text:
    J. P. CRAWFORD v. GEORGE W. FERGUSON, County Judge.

    No. A-1096.
    Opinion Filed May 2, 1911.
    (115 Pac. 278.)
    1. RIOT — What Constitutes. Where three or more persons, without authority of law, combine together, and by means of threats to use force or violence, if accompanied by immediate power of execution, seek to accomplish any unlawful purpose, they are guilty under the law of riot.
    2. CRIMINAL LAW — Enforcement of Law — Unlawful Acts. The violation of law under the guise of attempting to enforce the law is not only illegal, but it is anarchy.
    3. UNLAWFUL ASSEMBLY — Legality of Purpose» — Enforcement! of Laws. The people have the right, in a quiet and peaceable manner, to combine together and organize for the purpose of assisting the officers in the enforcement of law, and they may also take such steps as they may deem necessary for the purpose of carrying out the objects of such organization, taking care at all times to abstain from any illegal act or conduct.
    4. JUDGES — Conduct—Participation in Public Meetings. Judicial officers should abstain from participating in public meetings in which questions are discussed which might afterwards come be-for them for decision. A judge should not be a partisan. Whenever he becomes a partisan, his usefulness on the bench is greatly impaired, if not entirely destroyed.
    5. J.UDGES — Premature Opinions. A judge should be careful not to commit himself upon questions of fact or law which may come before him for .decision, until the matter is properly presented in open court, and both parties have had ample opportunity to be heard.
    6. JUDGES — Disqualification—Prejudice. There is a great and manifest difference between being prejudiced against the commission of a crime and being prejudiced against a person charged with the commission of such crime. The fact that a judge is prejudiced against the commission of crime does not disqualify him from presiding at a criminal trial. H'e is only disqualified when he has personal bias or prejudice against the defendant, who is on trial before him charged with the commission of a crime.
    7. WITNESSES — Impeachment—(Occupation—Companions. While it is improper to impeach a witness by showing that he has been indicted, arrested, or imprisoned for crime, before conviction, yet his occupation and companions are of his own choosing, and may therefore be shown, when they indicate a want of moral character, for the purpose of impeaching his testimony. Slater v. U. S., 1 Okla. Cr. 275, 98 Pac. 110, reaffirmed.
    8. WITNESSES — Impeachment—Bootleggers. When a witness has been convicted of bootlegging, or has the general reputation of being a bootlegger, this fact may be shown for the purpose of affecting his credibility as a witness.
    9. AFFIDAVITS — Authority to Take — Attorneys—Disabilities. It is improper for a lawyer to act in the double capacity of a notary to take acknowledgments to affidavits, to be used in the trial of a case in which he is the attorney for one of the parties.
    (Syllabus by the Court.)
    Petition of J. P. Crawford for a writ of mandamus to George W. Ferguson, County Judge.
    Petition denied.

      I. H. Lookabaugh, for petitioner.

      A. L. Emery, Co. Atty., and J. P. Wishard, Asst. Co. Atty., for respondent.
   FURMAN, PRESIDING Judge.

J. P. Crawford, the petitioner, being prosecuted by information in the county court of Blaine county, Okla., charged with the offense of violating the prohibitory liquor law of the state of Oklahoma, on the 14th day of April, 1911, made application for a change of judge, upon the ground that George W. Ferguson, the judge of the county court of Blaine county, and the respondent herein, was so prejudiced against petitioner that petitioner could not secure a fair and impartial trial on said charge before respondent; and alleging, further, that about the middle of March, 1911, respondent participated in the action of an organized mob, consisting of more than one hundred persons, which mob visited a number of people in the town of Watonga who were supposed to be violators of the prohibitory liquor law of the state, and commanded such persons to quit their business and leave the town, and threatened said parties with violence in case the commands of said organized mob were not complied with; and that respondent was a leader and one of the spokesmen of said mob. This application was duly sworn to by petitioner. This application being presented to respondent, he declined to certify his disqualification from presiding at the trial of said cause. Therefore, on the 15th day of April, petitioner applied to this court for an alternative writ of mandamus, requiring respondent, either to certify his disqualification to act as said judge or show cause for his refusing to do so. The original application for a change of judge as presented to respondent was attached to and made a part of the petition for a writ of mandamus filed in this court. This matter came on to be heard on the 24th day of April, 1911. TJpon a hearing of this case, respondent denied the allegations contained in the petition 'for mandamus. The petitioner filed a number of affidavits sustaining the allegations contained in his petition.

'It is a significant fact that 23 of these affidavits were acknowledged before the attorney for the petitioner. As this matter has not been passed upon by this court before,- we will not do more now than say that the authorities all denounce this practice. If it is permitted, the door is opened to all kinds of impositions and'frauds. Such conduct must not be repeated. In the future such affidavits will not be received or considered, except as the basis of proceedings against the offending attorney.

If the facts stated in‘the petition for mandamus had been proved to be true beyond all question, petitioner would be entitled to a change of judge. The conduct therein set forth and described would not only be illegal, but it would amount to a riot. Section 24-97 of Snyder’s Comp. Laws of Okla. 1909, is as follows :

“Any use of force or violence, or any threat to use force or violence if accompanied by immediate power of execution, by three or more persons acting together and without authority of law, is riot.”

It matters not how good their intentions may be, if three or more persons, without authority of law, combine together, and by threats to use force or violence, if accompanied by immediate power of execution, seek to accomplish any unlawful purpose, they are guilty under the law of riot, and liable to be imprisoned in the state penitentiary for any period not less than three years. A violation of law, when committed even for the purpose of enforcing the law, is not only illegal, but it is anarchy itself. Therefore, if it were proven to this court that the statements in the petition for mandamus were true, it would be the duty of this court to issue the writ prayed for, it matters not what the intention of the parties who committed the acts may have been, even though such mandamus might involve every man in Blaine county. When a violation of law has been proven, this court cannot, Pontius Pilate like, place its fingers upon the public pulse and sustain such violation of law, even though it be demanded by the entire people of a county. Therefore we have no hesitancy in saying that the showing made by the petitioner, if not disproven, would clearly entitle him to a change of judge. Petitioner filed a great many affidavits sustaining his petition. TJpon the hearing of this matter, six reputable citizens of Blaine county were placed upon the witness stand, and they denied every material allegation tending to establish prejudice on the part of respondent contained in the petition for mandamus.

In the case of Slater v. U. S., 1 Okla. Cr. 275, 98 Pac. 110, this court held that it was improper, for the purpose of impeaching a witness, to ask him on cross-examination if he had ever been indicted, arrested, or imprisoned for crime before conviction, .but this court also held, in the same case, that it is always ud-missible to inquire into the antecedents of a witness, by showing his occupation, social connections, manner of living, ■ and such matters, for the purpose of affecting his credibility. The reason for this distinction is that the indictment, arrest, and imprisonment of a witness are involuntary on the part of the witness, and result from accusations which are often prompted by malice, and that they are not conclusive as to the guilt of the witness of the offense charged against him, but that the occupation, companions, and associates of a witness are of his own choosing, and indicate his real character. To prevent any misconception upon this question, the case of Slater v. U. S., above quoted, should be carefully examined. We have never modified, and do not expect to modify, any statement contained in that opinion.

Upon the hearing of this matter, the court invited information as to the witnesses who had made affidavits in support of the petition for mandamus. The effect of their affidavits was to charge respondent with having assisted in the organization of a mob, and with being one of the leaders in a riot. If these accusations were true, respondent should not preside at the trial of this cause, but should be removed from office and confined in the penitentiary as a common felon. It was therefore important for' this court to know who these men were who had made these serious charges against a judicial officer of the state of Oklahoma. Counsel for petitioner did not give us any information upon this subject. But this matter was gone into by counsel for respondent, and it was shown that these men were professional bootleggers, or the companions and associates of bootleggers. When the hearing was through, the court, desiring to be fair and just to all parties and to condemn no man without affording him an opportunity to be heard, offered to allow either party to file additional affidavits, if they desired. If the state’s testimony as to the character of petitioner’s witnesses was not true, the attorney for petitioner should have availed himself of this opportunity to sustain the character of his witnesses, but he replied that he did not desire to file additional affidavits.

In the case of Hendrix v. State, 4 Okla. Cr. 612, 113 Pac. 244, this court said:

“The illegal sale of intoxicating liquor, wrongfully and deliberately committed, is . an immoral, degrading, and degraded act, and is committed only by the lawless and unreliable classes of our population. It is a matter of common notoriety that in nine cases out of ten the ‘bootlegger’ will not only not hesitate to commit perjury in his own behalf, but also he expects every man to whom he vends his stuff to commit perjury for him, should the occasion arise. The unlawful sale of intoxicating liquor involves moral turpitude, and shows a want of moral character.”

Counsel must take notice of the published decisions of this court and are chargeable with such knowledge. With the Hendrix case • before him, counsel for petitioner knew that a failure to sustain the character of his witnesses was a practical abandonment of his case. We are therefore forced to accept the testimony of respondent upon this question. An opportunity was given counsel for petitioner to file further affidavits. He declined to do so. We are therefore compelled to believe that he could not rebut the testimony of respondent upon this question. In addition to this, respondent filed a great many affidavits from citizens of Blaine county, denying in toto the charges made by petitioner. A number of persons who were on the witness stand and who filed affidavits in behalf of respondent are personally known to the members of this court as being among the most reputable citizens, not only of Blaine county, but also of the state of Oklahoma.

For the purpose of this decision, it is only necessary to copy in full the affidavit of Ex-Governor Ferguson, who justly enjoys the confidence and respect of all who know him, and whom we believe to be incapable of intentionally misstating any matter of fact. His affidavit is as follows:

“State of Oklahoma, Blaine County — ss.:

“I, T. B. Ferguson, being first duly sworn, say, that I am a resident of the town of Watonga, Blaine county, state of Oklahoma, and have been most of the time since said town was opened for settlement; that I am especially familiar with conditions which existed in said town during the fall of 1910 and the spring of 1911; that during the fall of 1910 it was an open and notorious fact that there were from four to five places in said town where intoxicating liquors could be obtained in various quantities; that said parties who seemed to control these different places where intoxicating liquors were disposed of were, to the best of my be’ief, either protected, or at least overlooked, by the officers; that the community of Whtonga and the law-abiding people of said community were incensed against such open and notorious violations; that the incoming officers who were elected at the election in November, 1910, had promised that they would, if elected, see that these violations were taken care of; that several arrests followed, after the taking of office by these officers, but the bootleggers and their friends seemed to have an ostensible showing of influence against the arrest and prosecution of what is commonly termed ffiootleggers/ and which is a misdemeanor charge (they would often, when attempted to be arrested, try to evade the officers, and did in various instances); that on the afternoon of the 14th day of March, A. D. 1911, S. E. Southerland, sheriff of said county, having in his possession a warrant for a misdemeanor charged, attempted to arrest one Joe Steils, for the violation of the prohibitory law; that the said Joe Steils was in a buggy in company with one Charlie Hawkins, at said time; that they attempted to and did run from said officer, driving said horse that was thereto hitched, at a dangerous and reckless speed, through the business streets of said town, in making their flight- from said officer; that on one particular crossing of said town they ran into a pedeslrain crossing said street and seriously injured her, in the presence of a large number of people, who immediately gathered and helped the officer arrest said defendant.

“That it was suggested at said time, by some person to this affiant at this time unknown, that they give their moral support to the officers in the enforcement of the law, and that they organize some sort of society showing that their moral support was in favor of the enforcement of the laws, duly enacted; that, pursuant to said suggestion, a meeting was called at the. courthouse in the said town of Watonga; that a large number of inhabitants of said town, congregated at said meeting, and, after appointing a committee on constitution and by-laws, different members suggested that a notice of some kind be given to the various persons who were knowingly violating the laws of the state; that it was the sense of the said meeting that they go as a body to these different places, heretofore suggested, and give them notice that the law would be enforced, and that their moral support was behind the officers; that said arrangements were made and G. W. Craven was named as spokesman; that George W. Ferguson had been in said meeting, and when the meeting adjourned to wait upon these different people the said George W. Ferguson told this affiant that they must be careful and see that no harsh or violent acts or language should be used or tolerated by said members in any way.

“That affiant knows of his own knowledge that the said George W. Ferguson did not make a speech at said meeting, or at any other time, to his knowledge, warning any person under suspicion; that all he said in substance was that the laws should be upheld; that I was present at the speech he made in said meeting, and that he did not say that a jury would be got that would stick all persons charged with the violation of the law; that at no time have I seen the said George W. Ferguson do or say anything that tended to show bias or prejudice for or against any persons' accused of crime that was brought to this court.

“That, being a publisher of the Watonga Bepublican, I have on numerous occasions visited and been present when the court, presided over by the said George W. Ferguson, was in session, and that at all times he seemed to conduct said court in a fair and impartial manner. ,

“That at no time when said citizens so congregated together, and at a meeting which was called a ‘Law and Order’ meeting, and at which law and order meeting said visitation was made, did the said George W. Ferguson say anything, to my knowledge, nor was anything said by the spokesman, to tend to terrorize or intimidate any person called upon; that they were simply asked to desist from further violation of the law, and told that if they did not do so law and order would be enforced.

“That there were no unlawful acts by said citizens; that they were men of respectability and law-abiding citizens of the said town of Watonga; that no place or person were mentioned, other than those that were visited, nor any threats made, other than were executed, and that the whole idea and object of said meeting and the warning of people to desist from the violation of law was for the purpose of showing violators of the law that the good citizenship of Watonga stood for law enforcement and the upholding of the officers in the discharge of their duties.

"T. B. FeRgusoN,

"Subscribed and sworn to before me this -- day of April, A. D. 1911. W. C. BuRt,

"[Seal.] Clerk County Court.”

This affidavit is in harmony with the oral evidence offered on the trial of this cause, and is a fair sample of the other affidavits filed by respondent. In fact some of these affidavits go more into details and state the conditions existing in Blaine county more strongly than they are stated by Governor Ferguson. At first it was feared that the woman who was run over as described by Governor Ferguson was fatally injured. We desire to commend the people of Blaine county for their self-control and regard for law and order, as is indicated by the fact that they did not execute summary vengeance at the time upon the man who drove his horse and buggy over this unoffending woman on the streets of Watonga.

We think that under the conditions proven to exit in Blaine county, and described in the affidavit pf Governor Ferguson, the people of Blaine county not only had the right to organize in a lawful manner for the purpose of assisting the officers to enforce the law, but that it was their duty to do so. No reputable witness testified to any disorderly act committed by the people at this meeting. It was proven upon the trial of this cause that no threats of violence or profane language was used, and that no arms were carried by those who notified parties who were under suspicion that they must cease violating the law if they desired to remain in Blaine county, and that the good people of the county were going to support the officers of the law in an honest effort to enforce the law. We desire in this connection to say that all organizations having for their purpose the enforcement of law should exercise the greatest care to see that they themselves do not violate the law. The history of the Western states shows that in many instances such organizations have gone entirely too far, and have resulted in great disorder and bloodshed. We believe that the laws of Oklahoma, if properly enforced, afford ample means for punishing the guilty and thereby protecting society. We also believe that .these laws can and will be properly enforced, when the people give the officers their moral support. We can see no lawful reason or excuse why any body of men should attempt to take the enforcement of the law into their hands. Neither is there any reason why the people should not organize to assist the officers in enforcing the laws.

One of the most useful organizations in the state is the Anti-Horse-Thief Association. The people have just as much right to organize to assist the officers to enforce the law against the bootlegger as they have to organize to assist the officers to enforce the law against the horse thief. Of the two, the horse thief is the least dangerous to the lives and eharaoter of the people, and the peace and good order of society. Who would say that, because a juror or judge may belong to or be in sympathy with the Anti-Horse-Thief Association, he would thereby be disqualified from taking part in the trial of a defendant charged with theft? The writer of this opinion was for years attorney for the Anti-Horse-Thief Association. He confesses to a .strong prejudice against horse stealing, but he has no prejudice against any individual, simply because he may be charged with this offense, until such person has been proven to be guilty by competent evidence, beyond a reasonable doubt. On account of the infamous character of the crime,' he would require conclusive proof of the guilt of a defendant before believing him to be guilty.

We also desire to say that it is best for judicial officers not to participate in public meetings in which questions are discussed which may afterwards come before them for decision. Their conduct in the courtroom during the trial of a case should let the public know their views with reference to the enforcement of law, and it is far better that they should abstain from giving public oral -expression to their Yiews. A judge should never be a partisan. Whenever he becomes a partisan, his usefulness on the bench is greatly impaired, if not entirely destroyed.

He should never commit himself upon- any question either of fact or law, which is liable to come before him, until the matter is properly presented in open court, and both parties have had equal and ample opportunity to be heard. We are therefore of the opinion that it would have been better if respondent had not participated in the public meeting which took place in Blaine county, Okla., and had not accompanied those who felt it to be their duty to warn persons who were under suspicion of having violated the law that if they desired to remain in Blaine county they must cease violating the law, and that the people were going to assist the officers in enforcing the law. But all the evidence for the respondent shows that no threats of violence were made by those who gave this warning, and that their conduct was quiet and orderly, and that their only purpose was to give warning to parties who were under suspicion. We cannot therefore hold that their conduct was illegal, and, although we believe that it would have been better if respondent had not gone with these parties, we cannot say that his presence indicated such a personal bias against the parties warned as would justify this court in holding that he was incompetent, on the ground of prejudice, from presiding at the trial of -any person so warned. If the contention of counsel for petitioner is correct, no judge or jury should try a defendant who is charged with a crime who are themselves opposed to the commission of such crime; or, in other words, the idea of petitioner seems to be that the punishment of criminals should be intrusted to those who sympathize with criminals.

There is a great and manifest difference between prejudice against a crime and being prejudiced against a person who may be charged with the commission of such crime. Every good citizen is prejudiced against the commission of crime. If being prejudiced against the commission of crime is a disqualification, then the members of this court axe disqualified to decide any case pending before them., for we have time and again in our opinions given notice and "fair warning” to lawless characters that they should leave the state, or obey the laws, if they desired to remain at liberty, and that it was our purpose to do all in our power to suppress crime in Oklahoma. Our views upon this matter were clearly expressed in the case of Remer v. State, 3 Okla. Cr. 709, 109 Pac. 249. Judge Bichardson then a member of this court, who has no superior as an able, just, fearless, and- learned judge, speaking for the court, there said:

“It alleged prejudice on the part of the jurors, not against the plaintiff in error, but only against the offense. We presume that if a defendant was charged with murder, then by the same token he would be entitled to a trial by a jury composed of men entirely indifferent as to whether murder be committed in their county or not; men who entertain no prejudice whatever against the crime of murder. It is generally thought that a juror should be a man, not only law-abiding himself, but imbued with a desire to see the laws in their entirety honestly and righteously enforced against all offenders; that the enforcement of the law is contemplated and intended, and that it will be enforced better by those in sympathy with it, and who recognize the necessity and justice of it, than by that class of persons who are indifferent, or who desire to violate it or thwart its administration. We had always heard that good citizens are prejudiced against any ‘class of violations of law’; that good citizenship implies a respect for and an obedience to all laws, so long as they are laws, and a willingness and desire to see them effectively administered. And we are told here for the first time that a defendant has a vested and inalienable right to be tried by a jury who possesses no regard for the particular law alleged to have been violated, selected by commissioners on friendly terms with the particular offense charged. This may be so; but we have been cited to no authorit) therefor. We conjectured that plaintiff in error was claiming a constitutional right to a trial by a jury of his peers; but upon an examination of the Constitution we find no such provision therein; the Constitution guaranteeing to him only a ‘trial by an impartial jury of the county.’ And while we have not looked further for authority, yet we are reasonably certain that we could have found none if we bad looked, and more certain that we should not follow it if we found it.”

If the views contended for by counsel for petitioner axe correct, every man charged with crime should be tried by a judge and jury who are absolutely indiiferent to the commission of crime. To this doctrine we cannot assent. If we were to sustain the petition for mandamus upon the testimony offered, in view of the un contradicted testimony in this record as to the character of persons who have made affidavits in behalf of the petitioner, it would be equivalent to placing every judicial officer in the state at the mercy of criminals and their associates. This we cannot do. We are determined that justice shall be done, that fairness shall prevail, that truth shall be vindicated, and that the majesty and dignity of the law shall be upheld, as nearly as possible, in every case submitted to us for decision, let it shake or displease whomsoever it may. This is the high standard which we are doing all in our power to establish, by which all criminal cases must be tried in Oklahoma. We fully indorse the statement made by Hooker when he said:

“Of law no less can be acknowledged than that it has its seat in the bosom of God; its voice is the harmony of the universe; all things in Heaven and on earth do it reverence; the weakest feeling its protecting care, the mightiest not being exempt from its power.”

This being our ideal, we are trying to place the practice of criminal law in Oklahoma upon a dignified and honorable basis. There is no good reason why it should not be as reputable as the trial of civil cases, and we are determined that in Oklahoma it shall be. The standard of professional honor must be as high in Oklahoma as it is in any other state of the Hnion. We will not be satisfied with or tolerate anything less.

In every volume of our published reports we have announced that lawyers should try their cases upon their actual merits,' and should act with perfect fairness toward the courts and opposing counsel. We now go further and give “fair warning” that, if there are any members of the profession in Oklahoma who are not disposed to heed this friendly admonition, they will consult their own interest by removing from the state, if they desire to escape disbarment proceedings and keep out of the penitentiary. No lawyer has any right to malee a criminal out of himself, in order that he may succeed in the’ trial of any case. No lawyer will be permitted to enjoy any benefits arising from illegal or unfair conduct on his part, if we can possibly prevent it. We earnestly request all trial judges in the state to rigidly pursue the same course, it matters not who the attorneys may be. The trial judges cannot do the state and the profession a greater service than by aiding this court in putting a stop to unprofessional conduct upon the part of attorneys, and by assisting this court in ridding the state of such characters. This must be done before justice in its purity, can be administered. Some lawyers act as though, they thought that because Oklahoma is a new state they can do as they please, and that any kind of conduct will be tolerated. In this they are greatly mistaken, as some of them will discover to their sorrow, if they do not heed our admonition. Lawyers should be held more strictly accountable for their conduct than any other class of people, for two reasons: First, their opportunities for wrongdoing are greater; second, they are the'sworn officers of the courts, and are therefore under double obligation to act honorably with the courts and with all men. A tricky and dishonest lawyer is a most dangerous member of society, and he brings the profession of law into disrepute. Law is an honorable profession, and the most of the lawyers are honorable men, and it is the duty of the courts to protect society and the profession itself against unworthy men.

It is a waste of time and a useless expenditure of money for counsel to attempt to get this court to disqualify a judge upon such testimony as was produced upon this trial. We want every judge in Oklahoma to know that he can rely upon the support of this court so long as he acts fairly and within the duties and powers of his office. The writ of mandamus is therefore denied.

A number of other cases are before us, based upon the same facts and affidavits tised in this case. It is not necessary to write an opinion in each case, and the same order will be entered in all of these eases.

ARMSTRONG! and DOYLE, Judges, concur.


source: Caselaw Access Project

author: DOYLE, Judge

license: Public Domain

text:
    W. M. PICKRELL v. STATE.
    No. A-97.
    Opinion Filed April 18, 1911.
    TRIAL — Cross-Examination of Witness — Improper Conduct of Prosecuting Attorney. After an objection has .been sustained to an improper question propounded on the cross-examination of the defendant, the repeated asking by the prosecuting attorney of similar questions, notwithstanding the sustaining of the objections thereto, and his action in excepting to the rulings of the court thereon, constitutes misconduct on the part of the prosecuting attorney prejudicial to the substantial rights of the defendant, for which a conviction will be reversed; although such conduct was reprimanded by the court, and the jury directed to disreg'ard the same.
    (Syllabus by the Court.)

      Appeal from Grady County Court; N. M. Williams, Judge.

    W. N. Pickrell was convicted of a violation of the prohibition law, and appeals.
    Reversed and remanded.
    The plaintiff in error was convicted in the county court of Grady county of the crime of unlawfully selling intoxicating liq-our, and was on November 11, 1908, sentenced to be confined in the county jail for a term of thirty days and to pay a fine of fifty dollars. From the judgment he appealed by filing in this court on February 13, 1909, a petition in error with case-made.
    George Turner, the sole witness for the state, testified that he lived at Guthrie, and was employed as a detective in the enforcement of the prohibition law; that he met the defendant September 6, 1908, on a train going to Cliickasha, that the next day, Labor Day, he met him on the street in C'hickasha and started to walk out to the Fair Grounds with him, and after going part way bought a half-pint of whisky from him.
    On the part of the defendant, C. C. Davis testified that he and the defendant lived neighbors at Logan, N. M.; that together they returned to Chickasha from New Mexico, arriving the day before Labor Day, and stayed together all the time until they returned from the picnic on Labor Day. The defendant testified that he lived several years in Chickasha before going to New Mexico to homestead land; that he returned to Chickasha with C. C. Davis, arriving the day before Labor day; that on the train he met a man who he thought was the prosecuting witness who said ho was going to Chickasha and asked him for a drink; that he told him he did not have any whisky; that he then asked him if he could buy any whisky at Chickasha, and defendant told him that a man could buy whisky there when he formerly lived there. He further testified that he did not see the prosecuting witness at any time on Labor Day, and did not sell him whisky, and that he had never before been arrested.
    Several character witnesses testified that the defendant had always borne the reputation of being a law-abiding citizen.
    Complaint is made that defendant was prevented from having a fair and impartial trial by reason of the misconduct of the county attorney in asking improper questions of witness Davis and of the defendant as a witness on his own behalf; also his offer on the part of the state to introduce the records of the county court showing the number of eases pending against one Bondurant.
    The record is as follows:
    “Q. You say you were over to Bondurant’s place there? A. Yes, sir. . How many whisky charges are there against Mr. Bon-durant here? (Objected to as incompetent, immaterial, and irrelevant. Objection is by the court sustained.) Q. Were you down here at the; pool hall on Labor Day? A. Yes, sir. Q. Do you know how many times they have been arrested? A. Who? Q. Bondurant. (Same objection is by the court sustained.) Cross-examination of the defendant. Q. Did you know H. C. Bondurant before you left here? (Objected to as incompetent, immaterial, and irrelevant. Objection overruled. Defendant excepts.) A. Yes, sir. Q. Had you ever worked for Bondurant? A. Yes, sir. Q. That was prior to the time you left here? A. Yes, sir. Q. How many times has Mr. Bondurant been arrested for selling whisky? (Objected to as incompetent, immaterial, and irrelevent. Objection sustained. The state excepts.)”
    In rebuttal the record shows:
    “The state now offers to introduce the records of the county attorney, showing the number of cases pending against H. C. Bon-durant. The defendant objects and excepts to the misconduct of the county attorney in offering said records and asks the court to admonish the county attorney not to make any such remarks. The objection is by the court sustained, and the court instructs the county attorney not to make such remarks before the jury; that the introduction of the records is not admissible and the county attorney should know that they are not. To which ruling of the court the state excepts.”
    Motion for new trial was made on the ground of:
    “Misconduct of the county attorney in the trial of said cause, prejudicial to the rights of this defendant, and which prevented this defendant from having a fair and impartial trial, which said misconduct consisted of the county attorney in repeatedly making offers to introduce testimony tending to show that one H. C. Bondurant had been arrested on a charge of selling intoxicating liquors, said offers being made by the county attorney after objections to the same had been repeatedly sustained by the court, to which conduct the defendant then and there excepted. "Wherefore defendant prays that said verdict be set aside and held for naught and this defendant be given a new trial.”

      A. L. HePr, for plaintiff in error.

      Smith 0. Matson, Asst. Atty. Gen., for the State.
   DOYLE, Judge

(after stating the facts as above). It is insisted by counsel for plaintiff in error that the persistent asking of incompetent, improper, and prejudicial questions by the county attorney, after previous' objections thereto having been made and sustained by the court, constitutes reversible error, citing:

12 Cyc. 572; Cargill v. Comm., 13 S. W. 916; Clark v. State, 5 S. W. 115; State v. Rose, 76 S. W. 1003; People v. Derbert, 71 Pac. 564; Heller v. People, 43 Pac. 124; People v. Wells, 34 Pac. 1078.

We believe the action of the prosecuting attorney, as shown by the record, constitutes misconduct on his part prejudicial to the substantial rights of the defendant, such conduct was clearly calculated to prejudice the minds of the jury and manifested a disposition to disregard the legal rights of the defendant, and should have been promptly condemned by sustaining the motion for a new trial.

Adopting the language of Mr. Justice McFarland in the ease of People v. Wells, supra:

“It would be an impeachment of the legal learning of the counsel for the people to intimate that he did not know the question to be improper, and wholly unjustifiable. Its only purpose, therefore, was to get before the jury a statement, in the guise of a question, that would prejudice them against appellant. If counsel had no reason to believe the truth of the matter insinuated by the question, then the artifice was most flagrant; but if he had any reason to believe in its truth, still he knew that it was a matter which the jury had no right to consider. The prosecuting attorney may well be assumed to be a man of fair standing before the jury, and they may well have thought that he would not have asked the question unless he could have proved what it intimated if he had been allowed to do so. He said plainly to the jury that Hamlet did not want his friends to say: ‘As, “well we know”; or, “we could, an if we would”; or, “if we list to speak”; or, “there be, an if there might.” This was an entirely unfair way to try the case; and the mischief was not averted because the court properly sustained the objection, — though-we think it should have warned counsel against the course which he was taking, — and instructed the jury specially on the subject. The wrong and the harm was in the asking of the question. Of course, in trials of criminal cases, questions as to the admissibility of evidence will frequently arise about which lawyers and judges may fairly differ in opinion; and in such cases defendants must be satisfied when courts sustain their objections. But where the prosecuting attorney asks a defendant questions which he knows, and every judge and lawyer knows, to be wholly inadmissible and wrong, and where the questions are asked without the expectation of answers, and where the clear purpose is to prejudice the jury against the defendant in a vital matter by the mere asking .of the questions, then a judgment against the defendant will be reversed, although objections to the questions were sustained, unless it appears that the questions could not have influenced the verdict.”

The offer to introduce the records of the county court showing the number of cases pending .against a former employer of the defendant and the taking of an exception to the ruling of the CGurt thereon were wholly improper. The court had three times sustained objections to this line of testimony, but the prosecuting attorney still persisted in the course he had taken. He could have had but one motive in view in the course pursued by him; that was to prejudice the jury against the defendant. Certainly it cannot be said, in view of the improper conduct of the prosecuting attorney, that the defendant in this case had that fair and impartial trial prescribed by law. It is the duty of the prosecuting attorney to see that the defendant shall have a fair and impartial trial, and that he shall be convicted only by competent evidence, and to secure this he should himself be fair and impartial.

The only evidence in the case against defendant was the uncorroborated testimony of one Turner, an itinerant informer, who styles himself a private detective. All good citizens have an interest in the vindication of public justice and maintaining the majesty of the law. It is a matter of common knowledge that the most potent factor of the dishonest dispensation of justice is the production of untruthful testimony upon the witness stand. Generally speaking, a -private detective is not over scrupulous in the truthfulness of his testimony, and such evidence should be viewed with caution, as it may not be entitled to very much credence.

Chief Justice Maxwell has well said:

“It is doubtful if anything is really gained in the administration of the law from the admission of such testimony, and the consequent encouragement of the courts of the practice.” (Heldt v. State, 20 Neb. 492, 57 Am. Rep. 835.)

However, the weight and credibility of such evidence are questions for the jury, and where a conviction is had upon the uncorroborated testimony of a private detective the courts can only look carefully to Ihe record to see that no prejudicial error has occurred. Here defendant, as a witness on his own behalf, denied the sale and called several witnesses whose testimony tended to prove an alibi; others who testified to his good character as a law-abiding citizen. Nevertheless, the credibility of defendant was an important matter in the case, and whatever evidence tended to impair that credibility was material in the highest degree. That the misconduct of the prosecuting attorney so tended is clear. His persisent efforts to get before the jury the charges against Bondurant, taken in connection with the testimony that defendant had been working for him, tended to create the impression that defendant might be selling whisky for Bondurant. We believe that the rebuke administered by the court below did not remove such impression, as the prosecuting attorney promptly excepted to the action of the court, thus leaving with the jury the impression that he had been grossly outraged by the rulings of the court. Such conduct tends to destroy public respect for the prosecuting attorney’s office and invites contempt for the dignity of the court. A person accused of crime is entitled to a fair and impartial trial, conducted according to the established principles of law, the most important of which is that the verdict of the jury shall be founded only upon competent evidence. If a defendant cannot be fairly convicted, he should not be convicted at all, and to hold otherwise would be to provide ways and means for .the conviction of the innocent.

For the reasons stated, the judgment of the county court of Grady county is reversed, a new trial awarded, and the cause remanded.

FURMAN, PresidiNG Judge, and ARMSTRONG, Judge, concur.


author: DOYLE, Judge.

text:
    O. E. BANDY v. STATE.
    No. A-513.
    Opinion Filed March 21, 1911.
    Rehearing Denied April 25, 1911.
    (114 Pac. 341.)
    1. APPEAL — Time for Proceedings. In misdemeanor cases, the appeal must be taken within 60 days after the judgment is rendered, provided, however, that the trial court or judge may for good cause shown extend the time in which an appeal may be taken not exceeding 60 days. In such cases the appeal is taken by filing in this court a petition in error with case-made attached, Or transcript of the record, together with proof of service of notices of appeal as required by statute, and when this is not done within the time prescribed by section 6948, Snyder’s St., this court does not acquire jurisdiction of the appeal, and such an appeal will be dismissed.
    2. APPEAL — Time for Proceedings. Where a plaintiff in error, defendant below, was on the 21st day of August, 1909, duly sentenced upon a conviction had for a misdémeanor and prayed an appeal, whereupon the trial court for good cause shown extended the time for taking such appeal 60 days, and the petition in error with case-made attached, together with proof of service of notices of appeal, were not filed in this court until the 30th day of December, 1909, held, that under sections 6948 and 6949, Snyder’s 'St., this court did not acquire jurisdiction of such appeal.
    (Syllabus by the Court.)

      Appeal from Marshall County Court; J. W. Fallcner, Judge.

    O B. Bandy was convicted of unlawfully selling intoxicating liquor, and appeals.
    Dismissed.

      Kennamer & Coahley and Hardy & Franlclin, for plaintiff in error.

      Chas. West, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   DOYLE, Judge.

O. B. Bandy, plaintiff in error, was informed against, tried, convicted, and sentenced to be confined in the county jail for a term of 30 days and pay a fine of $100 and costs for the crime of unlawfully selling intoxicating liquor. The judgment and sentence was pronounced on the 21st day of August, 1909, from which judgment and sentence an appeal was attempted to be taken by filing with the clerk of this court on December 30, 1909, a petition in error with case-made attached, and proof of service of the notices of appeal. On March 7th the cause was submitted on motion of the Attorney General to dismiss the appeal, “for the reason that the petition in error and case-made was not filed in this court within one hundred and twenty days after the rendition of the judgment.”

Section 6948, Snyder’s St., provides in part as follows:

“In misdemeanor cases the appeal must be taken within sixty days after the judgment is rendered; provided, however, the trial court or judge may for good cause shown extend the time in which such appeal may be taken not exceeding sixty days.”

This statute went into effect June 11, 1909. In this ease Ure time for filing the petition in error in this court expired December 19, 1909. The cause was not filed in this court until December 30, 1909. This court has uniformly held that, in order to give this court jurisdiction, the proof of service of notices of appeal as prescribed by section 6949, Snyder’s St., must be filed with the clerk of this court within the time which an appeal may be taken as prescribed by section 6948, Snyder’s St. We believe that the statute requiring appeals in misdemeanor cases to be taken within 60 days and permitting the trial court or judge for good cause shown to extend the time not exceeding 60 days is a reasonable statute, calculated to promote swift and sure justice. Where an appeal is not perfected by filing in this court a petition in error with case-made attached, or a transcript of the record, together with case-made attached, or a transcript of the record, together with proof of service of notices of appeal as required by section 6949, Snyder’s St., within the time prescribed by the statute, this court does not acquire jurisdiction of the appeal, and such appeal will be dismissed.

The motion to dismiss is therefore sustained, and the cause remanded to tbe county court of Marshall county, with ■ direction to enforce the judgment and sentence.

FURMAN, PRESIDING Judge, and ARMSTRONG, Judge, concur.