text:
      Ex parte E. R. HORINE.

      No. A-2433.
    Opinion Filed May 24, 1915.
    1. PARDONS — Parole — Conditions, Precedent and Subsequent- — ■ Power of Governor. The Governor of the state has the power to annex to a pardon or parole any condition precedent or subsequent, provided it be not illegal, immoral, or impossible to be performed.
    2. SAME — Revocation — Hearing. An executive order revoking a parole and directing the re-arrest and return to custody of the convict without giving him an opportunity to be heard, is not violative of the constitutional guaranties that no person shall be deprived of his liberty without due process of law, and “that no warrant shall issue but upon probable cause, supported by oath or affirmation,” since being a eonviet at large by executive clemency, which he has accepted on the conditions therein stated, the legal status of the convict upon the revocation of the parole becomes the same as it was before the parole was granted.
    3. SAME — Revocation Without Notice. A convict was granted and accepted a parole which expressly provided that the Governor might revoke the same and remand the party to prison for a violation of the conditions, or “for any other reason by him deemed sufficient.” Held, that the Governor may order the convict to be so remanded without notice to him, and without giving him an opportunity to be heard.
    (Syllabus by the Court.)
    Application of E. R. Horine for writ of habeas corpus.

    Writ denied.

      R. Y. Nance, for petitioner.
    5. P. Preeling, Atty. Gen., and R. McMillan, Asst. Atty. Gen., for respondent.
   DOYLE, P. J.

The petitioner, E. R. Horine, on March 30, 1915, filed in this court an application for a writ of habeas corpus, wherein he avers that he is unlawfully restrained of his liberty by Jake Alberty, sheriff of Adair county. It is further averred in said petition:

“(2) That the cause or pretense of the restraint, according to the best of the knowledge, information, and belief of your petitioner is that your petitioner was on the 6th day of January, 1915, duly and legally granted a parole by the Honorable Lee Cruce, the then duly elected, qualified, and acting Governor of the state of Oklahoma, paroling and releasing your petitioner, and restoring to him his rights of citizenship, from the state penitentiary at McAlester, state of Oklahoma, where he was then and there confined in obedience to a commitment issued out of the district court of the county of Adair, state of Oklahoma, upon a conviction had at the October, 1913, term of said district court, for the offense of embezzlement, and sentenced to serve a term of years in the state penitentiary at Mc-Alester, Oklahoma.
“That said parole, granted as aforesaid, contained certain stipulations and agreements as to the conduct of your petitioner; a copy of which is hereto attached and made a part of this petition and marked" 'Exhibit A.’
“(3) That the restraint of your petitioner, as your petitioner is informed and believes, is by virtue of the Governor of the state of Oklahoma having made and entered an order revoking the parole of your petitioner; said order, as your petitioner is informed and believes, was made and entered on the -- day of March, 1915, the exact date being unknown to your petitioner.
“(4) That the restraint of your 'petitioner, as herein alleged, is illegal, in that the Governor of the state of Oklahoma has no authority under the law to revoke the parole of your petitioner, without first a showing be made that your petitioner has violated some one or more of the conditions of said parole; and in this connection your petitioner alleges that he has in no way violated any of the conditions of said parole, either in letter or spirit, but upon the contrary he has honestly and faithfully observed and lived up to the conditions of said parole in every particular, and in support of this allegation your petitioner herewith offers and attaches to this petition the affidavits of reputable citizens of the town of Westville, Adair county, Oklahoma, in which community your petitioner has continuously resided since and prior to the granting of said parole.
“Wherefore, your petitioner prays the court to make, or cause to be made and entered of record, an order releasing and liberating your petitioner from the restraint herein complained of. And for such other and further relief to which he may show himself entitled.”

One of the conditions of said parole is as follows:

“Third. That the Governor shall have power at any time, either before or after the expiration of said sentence, to revoke this parole for a violation of any of the above conditions or for any other reason by him deemed sufficient and to cause the said E. R. Horine to be sent to the penitentiary to serve out the maximum of said sentence.”

The order of revocation by Hon. R. L. Williams, Governor of the state of Oklahoma, is as-follows:

“Executive Department.
“To all to whom these presents shall come, Greeting:
“Whereas, at the March, 1914, term of the district court of Adair county, state of Oklahoma, Earl R. Horine was convicted of the offense of embezzlement and sentenced to- serve a term of five years in the Oklahoma state penitentiary at Mc-Alester, Oklahoma; and
“Whereas, the said Earl R. Horine was paroled January 6, 1915, under certain terms and conditions; and
“Whereas, Hon. W. W. Hastings states:
“ ‘As national attorney for the Cherokee Nation, I assisted in the prosecution of E. R. Horine a year and a half or two years ago, and without the record before me, these are substantially the facts:
“ ‘Horine had no defense. He raised every technical defense that, could possibly be raised, but he did not deny that he had gotten the money. He did not claim that he paid anybody a cent for the child, and the jury after hearing the evidence gave him the maximum punishment, five years in the state penitentiary. The truth is, Governor, when you take into consideration on the one hand his superior intelligence, and on the other hand, the poor ignorant misguided fullblood child, whose father was dead, Horine ought to have had fifty instead of five years in the state penitentiary.
“ ‘He filed a motion for a new trial and it was overruled. He then prayed an appeal to the Criminal Court of Appeals. This appeal was not perfected in the proper way, because he never would pay his lawyers and nobody took any particular interest in it. His appeal was dismissed by the Criminal Court of Appeals, but pending the sending of the mandate back to Adair county, I understand a petition was circulated for his parole. Many people signed it. I do not know whether any notice was given of it or not. If a notice was printed, it was published in some out of the way place in Adair county and did not attract attention, or else I would have protested at the time and advised you of the true facts in this case.
“ ‘Other cases were pending against Horine in Adair county and one of them came up for trial on Tuesday, March 2, 1915. It was a case similar to the one pending in which he had been convicted and was an embezzlement case. He was again convicted by a jury and his punishment assessed at five years in the state penitentiary.
“ ‘There are still other cases, as I am informed, pending against him at other points in eastern Oklahoma. I feel like that in the interest of the best citizens here and having the good of your administration at heart, it is my duty to apprise you of the true facts with reference to this man Horine.
“ ‘Of course, if he prays an appeal from his second conviction and a bond is given and he remains out of the penitentiary upon that appeal, it sets a bad example and is not much encouragement to the officers of the court, and the juries of the count}'' to convict such unscrupulous violaters of the lawand
“Whereas, Hon. Joe M. Lynch, U. S. probate attorney, makes the following statement:
“ ‘Before he was taken into custody in accordance with the mandate of the Criminal Court of Appeals, and without serving a day of the sentence imposed in said case, by some means during the last days of Governor Cruce’s administration a parole was granted, and no part of the sentence has been served by this defendant.
“ ‘At the present March, 1915, term of the district court of Adair county said Earl R. Horine was tried on another charge of embezzlement, and was in this second case convicted by the jury and his punishment fixed at five years in the penitentiary, from which he has given notice of appeal and is now out on the appeal bond fixed by the court.
“ ‘In view of the fact of the second conviction, in a case where the facts are almost identical with the first case, and in view of the further fact that an appeal has been taken to the Criminal Court of Appeals where the case will necessarily be pending for some time, with the possibility and the hope on his part of a reversal on account of perhaps a technicality, and particularly in view of the further and unquestionable fact of his guilt in each case, it occurs to me that the ends of justice will be largely defeated if the parole in the case first referred to is permitted to remain in force.
“T desire to also call1 your attention to the significant fact that in neither of these cases did the defendant introduce any evidence; never denied his guilt further than the formal plea of not guilty, and apparently rested his hopes'of ultimate release from any atonement for his misdeeds on some error in the procedure or technicality in connection- therewith.’
“Now, therefore, I, R. L. Williams, Governor of the state of Oklahoma, by virtue of the authority vested in me by law> and in consideration of the aboye information, do hereby annul, cancel, and revoke his parole, and do hereby order and direct all sheriffs and other police officers of the state of Oklahoma, to apprehend the said Earl R. Horine wherever he may be found and to take him into safe custody and conduct him to the Oklahoma state penitentiary at McAlester, Oklahoma, where he will serve out that portion of his said sentence unfinished when he was paroled, in accordance with the original judgment and sentence of the court.
“In witness whereof, I have hereunto set my hand and caused to be affixed the great seal of the state of Oklahoma, at Oklahoma City, this the 22d day of March, 1915.
“R R. WlEEIAMS,
“Governor of the State of Oklahoma.
“Attest:
“J. L. Lyon, Secretary of State.
“(Seal).”

The power to pardon conferred by the Constitution on the Governor is practically unrestricted, and the exercise of executive clemency is a matter of discretion.

The Constitution, art. 6, sec. 10 (159 Williams’), provides:

“The Governor shall have power to grant, after conviction, reprieves, commutations, paroles, and pardons for all offenses, except cases of impeachment, upon such conditions and with such restrictions and limitations as he may deem proper, subject to such regulations as may be prescribed by law.”

This power is not derived from legislation, and it is quite clear that, under any pretense of regulating its exercise, the supreme executive power could not be deprived of its constitutional authority in relation thereto, but provision may be made by legislation, which shall render the exercise of such a power convenient and efficient.

In Ex parte Ridley, 3 Okla. Cr. 350, 106 Pac. 549, it is said:

“When a convict has been released upon a parole, his real rest and return to custody by an executive order revoking the parole is not in violation of the constitutional guaranty ‘that no person shall be deprived of his liberty without due process of law,’ or ‘that no warrant shall issue but upon probable cause supported by oath or affirmation,’ since being a convict at large by executive clemency, which he has accepted on conditions included therein, upon the violation of any of such conditions he is merely an escaped convict, and not entitled to invoke such constitutional guaranties.”

In Kennedy’s Case, 135 Mass. 48, it is said:

“While at common law, where proceedings are necessary for a recommitment of a convict who has broken the condition of a pardon, or where such a person has been, without warrant, seized and detained, and has sought to be released upon habeas corpus, the judicial tribunals have investigated and decided whether there was such breach, as preliminary to their action, we do not find that it has ever been held that re-commitment may not be made by executive order, or that the question whether the condition of a pardon has been broken is one solely judicial. Rex v. Miller, 1 Leach, 74. Rex v. Rogers, 3 Burr. 1809. Rex v. Maden, 1 Leach, 223. Because, in such cases, the courts are in the exercise of their appropriate judicial functions, it by no means follows that the executive authority may not be invested with the right to' remand the prisoner, and to withdraw the pardon on account of the breach of its condition.”

The parole granted the petitioner was an act of grace or favor upon the part of the state by its chief executive. Petitioner was free to accept the parole with its conditions, or to reject it, and serve his sentence. Pie chose the former, and stipulated that for a violation of the conditions, or for any other reason deemed sufficient, the parole might be summarily revoked by the Governor, and petitioner should be remanded to the penitentiary for the term of his sentence. The conditions imposed are not illegal, immoral, or impossible to be performed, and to enforce them deprives the petitioner of no legal right.

Upon its revocation the legal status of the petitioner must be regarded the same as it was before the parole was granted. It was not such a contract as entitled him to have a judicial determination of forfeiture, in the face of his stipulation that the Governor might revoke it, “for any other reason by him deemed sufficient.”

It appearing that the arrest and detention of petitioner is warranted under the conditions of the parole, by which he secured his release from imprisonment, the writ of habeas carpus is denied.

FURMAN and ARMSTRONG, JJ., concur.


source: Caselaw Access Project

author: DOYLE, P. J.

license: Public Domain

text:
    H. W. JACKSON v. STATE.
    No. A-2167.
    Opinion Filed May 22, 1915.
    1. FOEMEE JEOPAEDY — Necessity to Plead — -Cognizance of Eec-ord. Special pleas of former acquittal or conviction, as are provided for by statute, are allowable and in most 'instances required in subsequent prosecutions for an offense which has before been tried in some other tribunal, or in the same court under another and' distinct proceeding from the case in which the plea of jeopardy is interposed, and where such a plea is essential in order to present before the court matters dehors the record then before the court. However, such special plea is unnecessary and not required when the record then within the judicial knowledge of the court presents all the facts concerning’ the prior trial and its results. Upon the question being raised, the court will take cognizance of such facts from the record, and determine their proper legal effect as if upon a demurrer to a plea reciting them.
    2. SAME — Informations—Same Offense — Test. On a plea of former aequittal, in determining whether the two informations charge the same offense, the test is whether the evidence necessary to support the second information would have -been sufficient to procure a conviction upon the first information.

      3. INTOXICATING LIQUORS — Conveyance and. Possession — Former Jeopardy. Having been previously tried in the same court for unlawfully conveying certain intoxicating liquors and acquitted of that charge, the defendant was tried and convicted on the charge that he did unlawfully have in his possession the same intoxicating liquors with the intent to sell the same. An essential ingredient of both offenses charged is the unlawful possession of intoxicating liquors; the two informations alleged the same date and have reference to the same intoxicating liquors, and while the offenses charged are not necessarily the same, they are of the same nature and kind. An acquittal under the first information was a finding that the defendant did not have possession of the liquors in question, and he should not be again put in jeopardy for that of which he has been acquitted.

      i. FORMER JEOPARDY — Waiver—Time to Plead. The constitutional privilege of immunity from a second prosecution is not waived if at any time before the jury has been empaneled to try the ease the defendant interposes a plea of former acquittal or conviction; and where, as in the instant case, the facts are all before the court as a part of its own record of the case, and the objection of former jeopardy raises only a question of law, the constitutional right will not be considered as waived where the defendant, upon the reading of the information to the jury and before the taking of any testimony, interposes a plea of former acquittal.
    (Syllabus by the Court.)

      Appeal from County Court, Lincoln County; H. M. Jarrett, Judge.

    H. W. Jackson was convicted of a violation of the prohibitory law, and appeals.
    Reversed.

      P. A. Rittenhouse, for plaintiff in error.

      Chas. West, Atty. Gen., C. J. Davenport, Asst, Atty. Gen., and Streeter Speakman, Co. Atty., for the State.
   DOYLE, P. J.

On information filed in the county court of Lincoln county, charging that on the 7th day of August, 1913, he did unlawfully have in his possession certain intoxicating liquors, to wit, four barrels of whisky and one barrel of beer, with the intention then and there of him, the said PI. W. Jackson, of bartering, selling, and giving away the same, the plaintiff in error was convicted, and on the 18th day of November, 1913, was sentenced to be confined in the county jail for 60 days, and that he pay a fine of $150. From this judgment he appeals.

Upon arraignment the defendant entered a plea of not guilty. After the jury had been empaneled he interposed a special plea that he had been tried and acquitted of the same charge in that court, in case No. 1137, and in support of the plea of former acquittal introduced the record and judgment of acquittal in said cause. The information in cause No. 1137 charged that on the 7th day of August, 1913, H. W. Jackson did then and there unlawfully carry and conve}^ four barrels of .whisky and one barrel of beer from the city jail in the town of Prague to another place unknown, and the record of the judgment rendered on the 18th day of October, 1913, is in part as follows;

“And thereupon the state introduces its evidence and rests, and thereupon the defendant demurs to the evidence introduced by the state and on consideration thereof the court finds that said demurrer should be and the same is hereby sustained, and thereupon upon motion of the defendant, the defendant is discharged and the jury discharged from a further consideration of said cause, and thereupon the county attorney asks the court to hold the defendant until he can prepare an information charging the defendant with having possession of liquor with intent to sell the same.”

The court of its own motion overruled this plea. Counsel for the defendant contends;

“That the information in the case at bar charges the same offense as the information in cause No. 1137 and has reference to the same four barrels of whisky and one barrel of beer, and both informations charge the same day and the same year, and that the defendant’s acquittal in the former cause was a bar to the prosecution in this case.”

Section 21, Const., Bill of Rights, declares:

“Nor shall any person, after having been once acquitted by a jury, be again put in jeopardy of life or liberty for that of which he has been acquitted. Nor shall any person be twice put in jeopardy of life and liberty for the same offense.”

Our Procedure Criminal provides:

“No person can be subjected to a second prosecution for a public offense for which he has once been prosecuted and duly convicted or acquitted, except as hereinafter provided for new trials.” (Section 5547, Rev. Laws 1910.)
“When the defendant shall have been convicted or acquitted upon an indictment or information, the conviction or acquittal is a bar to another indictment or information for the offense charged in the former or for an attempt to commit the same, or for an offense necessarily included therein, of which he might have been convicted under that indictment or information.” (Section 5809, Rev. Laws 1910.)

An essential ingredient of both offenses charged is the unlawful possession of intoxicating liquors. Unlawful possession with intent to convey, sell, or otherwise dispose of such liquors being the material facts in issue on the first trial, and determined in the defendant’s favor by his acquittal, he should not be again put in jeopardy for that of which he has been acquitted. A series of criminal charges cannot, under our system of jurisprudence, be based upon the same criminal act or transaction. If the state elécts through its authorized officers to prosecute an offense in one of its phases or aspects and upon his trial the defendant is acquitted, it cannot afterwards prosecute the same criminal act under color of another name.

In the case of Estep v. State, ante, 143 Pac. 64, it is said:

“Jeopardy on one information will bar a second whenever the proof shows the second case to be the same criminal act or transaction. To give our constitutional provision the force evidently intended by the language used, and to render it effectual, the decisive test is whether the same testimony will support both charges. Otherwise stated, the offenses are the same whenever evidence adequate to the one information will equally sustain the other. The constitutional guaranty of immunity from a second prosecution is, in its nature, a restriction on the courts, and constitutional provisions for the security of the personal rights of the citizen should be liberally construed.”

A plea of former acquittal is sufficient whenever it shows on its face that the second information is based upon the same criminal act or transaction. In determining whether there has been former jeopardy, the court is to look at the language of the first information, and if, under that information, the offense for which conviction is sought-in the second prosecution might have been punished, then the defendant has been in jeopardy. The true test to make the plea a bar - is whether the evidence necessary to support the second information would have been sufficient to procure a legal conviction on the first. The two informations allege the same date and have reference to the same intoxicating liquors, and while the offenses charged are not necessarily the same, they are of the same nature and kind. The acquittal under the first information was a finding that the defendant did not have possession of the liquors in question, and this finding was conclusive. Applying the test stated, would proof of the facts alleged in the second information have warranted a legal conviction on the first information? It is obvious that the question admits of only an affirmative answer.

It is contended by the state that the plea of former acquittal was not filed at the proper time and in' due order of pleading, and for this reason it was properly overruled. Citing Sims v, State, 9 Okla. Cr. 561; Petiti v. State, 3 Okla. Cr. 587.

We think that the rule announced in the cases cited has no application to the question here presented. In one of these cases the question was raised for the first time after conviction, and in the other the question was raised for the first time in this court.

Ordinarily former jeopardy must be pleaded in bar of a further prosecution, and such plea should be interposed upon arraignment by specially pleading a former judgment of conviction or acquittal of the offense charged, either with or without the plea of not guilty. Section 5800, Rev. Laws 1910.

In the instant case it appears that when the judgment of acquittal was entered on the first trial, the court ordered the defendant to be held for one day to enable the county attorney to file the second information, and the record itself discloses the facts raised by the objection of former jeopardy and plea of former acquittal. For this reason the court was bound to take cognizance of all its proceedings in the premises.

In Robinson v. State, 21 Tex. Cr. R. 160, it is said:

“Special pleas of former acquittal or conviction, as are provided for by statute, are pleas allowable, and in most instances required, in subsequent prosecutions separately instituted for an offense which has before been tried in some other tribunal, or in the same court under another and distinct proceeding from the case in which the pleas are interposed, and where they are essential in order to present before the court matters dehors the record before the court. Such pleas are unnecessary, and are not required in the same tribunal where the record then before, or within the judicial knowledge of the court, presents al the facts concerning the former trial and its result. In such case the court is bound to take cognizance of the facts; they are a part and parcel of the case before the court, and the defendant is not required to plead them.”

In State v. White, 71 Kan. 356, 6 Ann. Cas. 132, it is said:

“Ordinarily former jeopardy must be pleaded in bar of further prosecution, and such plea must be interposed upon arraignment before pleading to the merits. If, however, upon a second trial of the same action, it be claimed the accused was put in jeopardy by the first proceeding, and the record itself discloses all the facts, they need not be pleaded anew, nor proved aliunde. Upon the question of former jeopardy being raised, the court will take cognizance of such facts from the record, and determine their proper legal effect as if upon demurrer to a plea reciting them. In some states a plea must always be filed. This rule, however, involves the criminal procedure in numerous technicalities which seem to place more stress upon form than upon substance. In other states special statutory regulations are controlling. The right to be protected is created by the Constitution, and should not be hedged about b)' artificial restrictions. 'The rule announced above is consonant with the general provisions of the Code of Criminal Procedure of this state, and meets all the requirements of substantial justice as between the. state and the accused. It is likewise supported by authority.
“ 'The purpose oí a plea is to tender an issue upon some fact not already in the case, that proof may be taken in respect to it if the issue is accepted. If the fact is already in the case, the plea is idle; and it becomes an absurdity when the fact is not only established by the record of the court in the very case in which the plea is tendered, but so conclusively established that no averment to the contrary could be listened to or received. And such was the case here. The proceedings on the former trials were recited in the record, as much at large as they were or could be in the pleas, and the respondent was entitled to all the benefits which the law could give him, the facts so appearing.’ (People v. Harding, 53 Mich. 481, 484, 19 N. W. Rep. 155, 156, 53 Mich. 48, 18 N. W. Rep. 555.)
“See, also, Woodward v. State, 42 Tex. Crim. 188, 58 S. W. Rep. 135; Peters v. U. S., 94 Fed. Rep. 127, 36 C. C. A. 105; People v. Taylor, 117 Mich. 583, 76 N. W. Rep. 158; George v State, 59 Neb. 163, 80 N. W. Rep. 486.”

In our opinion the constitutional privilege of immunity from a second prosecution is not waived if at any time before the jury has been empaneled to try the case the defendant interposes a plea of former conviction or acquittal, and where, as in the case at bar, the facts are all before the court as a part of its own record of the case and the objection of former jeopardy raises only a question of law, the constitutional right will not be considered as waived where the defendant, upon the reading of the information to the jury and before the taking of any testimony, interposes a plea of former acquittal. It follows that, the court erred in overruling the plea of former acquittal. The judgment is therefore reversed and the cause remanded with direction to dismiss.

FURMAN and ARMSTRONG, JJ., concur.


text:
    BOB TERRELL v. STATE.
    No. A-2244.
    Opinion Filed May 25, 1915.
    1. APPEAL — Pardon—Dismissal. When an appeal from a judgment of conviction is pending in this court, and the plaintiff in error applies for a pardon, and the same is granted, and the fact that a pardon has been granted is brought to the attention of this court, the appeal will be dismissed as having been abandoned.
    2. PAEDQN — Executive Power — Costs—Liability After Pardon. Under our Constitution, art. 6, sec. 10 (359 Williams’), the Governor is empowered to grant, "after conviction, reprieves, commutations, paroles, and pardons for all offenses, except cases of impeachment,” but his pardoning power can go no further than the public may be interested, and a pardon granted by the Governor will not release the convict from the liability to pay the costs, because the right to such costs are vested rights which can not be disturbed or abridged or lessened by any pardon which the Governor may grant.
    (Syllabus by the Court.)

      Appeal from District Court, Carter County; S. H. - Russell, Judge.

    Bob Terrell, convicted of a violation of the prohibitory law, appeals.
    Appeal dismissed.

      Mornan Pruiett and William Pfeiffer, for plaintiff in error.
    S'. P. Preeling, Atty. Gen., and R. McMillan, Asst. Atty. Gen., for the State.
   DOYLE, P. J.

On information filed in the district court of Carter county charging that Bob Terrell did unlawfully and feloniously keep and maintain a place at and in which intoxicating liquors were received and kept for the purpose of sale, ■the plaintiff in error was convicted and his punishment fixed at imprisonment in the penitentiary for the term of one year and one day, and that he pay a fine of three hundred dollars. From the judgment rendered on the verdict, he appealed by filing in this court on April 21, 1914, a petition in error with case-made. Pending the determination of said appeal a pardon was granted, which was in the following words:

“Office of the Governor.
“Whereas, on the 31st day of October, 1913, Bob Terrell was sentenced in the district court at Ardmore, Oklahoma, for the crime of keeping a place for the sale of liquor.
“And whereas, the said Bob Terrell has made application for a pardon from said judgment and sentence to me, J. J. Mc-Alester, as Governor of the state of Oklahoma.
“And it appearing from said petition and application that it is supported by numerous recommendations from the good citizens of Ardmore, Oklahoma, and that the Board of Prison Control has recommended said pardon.
“Now, I, J. J. McAlester, as Governor of the state of Oklahoma, do hereby grant unto the said Bob Terrell, a full pardon from said judgment and offense wherein he was sentenced to serve a term of one year and one day, and a fine of $300 for keeping a place for the sale of liquor, on the 31st day of October, 1913, and extend to him full citizenship and right of suffrage. I further direct and order the Secretary of State of Oklahoma to affix the seal of the state of Oklahoma and attest the same.
“Given under my hand and seal of the state of Oklahoma,this the 3d day of September, 1914.
“(Signed) J. J. McAeesteR,
“Acting Governor of the State of Oklahoma.
“Signed 10 a. m., September 30, 1914.

Attest:

“J. L. UyoN, Secretary of State.
“(Seal.)"

We are of the opinion that the pardon in the present case is a valid, complete, and unconditional pardon. When an appeal from a judgment of conviction is pending in this court, and the plaintiff in error applies for a pardon, and the same is granted, and the fact that a pardon has been granted is brought to the attention of this court the appeal will be dismissed as having been abandoned- Stewart v. State, ante, 146 Pac. 921.

Another question presented is, Was the plaintiff in error, by virtue of the pardon, released from his liability to pay the costs of the prosecution adjudged against him? W'e think not.

Under our Constitution, art. 6, sec. 10 (159 Williams’), the Governor is empowered to grant, “after conviction, reprieves, commutations, paroles, and pardons for all offenses, except cases of impeachment”; however, a pardon granted by the Governor will not release the convict from his liability to pay the costs, because the right to such costs are vested rights which cannot be disturbed or abridged or lessened by any pardon which the Governor may grant.

“A pardon affects only the public interest in the conviction. Private obligations cannot be discharged by it.” (Ex parte Mann, 39 Tex. Cr. R. 491, 46 S. W. 828, 73 Am. St. Rep. 961, and cases cited: In re Nevitt, 117 Fed. 448; Estep v. Lacy, 35 Iowa, 419, 14 Am. Rep, 498; In re Boyd, 34 Kan. 573, 9 Pac. 240.)

For the reasons stated the appeal herein is dismissed.

FURMAN and ARMSTRONG, JJ., concur. .


text:
    JACK GHORMLEY v. STATE.
    No. A-2205.
    Opinion Filed June 5, 1915.
    TRIAL — Witnesses — Indorsement During Trial — Discretion. Under Proe. Crim. (see. 5694 Rev. Laws 1910), requiring the county attorney to indorse on the information, at the time of its filing, the names of witnesses then known to him and permitting the names of such other witnesses as may afterwards become known to him to be indorsed thereon as-the court may by rule prescribe, it is within the discretion of the trial court to permit names to be indorsed on an information after the trial has commenced, and where the name of a witness known to the county attorney at the filing' of the information was inadvertently omitted, and there was no evidence of bad faith, the court properly permitted it to be indorsed during the trial.
    (Syllabus by the Court.)

      Appeal from District Court, Cherokee County; John H. Pitchford, Judge.

    Jack Ghormley, convicted of assault with intent to kill, appeals.
    Affirmed.
    /. I. Coursey and Burkhead & Foreman, for plaintiff in error.

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

The plaintiff in error was convicted and his punishment fixed at two years in the penitentiary, upon an information charging him with assault with intent to kill one Jim Carter, by shooting at him with a pistol. From the judgment entered in pursuance of the verdict, he appealed by filing in this court on March 6, 1914, a petition in error with case-made.

The evidence shows that in the afternoon of the day alleged, Jim Carter and his father, Duval Carter, rode down the main street of Tahlequah, and when about opposite the Red-burn Hotel they stopped to talk with some person, and the defendant, standing behind a brick pillar in front of the hotel, shot at them with a pistol, the- first shot striking the horse Duval Carter was riding. Then Jim Carter whirled his horse and started down the street, and the defendant fired two more shots at him. That the Carters were unarmed. These facts were testified to by Duval Carter, L. G. Faulkner, George Coke, and John Boyd.

Jim Carter was then called as a witness and the following proceedings were had:

“A. What is your name ? A. Jim Carter. Mr. Coursey: At this time we object to this witness testifying because his name has never been endorsed on the information. Mr. Hughes: There are two complaints filed in this case and the facts are identical, and the court remembers that the other case went out this morning on a motion. The Court: Is the name of this witness endorsed on the information in the other case? Mr. Hughes: Yes, sir. Mr. Coursey: But this is a separate case and his name is not endorsed on the information in this case. Mr. Hughes: I desired to ask permission at this time to endorse the name of this witness on the information. The Court: The objection of the defendant is overruled, and the motion of the county attorney is granted. The defendant excepts.”

The defendant, Jack Ghormley, as a witness in his own behalf, testified that he saw Jim Carter that day at the postoffice, and he saw a gun in his overcoat pocket; that Carter’s father was with him; that he heard one of them say, “I will get him before night.” That Burney Gritts was with him at the time and he asked Burney if he heard what those fellows said, and Burney said that he did; that Dick Boyer told him a few weeks before that Jim Carter had said if witness fooled with him he would put witness where he had his brother Blue; that he was standing under the porch of the hotel talking with Burney Pugh, and Pugh said, “I have got to go right quick,” and went off, and witness looked around the post and saw Jim Carter put the bridle reins in his right hand and put his left hand down in his pocket and witness began to shoot and shot three times; that he shot at Jim Carter, because Carter had slipped up on witness’ brother and shot and killed him and he thought Carter was going to shoot him.

Plaintiff in error complains that the trial court committed error during the trial of said cause in permitting the prosecuting attorney to indorse the name of Jim Carter on the information. This is the only error assigned.

The statute provides that the county attorney shall indorse on the information names of the witnesses known to him at the time of filing the same. He shall also indorse thereon the names of such other witnesses as may afterwards become known to him at such time as the court may by rule prescribe. Procedure Crim. (sec. 5694, Rev. Laws 1910.)

It further provides:

“The court or judge may, at any time, direct the names of additional witnesses for the prosecution to be indorsed on the indictment, and shall order that such names be furnished to the defendant or his counsel.” (Procedure Crim. [sec. 5733, Rev. Laws].)

In Ford v. State, 5 Okla. Cr. 240, 114 Pac. 273, it is said:

“The question of indorsing the names of witnesses is addressed to the sound discretion of the trial court, and, unless it clearly appears that the discretion was abused in permitting such indorsement, the action of the court has been uniformly sustained by this court.”

See, also, Bigfeather v. State, 7 Okla. Cr. 364, 123 Pac. 1026; Hughes v. State, 7 Okla. Cr. 117, 122 Pac. 554.

It appears from the record that the witness Jim Carter testified on the preliminary examination and the record shows that there were two informations filed against the defendant wherein the facts were identical; that Carter’s name was indorsed on one information, but apparently inadvertently omitted from the information when the same was filed in this case. Jim Carter was the man that the defendant admits that he fired the shots at, and his testimony was merely corroborative of that of the four witnesses who preceded him.

The object of the statute requiring the names of witnesses to be indorsed on the information at the time of filing the same is for the benefit of the defendant, who is entitled to know the names of the witnesses who may be called to testify on his trial on behalf of the state.

Here it appears that the defendant knew this witness would be called, and there was no evidence of bad faith on the part of the county attorney. We fail to see that the defendant suffered any prejudice as to any substantial right, or any right whatever, by reason of the ruling complained of. So far as appears by the record, the defendant has had a fair and impartial trial, and the evidence in the case clearly established the crime charged. The judgment herein will, therefore, be affirmed.

FURMAN and ARMSTRONG, JJ., concur.


text:
    SHELBY KILLEBREW v. STATE.
    No. A-2311.
    Opinion Filed June 5, 1915.
    APPEAL — Notice—Failure to Serve — Dismissal. Under Proc. Grim. (see. 5992, Rev. Laws 1910), notice of appeal and proof thereof given and made within the time prescribed for perfecting an appeal is jurisdictional, and where the record fails to show the service of such notice, the appeal will be dismissed.
    (Syllabus by the Court.)

      Appeal from County Court, Cherokee County; E. C. McMichael, Judge.

    Shelby Killebrew, convicted of a violation of the prohibitory law, appeals.
    Appeal dismissed.
    /. D. Cox, for plaintiff in error.

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

On information charging that he did unlawfully transport one pint of whisky, the plaintiff in error Shelby Killebrew was convicted and sentenced to be confined in the county jail for 30 days and to pay a fine of $50. An appeal from this judgment was attempted to be taken by filing in this court on June 22, 1914, a petition in error with case-made.

The state has filed a motion to dismiss the appeal herein on the ground that no notices of appeal were ever given or served upon the county attorney and the clerk of the court as required by Proc. Crim. (sec. 5992, Rev. Laws 1910.)

It appears that the service of a copy of this motion was accepted on the 6th day of May, 1915, and no response has been filed. The statute provides:

“An appeal is taken by the service of a notice upon the clerk of the court where the judgment is entered stating that the appellant appeals from the judgment. If taken by the defendant a similar notice must be served upon the prosecuting attorney.” (Section 5992, Rev. Laws 1910.)

Under this provision notice of appeal and proof thereof given and made within the time prescribed for perfecting an appeal is jurisdictional, and where the record fails to show the service of such notice the appeal will be dismissed.

It follows that the motion to dismiss must be sustained. It is therefore ordered that the attempted appeal herein be the same is hereby, dismissed.

FURMAN and ARMSTRONG, JJ, concur.


text:
      Ex parte BOB OLIVER.
    No. A-2432.
    Opinion Filed June 8, 1915.
    PABDON — Power to Pardon — Where Vested. County judges, county attorneys, and sheriffs have no power or authority to pardon persons convicted in the courts of this state. The power to pardon after conviction, is under the constitution, vested exclusively in the Governor.
    SENTENCE AND COMMITMENT — Execution—When Satisfied. The time fixed for execution of a sentence, or for the commencement of its execution, is not one of its essential elements, and, strictly speaking, forms no part of the judgment and sentence, which is the penalty of the law as declared by the court; while the direction with respect to the time of carrying it into effect is in the nature of an award of execution, so that, where the penalty is imprisonment, the sentence may be satisfied only by the actual suffering of the imprisonment imposed, unless remitted by death or some legal authority.

      3. SAME — Lapse of Time. Where a convicted defendant is at liberty and has not served his sentence, and the same is not stayed as provided by law, he may be arrested as on escape and ordered into custody on the unexecuted judgment.
    4- SAME — Expiration of Time. Expiration of time without imprisonment is in no sense an execution of the sentence.
    Petition of Bob Oliver for writ of habeas corpus.

    Writ denied.
    The petition filed on behalf of said Bob Oliver alleges that he is unlawfully imprisoned in the county jail of Pottawatomie county by F. E. Romberg, sheriff of said county. It is further averred in said petition that:
    “The cause of said restraint, according to the best knowledge and belief of your petitioner, is that said sheriff of Pottawatomie county is so unlawfully restraining said petitioner under a pretended order of commitment issued in case No. 1909 out of the county court of Pottawatomie county, state of Oklahoma, said case being styled ‘State of Oklahoma v. Bob Oliver,’ charging this defendant with violating the prohibition law, by selling whisky. Said complaint was filed in said county court on the 7th day of February, 1912. That on the 5th day of March, 1912, said case came on for hearing in regular order, in open court before Ross F. Eockridge, county judge of said county, said state being represented by R. P. Wyatt, assistant county attorney, defendant entered a plea of guilty and the court rendered judgment and sentence thereon assessing his fine at five hundred ($500) dollars and imprisonment for 180 days. A true and correct certified copy of said judgment and sentence is hereto attached, marked ‘Exhibit A’ and made a part hereof. That a commitment was duly issued out of said court on said judgment and sentence aforesaid, committing this defendant to the custody of the sheriff of Pottawatomie county, in execution. of said judgment. A certificate of the clerk of the court is hereto attached which shows the issuance of commitment as aforesaid and further showing that no return of said order of commitment has ever been made. Said certificate is hereto attached marked ‘Exhibit B’ and made a part hereof. That at the time of said judgment and sentence it was the understanding and agreement between the defendant, the county attorney, sheriff, and county judge aforesaid, that no appeal would be taken by the defendant from said judgment. That in pursuance of said agreement, which was oral, defendant did not file a motion for new trial or stay of judgment, or give any notice of appeal or make an appeal or stay bond and he took no steps whatever to have said case reviewed or judgment stayed. That after the rendition of said judgment aforesaid, and by the joint consent of and in pursuance to an oral agreement of Ross F. Rockridge, the duly elected, qualified, and acting county judge of Pottawatomie county, state of Oklahoma, and R. P. Wyatt, the duly elected, qualified, and acting sheriff of Pottawatomie county, state of Oklahoma, said defendant was released from the custody of said sheriff aforesaid.
    “Petitioner further states that at no time since the 5th day of March, 1912, the date of the judgment and sentence aforesaid, down to the present time has he concealed himself from the officers of Pottawatomie county, Oklahoma, but that the portion of said time which he remained away from said county was with the consent of the officers of said county above named and at their solicitation. That at no time since the rendition of said judgment up to the present time has he concealed himself from the officers of said county or been a fugitive from justice.
    “Petitioner alleges that since ‘the 1st day of September, 1914, to the present time he has resided continuously in the city of Tecumseh, Pottawatomie county, state of Oklahoma.
    “Petitioner alleges that the said F. E. Romberg, sheriff of said county, is so unlawfully restraining him of his. liberty under the pretended order of commitment issued on the 24th day of March, 1915, in said case No. 1919 in the county court of Pottawatomie county, state of Oklahoma, being stjded ‘State of Oklahoma v. Bob Oliver,’ and that is the sole and only charge and reason for such unlawful restraint.
    “Your petitioner alleges that said restraint is illegal and unauthorized because said judgment and sentence was rendered on the 5th day of March, 1912; at the time of said judgment it was understood and orally agreed between the defendant, the county judge, county attorney, and sheriff aforesaid that no appeal would be taken, no appeal bond or notice of appeal given, no stay bond given. An order of commitment'was duly and regularly issued on said judgment and sentence, no return made thereon; and under said oral agreement defendant was released from custody of sheriff after judgment and sentence aforesaid, the time of sentence of imprisonment and for fine and costs has long since run from the date of judgment and sentence aforesaid, the 5th day of March, 1912.

      “Wherefore your petitioner prays your honorable court to grant a writ of habeas corpus; that he be discharged without delay from such unlawful imprisonment.”
    On behalf of respondent a demurrer to the petition was filed. The case was argued orally and ten days allowed to file briefs.

      Arrington & Arrington, for petitioner.

      Chas. W. Friend, Co. Atty., and Clarence Robison, Asst. Co. Atty., for the State.
   DOYLE, P. J.

The petitioner Bob Oliver, having been legally charged and being personally present in open court, on being arraigned entered a plea of guilty. On the 5th day of March, 1912, judgment was entered and he was sentenced to be confined in the county jail of Pottawatomie county for a period of six months and to pay a fine of five hundred dollars, and in default of the payment thereof to stand committed to the county jail for such additional period of time as would satisfy said fine. A commitment was issued, but the petitioner was not taken into custody by the sheriff and no return was ever made on said commitment. On the 24th day of March, 1915, another commitment was issued on the judgment, under which the petitioner was taken into custody by the sheriff.

The petitioner avers that at the time of entering judgment it was understood and orally agreed between the county judge, county attorney, and- sheriff that he should leave the county. That he did so leave, and did not return until the first day of September, 1914, and that he has since continuously resided in said county.

The contention on behalf of the petitioner is that the judgment and sentence has been fully satisfied by reason of said agreement; that he did not file a motion for a new trial or in arrest of judgment or give notice of appeal, and that no order was entered suspending the sentence; that therefore the sentence began to run and the period of imprisonment began in contemplation of law at the date the judgment was rendered and the first commitment issued, and for this reason the sentence can not now be enforced against him.

It has been held by numerous decisions in this court that the contention is not well founded. Ex parte Alexander, 5 Okla. Cr. 198; Ex parte McClure, 6 Okla. Cr. 241; Ex parte Eldridge, 3 Okla. Cr. 499, 106 Pac. 908, 27 L. R. A. (N. S.) 625, 139 Am. St. Rep. 967.

In the last case it was held that:

“The time fixed for execution of a sentence, or for the commencement of its execution is not one of, its essential elements, and, strictly speaking, forms no part of the judgment and sentence, which is- the penalty of the law as declared by the court; while the direction with respect to the time of carrying it into effect is in the nature of an award of execution, so that, where the penalty is imprisonment, the sentence may be satisfied only by the actual suffering of the imprisonment imposed, unless remitted by death or some legal authority.
“Where a convicted defendant is at liberty and has not served his sentence, and the same is not stayed as provided by law, he may be arrested as on escape and ordered into custody on the unexecuted judgment.
“Expiration of time without imprisonment is in no sense an execution of the sentence.”

In the instant case if the alleged agreement on the part of the court, county attorney, and sheriff with the petitioner could satisfy the judgment and sentence, it would in effect be an exercise of the power to pardon. The authority “to grant after conviction reprieves, commutations, paroles, and pardons for all offenses, except cases of impeachment, upon such conditions and with such restrictions and limitations as he may deem proper,” is by the Constitution (art. 6, sec. 10, 159 Williams’) vested exclusively in the Governor, and such action on the part of these officials was wholly unauthorized, and without authority of law.

We are unable to discover any reason for allowing the petitioner to profit by the unlawful agreement which he, as a party, assented to.

The petitioner has been at liberty all the time. The only way of satisfying a judgment judicially is by fulfilling its requirements. This cannot be waived, as here claimed, by the officers of the court, whose duties with respect to its judgments are purely ministerial. The time of its execution was not of the essence of the judgment, unless the petitioner, by demanding that it be immediately carried out, made it such. It was his duty to surrender himself and submit to the penalty of the law, as well as that of the sheriff to inflict it; and, by taking advantage of the neglect of the latter, he cannot avoid the punishment which his wrongdoing will be assumed to have justly required. See Miller v. Evans (Iowa) 56 L. R. A. 101.

Counsel for the petitioner in their brief say “that if it were not for one slight difference in facts, the case of Ex parte Eley, 9 Okla. Cr. 76, 130 Pac. 821, would be exactly in point.” The “slight difference in facts” alluded to appears, when examined, to be very material. In the Eley case there was conviction, commitment, and imprisonment. After the sentence was partly exe-> cuted, the prisoner was told to go home. Pie went and there stayed under the supervision of the sheriff. As stated in the opinion, “The petitioner in this case was in the custody of the sheriff and subject to his call at all times, until the expiration of the prison sentence, and was in legal effect a ‘trusty.’ ” In the case at bar the petitioner, with the connivance of the court and its officers, left the state and remained out of the jurisdiction of the court, and there can be no question that his status before his' arrest on the commitment in question was that of an escaped convict, and for this reason the trial court was authorized to enforce its judgment by issuing said commitment.

It follows from the foregoing that the petitioner was rightly remanded to the custody of the sheriff to be dealt with as commanded in the judgment of the court. The writ of habeas corpus will, therefore, be denied.

FURMAN and ARMSTRONG, JJ., concur.


author: ARMSTRONG, P. J.

text:
    MRS. A. D. WATSON v. STATE.
    No. A-1787.
    Opinion Filed October 20, 1913.
    1. CHATTEL MORTGAGES — Sale of Mortgaged Property — Legal Effect. Section 2755, Rev. Laws 1910 was enacted for the purpose of protecting mortgagees from fraud, annoyance and expense, and was intended only to give such mortgagees fair protection without imposing unnecessary, harmful and burdensome restrictions upon mortgagors.
    2. SAME — Construction of Statutes. In order for the foregoing section of the statute to bo upheld, it is necessary that a reasonable, fair and liberal construction be given the same. If a strict, literal construction of the act as written be followed, it would become of doubtful validity.
    3. SAME — Puni-hment. The foregoing act subjects each and every person who violates the provisions thereof with intent to defraud a mortgagee, or who violates the provisions thereof and by reason of his act a fraud results against the rights of the mortgagee, to the punishment therein provided.
    4. SAME — Mitigation—Payment—Consent. A mortgagor who is prosecuted under this provision is always entitled to prove in mitigation of punishment that the moi-tgage debt has been paid, or tlxat he had the verbal consent of the mortgagee to remove the property.
    5. INDICTMENT AND INFORMATION — Prima Facie Case — Proof Necessary- An information in the language of the statute, and proof tending reasonably to establish the allegations set forth in sxxch inforamtion, would make a prima facie ease on. behalf of the state.
    6. CHATTEL MORTGAGES — Fraud — Intent. The proposition of whether or not a fraud was intended, or whether or not a fraud resulted to the mortgagee, would be a matter of defense.
    (Syllabus by the Court.)

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

    Mrs. A. D. Watson was convicted of unlawfully removing mortgagee! property, and appeals.
    Reversed.

      Steel, Lake & Head and Carr & Field, for plaintiff in error.

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

The plaintiff in error, Mrs. A. D. Watson, was convicted at the January, 1912, term of the district court of Garvin county, on a charge of willfully and unlawfully removing certain mortgaged property from Garvin county, wherein the property was situated and held under an existing, valid mortgage, without the written consent of the mortgagee. The material facts in this case may be briefly stated as follows:

Mrs. A. D. Watson owed the Pauls Valley National Bank a sum of money, to secure which she had executed a mortgage on some fifteen head of livestock. In the latter part of the year 1911, she concluded to move to Idabel, in McCurtain county, Oklahoma. The written consent of the officers of the bank was not secured. She offered to prove that she had the verbal consent of the cashier of the bank, but the court declined to permit this testimony to be introduced. She also offered to prove that the debt, to secure which the mortgage was given, had been fully paid subsequent to the removal of the property. This privilege was denied by the court. It appears that the case was tried, upon the theory that the removal of property from the county in which the mortgage stands for record and is duly recorded, is a felony, and subjects the mortgagor to imprisonment in the state penitentiary, if same was so removed, unless the written consent of the mortgagee is had, and that no defense of any character was available, if this written consent was not first secured. Counsel offered to introduce proof of the foregoing facts as a defense to the charge in the indictment. On being denied this privilege by the court, they then offered the proof and asked that it be submitted in mitigation of punishment; this was also denied. In our judgment, the learned trial judge erred in both rulings. The statute upon which this prosecution is based is as follows:

“Any mortgagor of personal property, or his legal representative, who, while such mortgage remains in force and unsatisfied, conceals, sells, or in any manner disposes of such property, or any part thereof, or removes such property, or any part thereof, beyond the limits of the county, or materially injures or willfully destroys such property, or any part thereof, without the written consent of the holder of such mortgage, shall be deemed guilty of a felony, and shall, upon conviction, be punished by imprisonment in the penitentiary for a period not exceeding one year, or by a fine of not to exceed five hundred dollars; provided, that the writing containing the consent of the holder of the mortgage, as before specified, shall be the only competent evidence of such consent, unless it appear that such writing has been lost or destroyed.” (Rev. Laws 1910, sec. 2755.)

It is evident that the trial judge endeavored to follow the strict letter of the act. This provision has not been before this court for construction heretofore. It is to be remembered that under the law in this state, a mortgage lien does not become extinct because of the removal of the property under mortgage from the county wherein the same is located and the mortgage recorded/to any other county in the state. This provision of the law then must have had some purpose in view other than upholding the validity of the mortgagé. In our judgment, it was to protect a mortgagee from fraud, annoyance, and expense. It clearly could have been enacted for no other purpose.

The removal of mortgaged property from one county to another, as prohibited by this provision, is a felony. It would hardly be reasonable to conclude, having in view the policy of the law of this state, that the Legislature intended to give more than fair protection to the mortgagee, and that without unnecessary and harmful restrictions upon the mortgagor. It is a matter of common knowledge that in the agricultural sections of this state, a large per centage of the property of the population —and especially the rural population — is mortgaged between crop seasons for the purpose of securing money with which to erect improvements and produce crops, and with which to purchase supplies pending the harvest. It is also a matter of general information that in practically evei'y county of the state, large numbers of people living in the agricultural districts occupy farms along the boundary lines of one county, and transact their business, market their crops and purchase their supplies in an adjoining county. Many of our important trading points are near these boundary lines. This is a new country, wherein the demand for money with which to erect improvements of every kind is recognized as a burden upon the resources of many communities. It certainly was not the purpose of the Legislature to pass an act that would seriously and materially hamper the progress and development of great areas of the territory included in this state, 'nor was it their purpose to enact a statute that was’ intended to unreasonably and unnecessarily railroad the agricultural population of the state into the penitentiary. If this provision is to receive the construction placed on it by the trial court, then every farmer in the state who lived in one county and who, on account of convenience and proximity, found it necessary to market his crops and purchase his supplies in any near-by town in an adjoining county, if there happened to be a mortgage on any of his teams or vehicles used in the ordinary course of business in carrying his crops to market, or supplies from the market to his home, would be subject to prosecution and commitment to the penitentiary every time he crossed the boundary line on legitimate business.

We are not inclined to uphold this construction. The language used, however, strictly construed, would support this view. The construction of an identical statute by any other court, has not been called to our attention. We might observe, however, that this statute, strictly construed as written, is a most vicious measure and probably invalid. We are inclined to the view that it must have been the purpose of the Legislature to provide a statute which would give the mortgagee adequate and ample protection against fraud, annoyance, and unnecessary expense, and that therefore the intention of this act was to penal- ■ ize any mortgagor who removed his property from one county to another in this state, and who by such removal either defrauded the, mortgagee or intended to defraud him. In our judgment, the purpose of the law is accomplished when it is given this construction. Under this view, any mortgagor who removes mortgaged property, as prohibited, with the intent to defraud the mortgagee, would be guilty of a violation of the statute; or, if such mortgagor voluntarily removes such property and by reason of such removal, fraud is actually perpetrated on the mortgagee, whether such fraud was conceived before the removal occurred or afterward, or whether such fraud was intended or not, such an act would be punishable as provided. It can hardly be said that a person should be sent to the penitentiary, deprived of citizenship, and branded as a felon for the remainder of his life, who has done no act which injured anyone and has done no act which was intended to injure anyone.

With a view of maintaining and upholding the acts of the Legislature, we are constrained to hold that an information drawn under this statute, in .the language thereof, is probably sufficient, and that proof tending reasonably to establish the allegations set forth, would make a prima facie case for the state. The question of whether or not a fraud was intended, or whether or not a fraud resulted to the mortgagee would be a matter of defense. If a wrong or fraud was intended, or a wrong or fraud resulted, a conviction should follow; if not, an acquittal should follow. There is no doubt but that in any event the good faith of the mortgagor and his reasonable explanation of his acts would be entitled to go to the jury in mitigation of punishment, as likewise would be a showing that the mortgage debt had been paid.

For the errors indicated, the judgment is reversed and the cause remanded, with direction to grant a new trial.

DOYLE, J., concurs. FURMAN, J., absent.


author: DOYFE, P. J.

text:
    W. H. WAINWRIGHT v. STATE.
    No. A-2234.
    Opinion Filed June 12, 1915.
    1. APPEAL — Costs—Clerk’s Fees — Paupers. An appeal may be taken by the defendant, as a matter of right from any judgment in a criminal action against him, but the manner of taking and perfecting such appeal is a proper matter for legislative control, and under the statute requiring the plaintiff in error to pay to the clerk fifteen dollars advance fees, and when said sum shall have, been exhausted by proper charges, to make further deposit of a sufficient sum to cover all additional costs that may accrue, or in lieu of such payment an affidavit showing that the plaintiff in error is wholly without means and by reason of his poverty is unable to pay the costs of the appeal, such right of appeal does not contemplate an appeal at the expense of the county and state, except in the ease of a pauper.
    2. APPEAL — Embezzlement—Transfer of Property — Rights as Pauper. A defendant convicted of embezzlement of public funds, who subsequent to his conviction and after perfecting his appeal, voluntarily conveys 'certain real property to his intended bondsmen, is not entitled to a transcript of the testimony taken upon the trial at the expense of the county, and is not entitled to prosecute an appeal in forma pauperis, at the expense of the state-
    3. SAME — Transferee! Property — Pending Appeal. The plaintiff in error, on filing his appeal, paid to the clerk fifteen dollars advance fees. After perfecting his appeal he filed and tendered to this court for its approval a supersedeas bond. In the qualifications of two of the sureties they scheduled certain real property. The exceptions filed by the state to the sufficiency of said bond showed that said real property had been conveyed by the plaintiff in error and his wife subsequent to his conviction. One of said deeds recites a consideration of $4,400, and acknowledges the receipt thereof- This court refused to approve the bond. Thereupon the plaintiff in error filed Ms affidavit in forma pauperis, for the purpose of avoiding the further payment of costs. Held, that the plaintiff in error, even though he is wholly without means, will be estopped by the record from contending that the property conveyed by him to his bondsmen and scheduled by them as valuable, was, and is of no value, and having voluntarily placed himself in that situation he is estopped from claiming the benefit of the statute.
    4. SAME — Failure to Pay Costs — Dismissal. The plaintiff in error, having failed and refused to pay the costs that have accrued on his appeal, the appeal will be dismissed.
    Syllabus.

      Appeal from Superior Court, Muskogee County; Farrar L. McCain, Judge.

      W. H. Wainwright, convicted of the crime of embezzlement of public funds, appeals.
    Appeal dismissed.
    N M. Rutherford and Murphey, Noffsinger & Broome, for plaintiff in error.

      Chas. West, Atty. Gen., C. J. Davenport, Asst. Atty. Gen., W. B. Disney, Co. Atty., and B. B. Blakeney, of counsel, for the state.
   DOYFE, P. J.

The plaintiff in error, W. PI. Wainwright, and D. H. Middleton, were jointly indicted for the crime of embezzlement of public money. Tt is alleged in substance in said indictment that W. PI. Wainwright was the duly elected, qualified, and acting county treasurer of Muskogee county, and while then and there so acting in said office as such county treasurer, and so charged and entrusted with the control, disbursement, receipt, safe-keeping, and transfer of said public money, and being in possession of the same by virtue of his office, did embezzle the sum of seven thousand five hundred dollars of the public money, and that the said D. H. Middleton did procure, aid, abet, advise, assist, conceal, and command the said Wl PI. Wainwright to do and to commit the said embezzlement, and did otherwise feloniously participate with the said W. PI. Wainwright in said embezzlement.

A severance was demanded and granted, and the plaintiff in error, Wainwright, upon his separate trial was convicted and his punishment assessed at imprisonment in the penitentiary at hard labor for a term of fourteen years, and that he pay a fine of fifteen thousand dollars.

After unsuccessful motions for new trial and in arrest of judgment, judgment was rendered on the 14th day of March, 1914, ánd he was duly sentenced in accordance with the verdict. From this judgment and sentence he appealed by filing in this court on April 14, 1914, a petition in error with a transcript of the record. Also an application for bail, praying that this court permit the plaintiff in error to give bail, conditioned for his appearance only. Which application was denied.

See Wainwright v. State, ante, 141 Pac. 1120.

It was further ordered that plaintiff in error be given until September 21st to furnish good and sufficient bail bond in the sum of twenty thousand dollars, to be filed with the clerk of this court. Notice to be given the county attorney of Muskogee county and the Attorney General of the filing of the same. Said county attorney and the Attorney General to have five days from the filing of said bond to file and present exceptions to the sufficiency of the same, and that the plaintiff in error be held in the county jail of Muskogee county until the further order of this court. The defendant having filed his bond, exceptions to the sufficiency of the bond tendered for the approval of the court were filed, and the hearing was had on October 27th. After examining said bond and considering the exceptions thereto and hearing the arguments thereon, it was held that said bond tendered was insufficient and it was ordered by the court that the sheriff of Muskogee county forthwith transfer the plaintiff in error from the county jail of Muskogee county to the penitentiary at McAles-ter, there to remain until the determination of the appeal of the said W. IT. Wainwright, or until the further order of the court.

When the petition in error was filed in this court the plaintiff in error made a deposit of fifteen dollars to pay clerk’s costs. That amount having been exhausted by proper charges in said cause, on October 27, 1914, the plaintiff in error filed the following affidavit:

“Now comes W. IT. Wainwright, and upon his oath states that he is the defendant in the above entitled cause; that since the institution of this prosecution against him, he has expended and exhausted all his money, and has not any, or is not able to procure the sum to make deposit for costs in this cause; that he was unable to procure money to pay for the case-made in this case, and filed his affidavit as provided by statute, and had the same paid for by the state.
“Wherefore, he asks that the further court costs in this case may be taken care of as provided for by law.”

Thereafter, on November 4, 1914, the state filed a motion entitled “Motion for an order requiring plaintiff in error to pay costs of appeal, or failing therein that the appeal be dismissed.”

And it was therein alleged:

“That on the hearing in this court on October 27, 1914, upon an application for the approval of a supersedeas bond, tendered herein, it appeared-that plaintiff in error is not now, and never has been since these proceedings were commenced, a pauper or person entitled to appeal in said case at the expense of the state or of the county, and the state refers to the exhibits filed at the hearing of said matter to -support such facts."’

The appeal bond filed and tendered to this court for its approval was signed by W. H. Wainwright as principal, and by Lillian M. Holloway, W. F. Parks, J. S. 'Ruhl, and C. L. Plurd as 'sureties.

In the qualification of Lillian M. Holloway she schedules certain property and swears that she is worth over and above her liabilities and legal exemptions the sum of $10,000 made up of property situated in Muskogee county as follows:

“South one half (S. J4), N. E. x/4, Sec. Twenty Eight (28), Twp. thirteen 13, N., and Range Eighteen East, N. W. Va, N. E. s. E. % and N. E. y4, N. W. y, S. E. JÍ, Sec. 28, Twp. 13 N. and Range 18 E. Also lots one-two-three, four, five, six, seven and eight in block 41, and lots three, four, five and six in Blk. 38, Town of Wainwright.”

W. F. Parks swears he is worth the sum of $10,000 above exemptions, etc., as follows:

“Four (4) harness houses, worth $6,000.00 and notes and cash, $3,500.00; and the following lands: W. of S. E. and S. E. y4 of S. W. x/4 of Sec. 28, Twp. 12 N. and Range 15, east, and N. of S. of 26-12-15 containing 280 acres, more or less, and worth $7,000.00.”

An examination of the exhibits shows that on July 31, 1914, W. PI. Wainwright conveyed, for one dollar and other good and valuable considerations, to Lillian M. Holloway the twelve lots in the town of Wainwright scheduled in'the bond.

A further examination of the exhibits discloses that on, the 10th day of October, 1914, Nina Wainwright and W. Hi Wainwright conveyed, for the sum of $4,400.00, to W. F. Parks, the north half of the south half of section 26, township 12, north, range 15 east, containing 150 acres more or less, which said land is scheduled in the bond by W. F. Parks, and which, with another 120 acre tract, is worth $7,000 according to the schedule.

From this it appears that the plaintiff in error by tendering the bond with sureties who scheduled property recently conveyed to them by Nina Wainwright and W. H. Wainwright, took the position that the title of the said sureties to said property was of some value, at least so far as the land scheduled by W. F. Parks is concerned. The deed itself recites a consideration of $4,400 and acknowledges the receipt thereof. It will be noticed that these conveyances were made on July 31, 1914, and October 10, 1914, and that the judgment of conviction was rendered on March 14, 1914.

Counsel for plaintiff in error on December 1, 1914, filed a reply to said' motion, in part as follows:

“In regard to the deed shown by the exhibits, concerning the conveyance of Nina Wainwright and W. PI. Wainwright on the 31st day of July, 1914, and Lillian Holloway, our investigation shows that Nina Wainwright is the wife of W. IT. AVainwright, and the records show it to be the property of Nina Wainwright; that at the time of .that conveyance said property could not have been sold for enough to pay the taxes. They were lots in a small town and had practically no value. In regard to the deed of Nina Wainwright and W. IT. Wainwright to W. F. Parks, there was never any title to that tract of land in W. H. Wainwright, as is shown by the abstract, as is submitted here by the state.
“This statement concerning this tract is made for the purpose of showing the court that Wainwright had no real value in this property, and the state demonstrated that fact to the satisfaction of this court in their opposition to the bond.
“If any person had a contrary view in preparing bond and in the transfer of this property, the findings of this court upon the same that it was not good, would be nothing more than corroboration of Wainwright’s affidavit that he had no property.
“In regard to the legal proposition of estoppel, we do not believe cases relied upon by the state in this matter are applicable to this cause. If there is any power in this court to dismiss this cause at this time it would have to be based on the grounds of fraud practiced in procuring the appeal, in which power was lodged in the court as inherent power in protecting itself in the appeal.
“However, if there was any fraud practiced, it was not in the procuring of the appeal or representation for the purpose of getting a transcript to prosecute as a poor person, but was in the application for bond and in which the court was not imposed upon because the same was refused.”

Section 7, chapter 97, Session Haws 1913, provides:

“No cause shall be docketed nor process issued thereon (except where a proper affidavit as is now provided by law, or criminal causes in [which] the state of Oklahoma is appellant) until the plaintiff in error or appellant shall pay to the clerk fifteen dollars advance fees; and when said sum shall have been exhausted by proper charges in said cause, the clerk shall require the plaintiff in error or appellant to make further deposit of a sufficient sum to cover all additional costs that may accrue in said cause.”

In Claraday v. State, 9 Okla. Cr. 552, 132 Pac. 691, it was held that:

“A poor person, one who is without means with which to pay costs, and who is unable to procure the means from friends or relatives, by filing a proper affidavit and making a satisfactory showing, is permitted to appeal without the payment of costs. The right to appeal is subject to reasonable statutory regulations. Such right does not contemplate an appeal for delay or at the expense of the people, except in the case of paupers.”

In construing a similar statute, the Supreme Court of Iowa held in the case of State v. Shaffer, 137 Iowa, 93, that a defendant possessed of ample means, but who, just prior to the trial, voluntarily conveyed his property to his wife and children, is not entitled to a transcript at the expense of the county.

Ladd, C. J., delivering the opinion of the court, said:

“Such is the benevolence of the law that a pauper, even, cannot for want of funds be deprived of the same review of the proceedings against him in the court of last resort as is accorded his more fortunate neighbor; and this to the end that justice shall ever be administered ‘equally to the rich and the poor.’ But this does not mean that one who voluntarily makes of himself a pauper, and thereby purposely deprives himself of the means necessary to meet the expenses of his defense, can avail himself of this gratuity. Doing so subsequent to formal accusation is indicative of bad faith, and, when unexplained, is evidence of the fraudulent purpose of avoiding his own proper expenses by saddling them on the county. Ordinarily good faith on the part of such an appellant is to be presumed and the statute proceeds on this theory; but it does not follow that the beneficence provided for the protection of the indigent can be made to serve as a reward for trickery and fraud in becoming such. If possessed of means ample to meet the expense of conducting his defense subsequent to the formal accusation in court, this condition is presumed to continue until the contrary appears, and is not met by proof of a purely voluntary transfer thereof under circumstances indicating bad faith with the state. The law abhors fraud, and will not bestow its bounty even for the protection of one accused of crime, unless the applicant comes into court with clean hands. He may be without present means, but, if so, the record is such as to warrant the conclusion that he voluntarily put himself in that situation for the very purpose of casting the burden of his defense on the county, and, this being so, the court rightly adjudged that such conduct es-topped him from claiming the benefit of the statute, and that he ought not to be assisted at the expense of the public."’

The material question here presented is whether it is now permissible for the plaintiff in error to contend that the land conveyed by him to the sureties on his bond and scheduled by them of value, was and is of no value. Such contention is entirely inconsistent with the position assumed in the presentation of the bond to this court for its approval.

In Ex parte Hawkins, 10 Okla. Cr. 396, 135 Pac. 991, it is held that “counsel are not permitted to take inconsistent positions in this court.” The application of the rule was applied to the following facts: Hawkins had been paroled by the Lieutenant Governor as acting Governor. Attached to the order of petition for habeas corpus was the original parole and the revocation by the Governor. In the order of revocation there was a statement to the effect that the Governor was in the state at the very time the parole was granted by the Lieutenant Governor. It was sought by the petitioner to show that the Governor was not in the state at said time, but this court said: “As stated, these exhibits, the purported parole, and the revocation, were presented to the court by the petitioner himself. He was therefore in no position to say that the facts stated therein were not true.”

As applied to the facts -shown by the tender of the bond, and its exhibits, we think that the plaintiff in error, even though he has no funds_ now available, will be estopped by the record from contending that the real estate conveyed by him to his bondsmen was, and is, of no value; and having voluntarily placed himself in that situation he is estopped from claiming the benefit of the statute. The plaintiff in error having failed and refused to pay the costs that have accrued on his appeal, it follows that the motion to dismiss the appeal is well taken and should be sustained. The appeal herein is therefore dismissed.

FURMAN and ARMSTRONG, JJ., concur.


text:
    GUY McKENZIE et al. v. STATE.
    No. A-1995.
    Opinion Filed June 17, 1915.
    1. HOMICIDE — -Evidence—Verdict—Punishment. In a prosecution for murder, the evidence examined and held to sustain a joint verdict of guilty with imprisonment for life at hard labor as the punishment.
    2. TRIAL- — Instructions—Sufficiency. The instructions must be considered as a whole, and when so considered, if they fairly and correctly state the law applicable to the case, they will be sufficient.
    3. HOMICIDE — Verdict—Parties — Conviction and Acquittal. On a trial of two persons upon a charge of murder, the court properly instructed the jury that though one of the defendants should be found guilty, the other might be acquitted, and the forms of verdict in that respect were properly submitted.
    (Syllabus by the Court.)

      Appeal from Superior Court, Tulsa County; M. A. Breckenridge, Judge.

    Guy McKenzie and Joe Baker, convicted of murder, appeal.
    Affirmed.
    /. R. Charlton, for plaintiff in error.

      Pat Malloy, Co. Atty., for the State.
   DOYLE, P. J.

Charles T. Reuter, a prominent citizen and lawyer of Tulsa, was assassinated in his home in that city about one o’clock a. m. on the 5th day of May, 1912. The plaintiffs in error, Guy McKenzie and Joe Baker, together with Grover, alias “Bud” Belew, and Laura Reuter, his widow, were by information filed in the superior court of Tulsa county, jointly charged with his murder. The defendant, Laura Reuter, demanded and was granted a severance. The defendant, Grover, alias “Bud’" Belew, was granted immunity and testified for the state. The state elected to try McKenzie and Baker first. Their trial began on the 5th day of October, 1912. The case was submitted to the jury on November 1, 1912, and on that day they rendered their verdict, finding Guy McKenzie and Joe Baker guilty of murder as charged, and assessing their punishment at imprisonment in the penitentiary at hard labor for life.

A motion for new trial was duly filed, overruled, and judgment was rendered in pursuance of the verdict. From the judgment the plaintiffs in error appeal.

The testimony establishes, or tends to establish, the following facts: The plaintiffs in error, Guy McKenzie and Joe Baker, for several months prior to the homicide, had been upon very friendly terms. Bud Belew had been in the employ of Guy McKenzie during that time. McKenzie was the owner of an automobile and Belew drove this car. His services were rendered without any stipulated salary; he would go to McKenzie and get whatever money he needed. Guy McKenzie and Laura Reuter, wife of the deceased, were frequently in each other’s company. About a month before the homicide, Chas. T. Reuter went to the McKenzie home, called him out and among other things said to him: “Guy, I want you to keep away from my house; the people are talking about you, and if you don’t keep away from my house I will kill you with a bigger gun than that you stole from me.” That McKenzie continued to visit the Reuter home whenever Mr. Reuter was absent, and Mrs. Reuter would visit the McKenzie home; that the Reuters had serious family quarrels involving, among other things, the charge that Guy McKenzie was criminally intimate with Mrs. Reuter. Two or three witnesses testified that Guy McKenzie tried to employ them to get Mr. Reuter out of the way. Guy McKenzie and Laura Reuter conspired to murder her husband; and they hired Joe Baker to commit the murder. He was promised two hundred dollars, to be paid by Mrs. Reu-ter, and what money he would get from the person of the deceased, but was to return to her Mr. Reuter’s diamond ring and shirt stud, and in the event of his arrest she was to provide counsel for his defense. Shortly before the homicide, Joe Baker left the McKenzie home and went to the Reuter home; he was met at the basement door of the Reuter home by Mrs. Reuter, and was taken from the basement up to the living room and fi'om the living room up stairs to the bed rooms, and was shown by her Mr. Reuter’s bed room. Two paper hangers were working in the house that day. After Baker left Mrs. Reuter stated to the paper hangers that he was going to build a home and was looking over the plans of the house.

The day prior to the homicide, Guy McKenzie and Mrs. Reuter were seen standing near the garage at McKenzie’s home. Joe Baker and Bud Belew were seen in the McKenzie car on the streets of Tulsa before midnight on the night of the homicide. That night Joe Baker left the McKenzie home in McKenzie’s automobile, which was driven by Bud Belew. He had McKenzie’s pistol and a flash light; they drove by the Reuter home, and shortly afterwards Baker left the car, carrying the pistol and flash light, and entered the Reuter home through the basement door and went up the steps into the living room and then up the stairs to the second story. Mrs. Reuter occupied a room on the west side, and Mr. Reuter a room on the other side of the hallway. He turned the key in the door leading to Mrs. Reuter’s room, locking it from the outside, and entering Mr. Reuter’s room, murdered him by shooting him twice through the head, and took the money that was in his clothes and a diamond ring and shirt stud. Mrs. Reuter screamed when the shots were fired and her screams and ‘the shots aroused the neighborhood. Baker left the Reuter house by the way he had entered and was seen by several persons. He was wearing an overcoat and a mask and was carrying the pistol and the flash light. Near the Neuter home, as he was leaving he met a young man named Ralph Johnson, and pointing the pistol at him commanded him to lay down. He returned to where the automobile was waiting and Belew drove the car north several miles; they stopped near a canyon and Baker took the overcoat, overalls, and hat that he had put on before entering the Reuter home, placed them on the ground poured a jug of coal oil that he had in the car over the clothes and set it on fire. They drove on through Turley and then turned into another road leading to Tulsa. They stopped the car again and Baker took the diamonds and hid them beside the road. He also threw away the pistol and the flash light. They then drove through Tulsa, coming in from the east, crossed the Arkansas river bridge and went on to Sapulpa, arriving there as daylight was breaking. They put the car into a.garage and ordered that it be washed; then went to a rooming house and went to bed. They arose about mid-day and soon after left in the car for Tulsa.

When they arrived at Tulsa, Baker got out and Belew drove the car to McKenzie’s. Guy McKenzie on the day before the homicide went to the town of Skiatook for the purpose of establishing an alibi; that evening Belew went to the depot to meet the train from Skiatook, expecting Guy McKenzie to return on that train. McKenzie did not return. Belew returned to the McKenzie home; Baker was there and 'said that he had seen the officers with blood hounds down town and suggested that it was best to take the car out of town. Belew got in the car and started for Skiatook. Near Sperry the car broke down. The next morning he fixed the car and started back to Tulsa. Reaching the McKenzie home, he found Joe Baker there, who told him that Guy McKenzie had been arrested, charged with the murder of Chas. T. Reuter. Guy McKenzie’s sister, Stella, asked Belew if he knew anything about the killing, and he told her all about it.

The case thus made by the state was met almost exclusively by the general denial of the plaintiffs in error, who were sworn as witnesses in their own behalf.

McKenzie admitted that Mr. Reuter, about a month before his death told him to stay away from his place, saying, “If you don’t stay away, I am going to shoot you with a bigger gun than you stole from me.” He admitted that after that Bud Belew drove him and Mrs. Reuter and his sister, Stella McKenzie, to Broken Arrow in his automobile; and that he met Mrs. Reuter another time at a neighbor’s. He denied having had any improper relations with Mrs. Reuter.

Baker admitted that he served a term for burglary, committed in Coffeyville, in the reformatory at Hutchison, Kan., and was paroled and came to Tulsa; and was there convicted several times of violating the prohibitory law; that in the afternoon of May 4th, he took his wife to the hospital in the McKenzie car, driven by Bud Belew; that he.returned to, the hospital that night, and left there about eleven p. m., that he then bummed around town until about two o’clock Sunday morning, and met Bud Belew, driving McKenzie’s car; and Belew said, “Let’s drive to Sapulpa,” and he said, “I don’t care if we do,” and they drove to Sapulpa.

There are nine assignments' of error. The first five are. based upon certain instructions included in the charge given by the court. The objections made to these instructions are hypercritical. It has often been said, and we repeat here, that to require absolute technical accuracy in instructions would, generally speaking, defeat the ends of justice and bring the administration of the criminal law into disrepute and just contempt. It is sufficient when the charge of the court, considered as a whole, substantially presents the law of the case fairly to the jury.

Another assignment is that “The court committed material error in not instructing the jury as to the law of circumstantial evidence.” Only a general exception was taken to the instructions given, and no request for an instruction on circumstantial evidence was made. The response of counsel, as shown by the record, to the inquiry of the court upon the subject, was to the effect that they did riot have any instructions to offer, suggest, or request. The record of the proceedings is as follows:

“Mr. Thompson: The defendants and each of them except to the action of the court in giving instructions numbered 3, 4, 8, 10, 11, 12, 13, 14, 15, 16, 18, 19, 20, 22; and the defendants further object and except to the action of the court in not allowing and giving the counsel for the defendants • an opportunity to be present and argue the law of the instructions here given.
“The Court: I will give you a chance now. Let the record show that I presented the instructions both to Mr. Thompson, and Mr. Charlton for the defense, and requested of them to look at the instructions; that if they had any instructions to offer the same, or if they had any modifications which they desired as to the instructions which the court had prepared, and which the court handed to them for their inspection before delivery to the jury, to suggest the same.”

While it is true, as counsel assert, that nearly all of the evidence which the state introduced in this case was circumstantial, yet there was direct and positive evidence of the guilt of the plaintiffs in error in addition to the testimony of the accomplice Belew. If counsel desired to have the jury instructed as to the law of circumstantial evidence, they should have prepared an instruction and should have requested the court to give it. They did not do so, and are in no position to complain.

The next assignment is that the court erred in submitting to the jury certain forms of verdict with instructions what to do if they found one of the defendants guilty and the other not guilty.

The contention made is destitute of merit. Our Procedure Criminal provides:

“On an indictment or information against several, if the jury cannot agree upon a verdict as to all, they may render a verdict as to those in regard to whom they do agree, on which a judgment must be entered accordingly, and the case as to the rest may be tried by another jury.” (Section 5924, Rev. Laws 19Í0.)

The defendants in this case were prosecuted upon a charge of murder, conjointly committed, in that all the defendants conspired and confederated to commit the murder, and all were concerned in its commission, and the defendants not present when the murder was committed did in that way aid and abet in its commission. Our penal code defines as principals, all persons concerned in the commission of crime,

“whether they directly commit the act constituting the offense, or aid and abet in its commission, though not present.'" (Rev. Laws 1910, sec. 2104.)

—and the court properly instructed the jury that though one of the defendants should be found guilty and the other might be acquitted, and the forms of the verdict in that respect were properly submitted. Excepting certain offenses which cannot be committed by a single person, defendants charged jointly and tried together are each entitled to have the jury pass upon the question of his individual guilt or innocence, and no one can be convicted without proof of individual guilt.

The next assignment is that the court erred in receiving the verdict in this case from the bailiff and not from the foreman of the jury.

This contention is not sustained by the record and has no merit.

Finally it is contended that the verdict is contrary to the evidence and should have been set aside by the trial court. The point attempted to be made by the defendants’ counsel, that exclusive of the testimony of Bud Belew, there is no testimony in the case that tends to connect the defendants with the murder, is clearly untenable. It is true that the case against the defendants depends in a large measure upon the testimony of an accomplice. But his testimony is strongly and fully corroborated upon all material points. We deem it unnecessary to detail further the facts disclosed by the record. We forbear to unveil the folly and frailty of the wife, whose conduct, the evidence shows, robbed her husband of his life and her unfortunate children of the protecting care of a father. It is sufficient to say that a fuller statement would show a much stronger case against the defendants.

We, have given this case a patient and careful examination, and our conclusion is that the only debatable question in the case for the jury to consider was whether the punishment to be assessed should be death or imprisonment for life. The trial of the case occupied some twenty-six days, and the case-made contains more than twenty-six hundred - pages. Instead of a case-made, containing a transcript of the evidence, and the record proper, a complete transcript of all preliminary proceedings, covering some six hundred pages, is included therein at the cost of the county, in the face of the fact that no exception was reserved in these preliminary matters, and no question raised thereon in the motion for a new trial. Such practice is not only an -imposition on this court, but creates an unnecessary and unwarranted expense upon the county in which the trial was had. The judges of trial courts should prevent such practice, and should not allow such unnecessary expense.

Our conclusion is that this case has been well and fairly tried, and, considering the nature of the case and the length of the trial, the record is unusually free from error. There being no prejudicial errors shown by the record, the judgment appealed from will be affirmed.

FURMAN and ARMSTRONG, JJ., concur.


author: DOYUE, P. J.

text:
    FRANK COWLEY v. STATE.
    No. A-2342.
    Opinion Filed June 19, 1915.
    APPEAL — Parole—Dismissal- When an appeal from a judgment of conviction is pending in this court, and the plaintiff in error is granted a parole and accepts the same, and the fact that a parole has been granted and accepted is brought to the attention of this court, the appeal will be dismissed as having been abandoned.
    (Syllabus by the Court.)

      Appeal from District Court, Greer County; G. A. Brown, Judge.

      Frank Cowle)'-, convicted of assault with a dangerous weapon, appeals.
    Appeal dismissed.

      D. H. Henry, for plaintiff in error.

      S. P. Preeling, Atty. Gen., and John B. Harrison, Asst. Atty. Gen., for the State.
   DOYUE, P. J.

The plaintiff in error, Frank Cowley, was jointly charged with one Robert Malone with‘assault with a deadly weapon with intent to kill one Henry Carver. A severance was granted and the plaintiff in error on his separate trial was found guilty of an assault committed with a dangerous weapon with intent to do bodily harm, and without justifiable or excusable cause. On the 17th day of August, 1914, the court rendered judgment and sentenced the plaintiff in error to be imprisoned at the state reformatory at Granite for a period of two years. To reverse this judgment an appeal was perfected by filing in this court on September 30, 1914, a petition in error with case-made.

Pending the determination of said appeal, on September 30, 1914, the Lieutenant Governor, as acting Governor, in the absence from the state of the Governor, granted the plaintiff in error a parole bn the sole condition “that he shall at all times obey the laws of the state of Oklahoma in every respect, and in the event he should violate any law of the state then this parole may be revoked.”

The Attorney General concedes that the parole is in all respects valid.

When an appeal from a judgment of conviction is pending in this court, and the plaintiff in error applies for a parole and the same is granted and accepted by the plaintiff in error, and the fact that a parole has been granted and accepted is brought to the attention of this court, the appeal will be dismissed as having been abandoned. The appeal herein is therefore dismissed and the cause remanded to the trial court.

FURMAN and ARMSTRONG, JJ, concur.