appeals.
    Affirmed.

      G. A. Paul and O. H. Lee, for appellant.

      Joseph L. Hull, Asst. Atty. Gen., for the State.
   FURMAN, J.

It is earnestly contended by counsel for appellant that, when a husband is upon trial charged with having failed, without lawful excuse, to furnish necessary food, clothing, ■shelter, and medical attention for his child, this offense involves. ■only a breach of duty, which the parent owes to the state and to the child, and is not an offense personal to the mother of the child, and that in such cases the mother of the child, being the 'wife of the defendant, is riot a competent witness against him. .In support of this proposition counsel for appellant have filed ■an able and elaborate brief based upon common-law principles and upon the statute law of Oklahoma. The statutes involved are as follows:

Section 2434, Rev. Laws 1910, provides:

“Any parent of any child who willfully omits, without lawful- excuse, to perform any duty imposed upon him by law to furnish necessary food, clothing, shelter or medical attendance for such child is guilty of a misdemeanor.”

This statute rightfully places upon the shoulders of the parents the duty and responsibility of furnishing necessary food, clothing, shelter, and medical attention for their children, and makes it a crime for them to willfully omit to discharge this obligation. This duty is first upon the father, who is the head of the family, and in case of his inability to perform, this duty, then it devolves upon the mother as far as possible. This is not only the law of the land, but' the plain dictate of humanity and justice. It is also in strict harmony with the divine law. In the eighth verse, fifth chapter, I Timothy, we are told:

“But if any provide not for his own, and specially for those of his own house, he hath denied the faith, and is worse than an infidel.”

Section 5882, Rev. Laws 1910, is as follows:

“Except as otherwise provided in this and the following, chaptét, the rules of evidence in civil cases are applicable also in criminal cases: Provided, however, that neither husband nor wife shall in any case be a witness against the other except in a criminal prosecution for a crime committed one against the other, but they may in all criminal cases be witnesses for each other, and shall be subject to cross-examination as other witnesses, and shall in no event on a criminal trial be permitted to disclose communications made by one to the other except on a trial of an offense committed by one against the other.”

The pivotal question in this case depends upon what constitutes “a crime committed one against the other,” or “an offense committed by one against the other.” It is seen by this that the statute uses the words “offense” and “crime” interchangeably. This is broader than the common-law rule. We agree that at common law the wife can only testify against her husband for an offense committed against her person, and that under the common-law doctrine of a strict construction of penal statutes it might, with some show of reason, be held that this rule governs in the construction of the statute in question; but this doctrine has been repudiated by the courts of this state; — in fact, it has no place in the criminal jurisprudence of Oklahoma. On the contrary, we have always held that the penal laws of this state should be construed according to their reason and spirit, and they should receive that liberal construction which will enable them to reach and destroy the evils at which they are aimed. See Turner v. State, 8 Okla. Cr. 11, 126 Pac. 452, and Bowes v. State, 8 Okla. Cr. 277, 127 Pac. 883, and all other cases ever decided by this court where the same question was presented.

Acting upon this rule of construction, in the case of Heacock v. State, 4 Okla. Cr. 606, 112 Pac. 949, this court held that adultery was an offense against the wife, and she was a competent witness against her husband in such a prosecution. We have always thought that it was an outrage that a wife could be a witness against her husband for a personal assault upon her body, which might involve but little injury, and have been the result of hast)- and inconsiderate passion, and deeply regretted as soon as committed, but that the wife could not testify as to matters involving virtue and womanhood, which directly affected her rights as a wife, and which would constitute much greater cruelty and injury than could be inflicted by personal violence.

In reason and in justice we believe that whenever a husband or wife is guilty of conduct which constitutes a. public offense, and which also constitutes a direct violation of the legal rights of the other, the crime is against such other, as well as against the public, and that such husband or wife should be permitted to testify in all such cases. Suppose a husband should publish a libel or slander upon his wife, would it not be a prostitution of reason, and a mockery upon justice to exclude her evidence upon the. ground that it would impair the sanctity of the home and destroy the confidence, peace, and harmony of the marital relations, to permit her to testify? Many other illustrations could be offered. What we are after is the principle involved, the ground upon which the testimony of the wife is excluded. Considering the substance rather than the form of things, we are of the opinion that the idea that the wife can only testify against her husband for an assault committed upon her person is a relic of barbarism. We decline to perpetuate any such idea in Oklahoma.

The brief filed in this cause on behalf of the state by Assistant Attorney General Joseph L. Hull contains an admirable discussion of this question as a matter of principle. This argument appeals so strongly to us that we will incorporate it in our opinion as follows :

“The old common-law rule was broader than the statutory provision. It made the husband or wife incompetent to' testify for or against the other spouse. The incompetency to testify for the other spouse seems to have been based upon the theory that husband and wife being one in law, the interest rule disqualified the wife. With the abolition, however, of the rule disqualifying witnesses because of interest, the reason for making the wife incompetent to testify for her husband disappeared. This, we presume, was the reason for the change made by our statute, making the wife competent to testify for her husband. The common-law .rule making one spouse an incompetent witness .against the other one, however, was founded upon different considerations. Its origin, according to Mr. Wigmore, is obscure, but seems to date from the time of its incorporation in the works of Sir Edward Coke. Since then various reasons have been given for it.

"Now, however, two reasons are generally given for its adoption. These are stated and criticised by Mr. Wigmore, as follows:

“ ‘Of the reasons which call for serious consideration there seem to be distinguishable no more than two. (a) The first of these is the argument so often repeated in the more modern opinions (though ranging back also among the oldest of the arguments), namely, the danger of causing dissension and of “disturbing the peace of families.” Of this it may be premised, to be sure, that no manner of attempt was ever made by any court to enforce this reason logically, and thus to test the accuracy of its utterances. For example, in the very case in which Mr. Justice Grose purported by this rule to safeguard the ineffable domestic peace, the husband had long before absconded and married■ another wife; so that the learned judge’s application of this reason exposed him to the citation of the proverbial expression about stable doors. But, if we are to ignore the futility of appealing to a reason which is never allowed in practice to be logically applied, and are to treat it as a serious argument, the answer is, first, that the peace of families does not essentially depend on this immunity from compulsory testimony, anl next,' that, so far as it might be affected, that result is not to be allowed to stand in the way of doing justice to others. When one thinks of the multifold circumstances of life that contribute to cause marital dissension, the liability to give unfavorable testimony appears as only a casual and minor one, not to be exaggerated into a foundation for so important a rule. It is incorrect to assume that there exists in the normal domestic union an imminent danger of shattering an ideal state of harmony solely by the liability to testify unfavorably. Moreover, the significance of the argument is that, if Doe has committed a wrong against Roe, and Doe’s wife’s testimony is needed for proving that wrong, Doe, the very wrongdoer, is to be licensed to withhold it and thus secure immunity from giving redress, because, forsooth, Doe’s own marital peace will be thereby endangered — a curious piece of policy, by which the wrongdoer’s own interests are consulted in determining whether justice shall have its course against him. This alone, without further, following into the details of the reasoning, will serve to exhibit that argument’s fallacy, (b) A second reason, having some plausibility, and well expressed in the language of Mr. Justice Irvin and Mr. Justice Campbell, comes in substance to this, that there is a natural repugnance in every fair-minded person to compelling a wife or husband to be the means of the other’s condemnation, and to compelling the culprit to the humiliation of being condemned by the words of his intimate life partner. This reason, if we reflect upon it, is at least founded on a fact, and it seems after all to constitute the real and sole strength of the opposition to abolishing the privilege. Let it be confessed, then, that this feeling exists, and that it is a natural one. But does it suffice as a reason for the rule? In the first place, it is no more than a sentiment. It does not posit any direct and practical consequences of evil. It is much the same reason that any one might give for abolishing the office of hangman in the jail or the business of spies in a war. In the next place, it exemplifies that general spirit of sportsmanship, which, as elsewhere seen, so permeates the rule of procedure inherited from our Anglo-Norman ancestors. The process of litigation (many learned judges agree) is a noble kind of sport, and certain rules of fair play should never be overstepped. One of these is to give something of a start to the victim of the chase, to follow him by certain rules, and to respect his feelings so far as may be. This complicates the sport, and adds zest for the pursuers by increasing the skill and art required by them for success. The expedient of convicting a man out of the mouth of his wife is (let us say) poor sport, and we shall not stoop to it. Such is the theory and sentiment of sportsmanship. The answer to it is the answer that has had to be made for all the instances of its invocation, namely, that litigation is not a game, and that the law can never afford to recognize it as such. That the law, moreover, does not proceed by sentiment but aims at justice. This generality would perhaps never be disputed; but in actual argument the constant tendency is to confuse sentiment with reason. A learned judge, for example, refuses to compel this testimony for the mere sake of “ferreting out” the fact. Why sneer at the investigation of truth by the innuendo of “ferreting” as though some petty and dishonorable practice were involved? This argument by innuendo is typical enough of much of the reasoning in support of the present privilege. Let us face the fact that, when a party appears in a court of justice, charged with wrong or crime, the unavoidable and solemn business of the court and the law is to find out whether he has been guilty of the wrong or crime; that the state and the complainant have a right to the truth; and that this high and solemn duty of doing justice and of establishing the truth is not to be obstructed by considerations of sentiment in this respect any more than in others. So far as any recorded utterance has yet been found, no logical argument advanced for the present privilege has ever arisen to a higher level than an appeal to the same considerations of sentiment.’ (4 Wigmore on Evidence, sec. 2228, pp. 3039-3041.)

“The old common-law rule recognized an exception thereto. This exception was limited to cases of personal violence inflicted by one spouse upon the other.

“ 'That exception was commonly placed on the ground of necessity — that is, a necessity to avoid that extreme injustice to the excluded spouse -which would ensue upon an undeviating enforcement of the rule. The notion of necessity, indeed, might commendably have been a broader one; the necessity of, doing justice to other persons in general, when the spouse’s testimony was indispensable, would have been at least as great. But the common lawyers here kept their eyes upon the ground, and'did not allow their survey to exceed the range of immediate and unavoidable vision.’ (4 Wigmore, sec. 2239, p. 3056.)

“This, then, was the state of the law at the time of the adoption of the statute in this state. In short, one spouse was incompetent to testify against the other, except in cases of personal violence by one against the other. The statute states the exception differently, however. It provides that one spouse may testify against the other ‘in a criminal prosecution for a crime committed one against the other?

“What is the meaning of this phrase, ‘a crime committed one against the other?’ Is it merely declaratory of the common law, meaning, in fact, when personal violence is inflicted by one against the other, or has it a broader meaning, based upon the philosophy of the rule, and including all crimes interrupting and objectionable to the marriage relation?

“A respectable array of authorities, we concede, might be • cited in support of the narrower construction. But the courts in those cases, we respectfully submit, have blindly followed precedents not based upon reason, and have yielded to that foolish sentimental impulse, which, as Mr. Wigmore so rightly re-maiks, is the real foundation of this rule. This court has declared more than once that it will follow no precedents not founded upon reason; that Oklahoma shall be ruled by the living and not by the dead.

“'The authorities supporting the narrower doctrine hold that even adultery, incest, and bigamy do not come within the exception, because no personal violence is inflicted upon the wife in such cases. We cite this to show to what extent the narrower construction leads. Let us not forget that the purpose of the rule was to avoid any disturbance of the family peace. And these decisions, holding the wife incompetent in such cases, practically say to the husband:

“ ‘You may break your wife’s heart by criminal intercourse with other women; you may go so far as to lie in the bed of a bigamous wife; you may even outrage your own children; and we will not permit )rour wife to testify against you, because it tends to interrupt the harmony of the family relation.’

“How much more reason is there in the other rule? How much more in keeping with the real purpose and object of the rule is the other doctrine, which says:

“ ‘We will protect your family peace from danger of disturbance by the adverse testimony of your spouse, so long as you by your conduct do not yourself disturb it. But the law will not protect that peace, when you have shattered it beyond hope of mending it.’

“The point was raised in a case before the Utah Supreme Court. It was appealed from there to the Supreme Court of the United States. Mr. Justice Brewer, writing the opinion, reversed the Utah court — the case was a prosecution for polygamy —and adopted the narrower construction. The two views of the statute cannot be better presented, we think, than by quoting from the opinions of the two courts in this case.

“Mr. Justice Brewer, adopting the narrower construction, said:

“‘Is polygamy such a crime against the wife? That it is no wrong upon her person is conceded, and the common-law exception to the silence upon the lips of husband and wife was only broken, as we have noticed, in cases of assault of one upon the other. That it is humiliation and outrage to her is evident. If that is the test, what limit is imposed? Is the wife not humiliated, is not her respect and love for her husband outraged and betrayed, when he forgets his integrity as a man and violates any human and divine enactments? Is she less sensitive, is she less humiliated, when he commits murder, or robbery, or forgery, than when he commits polygamy or adultery? A true wife feels keenly any wrong of her husband, and her loyalty and reverence are wounded and humiliated by such conduct. But the question presented by this statute is not how much she feels or suffers, but whether the crime is one against her. Polygamy and adultery may be crimes which involve disloyalty to the marital relation, but they are rather crimes against such relation than against the wife, and, as the statute speaks of crimes against her, it is simply an affirmation of the old familiar and just common-law rule/ (Bassett v. U. S., 137 U. S. 506, 11 Sup. Ct. 167, 34 L. Ed. 765.)

“In the same case, in the Utah Supreme Court, Mr. Chief Justice Zane said:

“ ‘Whenever the act or the conduct which constitutes a public offense or crime consists in a direct violation of the rights of an individual, the crime is against that individual, as well as against the public. The law recognizes the marital rights of a woman or man, as well as their rights to life, liberty, and security from personal violence, and the breach.thereof by a second marriage, or by cohabitation with another woman as a wife, is often more injurious to the feelings of the lawful wife, as well as in other respects, as would be a deprivation of personal security or of personal liberty — more injurious than the shake of a fist, coupled with a threat, or an attempt to commit a bodily injury. * * * The ground upon which the exclusion of the wife or husband rests is that it would destroy confidence and produce discord. A man in the bed of a strange woman is in a very unfavorable situation to insist upon preserving inviolate the sacred concord of marriage and - harmony and confidence on the part of his wife/ (U. S. v. Bassett, 5 Utah, 136, 13 Pac. 240.)

“With all the respect due to so learned a judge as was Judge Brewer, we think that Mr. Wigmore’s characterization of hi° opinion in the Bassett case as a piece of ‘skillful wordfencing’ is a most just one. This statute never intended that the exception should only apply to' cases of assault upon the wife or husband, but it meant to make the spouse competent in all cases where the offense of the other was against the marriage relation.. Why? Because it would be foolish to exclude the testimony of a spouse, for the sole purpose of protecting the family concord, when the offense for which the other spouse is being tried has broken and shattered that conjugal peace and harmony. That, surely, is the real intent of the exception.

“If this be the proper construction of the exception, the present case is clearly within it. ‘Whenever the act or the conduct which constitutes a public offense or crime consists in a direct violation of the rights of an individual, the crime is against that individual, as well as against the public/ is the rule announced by Chief Justice Zane for the determining whether or not the offense is one against the wife. This rule we believe to be a proper one, and the one by which to determine whether or not the omission to provide for minor children is an offense committed by the husband against the wife. It was a breach of the husband’s obligation to his wife to refuse to support his children. It was a part of the obligations he assumed when entering into the contract of marriage. For it is made his duty to support both his wife and their children, when he is able to do so. His casting this burden upon his wife, without lawful excuse, was a breach of his marital obligations. Who will contend that a husband’s failure, when able, to support his children is not an offense against the marriage relation? Who is more injuriously affected by such conduct'than the wife? The children are not injured so much as she. For upon his failure to provide for them she must. The children do not suffer; she is forced to spend her life in labor In order that she might meet the obligations which he has, without cause, thrust upon her.

“Can there be any family peace in such case for the law to protect? Where is there any conjugal concord, to preserve which in this case this woman’s lips should be sealed? Why should the courts of justice be denied hearing her testimony, when the husband has, through his neglect and abandonment, willfully destroyed the confidence and concord which the purpose of her exclusion is to protect? In her civil action for maintenance of these children, she was permitted to testify, and practically the same facts she now testifies to. See section 4978, Rev. Laws 1910. Thai, law recognizes that, by his abandonment and failure to furnish the necessities of life, the husband had shattered the peace of the family, and therefore there was no further reason for silencing the wife. That family peace was not restored by the judgment for alimony, nor was it restored by any subsequent conduct on the part of the defendant. On the contrary, the breach between husband and wife was increased by his neglect. Why, then — what reason in the world is there why this woman should be silenced as to his conduct in this effort to punish him for his neglect of parental and marital duties ?

“We respectfully submit that to hold that this woman was incompetent to testify in this case would be but to revert to principles of law originating in sentiment, not in reason, and would be excluding from our courts witnesses whose testimony in many cases is indispensable to the proper determination of the issues, and the only reason which could be'given for such exclusion is the preservation of a family peace which the case assumes does not exist. * * *

“We do not believe this court will say that we have so foolish a public policy in Oklahoma that closes the lips of an abandoned and deserted wife, in order that the family harmony and concord which has been utterly destroyed by the husband’s acts shall not be further disturbed. The right of the public, upon whom this father would cast his own offspring for support, demands that this woman should be heard; the right of the children whom he would willingly leave in want and neglect demands that she be heard; and her rights, grievously disregarded by him, demand that she be permitted to bear witness against him for his breach of his marital obligations. Surely, any public policy which would deny her the witness stand would be one wholly without reason, wholly contrary to the essential welfare of families, and therefore wholly wrong.”

Second. Independent of the views above expressed, the objection to the wife’s testimony cannot be sustained in this court. The record shows that her testimony was received without objection on the part of the appellant, and that she was subjected to a rigid cross-examination. The statute giving a husband or wife the privilege of using the testimony of the other at will creates an option, which may be exercised or waived. The husband, having elected to hear the testimony of his wife, cannot be heard to object after the testimony has been received, ' and he finds that it is detrimental to his interests. Mr. Wig-more says:

“A failui'e to object upon the calling of the spouse to the stand must be equivalent to consent.” (4 Wigmore on Evidence, p. 3064.)

Third. Counsel for appellant in their brief say:

“This court can search the record from beginning to end, and nowhere in the record is there a word of testimony showing that the plaintiff in error failed to furnish necessary food, clothing, shelter, or medical attendance for the child. Not a single witness has testified to the necessity of the child, or that it was not receiving all the food, clothing, shelter, and medical attendance required.”

If this contention were correct, it would engraft a new provision in the statute, and would make a parent’s guilt depend, not upon his failure and neglect to provide for his child, but also the concurrent failure and. neglect of other persons to do so. In other words, it matters not. though the parent may have done absolutely nothing toward the support of his child, if other persons, through kindness of heart, supplied the child with the necessaries of life, the parent could not be convicted. We cannot agree with counsel for appellant that the fact that the mother and the grandparents of the child were providing it with food and clothing constitutes any justification of the conduct of' the appellant. ■ Men cannot shift their burdens upon the shoulders of others in this way. The father, who has brought life into this world, must make a manly effort to support it, and if he does not do so he is guilty under the law.

This question was properly submitted to the jury, and we think the evidence amply sustains the verdict. The fact that the appellant may not have been able to get the kind of employment he desired did not relieve him of the responsibility to support his child. Rut few parents are able to support their families with easy jobs. The battle of life is no silk-stocking, kid-glove affair; but it is an earnest, serious contest. A true man, if he cannot get the kind of work which he wants, will do any kind of work he can get which will enable him to support ■ himself and those dependent upon him, and if he will not do this he is not entitled to public sympathy and respect.

The principles of law involved in this case meet with our entire approval. The only objection which we have to the statute is that we think the offense should be made a felony, and not a misdemeanor. The other errors complained of are not supported'by the record, or are not material.

Judgment of lower court is in all things affirmed.

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


text:
    CLAUDE HERRELL v. STATE.
    No. A-1801.
    Opinion Filed September 17, 1913.
    (133 Pac. 1139.)
    TRIAL — Indorsement of Names of Witnesses — Right to Object — Waiver. Where there are no indorsements on an information or indictment of names of the witnesses for the prosecution, and the defendant goes to trial without taking any action to secure the indorse-ments of such names as directed by statute, he cannot be heard to complain that the names were not so indorsed. And an ob-. jeetion to the testimony of a witness upon the ground that it was not so indorsed should be overruled.

      Appeal from County Court, Tillman County; T. M. Campbell, Judge.

    Claude Herrell was convicted of willfully failing to properly support his minor child, and appeals.
    Affirmed.

      Mounts & Davis and Gray & McVay, for appellant.

      Smith C. Matson and Joseph L. Hull, Asst. Attys. Gen., for the State.
   FURMAN, J.

The names of the witnesses to be used by the state against the defendant were not indorsed on the information as directed by law. Defendant, however, did not make any complaint at this, or file a motion requesting the court to direct the county attorney to indorse the witnesses for the prosecution on the indictment or the information. The object of the law in requiring the indorsement of the names of the prosecuting witnesses on the information or indictment is to inform the defendant what witnesses will be used against him, and thereby better enable him to prepare for trial. The right to know the names of the witnesses to be used against him in a criminal prosecution is one which a defendant may either assert or waive. See State v. Frisbee, 8 Okla. Cr. 406, 127 Pac. 1091.

In the case at bar defendant not only went to trial without objecting to the fact that the names of the witnesses were not indorsed on the information, but did not interpose any objection upon this ground until the state’s witness Mrs. Claude Her-rell was placed upon the stand, and the objection was then made for the first time that her name did not appear upon the amended information. The record shows that the information was verified by the affidavit of Mrs. Claude Herrell, and that defendant thereby had actual notice that she was to be a witness against him. Under these conditions, to sustain the objection made would place form and ceremony above justice. Our statute expressly forbids this court from reversing any conviction upon a technical error which did not deprive the defendant of some substantial right. It is not contended that the defendant was surprised or in any way injured by the action of the trial court in permitting this witness to testify, or that he did not have full notice of her testimony before the case was tried. If he did not have such notice, he could easily have acquired the information by requesting the court to direct the county attorney to indorse the names of the witnesses upon the information before he was required to proceed to trial.

The other questions involved in this case have already been decided adversely to the contentions of counsel for appellant in the case of Fred Hunter v. State, ante, 134 Pac. 1134. The father who is too lazy and trifling.to support his own child will look in vain to this court for sympathy and assistance. We think the verdict of the jury is just, and the punishment inflicted merited. It may be possible that a husband would be justified in leaving his wife; but we cannot understand how it is possible that a father, who is in enjoyment of good health, could fail and neglect to do anything for the support of his child.

Judgment of the lower court is in all things affirmed.

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