text:
    STATE v. FRED SOWARDS et al.
    No. A—9404.
    Aug. 12, 1938.
    (82 P. 2d 324.)

      Bill Vassar, Co. Atty., and Joe Young, Asst. Co. Atty., both of Chandler (Clyde L. Andrews, of Chandler, of counsel) , for plaintiff in error.

      Courtland M. Feuquay and Embry & Embry, all of Chandler, for defendants in error.
   DOYLE, J.

This case comes to this court under Procedure Criminal, sec. 3191, O. S. 1931, 22 Okla. St. Ann. § 1053, providing that:

“Appeals to the Criminal Court of Appeals may be taken by the state in the following cases and no other:
“1. Upon judgment for the defendant on quashing or setting aside an indictment or information.
“2. Upon an order of the court arresting the judgment.
“3. Upon a question reserved by the state.”

Under this section the state has the right to appeal from an order sustaining a demurrer to an indictment or information, and upon reserved questions, such an appeal reserves for decision only a question of law, where the indictment or information is dismissed and the defendant discharged without direction or permission of the trial court to amend the information, or that the indictment be submitted to that of another grand jury.

In State v. Walton, 30 Okla. Cr. 416, 236 P. 629, it is held:

“The state has the right to appeal from an order sustaining a demurrer to an indictment or information; such an appeal reserves for decision only a question of law, where the demurrer is sustained and the defendant discharged without direction by the trial court that the same be resubmitted or that a new information be filed.”

In the opinion we said (page 422) :

“A judgment is the final consideration and determination of a court of competent jurisdiction on the matters submitted to it, and a judgment sustaining a demurrer under the statute is as far-reaching and conclusive as to the defendant’s liability for the crime charged as though it has been rendered upon a verdict of not guilty, where the court does not direct a resubmission of the case, or direct that a new information be filed.” State v. Robertson, 28 Okla. Cr. 234, 230 P. 932; State v. Dennis, 28 Okla. Cr. 312, 230 P. 935.

It may be well for us to say here that the first count of the information attempts to charge the obtaining of property from another with his consent, induced under color of official right. It wholly lacks any allegation that the property was obtained from the complaining witness with his consent. That the property was obtained with the consent of the complaining witness is an essential allegation, since consent is one of the elements of the crime. Section 2073, O. S. 1931, 21 Okla. St. Ann. § 1481.

Every essential element embraced in the definition of the crime sought to be charged must be alleged in the information or indictment, and if any of the essential elements of the crime is omitted, such omission cannot be supplied by intendment or implication. Connard v. State, 56 Okla. Cr. 134, 35 P. 2d 278.

If the sufficiency of count one to charge an offense was properly before this court, we would hold the same to be insufficient.

Under the provisions of Criminal Procedure, only one offense may be charged in the indictment or information, but where the same act may constitute different offenses, or the proof may be uncertain as to which of two or more offenses the accused may be guilty, the different offenses may be set forth in separate counts in the same indictment or information, and the accused may be convicted of either offense. Section 2886, O.S. 1931, 22 Okla. St. Ann. § 404.

In such cases the indictment or information must show on its face that the separate counts are all based on the one and the same act or transaction.

The information in this case meets this requirement. Therefore, the court erred in sustaining the defendants’ motions to require the state to elect upon which count of the information it would prosecute.

The first proposition presented is settled by the decisions of this court. See Boultinghouse v. State, 24 Okla. Cr. 369, 218 P. 173; Wear v. State, 30 Okla. Cr. 118, 235 P. 271; Keenan v. State, 33 Okla. Cr. 400, 243 P. 1001; Brock v. State, 39 Okla. Cr. 162, 263 P. 1115.

It is the contention of counsel for the state that the trial court erred in sustaining the separate demurrer of the defendant, Fred Sowards, who on the date alleged in the information was an administrative officer, and the crime charged in the information was an offense involving “misconduct in office,” and the district court of Lincoln county had exclusive jurisdiction of said offense.

Counsel for the defendants in their brief say:

“Willard Sowards is not alleged to be an officer of any kind in the two counts of the information. Fred Sowards is alleged to be a maintenance superintendent of the State Highway Commission, in and for District ‘C.’ There is no such officer mentioned in any statute, or the Constitution of the state, and no board or commission is authorized or directed to appoint any one to any such office, and no board or commission is authorized or directed to create any such office.”

The primary question presented in this case is what is public office and how distinguished from employment?

The first count of the information is based on Penal Code, sec. 2073, O.S. 1931, 21 Okla. St. Ann. § 1481, providing that:

“Extortion is the obtaining of property from another with his consent, induced by a wrongful use of force or fear, or under color of official right.”

This offense is a misdemeanor under Penal Code, sec. 2076, O.S. 1931, 21 Okla. St. Ann. § 1484, providing that:

“Every person who commits any extortion under color of official right, in cases for which a different punishment is not prescribed by this Code, or by some of the statutes, which it specifies as continuing in force, is guilty of a misdemeanor.”

The second count of the information is based upon section 2469, art. 79, ch. 15, O.S. 1931, 21 Okla. St. Ann. § 269, providing that:

“Every executive officer who asks or receives any emolument, gratuity or reward, or any promise of any emolument, gratuity or reward, excepting such as may be authorized by law, for doing any official act, is guilty of a misdemeanor.”

Section 2458, under the same article, 21 Okla. St. Ann. § 279, provides as follows:

“The various provisions of this article which relate to executive officers apply in relation to administrative officers in the same manner as if administrative and executive officer were both mentioned together.”

In the case of Estes v. Crawford, 62 Okla. Cr. 156, 60 P. 2d 798, 800, we said:

“Section 10 of article 7 of the Constitution [Okla. St. Ann. Const, art. 7, § 10] defines the jurisdiction of district courts. We- quote a part of said section 10 as follows: ‘The district courts shall have original jurisdiction in all cases, civil and criminal, except where exclusive jurisdiction is by this Constitution, or by law, conferred on some other court, and such appellate jurisdiction as may be provided in this Constitution, or by law.’
“Section 12 of article 7 [Okla. St. Ann. Const, art. 7, § 12] defines the jurisdiction of county courts. We quote a part of said section 12 as follows: * * *
‘Provided, That the county court shall not have jurisdiction in any action for malicious prosecution, or in any action for divorce or alimony, or in any action against officers for misconduct in office.’ * * *
“It is insisted that since a violation of section 2034, supra [21 Okla. St. Ann. § 242] is declared by its provisions to be a misdemeanor, jurisdiction of any violation thereof is conferred upon the county court exclusively.
“With this contention we do not agree. It is our opinion that the Constitution confers original jurisdiction of all such offenses, whether felony or misdemeanor, upon the district court. And the constitutional prohibition in article 7, § 12, against the exercise by the county court of jurisdiction in actions against officers, includes all actions against such officers for misconduct, and jurisdiction over such proceedings is in the district court.”

And see State v. Young, 20 Okla. Cr. 397, 203 P. 489; State ex rel. v. Russell, Judge, 33 Okla. 141, 124 P. 1092; State v. Barnett, 60 Okla. Cr. 355, 69 P. 2d 77.

If a district maintenance superintendent of the State Highway Commission is an officer, the district court of Lincoln county had exclusive jurisdiction to try the information in this case.

There are certain criterions which have been established both upon reason and authority, and have been applied as tests in decided cases; and some of these tests in our opinion furnish sufficient grounds for the decision of the question whether a position is an office or not.

“A public office is the right, authority, and duty, created and conferred by law, by which for a given period, either fixed by law or enduring at the pleasure of the creating power, an individual is invested with some portion of the sovereign functions of the government, to be exercised by him for the benefit of the public. The individual so invested is a public officer.” Mechem on Pub. Officers, sec. 1.

Public offices are created for the purpose of effecting the ends for which government has been instituted, which are the protection, safety, prosperity, and happiness of the people; and not the profit, honor, or private interest of any one man, family, or class of men. In our form of government, it is fundamental that public offices are a public trust, and that the persons to be appointed should be selected solely with a view to the public welfare. In offices which are created by the Legislature, where the method of appointment is not prescribed by the Constitution, the Legislature, if no limitation is put upon its power by the Constitution, can take upon itself the responsibility of selecting the persons to be appointed, or can confer the power of appointment upon public officers, commissions or boards, or upon the inhabitants of cities, towns or districts.

It is not necessary to the creation of an office that the Legislature declare in express words that such an office is created. The use of any language which shows the legislative intent to create the office is sufficient. See Childs v. State, 4 Okla. Cr. 474, 113 P. 545, 33 L.R.A., N.S., 563; Guthrie Daily Leader v. Cammeron, Auditor, 3 Okla. 677, 41 P. 635.

There are innumerable decisions defining the word “office” or the words “public office.”

In State ex rel. Newman v. Skinner, 128 Ohio St. 325, 191 N.E. 127, 93 A.L.R. 331, the court said (page 128):

“A public officer, as distinguished from an employee, must possess some sovereign functions of government to be exercised by him for the benefit of the public, either of an executive, legislative, or judicial character. * * *
“Textwriters find it difficult to define with accuracy the term ‘public officer’ as distinguished from ‘employee.’ As stated by Judge Spear in State v. Hunt, 84 Ohio St. 143, 95 N.E. 666, 668: ‘Manifestly, however, each case should be decided on its peculiar facts, and involves necessarily a consideration of the legislative intent in framing the particular statute by which the position, whatever it may be, is created.’ ”

In Groves v. Barden, 169 N.C. 8, 84 S.E. 1042, L.R.A. 1917A, 228, Ann. Cas. 1917D, 316, the court in discussing the essentials of an office said:

“While the line between offices or places of trust and profit is not clear, an ‘office’ is a public position to which a portion of the sovereignty of the country attaches for the time being, and which is exercised for the benefit of the public, and within the constitutional provision there is no distinction between ‘offices’ and ‘places of trust or profit’ with respect to the inhibition against double office-holding; hence, a rural mail carrier was a ‘public officer,’ and his holding of a state office subjected him to the statutory-penalties.”

And see Abbott v. McNutt, 218 Cal. 225, 22 P. 2d 510, 89 A.L.R. 1109.

In State of Montana ex rel. Barney v. Hawkins, 79 Mont. 506, 257 P. 411, 53 A.L.R. 583, annotation, distinction between office and employment, at page 595, it is said:

“It may be stated as a general rule, deducible from the cases discussing the question, that a position is a public office when it is created by law, with duties cast on the incumbent which involve an exercise of some portion of the sovereign power and in the performance of which the public is concerned, and which also are continuing in their nature and not occasional and intermittent; while a public employment, on the other hand, is a position which lacks one or more of the foregoing elements.”

Generally, as to distinction between office and employment, see annotations in 93 A.L.R. 333; 105 A.L.R. 1237.

In Attorney-General v. Tillinghast, 203 Mass. 539, 89 N.E. 1058, 17 Ann. Cas. 449, it is held (page 1060) :

“A public officer [as distinguished from an employee] is one ‘whose duties are in their nature public, that is, involving in their performance the exercise of some portion of the sovereign power whether great or small, and in whose proper performance all citizens irrespective of party are interested, either as members of the entire body politic or of some duly established subdivision of it.’* * * ‘Where an employment is a continuous one, which is defined by rules prescribed by law and not by contract, such a charge or employment is an office, and the person who performs it is an officer.’ ”

It is stated in 22 R.C.L. 380, that:

“It is sometimes said that an office is a public charge or employment, but it frequently becomes necessary to distinguish between a public office and a public employment. The term ‘employment’ is the more comprehensive, and while an office is an employment, it does not follow that an employment is an office. Thus, when an employment is a continuing one, which is defined by rules prescribed by law and not by contract, such an employment is an office, and the person who performs it is an officer. On the other hand, the fact that the authority of one public officer is subordinate to that of another does not prevent the former from being an officer as distinguished from a mere employee. A subordinate or inferior officer is none the less an officer. Even where the appointment is in the nature of an employment, the appointee may be a public officer if the necessary elements of an office are present. But on the whole an officer is distinguished from the employee in the greater importance, dignity, and independence of his position, in being required to take an official oath and perhaps to give an official bond, in the more enduring tenure, and in the fact that the duties of the position are prescribed by law.
“The difficulties in distinguishing an office from an employment may be resolved by constitutional definitions, as, for example, that an office is a public position created by the Constitution or law, continuing during the pleasure of the appointing power or for a fixed time, with a successor elected or appointed; while an employment is an agency, for a temporary purpose, which ceases when that purpose is accomplished.”

In State v. Linn, 49 Okla. 526, 153 P. 826, Ann. Cas. 1918B, 139, the Supreme Court of this state held (page 827) :

“The general rule, in the absence of special constitutional provision, is that all officers whose duties pertain to the exercise of the police power of the state are in that sense state officers, and under the control of the Legislature, even though they may be officers of a municipality and charged with the enforcement of the local police regulations of such municipality.”

The precise question presented by this appeal is, whether the place or position of district maintenance superintendent of the State Highway Commission, according to the legal acceptation of the term, is an office?

The Constitution of this state (article 16, sec. 1 [Okla. St. Ann. Const. art. 16, § 1]) provides that:

“The Legislature is directed to establish a Department of Highways, and shall have the power to create improvement districts and provide for building and maintaining public roads, and may provide for the utilization of convict and punitive labor thereon.”

The following statutes, in the order of their passage, are involved in determining the question in this case.

The first State Highway Commission was created by chapter 48, p. 51, Session Laws, 1923-24, entitled:

“An Act creating a State Highway Commission, providing for the appointment of officers and employees, defining powers and duties, providing for the construction and maintenance of a connected system of State Highways, securing to the state the benefit of all present and future Federal Aid that may be offered by the Federal Government, defining the powers of the State Highway Commission;” etc.

The present State Highway Commission was created by chapter 12, Session Laws 1933, 69 Okla. St. Ann. § 21 et seq., entitled:

“An Act creating a Department of Highways under supervision and control of a commission to be known and designated as the State Highway Commission of the State of Oklahoma, to be composed of four members; prescribing the manner and method of appointment, fixing tenure of office and salary of each of the members thereof; prescribing the powers and duties of said Commission and members thereof; providing for the appointment and employment of a Chief Engineer, prescribing his duties and power; providing for and authorizing employment by said Commission, its Secretary and Engineer, of clerical help, laborers and other employees, and for the payment of salaries and wages therefor, and the method and manner of payment of same.”

Section 6 of ch. 12, supra, 69 Okla. St. Ann. § 26, provides as follows:

“The said State Highway Commission hereby created is vested with the powers and duties necessary and proper to enable the commission to fully and effectively enable it to carry out all the objects of this act and in addition thereto shall have the following specific powers and duties:
“ (a) Have supervision of highways and bridges which are constructed, improved or maintained, in whole or in part, by the aid of State moneys, and of highways constructed, in whole or in part, by the aid of moneys appropriated by the United States Government so far as such supervision is consistent with the Acts of Congress relating thereto.
“(b) Prescribe rules and regulations not inconsistent with this Act or other laws of the State of Oklahoma, fixing the duties of all persons employed by the State Highway Commission, and prescribing the manner of cooperation between county, township and city officials with the State Highway Commission.
“ (c) Investigate and determine upon the various methods of road and bridge construction in the different sections of this State and as to the best methods of construction and maintenance of state highways and bridges.
“ (d) Aid at all times in promoting highway improvement and maintenance throughout the State.
“ (e) Let, or supervise the letting of, all contracts for construction or improvement of state highways or any contract for road or bridge construction or improvement where the work is being done in whole or in part with federal moneys.
“(f) The commission shall determine the number of employees necessary for the proper and effective discharge of the duties and powers hereby vested in it and shall fix and determine the salaries or wages to be paid for the services rendered or labor performed and may change, regulate and control the same from time to time as it, by majority action, may determine; salaries and wages to be in accord with other departments of state for like character of service.
“ (g) The chief engineer, with the concurring approval of a majority of the members of the commission, shall be empowered to appoint and employ such assistant engineers, clerical help, laborers and other employees as may be deemed necessary for the proper discharge of the duties connected with the construction, repair and maintenance of highways under the supervision and control of the State Department of Highways, and all such assistant engineers, clerical help, laborers and other employees shall possess such powers as may be delegated and perform such duties as may be assigned to them by the said Chief Engineer and the salaries and/or wages of each shall be determined by the Commission.”

Section 8 of said Act, 69 Okla. St. Ann. § 21, note, is the repealing section, and said repealing clause fails to mention section 10080, St. 1931, 69 Okla. St. Ann. § 26, note, and therefore leaves such section in full force and effect, providing:

“The commission, in addition to the appointment of a state highway engineer and a secretary, as herein provided, is also authorized and empowered to employ such other assistants and clerical help as may, in the judgment of the commission, be necessary to fully and properly carry out the objects and purposes of this act.”

The Constitution of this state (article 15, § 1, Okla. St. Ann. Const, art. 15, § 1) provides that all officers shall take and subscribe an oath or affirmation. The statute requires that every person elected or appointed to any office shall, before entering upon the duties thereof, take an oath or affirmation to support the constitutions of the United States and of the state, and also an oath of office. Section 3403, O.S. 1931, 51 Okla. St. Ann. § 2.

Section 10084, O.S. 1931, 69 Okla. St. Ann. § 28, provides in part as follows:

“All members of the commission, engineer, secretary and every other person appointed to office or employed by the commission, shall, before entering upon the duties of his or her office or employment, take and subscribe to an oath or affirmation to support the constitution of the United States and of the State, and to faithfully and honestly discharge the duties of such office or employment. * * *
“The engineer or any other officer or employee of the commission, who has custody or control of property or funds of the state, shall give a good and sufficient bond, in an amount and with sureties satisfactory to the commission, conditioned upon the faithful discharge of the duties of their respective offices and accounting for all property and funds coming into their hands by, through or from, such office. Any officer or employee who shall violate the provisions of this section shall be guilty of a misdemeanor, and shall be cause for impeachment.”

Chapter 22, Session Laws, 1933, 69 Okla. St. Ann. § 45, provides in part as follows:

“Section 1. Section 10091, Okla. Stats. 1931, is hereby amended to read as follows:
“Section 10091. The construction and maintenance of the State Highway System, and all work incidental thereto, shall be under the general supervision and control of the State Highway Commission, which is hereby authorized, empowered and directed to take whatever steps may be necessary to cause said State Highway system to be constructed at the earliest possible time, consistent with good business management and fund available after this act takes effect, and also to provide for the maintenance of said State Highway system. The State Highway Commission shall have power to make all final decisions affecting the work provided for herein, and all rules and regulations it may deem necessary, not inconsistent with this act, for the proper management and conduct of said work, and for carrying out all the provisions of this act, in such manner as shall be to the best interest and advantage of the people of this state.”

Chapter 48, Session Laws 1933, 69 Okla. St. Ann. § 26 note, is:

“An Act validating the appointments and employments of agents, servants and employees of the State Highway Commission under previous existing Statutes” prior to the enactment of chapter 12, Session Laws 1933.

Section 1 provides as follows:

“That all appointments, employments and contract duties existing between the former Highway Commission of the state of Oklahoma and all agents, servants, employees and contractors be, and the same are, hereby in all respects authorized, ratified, confirmed and approved.”

We do not deem it necessary to further quote provisions of the various acts as compiled in chapter 50, Okla. Stats. 1931.

The Supreme Court of this state holds that:

“The State Highway Commission is created and vested with powers and duties necessary to fully and effectively carry out all of the objects of the act creating it.” Wentz v. Dawson, 149 Okla. 94, 299 P. 493, 494; Hawks v. Seay, 150 Okla. 160, 1 P. 2d 148.
“Rules and regulations adopted by the state highway commission under authority of a statute and not inconsistent with the purpose of such statute are binding and controlling in all transactions had thereunder, and the same rules are applicable thereto in determining whether a duty arising thereunder is discretionary or ministerial as applied to a statute.” State Highway Commission v. Younger, 170 Okla. 614, 41 P. 2d 686.
“The provision of the charter of the city of Oklahoma City which provides, ‘The Board of Commissioners (now mayor and council) * * * may create such other offices necessary to the proper and efficient conduct of the affairs of the city’ authorizes the creation of the office of deputy city clerk.” Oklahoma City v. Century Indemnity Co., 178 Okla. 212, 62 P. 2d 94.

And held further that Laws 1923-24, ch. 48, creating a state highway construction and maintenance fund, held valid appropriation of public funds for purposes stated, and not in contravention of Const. art. 5, sec. 55, [Okla. St. Ann. Const. art. 5, § 55], providing that no money shall be paid out of the state treasury except by appropriation. Edwards v. Childers, 102 Okla. 158, 228 P. 472.

Patillo v. Moore Bros. Ice & Milling Co., 181 Okla. 318, 73 P. 2d 842, was a case where a wagon loaded with a tank broke down upon a paved highway. Watie Patillo, a district maintenance superintendent of the state highway commission, removed the wagon, that in his judgment was causing an obstruction of the highway. In the opinion of the Supreme Court, Watie Patillo is referred to as an officer. He was clothed with the protection of an officer in being liable only in the event of an abuse of authority or discretion.

In the course of the opinion it is said (page 843) :

“What is the degree of care that must be exercised by a highway officer when removing a disabled vehicle from the highway? * * *
“The decision of a highway officer that a disabled vehicle is an obstruction of the highway is generally conclusive, except where there has been an abuse of authority or discretion. But where an officer is charged with a duty to remove obstructions and he has determined that a disabled vehicle is an obstruction, he then must use due and reasonable care, under the circumstances, in removing the vehicle and its contents.”

It is a well settled rule that a penal statute must be construed with such strictness as to carefully guard the rights of the accused and at the same time preserve the obvious intention of the Legislature.

In this case the distinction between an officer and an employee is important, because the courts — adopting the principle of strict construction in applying statutes declaring certain acts on the part of an officer to be crimes — will refuse to regard as an officer a person who, while in the public service, does not occupy a position established as a result of the action direct or indirect of the Legislature, with a term, duties, and tenure. 29 Cyc. p. 1367.

The rule of strict construction of a penal statute is not violated by giving its words a reasonable meaning according to the sense in which they were intended, disregarding captious objections. State v. Barnett, 60 Okla. Cr. 355, 69 P. 2d 77.

Applying the principles enunciated in the foregoing authorities the position of district maintenance superintendent of the State Highway Commission has all the indicia of a public office.

Under the constitutional provision, art. 16, sec. 1, supra, and the statutes enacted effectuating said constitutional provision, the power of appointment comes from the state, the authority is derived from the law; and the duties are exercised for the benefit of the public, and we think the position is a public office within the definitions given by the courts and textwriters as to what in law constitutes a public office or a public officer.

It is our opinion that persons occupying the position of district maintenance superintendent of the State Highway Commission, under our existing laws, are public officers.

It follows that the court below erred in its judgment sustaining the demurrer to count two of the information, on the ground that the court was without jurisdiction of the offense charged, because the defendant, Fred Sowards, was not, as alleged, an officer under the law, and for that reason the district court did not have jurisdiction to try the information.

In the state’s petition in error the prayer is that the judgment of the court below be reversed, the case remanded to the district court of Lincoln county with direction that the separate demurrers of the defendants be overruled and the case be for trial.

For the reasons hereinbefore stated, the prayer must be denied. It is so ordered.

DAVENPORT, P. J., and BAREFOOT, J., concur.


source: Caselaw Access Project

author: DOYLE, J.

license: Public Domain

text:
    JOHN PHILLIPS v. STATE.
    No. A—9427.
    Aug. 19, 1938.
    (82 P. 2d 246.)
    Wylie Snow, of Coalgate, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., and Jess L. Pullen, Asst. Atty. Gen., for the State.
   DOYLE, J.

An information was filed in the district court of Coal county charging that John Phillips did in said county on or about the 5th day of March, 1937, commit the crime of operating and conducting a gambling game, that the said defendant did then and there willfully, unlawfully and feloniously conduct a certain gambling game, to wit, poker, upon which money, checks or other evidence of value were bet and wagered by participants invited to said game by said defendant, and the said defendant was in charge of and did carry on the said gambling game as aforesaid in the residence of the said John Phillips, in the city of Coal-gate, Coal county, contrary to, etc.

There was endorsed on the back of the information the names of witnesses, Milton Brown, O. C. McMillan, C. C. West, Arthur Agee, Oscar Pierson, Lee Pebworth, Bob Adams and F. W. Gammon. Upon a plea of not guilty a trial was had and a verdict of “guilty as charged in the information and assess his punishment at a fine of $500 and one year in the state penitentiary.”

He has appealed from the judgment rendered upon such conviction.

The errors assigned question the sufficiency of the evidence to sustain the conviction, and that the court erred in admitting incompetent evidence over defendant’s objections and exceptions.

This is a companion case to that of Phillips v. State, 64 Okla. Cr. 217, 78 P. 2d 828. Opinion reversing judgment of conviction filed April 21, 1938.

The state relied for this conviction upon the testimony of C. C. West, Arthur Agee, and O. C. McMillan. The complaining witness, Milton Brown, did not testify.

C. C. West, deputy sheriff, testified that on March 5th, this year, in executing a liquor search warrant he went to the defendant, John Phillips’ house, and found John Phillips, Wilson Phillips, Mr. Agee and Mr. Pierson, sitting at a table playing cards. The defendant had some chips in front of him, they took the chips and cards and brought them to the sheriff’s office.

Arthur Agee testified that he was at John Phillips’ place, and was sitting there playing poker, when Mr. West and Mr. McMillan came in with a search warrant; that he had some chips that he bought from the defendant; that “John Phillips was not running the game at the time the laws came in.”

On cross-examination he stated that he paid a fine for gambling at the time the officers came there.

On redirect examination he testified:

“Q. Who invited you over there? A. As I remember little boy Love. Q. When you got there did John Phillips ask you to sit at the table and play? A. I can’t recall. Q. John was conducting the game? A. At the time I do not know whether he was conducting the game or not. By the Court: At any time? A. That day he was. Q. What was the take off? A. I don’t remember, I guess it was what he could take and get by with it. One or two chips at a time.”

O. C. McMillan, undersheriff, testified:

“We found four fellows sitting around the table and they had cards and chips in front of them. The defendant, John Phillips, had chips in front of him.”

At the close of the testimony for the state the defendant demurred thereto, which was overruled.

On the part of the defense, Joe Summers testified that he was court clerk of this county and as such had in his posession the original information in the case of State, v. Arthur Agee, identified the same, wherein it is alleged that the defendant, Arthur Agee, in Coal county on the 2d day of February, 1937, did then and there willfully, unlawfully play a game of cards in which money, checks and other evidence of value were bet and wagered.

As a witness in his own behalf, John Phillips testified that his age is 67 years; that he had lived around Coalgate some 40 odd years, and was at his home when the officers found the card game going on; that a few minutes before he had picked up another fellow’s hand, while he went to dinner ; that his son Wilson Phillips, little boy Love and Oscar Pierson were just having a social card game; that he was not conducting the game, that he did not take any take off.

On cross-examination he stated:

“I am now drawing an old age pension, I have never been convicted of a crime involving moral turpitude, and never paid a fine for gambling. I pled guilty at the last term of county court to a charge of keeping a disorderly house.”

The information was filed under section 2190, Penal Code, St. 1931, 21 Okla. St. Ann. § 941. Under this section, before there can be a conviction for conducting a gambling game played with cards, “for money, checks, credits, or any representatives of value”, it must be shown that the defendant opened up or conducted such a game “or who either as owner or employee, whether for hire or not, deals for those engaged in any such game.”

While it is well settled that this court will not reverse a conviction for insufficiency of the evidence, if there is any substantial evidence, although circumstantial, from which a reasonable and logical inference of guilt arises, the jury’s finding as to the weight of the evidence and the credibility of the witnesses when supported by substantial evidence, will not be disturbed. The converse rule is equally well settled that, it is not only the province but the duty of the court to set aside such verdict when it is contrary to the law and evidence, or there is a failure to prove some essential matter to establish the offense charged, or where it appears that the verdict was rendered as the result of passion or prejudice. The performance of this duty on the part of the court is the exercise of legal discretion and judgment as to the sufficiency of the evidence to overcome the legal presumption of innocence, to which every one is entitled who is put upon his trial for an offense. Benson v. State, 10 Okla. Cr. 16, 133 P. 271; Noll v. State, 10 Okla. Cr. 157, 135 P. 287; Owens v. State, 11 Okla. Cr. 113, 143 P. 204; Baldwin v. State, 11 Okla. Cr. 228, 144 P. 634; Jefferson v. State, 31 Okla. Cr. 44, 236 P. 914; Ferguson v. State, 52 Okla. Cr. 264, 4 P. 2d 696.

The defendant in this case is entitled to the same presumption of innocence which prevails in other cases, and we are constrained to say that the testimony quoted in full is insufficient to rebut that presumption.

Upon a careful consideration of the record we are of opinion that the verdict is not sustained by sufficient evidence.

The judgment of the lower court is therefore reversed.

DAVENPORT, P. J., and BAREFOOT, J., concur.


author: DAVENPORT, P. J.

text:
    ADDIE KIMBROUGH v. STATE.
    No. A—9306.
    Aug. 19, 1938.
    (82 P. 2d 245.)

      Eaton & Wheeler, of Okmulgee, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., for the State.
   DAVENPORT, P. J.

The parties in this opinion will be referred to as they appeared in the trial court. The defendant, Addie Kimbrough, was by information charged with the crime of murder, was tried, convicted of manslaughter in the first degree, and his punishment fixed at 60 years in the state penitentiary. Motion for new trial was filed, considered, overruled, exceptions duly saved and the defendant has appealed.

This case was filed in this court on April 15, 1937. In his petition in error the defendant assigned 21 errors alleged to have been committed by the trial court. After a careful reading and study of the record it is only deemed necessary to consider the tenth assignment: “That the verdict is contrary to both the law and the evidence.”

No brief has been filed by the defendant in support of his assignments of error. The killing, as shown by the proof and allegations in the information, occurred on July 19,1936, at a negro picnic in Okmulgee county, near the home of the defendant. The state’s evidence in substance is that Alex Rolland had trouble with a negro man by the name of Taylor and drew his pistol on Taylor, and as Taylor started to run Rolland fired several times at him; that the defendant came up about the time Rolland was shooting at Taylor and went away and immediately came back with his pistol and shot Rolland, and after Rolland fell shot him again.

This testimony is denied by the defendant and some of his witnesses; they state he went up to where Rolland was and insisted he put up his gun and Rolland fired at the defendant and the defendant then shot Rolland in self-defense.

The defendant admits he killed Rolland, and his defense is that Rolland shot at him first, which the state’s witnesses all deny, and say that Rolland did not try to shoot the defendant.

This court has repeatedly held that where the evidence is conflicting the issue of facts are for the sole determination of the jury. Adams v. State, 54 Okla. Cr. 363, 21 P. 2d 1075; Humberd v. State, 56 Okla. Cr. 23, 32 P. 2d 954; Coats v. State, 56 Okla. Cr. 26, 32 P. 2d 955; Kisselburg v. State, 56 Okla. Cr. 46, 47, 33 P. 2d 236.

Section 3062, O.S. 1931, 22 Okla. St. Ann. § 834, in part is as follows: “The questions of fact are to be decided by the jury.”

The jury heard the testimony and had an opportunity to judge the demeanor of the witnesses on the stand and their interest or lack of interest in the conviction of the defendant, and decided the issues against the defendant. This court will not disturb the finding of the jury where there is any competent testimony to warrant the jury in returning a verdict of guilty.

The defendant was accorded a fair and impartial trial. There are no fundamental or prejudicial errors in the record. Under the testimony in this case, the jury was warranted in returning a verdict of guilty. The judgment of the trial court is affirmed.

DOYLE and BAREFOOT, JJ., concur.


author: BAREFOOT, J.

text:
    W. S. FARROW v. STATE.
    No. A—9389.
    Aug. 19, 1938.
    (82 P. 2d 244.)

      Chapman & Chapman, of Shawnee, for plaintiff in error.
    Mac. Q. Williamson, Atty. Gen., Sam H. Lattimore, Asst. Atty. Gen., and Thomas C. Wyatt, Co. Atty., of Shawnee, for the State.
   BAREFOOT, J.

The defendant was tried and convicted in the county court of Pottawatomie county of the crime of unlawful possession of intoxicating liquor and was sentenced to pay a fine of $200 and to serve a term of 60 days in the county jail, and appeals.

The evidence on behalf of the state reveals that the defendant was the manager and operated the Purity Drugstore in the town of Maud, Pottawatomie county, Oklahoma, on the 10th day of April, 1937. That a search warrant was issued out of a justice of the peace court at Tecumseh, to a deputy sheriff of Pottawatomie county, who searched said premises on said date. Officers went to the place of business of the defendant and executed the same by serving a copy on the defendant and searching the drugstore. In a back room used in connection with the drugstore they found five pints of tax paid liquor with the seal unbroken; one pint bottle half full with the seal broken, and one half pint with the seal unbroken. Defendant had the key to the room where the liquor was found and unlocked the same for the officers. He said: “There ain’t nothing to do about it.” All of the officers who participated in the raid testified to these facts. The defendant did not take the witness stand, nor did he offer any evidence in his behalf.

A motion was filed by the defendant to suppress the evidence procured under the search warrant issued in this case. When the case was called for trial the court announced that the burden was on the defendant to sustain his motion. Counsel representing defendant made several statements to the court with reference to being unable to locate the search warrant, and stated that he had written the county attorney a letter with reference to the same. He also stated that he had been to the office of the county attorney and court' clerk and did not find it.

The following proceeding was then had:

“The Court: I have just been informed by the sheriff the records are in the justice of the peace Hatfield’s court at Tecumseh. Have you ever inquired there yet? Mr. Chapman : I didn’t have the information from the sheriff, and I inquired of you and you didn’t know. The Court: The court overruled the motion to suppress and allows an exception.”

No evidence was offered by the defendant to support the motion. Under this state of facts we do not find that the court erred, in overruling the motion to suppress the evidence in this case.

Under chapter 153, section 3, Session Laws 1933, 37 Okla. St. Ann. § 82, it is provided:

“The keeping, in excess of one quart of any spirituous, vinous, fermented or malt liquors, or any imitation thereof, or substitute therefor, * * * in or about his place of business or his residence, or any place of amusement, or recreation, or any public resort, or any club room * * * shall be prima facie evidence of an intention to convey, sell or otherwise dispose of such liquors. * * * ”

Under this statute the court instructed the jury as follows:

“You are further instructed that under the law of the state of Oklahoma, the having and keeping at a place of business in excess of one quart of any spirituous, vinous, fermented or malt liquors, or of any liquors or compounds of any kind or description whatever, whether medicated or not, which contain more that 3.2 per cent of alcohol, measured by weight, and which is capable of being used as a beverage, shall be deemed prima facie evidence of an intention to convey, sell or otherwise dispose of such liquors.
“In this connection you are also instructed that the possession of such liquor, if you should find the defendant had the possession of the same, would be sufficient to establish an unlawful intent, unless rebutted or the contrary proved, yet it does not make it obligatory upon you to convict after the presentation of such proof, but such evidence is competent and sufficient to justify you finding the defendant guilty, provided you are satisfied from all the evidence that the defendant is guilty beyond a reasonable doubt.”

No evidence having been offered by defendant, we find no error in the record, and the judgment of the county court of Pottawatomie county is affirmed.

DAVENPORT, P. J., and DOYLE, J., concur.


text:
    PICKENS CLARDY v. STATE.
    No. A—9388.
    Aug. 19, 1938.
    (82 P. 2d 239.)

      Kenneth Kienzle, of Shawnee, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., Sam H. Lattimore, Asst. Atty. Gen., and Thomas C. Wyatt, Co. Atty, of Shawnee, for the State.
   BAREFOOT, J.

Defendant was charged in the county court of Pottawatomie county with the unlawful possession of mash, was tried, convicted and sentenced to serve 30 days in the county jail and pay a fine of $200, and has appealed.

The evidence reveals that the defendant, Pickens Clardy, a colored man, owned a farm in Pottawatomie county, and resided thereon. Mr. C. W. Franks, a deputy sheriff of Pottawatomie county, decided on the 26th day of March, 1937, to go to the premises of the defendant for the purpose of searching for intoxicating liquor. He was accompanied by George Southgate, another deputy sheriff. He at no time procured a search warrant, but went to the farm of defendant and conducted a search of a building which he presumed was on defendant’s premises, and there in a small log house and dugout found eight barrels of mash, a jug and some empty fruit jars, three barrels of which he said was fermenting and ready for distillation. This little log house was located about 300 or 400 yards east of the defendant’s home. The officer said they saw the defendant walk from the direction of the log cabin towards his home, and after he was arrested they asked the defendant what he did with the tin off the cowshed, and he said he used it to cover that building up there, meaning the log cabin where the mash and jars were found. This is all of the evidence offered by the state to connect the defendant with the possession of the mash, with the exception that the officers testified that tracks from the log cabin led by defendant’s house.

The defendant testifying in his own behalf denied the ownership of the mash and of any knowledge of it being there. He also testified the land upon which the log cabin was located was the property of his daughter, and that it had been leased the past two years to two negro men, and they had used and occupied the same up to a few days before the search was conducted. This testimony was corroborated by several witnesses offered by defendant, who testified to seeing these parties working and farming upon the premises.

There are several suspicious circumstances against the defendant, and he did not make a very good showing upon cross-examination, but from the reading of the record in this case it does not seem to us that the evidence is sufficient, with that degree of certainty required by the criminal law, that a defendant be convicted beyond a reasonable doubt, or to comply with the doctrine that the defendant is presumed to be innocent until his guilt is established. In the first place the officer went to the premises of the defendant for the purpose, and knowing at the time that he was going to search the same. He had no other business there, yet he did not procure a search warrant as required by law, but searched without one, and destroyed the property found upon the premises, no part of it being brought in for analysis, and no return was made by him to any court of what property he found there. This practice should not be condoned. Officers, for the protection not only of the individual citizens of this state, but for their own protection, should procure a search warrant before making a search, and a return of the search warrant should be made to the court in the manner provided by law. This protects not only the right of the citizen, but also the right of the officer to make the search.

It is true, as has been held by this court, that under certain circumstances where a violation of the liquor law is committed in the presence of the officer, or where a still or liquor is found in an open or wooded country, that it is proper for the officer to seize the same without the necessity of a search warrant. But here the officer knew that he was going to the premises of the defendant for the purpose of searching the same, yet made no effort to secure a search warrant.

The state contends that by reason of the defendant making a defense that the premises did not belong to him, and that the liquor was not his property, that he could not therefore raise the question of the validity of the search warrant.

We have carefully read the former decisions of this court covering this proposition, but in view of all the facts and circumstances in this case, as above stated, we do not think they are applicable here.

We are of the opinion that the case should be reversed and defendant discharged.

DAVENPORT, P. J., and DOYLE, J., concur.


text:
    W. L. SWINK v. STATE.
    No. A—9398.
    Aug. 19, 1938.
    (82 P. 2d 316.)

      Warren & Warren, of Hugo, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., and Sam H. Lattimore, Asst. Atty. Gen., for the State.
   DOYLE, J.

This is an attempted appeal from a judgment of conviction rendered in the county court of Choctaw county, on July 5th, 1937, finding W. L. Swink guilty of unlawful possession of intoxicating liquor, with punishment assessed at 60 days confinement in the county jail and a fine of $100.

It appears that on January 29,1937, the county attorney of Choctaw county, filed an information in the county court of said county, jointly charging W. L. Swink and Ernest Steen with the unlawful possession of 90 quarts, 182 pints and 243 half pints of whisky.

The record shows that when the case was called for trial the defendants waived their right to a jury trial, and it was agreed by and between the parties to try the case to the court.

There was a motion for continuance and a motion to suppress the evidence, both of which were overruled.

At the close of the testimony, motion to dismiss as to the defendant, Ernest Steen, was sustained.

The petition in error with case-made was filed in this court October 13,1937.

The Attorney General has filed a motion to dismiss this appeal, on the ground that the case-made contains no order extending the time in which to file this appeal beyond the 60 days allowed by the statute, citing section 3192, St. 1931, 22 Okla. St. Ann. § 1054.

The record shows that motion for new trial was overruled and judgment rendered on July 6th, at which time the court granted an extension of 30 days in which to make and serve case-made, 10 days to suggest amendments, to be settled and signed on five days’ notice. On August 5, the court granted an additional extension of 30 days within which to make and serve case-made, and on September 1st, the court granted a third extension of 30 days within which to make and serve a case-made. At no time did the court grant any extension of time within which to file a petition in error in this court beyond the 60 days period allowed by section 3192, and no subsequent order was made extending the time in which a petition in error and case-made could be filed in this court as provided by section 538, 12 Okla. St. Ann. § 962.

This court has repeatedly held that an order made by a trial court extending the time within which to make and serve a case-made does not automatically extend the time within which to file the appeal. All such orders should cover both the time within which to make and serve case-made and the time within which to file the appeal in this court.

In misdemeanor cases the appeal must be perfected within 60 days after the judgment is rendered, unless the trial court or judge, for good cause shown, extends the time within the limits prescribed by section 3192, St. 1931.

Where no order is made extending the time within which an appeal in misdemeanor cases may be taken, and the appeal is not lodged in this court within 60 days after the rendition of judgment, this court has no jurisdiction to entertain the appeal and the same will be dismissed. Holly v. State, 16 Okla. Cr. 164, 181 P. 518; Wilson v. State, 24 Okla. Cr. 268, 217 P. 1057; Brady v. State, 59 Okla. Cr. 58, 56 P. 2d 428.

Another ground of the Attorney General’s motion to dismiss is, that the case-made contains no copy of the judgment from which this appeal is taken.

An examination of the record discloses that the case-made contains no copy of the judgment referred to in the petition, and does not contain the journal entry of the judgment appealed from.

The uniform holding of this court is that where an appeal is taken from an alleged judgment of conviction, and the transcript of the record or case-made contains no copy of the judgment of the trial court, this court does not acquire jurisdiction of the appeal, and such an appeal will be dismissed. Patton v. State, 60 Okla. Cr. 409, 64 P. 2d 1245.

For the reasons assigned, the motion of the Attorney General to dismiss the appeal is sustained, and the purported appeal herein is dismissed and the cause remanded to the trial court.

DAVENPORT, P. J., and BAREFOOT, J., concur.


text:
    BILL FITZGERALD et al. v. STATE.
    No. A-9347.
    Aug. 26, 1938.
    (83 P. 2d 581.)

      H. C. Ivester, of Sayre, for plaintiffs in error.
    Mac Q. Williamson, Atty. Gen., and Sam H. Lattimore, Asst. Atty. Gen., for the State.
   DOYLE, J.

The original information in this case charged that in Beckham county, on or about the 25th day of September, 1986, one Case Cox did unlawfully have the possession of a still. An amended information was filed, charging that Case Cox, Bill Fitzgerald and Clarence Fitzgerald on or about the 25th day of September, 1936, did unlawfully have possession of a still.

The name of. the defendant, Case Cox, was indorsed thereon.

The jury by their verdict found the plaintiffs in error guilty as charged and fixed the punishment of each at a fine of $100 and 60 days’ imprisonment in the county jail.

Motion for new trial was filed and overruled on November 28, 1936.

From the judgment rendered on the verdict an appeal was perfected by filing in this court on June 9th, 1937, a petition in error with case-made attached.

The Attorney General has filed a motion to dismiss the appeal “for the reason that said appeal was not perfected within the time allowed by statute, that said defendants were sentenced on November 28, 1936, that no extension of time was given by the court for perfecting the appeal, that the purported case-made was signed and settled by the county judge on January 30, 1937, which was more than 60 days after the date of said judgment and sentence, and was not filed in this court until June 9, 1937.”

In the response to the motion to dismiss, it is stated that:

“H. C. Ivester was the attorney of record in this matter ; that he represented these defendants as their attorney. That H. C. Ivester was elected State Senator of Oklahoma in the year 1934, for a four year term as such Senator, and that as such member of the Oklahoma State Senate, he was called into extraordinary session by the Hon. E. W. Marland, Governor, on November 24, 1936, and that the extra or special session continued until the convening of the regular session of the Oklahoma Legislature on the first Monday in January, 1937, and continued until May 11, 1937, and that H. C. Ivester was a member of the Oklahoma State Senate during the 16th Session of the Oklahoma Legislature that adjourned on the 11th day of May, 1937, and as a result thereof, had 60 days from May 11, 1937, to perfect the appeal in this cause by reason of section 396, O. S. 1931.”

The Constitution of this state, Okla. St. Ann. Const, art. 7, § 2, gives to every defendant in a criminal case the right to appeal from any judgment against him, but the manner of taking and perfecting such appeal is a proper matter of legislative control, and the appeal must be taken in the manner prescribed by law. 20 Okla. St. Ann. § 40; Noel v. State, 17 Okla. Cr. 308, 188 P. 688. See Eubanks v. Cole, 4 Okla. Cr. 25, 109 P. 736; Flathers v. State, 7 Okla. Cr. 668, 125 P. 902; Burnett et al. v. State, 8 Okla. Cr. 639, 129 P. 1110, 47 L.R.A., N.S., 1175.

Section 3189, St. 1931, 22 Okla. St. Ann. § 1051, provides :

“An appeal to the Criminal Court of Appeals may be taken by the defendant, as a matter of right from any judgment against him; and upon the appeal, any decision of the court, or intermediate order made in the progress of the case may be reviewed.”

Section 1, art. 1, ch. 2, Session Laws 1935, 12 Okla. St. Ann. § 667, reads in part as follows:

“And when any litigant has given notice of appeal from any judgment of any court of record in this state to the Supreme Court or Criminal Court of Appeals and the time for doing any act to perfect such appeal has, or does hereafter lapse during the session of the Legislature, whether regular or special, and the said litigant is a member of the Senate or House of Representatives, of the state of Oklahoma, in such session, or his attorney of record is such member, such litigant or attorney shall have such time after the adjournment of the session of the Legislature to perform such act and complete his appeal as he had at the commencement of the session of the Legislature, of which he or his attorney of record was a member, and all acts done in the perfection of such appeals shall be as valid as if done within the time provided. * * *
“Approved April 3, 1935. Emergency.”

And see section 1, art. 1, ch. 2, p. 1, Session Laws 1937, 12 Okla. St. Ann. § 667 entitled:

“An Act amending Section 1, Article 1, Chapter 2, of the Session Laws of 1935, relating to continuances; repealing all acts in conflict herewith; and declaring an emergency.”

The journal entry of judgment in this case concludes as follows:

“And for good cause shown it is further ordered by this court that the time be extended for a period of 30 days from this date within which to make and serve case-made; state to have 10 days thereafter within which to suggest amendments thereto, and that the case-made be settled and signed by five days’ notice to either side to the other.”

It appears from the record that notices of appeal in writing, together with proof of service of the same as required by the statute, were duly served on the county attorney and the clerk of the court on December 7, and appeal bonds given and approved on the same date.

The uniform holding of this court is that under section 396, St. 1931, as amended, 12 Okla. St. Ann. § 667, a member of the Legislature is entitled to. a continuance of cases in which he is attorney of record as a matter of right during the time he is serving as a member of the Legislature in actual session. Irvine v. State, 64 Okla. Cr. 345, 80 P. 2d 599; Gilroy v. State, 64 Okla. Cr. 332, 80 P. 2d 602; Johnson v. State, 45 Okla. Cr. 384, 283 P. 590; Otey v. State, 39 Okla. Cr. 61, 263 P. 155; Holloway v. State, 37 Okla. Cr. 24, 255 P. 1122.

It follows from the foregoing review that the appeal in this case was properly perfected under the statutory provision, extending the time within which the appeal could be filed in this court when during the session of the Legislature, the defendant’s attorney of record is a member of the Senate or House of Representatives.

The motion to dismiss the appeal is therefore overruled. ; "j

The assignments are that the court erred in overruling the motion to suppress the evidence, and that the verdict of the jury is contrary to law and to the evidence.

The evidence upon which the conviction was had was obtained by a search warrant which was issued upon the affidavit of S. F. Flynn.

When the case was called for trial the defendants, Bill and Clarence Fitzgerald, filed a motion to suppress the evidence, for the reason that the search and seizure was made under a void search warrant, on an affidavit that was legally insufficient.

In support of the motion the affidavit and search warrant were offered in evidence.

The affidavit recites that intoxicating liquors are being manufactured, stored and kept by Case Cox, on the following described premises; that the said premises above described is the private residence of said Case Cox, with barn and other outbuildings on the premises, and occupied as such, and that it is a place of public resort.

After hearing the evidence offered in support of the motion, the motion to suppress was overruled.

The immunity from prejudicial consequences of an illegal search and seizure is a personal one, and does not extend to an unauthorized search of the premises of another. If such search and seizure was illegal, the right to object could be claimed only by the one whose premises had been invaded. Williams v. State, 35 Okla. Cr. 171, 249 P. 433.

It follows that the motion to suppress the evidence was properly overruled.

As to the sufficiency of the evidence to sustain the verdict, we think there can be but little doubt.

The testimony of officers Flynn, Jones and Montgomery was to the effect that in executing a search warrant they searched the premises of the defendant, Case Cox, four and one half miles south of Elk City, and found a still set up in the shed room of the house, and seven or eight barrels containing mash. They seized the still and arrested Case Cox.

Flynn testified: “When we drove up I saw a party run from the house, there was a big plum thicket 30 feet from the house.”

As a witness for the state, Case Cox testified that he was at home with his children,, two girls, one 14, one 11, and a boy 9. That the defendant, Clarence Fitzgerald was in' the bedroom when the officers arrived. That a still was in the shed house, that he did not know who brought it there on a truck one night in July; that the defendants, Bill and Clarence Fitzgerald, came out there about that time, and he let them have the shed room and half of the house; that Nate Isle was present when the deal was made; that the still was taken away the next night; that two or three weeks later the still was brought back and put in the shed house, but he did not know who brought it there. That the defendants paid him $28 and promised to pay him $100 more when he would give them possession of the place. That Bill and Clarence Fitzgerald ran a batch of whisky off while the still was there. That he had this day entered his plea of guilty.

Helen Cox testified that her age was 14 years; that she saw Bill and Clarence Fitzgerald at their place on the 28th day of July; that Nate Isle was there at the time; that the still was there at that time, and was later taken away, and was brought back about a week before the officers found it. Clarence Fitzgerald was there the day the officers raided the place. His brother, Hollis Fitzgerald, brought a skillet, some plates and a few other things there that day. That she had a key to a padlock on the door to the shed, but she did not have it that night, and the next morning her brother, Billy Joe, gave her the key.

Florence Cox testified that she was 12 years old; that Bill and Clarence Fitzgerald came out to the place several times while the still was there.

Nate Isle testified that he lived within a mile of the Cox place; that about the first of August he was at the home of Case Cox, and Bill and Clarence Fitzgerald were there; that he overheard their conversation, about renting the 40 from Case Cox, but did not hear the terms on which they were to rent it.

At the close of the testimony for the state, the defendants interposed a demurrer thereto, and moved the court for a directed verdict of acquittal, which was overruled.

The defendant Bill Fitzgerald testified that he lived with his wife and child in Elk City, that he was a common laborer, that with his brother Clarence, he went to the house of Case Cox to see about renting the place for a year, Mr. Isle was there at the time. About a week later they returned to the place, but could not make a deal with Cox; that he did not take a still to the Case Cox place, and did not have any one else take one there, and did not have anything to do with the possession of the still found there, and did not even know it was there until after it was found by the officers.

The defendant Clarence Fitzgerald testified that he lived with his wife and child in Elk City, and worked as a common laborer to support his family; went with his brother to Case Cox’s home to rent the place, and again went there with his brother Bill to rent the place, but they did not rent the place, that he never did operate a still, did not own or have possession of the still found on the Case Cox place; did not know anything about the still, or have anything to do with the still found there.

At the close of all the evidence the defendants renewed their demurrer thereto, and moved for a directed verdict of acquittal, which was overruled.

It appears from the foregoing statement that while the evidence corroborative of the accomplice, Case Cox, is not independently sufficient, to establish the guilt of the defendants beyond a reasonable doubt, it does in our opinion tend to connect the defendants with the commission of the crime charged.

The law in reference to the corroboration of an accomplice has been considered and stated by this court in many decisions. It is said that, where the corpus delicti is well proved and there is competent evidence independent of that of the accomplice showing the actual commission of the crime, which tends to connect the defendant with the commission thereof, the sufficiency of such corroboration is a question for the jury. McCurdy v. State, 39 Okla. Cr. 310, 264 P. 925; Wilson v. State, 24 Okla. Cr. 332, 217 P. 885; Davis v. State, 18 Okla. Cr. 453, 196 P. 146; Moody v. State, 13 Okla. Cr. 327, 164 P. 676, 679.

The credibility of witnesses and the weight and value to be given their testimony is for the jury, and where the evidence and the reasonable and logical deductions to be drawn from it are sufficient to convince the jury beyond a reasonable doubt of the guilt of the accused, this court will not disturb the verdict for insufficiency of the evidence.

Upon a consideration of the whole case we are impelled to the conclusion that substantial justice requires a modification of the sentences imposed.

The judgment of the trial court is modified and the sentences reduced as to each defendant to a fine of $50 and imprisonment in the county jail for 30 days. As thus modified the judgment is affirmed.

DAVENPORT, P. J., and BAREFOOT, J., concur.


text:
    CLIFFORD WILSON v. STATE.
    No. A-9391.
    Aug. 26, 1938.

      (82 P. 2d 308.)
    Ward, Justus & Ward, of Tulsa, for .plaintiff in error.

      Mac Q. Williamson, Atty. Gen., Jess L. Pullen, Asst. Atty. Gen., and Sim T. Carman, Co. Atty., of Pawhuska, for the State.
   BAREFOOT, J.

The defendant was charged by information in the district court of Osage county with the crime of murder, was convicted and sentenced to serve a life term in the penitentiary, and appeals.

The defendant was jointly charged with Cecil Harris and Marvin Hampton with the murder of Charles Miller in Osage county, on the 22d day of March, 1930. He was arrested on this charge on the 14th day of November, 1936, and the information was filed against him on the 1st day of February, 1937, nearly seven years after Charles Miller was found dead by the side of the road near Tulsa, in Osage county. His arrest was caused by reason of the fact that Marvin Hampton, who was indicted with him and who had served a term in the penitentiary, voluntarily appeared at the Tulsa police headquarters and informed them that he had participated in the murder of Charles Miller, and implicated his co-defendants, Clifford Wilson and Cecil Harris. Marvin Hampton was used by the state as a witness against the defendant, and it was principally upon his testimony that the defendant was convicted.

Defendant, in his petition in error, assigns 20 grounds for a reversal of this case, and files a brief containing 339 pages, and a reply brief of 34 pages in support thereof. The first assignment of error is that the district court of Osage county did not have jurisdiction to try the defendant upon this charge, for the reason, that no proceedings had been instituted in the juvenile court of Osage county to determine the criminal responsibility of the defendant at the time of the alleged offense. This fact was called to the attention of the trial court by defendant entering a special appearance, and filing a motion challenging the jurisdiction of the district court, as follows:

“Comes now Clifford Wilson, defendant, appearing specially and solely for the purpose of pleading to the jurisdiction of this court in the action brought by the plaintiff, state of Oklahoma, and denies that this court has any jurisdiction of the person of said Clifford Wilson for the reason that on the 22d day of March, 1930, at the time it is alleged in the information in this case that Charles Miller was killed, said defendant was a juvenile, a minor under the age of 16 years; that this defendant is charged with the commission of a felony, which is alleged to have been committed before the said defendant reached the age of 16 years.
“In support hereof, defendant states to the court that this court is attempting to exercise original jurisdiction of this defendant’s person before such time as the juvenile court of this county has inquired into and passed upon the mental capacity and criminal responsibility of said defendant at the time the alleged crime was committed, and before the juvenile court of said county has certified its findings regarding his criminal responsibility and mental capacity at the time alleged in said information to this court.”

When the case was called for trial and before the jury was impaneled, the trial court asked counsel for defendant if he had any evidence to submit in support of the motion filed challenging the jurisdiction of the court. To this counsel replied that he did, and the defendant was placed upon the stand in support of the motion, and testified that he was born on the 24th day of October, 1914 (this would have made him 15 years of age at the time it was alleged the offense was committed) ; that he received his information from his mother and father and had always been taught by them that this was his correct birthday. On cross-examination, he was questioned at length by the county attorney, and certain documents were offered in evidence by the state as a part of the cross-examination, by which it sought to show that defendant was 16 years of age at the time of the alleged offense and not 15 as he contended. All of this evidence was taken before the court on the motion, and prior to the time the jury was impaneled. At the time of this hearing, it evidently was the intention of the court to pass upon this motion before the jury was impaneled to try the case. After the evidence was submitted the record reveals the following proceedings:

“Mr. Justus: We have other witnesses that have been subpoenaed and are expected to come with some of those deputy sheriffs from Tulsa county, who are not here yet. Mr. Carman: We announce ready. We have enough witnesses and we have definite information that the other witnesses are on the way. The Court: Do you gentlemen for the defendant have any further proof now on this proposition of age. Mr. Justus: We will have the testimony of Mrs. Wilson with the records made in 1930. It is through no fault of ours that she is not here. We know that she has been served. The Court: We just cannot be waiting here. Mr. Justus: Unless the state has some objection it is satisfactory with us that the court take this matter under advisement, and if during the course of the trial there is further evidence submitted on the proposition to satisfy the mind of the court, Your Honor can then pass on it. The Court: That might be a very good solution of it. I think when there is any serious question with reference to the age of the defendant, while I have not looked up the authorities on it, I rather think that is a question that might be submitted to the jury. Mr. Ward: I think Your Honor is right about that. Mr. Carman: It has been my opinion that this matter should be taken care of on the introduction of evidence. The Court: Well, we will proceed to the trial of the case, if the defendant is ready, and if there is any further evidence to be offered with reference to age I will hear it later. Mr. Justus: Has the state announced ready? Mr. Carman: The state has announced ready. Mr. Justus: The defendant wishes to file an affidavit of continuance in this case. Your Honor may read it. The Court: Have you furnished a copy of it to counsel? Mr. Justus: I have. Exhibit A to the affidavit is not attached; the sheriff has not returned the original to Osage county. The Court: What do you say about this motion, gentlemen? Mr. Carman: We would like to use Mr. McKenzie as a witness in opposition to the motion. The Court: Let him be sworn.”

The motion for continuance was presented and evidence taken thereon by both the state and the defendant. The motion was overruled by the court, and defendant excepted. A severance was then asked by defendant, which was granted and defendant was placed on trial. At this stage of the proceedings a jury was impaneled to try the case and the introduction of evidence was commenced by the state. No announcement of any kind was made by the court as to the disposition of the motion challenging the jurisdiction of the court other than as heretofore stated in this opinion. At the conclusion of the trial the court submitted instructions to the jury, instruction No. 2 being as follows:

“You are instructed that before you commence the consideration of the question of the guilt or innocence of the defendant Clifford Wilson, it is your duty to consider first the question of the age of the defendant at the alleged date of the commission of the alleged crime, to wit, March 22, 1930.
“In this connection, you are advised that if you find from the evidence in this case that upon said date the defendant Clifford Wilson had not reached the age of 16 years, it will be your duty to so find in an appropriate verdict which will be submitted to you herewith for your finding upon that proposition.
“If you find from the evidence, facts and circumstances in proof that the defendant Clifford Wilson upon the date of the alleged commission of the crime herein charged was of the age of 16 years, you will then proceed to determine the question of his guilt or innocence, in accordance with the instructions which follow.”

In connection with this instruction a special verdict was submitted to the jury as follows:

“We, the jury, drawn, impaneled and sworn in the above-entitled cause, do upon our oaths find that on March 22, 1930, the defendant Clifford Wilson was under the age of 16 years.”

The jury, in response to the general charge given by the court, found the defendant guilty and assessed his punishment at confinement in the state penitentiary for the term of his natural life. The special verdict was returned unsigned.

It is the contention of defendant that where the issue was raised, as it was in this case, as to the age of defendant, the district court did not have jurisdiction to try him until a hearing had been had by the juvenile court of Osage county and a determination made by the juvenile court as to his probable guilt and capacity to commit such a crime, and that until the juvenile court has so acted, and certified to the district court its findings, directing that the district court proceed against the defendant in accordance with the law that was in force governing the commission of crimes in this state, the district court was without jurisdiction to so act. The law relied upon by the defendant to support this contention is the Act of the Legislature of 1909, the same being chapter 14, art. 8, p. 185, which defines who are “dependent” and “delinquent” children and creates the “juvenile court” which is the county court in this state. Section 1729, Okla. Stats. 1931, 10 Okla. St. Ann. § 101, being the above act, provides:

“This article shall apply to any child under the age of 16 years not an inmate of a state institution incorporated under the laws of this state. * * * The words ‘delinquent child’ shall include any child under the age of 16 years who violates any law of the United States, or of this state, or any city or town ordinance. * * Any child committing any of the acts herein mentioned shall be deemed a delinquent child and shall be proceeded against as such in the manner herein provided. A disposition of any child under this article or any evidence given in such cause, shall not in any civil, criminal or other cause or proceedings whatever in any court be lawful or proper evidence against such child for any purpose whatever, except in subsequent cases against the same child under this article.”

The complete act, 10 Okla. St. Ann. § 101 et seq., then gives the county court full and complete jurisdiction over male children under sixteen years of age and female children under eighteen years of age, with the power to place them in homes, suitable state institutions, or to the care of some reputable citizen of good moral character or other places as designated by the court, and to maintain jurisdiction until they reach the age of 21 years. The act also provides that the juvenile court may upon request give to the parents or guardian of such child, the opportunity of having any question of fact passed upon by a jury, and further provides for the keeping of a book by the county judge or his clerk to be known as “the juvenile docket.” A reading of the complete act reveals that it was the intention of the Legislature to give to the county judge, as a juvenile court, full and complete jurisdiction of children under the age prescribed by its terms. It is a complete statute, enacted in accordance with the best thought of this age, looking to the protection of the child, to the end that he may not be confined within prison walls of this state to there be associated with hardened criminals, until an opportunity be given for reformation or redemption, or until the court, after a careful consideration of the facts comes to the conclusion that the crime with which he might be charged was of such nature, or that his conduct and moral character was such that he should be tried in accordance with the laws of which it is charged he had violated. In accordance with this, it is provided in section 1740, Okla. Stats. 1931, 10 Okla. St. Ann. § 112, of the act as follows:

“The court may, however, in its discretion, cause such child to be proceeded against in accordance with the laws that may be in force governing the commission of crime.”

Thus giving the juvenile court the right and power, after an investigation, to certify to the court having jurisdiction, the authority to proceed against said defendant in accordance with the laws with which he is charged with having violated. The act above cited was the act creating the juvenile court, and since that time this court has had an opportunity to pass upon different phases of the act. In the many cases decided the exact question here presented has not been passed upon, but the opinions heretofore rendered have so construed the same, that there is little doubt as to the construction that has been placed thereon, and from that construction what the decision of this court ought to be in deciding the question now before it. Counsel for defendant, in their brief, have cited and quoted liberally from those opinions in support of their contention. The brief filed by the state in this case does not in any way refer to the question of jurisdiction raised by the defendant, and not one word is said therein, nor a single authority cited by way of reply to the strenuous contention of the defendant upon this jurisdictional question.

One of the first cases in which it was up for consideration was the case of In re Powell, 6 Okla. Cr. 495, 120 P. 1022. In this case the constitutionality of the act was challenged and Judge Armstrong upheld the constitutionality thereof (Commonwealth v. Fisher, 213 Pa. 48, 62 A. 198, 199, 5 Ann. Cas. 92; Ex parte Liddell, 93 Cal. 633, 29 P. 251; Montclair Township v. Ramsdell, 107 U. S. 147, 2 S. Ct. 391, 27 L. Ed. 431); and to the objection that the law was invalid, because it took away the exclusive jurisdiction of the district court to try felony cases, held that it did not do so, saying (page 505, page 1026 of 120 P.):

“The juvenile court, as such, cannot try felony cases; nor does the act in question confer, or intend to confer, any such powers upon the county courts sitting in their capacity as juvenile courts. The Legislature in its wisdom by this law says that a child under 16 years of age cannot be guilty of the commission of a crime, except in cases where it is shown that such child knew the wrongfulness of his acts at the time they were committed. The acts committed by such child, which in an adult would be a crime, under this statute, constitute juvenile delinquency only, except in cases of a serious character, when the juvenile court is authorized by the act, supra, in its discretion, to cause such child to be proceeded against in accordance with the law that may be in force governing the commission of crime.
“Prior to the enactment of the law in question, the statutes provided:
“ ‘All persons are capable of committing crimes, except those belonging to the following classes: 1. Children under the age of seven years. 2. Children of the age of seven years, but under the age of fourteen years, in the absence of proof that at the time of committing the act or neglect charged against them, they knew its wrongfulness.’ Section 2034, Snyder’s Sts. [21 Okla. St. Ann. § 152].
“The juvenile court law under consideration, in effect, provides that children under the age of 16 are incapable of committing crime. But, in order that no great wrong should be done to society, the Legislature took the precaution to provide that, a child being brought before the juvenile court on a charge of delinquency, such court might, in its discretion, cause such child to be proceeded against in accordance with the law governing the commission of crime. See section 3, par. 2, act, supra. This provision contemplates an investigation by the juvenile court of the acts complained of, with the view of determining whether or not the child committed them, and, if so, whether or not he knew the wrongfulness thereof in a criminal sense. And should the court find affirmatively, it is then within its discretion, under the law, to hold such child to be proceeded with in the manner provided by law in a court having competent jurisdiction of the offense committed, certifying to such court both its finding as to probable cause, and that the child knew the wrongfulness thereof. The finding of the juvenile court, or the county judge sitting as such, that the child knew the wrongfulness of his act, and was capable of committing the offense, and did commit it, does not relieve the state of the burden of proving that the child knew the wrongfulness of his act at the time of the commission thereof, upon the trial before a jury in a court of competent jurisdiction, as provided in subdivision 2, § 2034, Snyder’s Statutes.”

The court next had the question under consideration in the case of Ex parte Hightower, 13 Okla. Cr. 472, 165 P. 624. The opinion by Judge Doyle, after quoting with approval the opinion in the case of In re Powell, supra, said (page 482, page 627 of 165 P.) :

“Under the provisions of this act, a child under 16 years of age cannot be guilty of the commission of a crime, except in cases where it is shown and determined by the juvenile court of the county wherein the crime is alleged to have been committed that such child knew the wrongfulness of its acts at the time they were committed, and such a determination is a necessary prerequisite to the jurisdiction of a district court to try a child under the age of 16 years upon an information charging a felony, and in addition thereto the child so charged was by the judge of said court sitting as an examining and committing magistrate, held to answer before the district court. The return in this case shows that no such proceedings were had before the juvenile court of Grady county, and that no evidence was taken before said court or the judge thereof as to the petitioner’s capacity to commit the crime charged in the information which was filed in the district court of Grady county charging the petitioner with the crime of murder. It follows that the district court of Grady county was without jurisdiction of said information, and was without jurisdiction to render the judgment and sentence under which the petitioner is now held in custody.”

In the case of State v. Alexander, 18 Okla. Cr. 546, 196 P. 969, an attempt was made by the superior court of Creek county to assume jurisdiction where the defendant was charged with the crime of murder and the superior court of Creek county attempted to act in the capacity of a juvenile court and made a finding to the eflrect that the defendant was probably guilty of the crime charged and had capacity to commit the crime, the court says:

“The trial court held that the superior court of Creek county had no jurisdiction to inquire into the probable guilt of a juvenile offender, or into his capacity to commit a crime triable in that county, and for the reason that defendant had never been accorded a preliminary examination into those questions by a court of competent jurisdiction, quashed the information.
“We think the holding of the district court in this respect was correct. An examination of the act of March 24, 1909 (Laws 1909, c. 14, art. 8), creating the juvenile court and prescribing the jurisdiction thereof, clearly places the jurisdiction to inquire into the matter of .the probable guilt and capacity of a juvenile offender under the sole jurisdiction of the county court. It was never the legislative intent to have, in some counties where superior courts exist, two juvenile courts, and only one such court in counties where no superior courts were created. It is apparent from the act itself that there is provided one juvenile court in each county of the state, and that jurisdiction is in the county court. Ex parte Hightower, 13 Okla. Cr. 472, 165 P. 624; In re Powell, 6 Okla. Cr. 495, 120 P. 1022.”

In the case of Ex parte Parnell, 19 Okla. Cr. 273, 200 P. 456, Judge Bessey, in the opinion, says (page 458) :

“The question here before this court is whether the district court of Comanche county or the officers of the court issuing the process under which the defendant is detained had jurisdiction of the defendant and the subject-matter involved, and acted within that jurisdiction in issuing and serving the commitment, incarcerating the defendant in the state penitentiary at Granite, or, in other words, whether the district court had jurisdiction to try the defendant, an infant under the age of 16 years, without first according him a preliminary investigation of the question of probable guilt and capacity to commit crime, made by the juvenile court of Comanche county.”

The court, after an analysis of the entire act and a review of the cases heretofore cited, says:

“As to all juvenile offenses, the district court is a court of limited or special jurisdiction, and not a court of general jurisdiction. 23 Cyc. 108, and cases there cited; 15 R.C.L. 883; Furgeson v. Jones, 17 Ore. 204, 20 P. 842, 3 L.R.A. 620, 11 Am. St. Rep. 808.”

The court further says:

_ “As has been seen, under the provisions of our juvenile statutes, an infant under the age of 16 years is presumed to be incapable of committing crime, and that presumption remains until the juvenile court finds to the contrary. In all cases, where the county court, sitting as a juvenile court, finds that any child knew the wrong-, fulness of his acts and is probably guilty of crime, then and then only is the district court empowered to deal with such delinquent child. And where the record is silent upon the question of an inquiry into the age of the child and of the mode and manner of acquiring jurisdiction, applying the rule above stated, any presumption that the court had jurisdiction of such juvenile offender is at least a rebuttable one, and a proper subject of inquiry by this court in a habeas corpus proceeding, challenging the jurisdiction of the district court.
“This defendant was an infant, as we think under the age of 16 years, and a delinquent child, within the exclusive original jurisdiction of the juvenile court. At any rate, he was without the advantage of advice of counsel, guardian, or parent. He was charged with and arrested for larceny, along with other companions, on one day; on the day following he was given an opportunity to have a preliminary hearing, which he waived; and on the same day he was taken into district court, where he entered a plea of guilty and was sentenced to imprisonment for a term of two years in the state penitentiary at Granite, where he is now incarcerated with others, some of whom are hardened, habitual criminals. The possibilities are great that by the end of his term he will be like them, and will go out into society an undesirable citizen, possibly an habitual criminal. Why the defendant waived a preliminary hearing, and why he entered a plea of guilty does not appear. Not having the advantage of counsel, it may be presumed that he did so on the advice of the county attorney or his co-defendants. Under the circumstances, he was hardly capable of determining these matters without advice from some one.
“One of the purposes of the juvenile law was to prevent this very situation, and to construe the force and effect of the juvenile law in any other manner would make it ineffectual, and would not be in accord with the express purposes recited in the act. The juvenile act expressly provides that it shall be liberally construed, and in our opinion no other court has jurisdiction, by any fiction or presumption, to deal with juvenile offenders, in the face of the express and necessarily implied provisions of the juvenile law.”

This statute has been before this court in other cases and the decisions heretofore referred to have been followed. See Ex parte Alton, 38 Okla. Cr. 383, 262 P. 215; Ex parte Bonitz, 30 Okla. Cr. 45, 234 P. 780; Ex parte Humphries, 31 Okla. Cr. 172, 237 P. 624; Ex parte Pyzer, 29 Okla. Cr. 156, 232 P. 962. Other states having similar statutes have given the same construction as has this court in construing the statute of this state. State v. Dunn, 75 Kan. 799, 90 P. 231; State v. Coble, 181 N. C. 554, 107 S. E. 132; Harris v. State, 24 Ala. App. 59, 129 So. 795; McQueen v. Commonwealth, 196 Ky. 227, 244 S. W. 681.

If there is any difference in the facts in the cases heretofore cited and the case at bar, it is that in those cases it was an admitted fact that the defendant was under the age of 16 years at the time of the alleged offense, and in this case it was a disputed fact, and the question of defendant’s age in the case at bar was submitted to the jury. We think the rule announced in the cases cited, when properly read, hold that under the provisions of the act creating the juvenile courts that it is necessary for this court to pass upon the question of defendant’s probable guilt, the nature and disposition of the crime committed, the character of the defendant, and any other matter which he considers necessary, and to pass upon these questions at a preliminary investigation, and after this investigation is completed, to certify his findings to the district court, before the district court shall have jurisdiction to try defendant, where the issue has been raised as to his age, as was done in this case. We think this was clearly the intention of the Legislature at the time the juvenile courts were created. It is in keeping with the trend of modern times in the treatment of juvenile offenders and with the spirit and purpose of the act. How easy it would have been for the court to have complied with this provision of the law. If when the motion was filed, the court had submitted it to the juvenile court, it could have been heard immediately, and if the defendant was such a character as the state contends he is, and as the record tends to reveal, and taking into consideration the nature of the offense with which he is charged, the juvenile court could, and no doubt would have found, that it was a case where the defendant should be proceeded against in accordance with the law of the land as provided in the act and would have so certified to the district court. The proceedings in the case at bar were, to say the least, of such a nature that the rights of the defendant were not fully protected. A reading of the record reveals that when the motion was to be heard involving the jurisdiction, it was the intention of the court to hear and settle the same as a matter of law before the jury was impaneled to try the defendant. Evidence was taken upon this motion including the evidence of the defendant. The record does not reveal that the court at any time ever ruled or passed upon the motion, but only stated:

“While I have not looked up the authorities on it, I rather think that is a question that might be submitted to the jury.”

The case was then called for trial and the court announced :

“The Court: Well, we will proceed to the trial of the case, if the defendant is ready, and if there is any further evidence to be offered with reference to age, I will hear it later.”

From this remark of the court, there cannot be much doubt that at this time the court still had the intention of deciding the question of age as a matter of law. The record does not disclose that the question of age was at any other time questioned or presented, until the court gave his charge to the jury submitting the question to them, and giving them a special verdict as above indicated. Certain evidence was offered by the state, and the defendant, with reference to the age of defendant. The defendant did not testify in the case, and the jury was not given the benefit of his testimony on the question of age. The court not having ruled on the motion, and the jury not having been impaneled at the time this evidence was given before the court, did not have the benefit of the same in the consideration of their verdict as to the age of the defendant. The exhibits offered by the state on cross-examination were submitted to the jury. This by reason of the fact that defendant had testified as to his signature on certain instruments. If the court decided to submit this issue to the jury, he should have submitted all of the testimony on the question of age, including the testimony of the defendant; but, as before indicated, we do not think under the decisions of this court this was a matter for the consideration of the jury under the law of this state. This question should have been passed upon by the county judge of Osage county, sitting as a juvenile court, in the manner prescribed by law. The construction placed upon the language used in the prior decisions of this court is borne out by the writer of the text upon “Infants” in 31 C. J., p. 1104, sec. 229, where it is said:

“In most of the states the jurisdiction to determine this preliminary question exclusively resides on the juvenile court, in which case no other court has jurisdiction to initiate, try, or review on appeal a proceeding against a delinquent child unless proceedings have been first had in the court exercising juvenile jurisdiction.”

The writer, in citing cases to substantiate this statement, cites the following Oklahoma cases as upholding this doctrine: In re Powell; Ex parte Parnell; State v. Alexander; Ex parte Hightower, heretofore cited.

We think that this case presents an issue which clearly exemplifies the wisdom of the Legislature in passing this law. Here the trial court presented the question of the age of the defendant, which was a controversial point, to the jury. The jury had heard all of the evidence offered by the state against the defendant as to his participation in the crime for which he stood charged. After hearing these facts, it does not occur to us that the jury would be in a frame of mind to pass upon the question of the age of the defendant, as would a judge of the county court, sitting as an examining magistrate, elected by the people, and with a sworn duty to protect both the rights of the state and the defendant. We believe that the Legislature had this in mind when it provided that this question should be presented and determined by the county judge, before a defendant could be tried in the district court.

Many assignments of error are urged by defendant for a reversal of this case which it now becomes unnecessary to discuss, as they will not occur at a retrial thereof. The motion for continuance was based on the absence of the witness Ruth Weldon who was the only eyewitness to the killing. If she is ever to be located, it certainly should be done before this case is retried.

We have read the brief and the authorities cited by defendant which are based upon the proposition that certain evidence offered was hearsay, and that no proper predicate was laid therefor, and was therefore incompetent. An examination of the record reveals that this case would, in all probability, have to be reversed by reason of the introduction of hearsay evidence and for which no proper predicate was laid.

The record prepared by Police Officer Squires which showed a copy of the pawn shop record, and which the evidence showed had been changed from “Wilson” to “Cliff Wilson,” the name of the defendant, should not have been permitted to be introduced. Other instruments were offered in evidence for which no proper predicate was laid, and quite a bit of hearsay evidence was permitted to be offered. In a retrial of this case counsel for the state should give careful consideration to these questions, and we are sure the trial court will follow the law carefully in permitting the introduction of evidence.

For the reasons above stated, the judgment of the district court of Osage county is reversed, and it is further ordered if defendant is now confined in the penitentiary of this state, that he be returned to the custody of the sheriff of Osage county to abide the action of the juvenile court of said county, who shall promptly have a hearing upon the question of the age of defendant at the time of the commission of the alleged offense, and for such further order as to the court is deemed just and proper under the law.

DAVENPORT, P. J., and DOYLE, J., concur.