text:
    Frank Alexander v. State.
    No. A-34.
    Opinion Filed February 7, 1910.
    (106 Pac. 988.)
    1. COMMERCE — Interstate Commerce — .Shipping Liquor Into State for Personal Use. The Constitution of the United States and the decisions of the 'Supreme Court of the United States permits persons living in this state to ship or bring intoxicating liquor into this state for their own use, and to carry or convey such liquor to their homes or places of residence for their own use or the use of their families, and any state law or constitutional provisions which seeks to make such bringing or shipping of such iiquor into this state illegal is void.
    2. INTOXICATING LIQUORS — Offenses — Interstate Shipments. When a defendant is charged with illegally shipping intoxicating liquors into this state, and the evidence shows that the liquor was lawfully purchased in another state for the personal use of the defendant or of his family, and that the defendant has not sold or attempted to sell such liquor or to make any other illegal use of the same, the jury should be instructed that the defendant has the legal right to so ship or convey such liquor into this state, and to convey it to his home or place of business, and that in so doing he does not commit a violation of the law.
    (Syllabus by the Court.)

      Appeal from, Tillman Gounty Court; T. E. Campbell, Judge•
    Frank Alexander was convicted of conveying liquor within the state, and appeals.
    Reversed and remanded for a new trial.

      P. Mounts, for appellant.

      Fred S. Caldwell, for the State.
   FURMAN, Presiding Judge.

The undisputed facts as disclosed by the record are: That the defendant lived at the Cordell Hotel, in the town of Frederick, Okla. That at & o’clock p. m. on the 1st day of February, 1908, the defendant, being in Wichita Falls, Tex., lawfully purchased some whisky. That he started for home on the Wichita Falls & Northwestern Railroad, bringing the whisky with him. The defendant testified that he was carrying the whisky to his room at the hotel in Frederick for his own nse. This is not questioned by any other evidence. There is no evidence in the record that the defendant sold or offered to sell any of the whisky, or otherwise attempted to illegally dispose of it. The evidence shows that, when the defendant reached the town of Frederick, he alighted from the train, and started directly for his room at the hotel, and, after he had gone about 25 feet from the train, he was arrested with the whisky upon his person. The defense is that the defendant was lawfully in possession of the whisky, and, under the Constitution and laws of the United States Raving the lawful right to purchase the whisky in Texas, he had the further right to convey it to his room for his own use as an interstate shipment. It does not make the least bit of difference how the members of this court may feel or think with reference to shipments of liquor into this state as interstate commerce, it is clear to all intelligent persons that we are absolutely bound by the Constitution of the United States and the decisions of the Supreme Court of the United States.

In the case of Titsworth v. State, 2 Okla. Cr. 268, 101 Pac. 290, this court said:

“The Constitution of the United States declares that Congress shall have power ‘to regulate commerce with foreign nations, and among the several states, and with the Indian tribes.’ [Article 1, § 8.] To ‘regulate’ means to control. So it is seen that the power of regulating or controlling commerce between the states is vested exclusively in Congress, and that no state has the power to pass any law upon this subject, or which would in any manner interfere with or abridge the right of one of its citizens to purchase in another state any article of commerce which could be lawfully sold in the state where the purchase is made, and bring it to his home in his own state for his personal use. This has been decided so often that no person who is well informed upon this subject will question the rule as above stated. This matter has been passed upon by the Supreme Court of Oklahoma in Schwedes v. State, 1 Okla. Cr. 245, 99 Pac. 804, and by the Criminal Court of Appeals in the cases of Houston Hudson v. State, 2 Okla. Cr. 176, 101 Pac. 275, and Josh McCord v. State, 2 Okla. Cr. 214, 101 Pac. 280. The cases above referred to contain such a thorough discussion of this matter, and quote from such an overwhelming weight of authorities, that it is not necessary to repeat what will be found in them. If we are in error touching this matter, it will be an easy thing for the enforcement officers of this state to make a test case in a civil proceeding, and carry it to the Supreme Court of the United States for final determination. If that tribunal sees fit to reverse its former decisions, we will be bound b3r such action, and cheerfully follow it. But, until this, is done, we feel constrained to adhere to the decisions as they stand now.
“If the decisions of the Supreme Court of the United States are wrong, application should, and can, be made to that court for a. reversal of these decisions. It is a waste of time, money, and labor to appeal to this court to set aside anything which that court has decided. ■ The Supreme Court of the United States of necessity must be the final judge of the construction of the United States Constitution. Otherwise we would have a hydra-headed judicial system in which 47 independent appellate courts could construe this instrument as they pleased, which would result, not only in confusion, but in civil war. Each tribunal would be supported by the military force of the government which it represented.- This would result in death, and destruction our form of government. Certainly no reasonable person desires this court to adopt a policy which would bring about such serious consequences as this. It would be treason itself. One thing can be depended upon, and that is that this court will not make any such insane attempts. Under the Constitution of the United' State0, and the decisions of the Supreme Court of the United States, it is clear that any resident of Oklahoma can purchase intoxicating liquor in another state, and ship it into this state, and to points of destination, for his own -personal use, and that such shipments constitute interstate commerce, and that any state law to the contrary is void. But these shipments lose their character as interstate commerce as soon as they reach the point of their destination, and any further shipment of such liquor is subject to state control. The exact language of the Supreme Court of the United States is as follows: ‘Equally established is the proposition that the right to send liquors from one state into another, and the act of sending the same, is interstate commerce, the regulation whereof has been committed by the Constitution of the United States to Congress, and henée that a state law which denies such a right, or substantially interferes or hampers the same, is in conflict with the Constitution of the United States. * * * But the right of persons in -one state to ship liquor into another state to his residence for his own use is derived from the Constitution of the United States, and does not rest on the state law. Either the conditions attached by the state law unlawfully restrain the right, or they do not. If they do, then they are void/ And again, the court, speaking of the right of every citizen of a state to purchase, and have shipped to him liquors for his own use, says: ‘But the right arises from the Constitution of the United States. It exists-wholly independent of the will of either the lawmaking or executive power of the state. It takes its original out of the state of South Carolina, and finds its support in the Constitution of the United States. Whether or not it can be exercised depends solely upon the will of the person making the shipment, and cannot be, in advance, controlled or limited by the action of the state in any department of its government/ Vance v. Vandercook, 170 U. S. 439, 18 Sup. Ct. 674, 42 L. Ed. 1100.”

In the case of Schwedes v. Siaie, 1 Okla. Cr. 246, 99 Pac. 804, the following instructions were requested by the defendant on the trial of the case:

“No. 7. If you find the liquor charged to have been carried by the defendant had just been imported by a common carrier from some person in another state of this Union, and that the same was imported for the personal use of the defendant, then the defendant had a right to receive and carry and convey the same to his own house or apartment, in the original package, for his personal use, as long as there was no intent on his part to sell or dispose of the same contrary to law, or to put the same to an unlawful use.
“No. 8. If you find that the liquor which was charged to have been carried by the defendant was in the original package and the property of the defendant, and had been imported from another state or foreign country by a common, carrier for his own personal use and consumption, and not for the purpose of sale, barter, or exchange, then you should find - the defendant not-guilty.”
“No. 10. You' are instructed that if you find that the defendant did carry the intoxicating liquors charged in the information, and that the same was imported from a foreign state or country, for his own use and consumption, and not for the purpose of barter, sale, or exchange, then the defendant had a right to receive the same and carry it to his own apartments in the original package that it was shipped in, so long as he did not convey the same for any other use.”

The defendant, being convicted, appealed. The Supreme Court of Oklahoma in á well-considered opinion by Chief Justice Williams held that these instructions should have been given. Further discussion of this question is unnecessary.

The judgment of the lower court is reversed, and the cause remanded, with directions to the -trial court to grant the defendant a new 1rial.

Reversed and remanded.

BOYLE and OWEN Judges, concur.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Dixon James v. United States.
    No. 196.
    Opinion Filed February 7, 1910.
    (106 Pac. 975.)
    APPEAL — Service of Notice of Appeal — Time. Where a notice of appeal from a judgment rendered February 26, 1908, was not served upon the .county attorney and the clerk of tlm district court of the county in which the trial took place until. April 16, 1909, the law at the time of judgment requiring such (notice to be served within one year from the date of the judgment, the Criminal Court of Appeals is without jurisdiction, except to dismiss the appeal.
    (Syllabus by the Court.)

      Appeal from District Court. McCurtain County; D. A. Richardson, Judge.

    ' Dixon James was convicted of assault, with intent to kill, and he appeals.
    Dismissed.

      J. B. Whitehead, for appellant. . ■

      C. L. Moore, Asst. Atty. Gen.,, for.the State:
   PER CURIAM.

The judgment in this cause was rendered on the 26th day of February, 1908. The notice of appeal was not served upon the county attorney and the clerk of the district court of the county in -which the trial took place until the 16 th day of April, 1909. Under the law in force at the time when the judgment was rendered in this cause, the notices of appeal must-be served within one year from the date of the judgment. If such notices are not served within such time, this court is without jurisdiction to make any order in a case except to dismiss the appeal. This is so well settled and has been so often decided that it would be a waste of time to discuss the question again.

Appeal dismissed.


author: PEE CUBIÁM.

text:
    H. C. Houck v. State.
    No. A-1.
    Opinion Filed February 7, 1910.
    (106 Pac. 977.)
    APPEAL — Service of Case-Made — Expiration of Time. Tf a judgment allowed accused 60 days in which to prepare and serve a case-made, a service thereof 61 days thereafter would not give the appellate court jurisdiction of an appeal upon the case-made . alone.
    (Syllabus by the -Court.)

      Appeal from Bryan County Court; Charles A. Phillips, Judge.

    H. C. Houck was convicted of obstructing a highway and appeals.
    Dismissed.

      II. II. Loden, for appellant.

      C. L. Moore, Asst. Atty. Gen., for the State.'
   PEE CUBIÁM.

The following motion to dismiss this appeal was filed by the Attorney General:

“Comes now the Attorney General and moves the court to dismiss the pretended appeal herein, and to issue its mandate to the trial court, directing it to forthwith proceed to the execution of its judgment and sentence- in said cause, for the reason following, that is to say: (1) That the pretended record herein is -not certified to by the clerk of the county court, from which the cause is attempted to be appealed, and cannot be considered as a transcript of the record. (2) That the certificate of the trial judge, purporting to allow and settle the pretended case-made, is insufficient, in that it does not attempt to state that the pretended case-made contains any of those essentials properly constituting a case-made, such as the information, trial, evidence, instructions, verdict, judgment, sentence, motion for new trial, exceptions, order granting an appeal, etc., but is simply certified as a conclusion of law on the part of the judge that it is a case-made and that he now settles and signs the same as a true and correct case-made. (3 The record affirmatively -shows that said certificate of the trial judge was not made until July 27, 1908, and that, the case-made was not thereafter filed in the office of the clerk of the county court, and for that reason never became a part of the record in said cause, so that the same can be considered here. (4) The filing of said pretended case-made in the office of the clerk of the county court on July 10, 1908, before the same was served on opposing counsel, or before allowed and settled by the trial judge, was ineffectual for any purpose, and could give the appellant no additional rights. (5) Because said pretended case-made was not served, if at all, on the county attorney, until July 11, 1908, which was more than 60 days after May 11, 1908, the time limited by order of the court for serving same, and that at the time' of the attempted, service said cause had become final, and was not thereafter subject to appeal. (6) The leaving of a case-made or notice of appeal, in the office of the county attorney in his absence does not constitute legal service of same upon the county attorney at all, and especially is this true if he does not have knowledge of the same until the’time for serving has fully elapsed.”

The defendant appealed upon a case-made alone. There is nothing in the. certificate of the county judge which would authorize this court to treat the record filed as a transcript of the record. There is nothing in the case-made which attempts to show that it was ever served upon the county attorney. It is true that, after the signature of the county judge settling the case-made, there is attached to the case-made the following certificate of the county attorney of Bryan county:

“State of Oklahoma, Bryan County. I, J. T. McIntosh, county attorney of Bryan county, state of Oldahoma, do hereby certify and acknowledge that a copy of the foregoing case-made was found by me in my office on the 11th day of July, 1908. «T. T. McIntosh, County Attorney of Bryan Count}', Oklahoma.”

The alleged judgment in this case purports to have been rendered on the 11th day of May, 1908. It allowed the defendant 60 days in which to prepare and serve a case-made. Even if the judgment was so certified to as to enable us to treat it as a part of a transcript of the record, and even if we could treat the certificate which follows the case-made in the record before us as a part of the case-made, it shows that it did not como into the hands of the county attorney until 61 days after the rendition of the alleged judgment against the defendant. The time granted for serving the ease-made having expired, no court has the power to extend such time, and any alleged service of such case-made after the expiration of such time would not restore to life that which was already dead.

For these reasons, the motion to dismiss this appeal must be sustained..

Appeal dismissed.


author: DOYLE, Judge

text:
    Charles Thacker v. State.
    No. A-73.
    Opinion Filed February 8, 1910.
    (106 Pac. 986.)
    1. APPEAL — 'Review — Argument of Prosecutor. Remarks of the prosecuting- attorney in his argument before the jury, objected to as improper, will be -considered and construed in reference to the evidence, and in . order to constitute reversible error the impropriety indulged in must have -been such as may have influenced the verdict.
    2. CONDUCT OF COUNSEL — Improper Argument of Prosecutor— Practice. As a matter of good -practice, when improper argument is indulged in by the prosecuting attorney, and an objection thereto is interposed, in addition to the objection the court should be requested to charge the jury to disregard such improper argument or statement.

      3. CONDUCT OF COUNSEL — Argument of Prosecutor — Proper Scope. A prosecuting attorney has the right in his argument before the jury to discuss all the facts -bearing upon the issue within the scope of the evidence.
    (Syllabus by the Court.)

      Appeal from Grady Gownty Oouri; N. M. Williams, Judge.

    Charles Thacker was convicted of illegally selling intoxicating liquors.' and he appeals.
    Affirmed.
    Plaintiff in error, Charles Thacker, was convicted in the county court of Grady county of the crime of selling intoxicating liquors and sentenced to pay a ñne of $150 and costs; that he be confined at hard labor in the county jail of Grady county, Okla., for a period of 30 days. The judgment and sentence was entered on the 15th day of October, 1908. From which judgment an appeal was taken by filing in this court on January 15, 1909, a petition in error, with case-made attached, and proof of service of notice that appellant appeals, upon the prosecuting attorney and the clerk of the county court of said county. The cause was submitted at the January, 1909, term, of this court.
    Rut one witness, JDow Fisher, testified in behalf of the state. He testified that he lived 1% miles south of Bradley, was acquainted with defendant, and on the 27th day of March, 1908, he went to Bradley. The record then recites:
    “Q. l)id you have any dealings with him on that date? A. Yes, sir; not exactly with him, but in.a manner-I did. Q. Go ahead and tell the jury exactly what dealings you had? A. I went to town and wanted to get some whisky, and I seen him, and asked .him if he-could get it, and Mr. Thacker told me he could get it. He told- me- to go around at the back of an old pool hall there that was closed up, but was run by Mr. Thacker at one time, and 1 went back there and laid down a dollar and picked up'the'whisky. Q. Was this where Mr. Thacker told you it was? A. Yes, sir. Q. Hid Mr. Thacker tell you it was back there ? A. Yes,' 'sir/-’ ' ' •
    . On cross-examination- the witness admitted that he stated to one Frank Marshall in his barber shop that the only dealings he ever had with Thacker in regard to any whisky was that he rode oil horseback with him, and took a bottle of whisky out of his pocket, and that Thacker did not want him to take this whisky; and that he went and'tried to pay Thacker for the whisky, and that he refused to taire the money, and explained this by saying: “Yes, sir; but I did not tell Frank Marshall all of my business.”
    Charles Thacker; the defendant, testifying on his own behalf, stated that:
    “I never sold any whisky to Dow Fisher; that on or about the 27th of March, 1908, I got on a horse with Dow Fisher to ride up the hill, that I had a bottle of. whisky. in my pocket; that Fisher felt the whisky and said that he wanted it. I told him to leave the whisky alone, but he took it anyway; that Fisher afterwards ofEered to pay for it, and I told him'that he did not owe me anything because I did not have the whisky for sale.”' ' ■ -
    On cross-examination ' defendant admitted that , he had been arrested for selling whisky in another case; that he was running a pool hall at Bradley since statehood, ánd was still 'in the same business ■ and sold all- drinks that are • sold at any soda fountain, 'also Adam’s Special.
    Frank Marshall, for the defendant,) .testified!. that he .was acquainted with the witness Fisher, and that he told him in his barber shop at Bradley that • the only transaction that he ever had with ¡¡the defendant • was the time he took the bottle of' whisky out of his pocket.

      A. L. 'Herr, for appellant.
    — Citing: 12 Cyc. 574, 580; 'Gilbert v. Gommw. (Ky.) 51 S. W. 804; State v. F&i-guson (Mo.) 53 S. W. 427; Bullard v. Railroad Go. (N. II.) 5 Atl. 838; State v. Prendible (Mo.) 65 S-. W. 559; Williams v. United States, 168 U. S. 380; Buller v. Siate (Tex. Crim. App.) 27 S. W. 128; People v. Dane, 26 N. W. 781; Miller v. Territory, 79 C. C. A. 268.

      Fred S. Caldwell, Counsel to the Governor, for the State. .
   DOYLE, Judge

(after stating the facts as above). Two specifications of error are averred in the petition. The first is that “the court erred in refusing the' request of the defendant to liave the official court stenographer report the statements made by the jurors on their examination, as to their qualifications to serve as jurors in said cause.” The record discloses that, when the ease was called, both parties announced ready, and the “attorney for defendant requests the court to have the official stenographer take down the examination of the jurors, which request was refused, and the court stated if there is any objection to any-juror the attorney-may-have the same taken down and put into the record. To which defendant excepts.”

It is urged that under section 5859, Snyder’s St. 1909, this ruling of the court is reversible error, “without regard to the merits thereof.” Said section provides:

“It shall be the duty of the 'court reporter to take down in shorthand, and to correctly transcribe, when required, all the ■ proceedings upon the trial of any cause, as well as all statements of counsel, the witnesses and the court, made during the trial of any cause or with reference to any cause pending for trial, when required by a party or attorney interested therein, and all other matters that might properly be a part of a case-made for appeal or proceeding in error. An attorney in any case pending shall have the right to request of the court or stenographer that all such statements or proceedings occurring in the presence of the stenographer or when his presence is required by such attorney,' shall be taken and transcribed. A refusal of the court to permit, or, when requested, to require any statement to be taken down by the stenographer, or transcribed after being taken down, upon the same being shown by affidavit or other direct and competent evidence, to' the Supreme Court, shall be deemed prejudicial error, without regard to the merits thereof.”

The assignment is without a shadow of merit. The record shows that there was no objection made to any member of the jury selected.

The second relates to alleged misconduct and prejudicial remarks made by the county attorney in his closing argument to the jury, as follows:

“Counsel for defendant stated that: (1) That if defendant had been a bootlegger, the state could certainly find more than one witness to prove the same. Why, gentlemen of the jury, the reason I did not introduce other testimony was, because I would not be allowed to do so; I would not be permitted to prove other sales under the law. (2) We have the defendant here in the “joint business.’ He admits he has been in the joint business for a number of years, and after objection and exception had been taken by counsel to the above remark, the county attorney replied: cYes, you object; you put a cocklebur under a jackass’ tail, and he will' always squeal.’ (3) The witness said that he took a bottle of whisky from the defendant, and that he after-wards offered to pay him for it, and I tell you, gentlemen of the jury, that this defendant knew that this man had been subpoenaed before the grand jury, and this ease was set for trial, and of course this defendant was not going to take the money. (4) 1 say that it is my belief that he had this whisky, and that he sold it to this young man, and that he received the money for it. (5) They say that the prosecuting witness corroborates the defendant out of court, and that he told Frank Marshall that the only whisky transaction he ever had with the defendant was the time the whisky was taken out of defendant’s pocket. Yes, gentlemen of the jury, there was a concocted scheme between the defendant and the witness Marshall to get the prosecuting witness to that barber shop and get that statement out of him. To which remarks of the countv attorney the defendant then and there objected and excepted.”

The first remark was proper in answer to the argument made by counsel for defendant.

The second remark was properly predicated upon the defendant’s testimony. A prosecuting attorney in his argument has the right to draw such inferences or conclusions from the evidence as his reason may dictate, if warranted by the facts shown. As for the repartee indulged in, evidently the simile was more expressive than elegant, yet, while such conduct is not commendable and might deserve the rebuke of the trial court, it does not constitute reversible error.

The third remark was within the bounds of legitimate argument. A prosecuting attorney cannot be charged with misconduct in urging a theory as to defendant’s acts or motive, where there is some evidence to support it.

The fourth remark being an expression of the opinion as to the guilt of the accused by the county attorney should be construed as being an expression of his personal opinion as to the weight of the evidence, and was therefore not .objectionable.

The fifth remark was not objectionable, as the county attorney has the right in his argument before the jury to discuss all the facts bearing upon the issue within the scope of the evidence.

As a matter of good practice, where improper remarks aré made by the prosecuting attorney in his argument before the jury, when an objection thereto is interposed, and a ruling of the court invoked, the court should be requested to charge the' jury to disregard such improper argument or statement.

In an elaborate argument covering 30 closely printed pages of this brief, counsel for defendant has collated, the authorities in support of his contention. We cannot take the time to review these authorities, but our examination shows that as a rule.each case turns on its own particularities; This court declared as a general rule in the case of Reed v. State, 2 Okla. Cr. 589, 103 Pac. 1042:

“The remarks of counsel must be considered and construed in reference to the evidence, and in order to constitute reversible error the impropriety indulged in must have been such as may have influenced the verdict.”

It is our opinion that the defendant has had a fair and impartial. trial.

The judgment of the. county.,court of Grady county is therefore affirmed,, with direction to cause the judgment and sentence to be carried Into execution.

FURMAN, Presiding Judge, and OWEN, Judge, concur.


author: OWEN, Judge.

text:
    Ed. Dooling et al. v. State.
    No. 243.
    Opinion Filed February 11, 1910.
    (106 Pac. 982.)
    1. APPEAL — -Failure to Except in Lower Court. An error, not excepted to during the trial or in the motion for new trial, and urged for the first time in this court, will not be reviewed unless fundamental and clearly deprived the accused of a substantial right. ■ 1 '
    2. INSTRUCTIONS — Province of Jury. The instructions' of the trial court should apply the law to the competent evidence as offered by the state and the accused, and leave the jury to determine as to what facts and circumstances are established by the evidence.
    3. APPEAL — Harmless Error — Instructions.An instruction improper and contrary to the settled doctrine of this court will not be held reversible error where it is manifest, on consideration of all the instructions given, the testimony -of the accused, and the verdict of the jury, that such an instruction did not work to the prejudice of the accused, or deprive him of any substantial right.
    4. APPEAL — Review—Instructions. The instructions must be considered in connection with, and applied to, the evidence in the case in which they are given. An instruction harmless in one case may be prejudicial in another, "depending upon the facts of each case.'
    (Syllabus by the Court.)

      Error, from District Court, Choctaw County■; D. A.. Richar.d-son, Judge.

    Ed. Dóoling and W. N. Campbell, the plaintiffs in error here, who were the defendants in the trial court, were tried at the March term of the district court of Choctaw county, charged with assault with intent to kill. - They were convicted of assault to inflict bodily harm, and sentenced to imprisonment in the territorial prison at Lansing, Kan., at hard labor for a term of two years and six months, and to pay the cost of the prosecution. The ease is before us on appeal.
    Affirmed.

      Utferback é Hayes, for plaintiffs in error.
    — Citing: Stale v. Foutch (Tenn.) 34 S. W. 423; BrumMey v. State, 21 Tex. App. 223; People v. Maughs (Cal.) 86 Pac. 190; People v. Van Fman (Cal.) 43 Pac. 520; Wright v. Commw., 85 Ely. 123; Buckley v. State, 62 Miss. 707; People v. Borrego (Cal.) 95 Pac. 381; Hartford v. State, 96 Ind. 461.

      Charles West, Atty. Gen. and E. G. Spitman, Asst. Atty. Gen., for the State.
    — Citing: State v. Crank (S. C.) 23 Am. Dec. 117; Stevens v. State, 42 Tex. Crim. App. 154; 14 Cent. Dig., title “Criminal Law,” sec. 1387; Robinson v. Territory, 16 Olda. 241; State v. Hanper, 142 Mo. 478; Kirk v. Territory, 10 Oka. 46.
   OWEN, Judge.

It is fair in the outset to' saj^ that the attorneys appearing for the defendants here did not conduct the trial in the lower court. In their brief filed' they urge four assignments of error.

The first of these is the action of the trial court in refusing to allow the defendants, upon demand of a severance, to elect which defendant should be placed upon trial first. We find that the record fails to disclose any exception on the part of the defendants . to the ruling of the court on this proposition. The record discloses that a motion for severance was filed and by the court allowed, and, it appearing that Campbell’s name appeared first on the indictment, the court ordered said defendant to be placed first on trial. The defendants then withdrew their motion for a severance. There was no exception saved to the action of the court in directing Campbell to be placed on trial first. This is not such fundamental error that this court must reverse without exceptions having been saved in the lower court.

Under the second assignment of error, counsel complain of the following instruction:

“The jury are instructed that if they believe from the evidence in this case that the said Paul Peters assaulted the said Ed. Dooling without fault or provocation on the part of the said Ed. Dooling, and struck him with his fist, and that someone cried out to the defendant to watch out, and that the said Ed. Pooling, as a reasonable man, then and there had reasonable cause to apprehend on the part of the said Paul Peters a design to kill him, the. said Ed. Pooling, or to do him some great bodily injury, and that there was reasonable cause for the said Ed. Pooling to apprehend immediate danger of said design being accomplished, and that for the purpose of averting such apprehended danger to himself, and not in a spirit of revenge, he cut the said Paul Peters with a knife, in good faith believing it necessary for him to so cut in order to protect himself from such apprehended injury, then, in that event, the act of said Ed. Pooling ivas -not felonious, but was justifiable, and it would be your duty to acquit this defendant.”

Counsel urge that this instruction was error because of the language “without fault or provocation on the part of the said Pooling,” insisting that this deprives the defendant of the right of self-defense, for the reason that the jury might have understood and considered that any language on the part of Pooling which might have to some extent brought on the difficulty was such fault or provocation as would deprive him of his right of self-defense, and, further, that this instruction was error for the reason that the jury might have understood that the apprehended danger to Pooling should be viewed in the light of circumstances as the jury understood them, and not as they appeared to the defendants at the time. Upon a consideration of all the evidence in the case, and especially that on the part of the defendants, we can see no error in this instruction. The testimony on the part of Pooling and Campbell is to the effect that Pooling had in ordinary language reminded Peters that he had not paid a debt of $2 which he had promised to pay on that day. Whereupon Peters assaulted Pooling by grabbing him in the shirt collar, and by striking him in the face with his fist and that he threw his right hand back to his hip as if to draw a pistol. The defendant Campbell then struck Peters over the head with a six-shooter to prevent his shooting Pooling, and the defendant Pooling struck him with a knife, which he had been using in trimming a cork. This instruction applied the law to the facts disclosed by the evidence. From that portion of the instruction:

“And that the said Ed. Pooling, as a reasonable man, then and there had reasonable canse to apprehend on the part of the said Paul Peters a design to kill him, the said Ed. Pooling, or to do him some great bodily injury, and that there was reasonable cause for the said Ed. Pooling to apprehend immediate danger of said design being accomplished, and that for the purpose of averting such apprehended danger to himself,- and not in a spirit of revenge he cut the said Paul Peters with a knife, in good faith believing it necessary for him to cut in order to protect himself from such apprehended injury, then, in that event, the act of said Ed. Booling was not felonious, but was justifiable and it would be your duty to acquit this defendant,” the jury must have understood the court to mean that the apprehended danger should be considered from the defendant’s standpoint as it appeared to him at the time. The court used the language, “then and there had reasonable cause to apprehend.”

The third assignment is that the court erred in giving instruction No. 17, as follows:

“The court further instructs the jury, however, that the law allows a person to use only such force as may be necessary to overcome the force used against him, or which he believes is being used or is about to be used against him; and if you' should believe from the evidence in this case that the said Paul'Peters did assault the said Ed. Booling and the said Bogy Campbell, but should further find from the evidence in this case, beyond a reasonable doubt, that the said Ed. Booling and the said Bogy Campbell, or either of them, had overcome the said Paul Peters, and had the said Paul Peters within their power, and in such a condition that he could do no injury to them or either of them, and that thereupon the said Bogy Campbell held the said Paul Peter’s hands while the said Ed. Pooling stabbed him with a knife, with the intent to kill the said Paul Peters, and said knife was then and there a deadly weapon, then it would be your duty to find both the defendants guilty of the crime of assault with intent to kill.”

Counsel urged that this 'instruction was error because it left the jury to pass upon whether or not the force used was more than necessary, or whether or not the defendants had overcome Peters and had him where he could not commit further injury, after the evidence was all in, and that the court should have instructed the jury that in arriving at the force necessary they should look to the defendants’ standpoint' of view at the time the force was used. It must be remembered that this instruction was one of several that was given by the court, and the instructions are to be considered as a whole, and not as separate and distinct propositions. In instruction No. 13, above quoted, the court properly instructed the jury on the theory of the defense. In other instructions given and not complained of the jury were properly instructed as to the presumption of innocence, the burden of proof, and reasonable doubt. This instruction considered together with the other instructions given, was a correct application of the law to the facts as proved, and, in addition, this instruction was as to the law governing assault with intent to kill. The defendants were acquitted of this, charge in the conviction of the lower offense of assault to inflict bodily harm.

Under the fourth assignment of error counsel urge that the case- should be reversed because the court gave instruction No. 26 in the following language:

“The court instructs you that the defendants are competent witnesses in this case, and you must consider their, testimony in arriving at your verdict in connection with all the other evidence in the case. You will determine the credibility of the defendants as witnesses and the weight and value to be given to their testimony by applying to them and to their testimony the same test which you apply to every other witness, tailing into consideration their demeanor on the witness stand, their manner of testifying, their inclination to speak the truth or otherwise, the reasonableness or unreasonableness of their statements and their interest in the result of this trial, and you will give their evidence such weight as you deem it entitled to have.”

Similar instructions have been condemned by 'this court in thé case of Green v. U. S., 2 Okla. Cr. 55, 101 Pac. 112; Hendrix v. U. S., 2 Okla. Cr. 240, 101 Pac. 125; Fletcher v. State, 2 Okla. Cr. 200, 101 Pac. 599; Reed v. U. S., 2 Okla. Cr. 652, 103 Pac. 371; Crow v. State, ante, p. 428, 106 Pac. 556.

It is a matter of common knowledge that the United States •courts in the Indian territory prior to statehood in the trial of all criminal cases gave that instruction. While the custom in the United States courts does not cufe the evil of such an instruction, yet it does afford a reason why the trial court should not be criti-cised in following the custom soon after statehood, and before a different rule was announced by this court.

The instruction given in this case is a clear and concise statement of the rules by which the jury should be governed, and the only thing which can be complained of is that these rules are directed especially to the defendants’ testimony. Did it work to their prejudice, or deprive them of a fair and impartial .trial? If it did, the case should be reversed; and if there should be a reasonable doubt, the defendants should have the benefit of the doubt and the case reversed. But after a careful consideration of the evidence, we are convinced, beyond a reasonable doubt, that the defendants were not prejudiced by this instruction. The testimony on the part of the state was to the effect that the defendants, the person assaulted, and others were drinking in a pool hall in the town of Hugo; that the defendant Campbell was standing near Peters, and without any warning or provocation, struck Peters over the head with a six-shooter, knocking him down on a barrel, and that he then grabbed Peters’ hands and held them above his head while his codefendant, Dooling, struck Peters with a knife. The defendants’ testimony was to the effect: That earlier in the night Dooling had requested Peters to pay him $2 which he had borrowed the day before, and that Peters refused to pay, and that Dooling ordered him out of the house. Dooling was proprietor of the pool hall. That later in the night, Peters, in company with John Harrison, returned to the pool hall, and the crowd began drinking whisky taken from Harrison’s pocket. That Dooling started to leave the room, when Harrison and Peters started to follow. That someone warned Dooling to “look out,” and said to Peters and Harrison, “Don’t double up on him.” Thereupon Dooling turned and came back to the bar where the crowd were drinking. Harrison said: “Stand back, pardner,” and made as if to draw a pistol. Then Peters assaulted Dooling by catching him in the throat, and by striking him in the face, and by throwing his, hand to his hip pocket as if to draw a pistol, whereupon Campbell, believing that Peters was about to draw a pistol, struck him over the head with a six-shooter to prevent Peters shooting Booling, and that about che same time Pooling, believing that Peters was about to shoot him, cut Peters with a knife. The proof on the part of the state, uncontradicted, would have justified the jury in finding both defendants guilty of assault with intent to kill. The jury evidently believed -the version given by the defendants, or they would not have> found them guilty of assault to inflict bodily harm. There can be no question on the testimony of the defendants but that they used greater force than at the time seemed necessary. There is no proof that Peters was' any larger or more powerful than Pooling, and nothing from which the defendant Pooling would have reason to believe that Peters was able to inflict great bodily harm upon him, unless it was that Peters was seen to throw his hand back to his hip pocket. Either Campbell or Pooling could easily have prevented Peters from drawing his pistol by grabbing him, as the proof shows that one of the by-standers grabbed Harrison and disarmed him. The evidence discloses ' that Peters was cut several times, and that he was cut after he was struck over the head with the six-shooter, and that the lick over the head by the six-shooter knocked him down over a barrel. The jury saw all the witnesses, observed their demeanor on the stand, and the question as to the amount of force used and the necessity of same, as it appeared to the defendants at -the time, was squarrely submitted to the jury in the instructions given, and every reasonable doubt favorable to the defendants under the testimony must have been indulged by the jury in arriving at a verdict of assault to do bodily harm. The jury returned a verdict without fixing the punishment. The court, after hearing all the evidence, fixed the punishment at two years’ and six months’ imprisonment. There is no contention here that the punishment was excessive. While we condemn the practice of the courts in giving instructions similar to the one given here, and as was said by the presiding judge of this court, in passing on a similar question in the case of Fletcher v. State, supra, we warn the courts of Oklahoma from giving such instructions in the future, which would cause the reversal of cases, that but for such instruction would be affirmed. It is not every improper instruction that entitled the defendant to a new trial. ' On the trial of this case the instruction complained of here was not excepted to at the time it was given, neither was it mentioned in the motion for a new trial, but was objected to for the first time in this court.

This court has repeatedly held that where no objection is taken at the time the instruction was given, and no objection made in the motion for a new trial, this court will reverse only on fundamental error. In the case of Reed v. United States, 2 Okla. Cr. 652, 103 Pac. 371, this court reversed the case on an instruction that was in some respects similar to the one complained of here. The instruction there did not correctly state the rules, as did this one, and more particularly singled out the defendant, and the defendant at the time saved his exception, thereby calling the attention of the court to the error complained of. It is always fair to the trial court to direct his attention to the error complained of at the time that it may be corrected before the ease is finally submitted to the jury. While the instructions are by statute a part of the record, as was held by this court in the case of Reed v. United States, supra, yet the record where no objections appear will be examined for fundamental errors only.

Inasmuch as the judgment of the lower court was that the defendants be confined in the territorial prison at Lansing, Kan., and the state prison having since been provided for, the judgment of the lower court is corrected to confinement in the state penitentiary, but in all other things affirmed.

FURMAN, PresidiNg Judge, and DOYLE, Judge, concur.


author: DOYLE, Judge.

text:
      Ex parte John Eldridge.
    No. A-502.
    Opinion Filed February 11, 1910.
    (106 Pac. 980.)
    1. SENTENCE — Essential Elements — Time. 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.
    2. SENTENCE — Subsequent Arrest of Convict at Large. Where a convicted defendant is at liberty and has not served his sentence. and the same is not stayed as provided bv law, he may be arrested as on escape and ordered into custody on the un-executed judgment.
    3. SENTENCE — Execution — Expiration of Time. Expiration of time without imprisonment is in no sense an execution of the sentence.
    (Syllabus by the 'Court.)
    Application of John Eldridge for a writ of habeas corpus.

    Denied.

      J. R. Scott and P. W. Cress, for petitioner.

      Fred S. Caldwell, Counsel to the Governor, and Chas. R. Bostich, Co. Atty., for the State.
   DOYLE, Judge.

Petitioner, John Eldridge, on December 23, 1909, filed in this court a petition wherein he avers that he is unlawfully restrained. of his liberty by one A. C. Nicewander, sheriff of Noble county, at and tin the common jail of said county.

The petition sets forth that petitioner was tried and convicted in the county court of Noble county for a violation of the prohibition law. The judgment entered in part recites:

“It is therefore by the court considered, ordered, and adjudged that the said defendant, John Eldridge, for said offense by him committed, be confined in the county jail of Noble county, Oklahoma, at hard labor, for the period of thirty days, and that he pay a fine of $50 and the costs of prosecution taxed at the sum of $19.25, and, if said fine and costs be not paid, that said defendant be confined in said county jail of Noble county for ah additional period of 39 days, until said fine and costs be fully satisfied, and execution issue for said fine and costs. It is further ordered by the court that said term of imprisonment shall begin and date from the date of his, defendant’s, surrender to or arrest by the sheriff of Noble county, for the purpose of such imprisonment.”

The defendant prayed an appeal. The court fixed the amount of bail bond at $500, which bond was given and approved and the court extended the time for making and serving a case-made 90 days, the same to be filed in the Criminal Court of Appeals within 120 days. Thereafter, on March 1st, for good cause shown, the court allowed a further extension of 60 days in which to make and serve a case-made. Said case-made was not served within the time allowed, and no appeal was taken. Un the 9th day of December, 1909, the county court made the following order in said cause:

“Now on this 9th day of December, 1909, Chas. B. Bostick, county attorney, appears for the state, and it is made to appear to the court that judgment and sentence in this case was pronounced against the defendant on the 4th day of December, 1908, and that on said date an appeal to the Criminal Court of Appeals of Oklahoma was granted to the defendant on his request, and that subsequent to said time,' to wit, on the 16th day of December, 1908, said defendant filed in this court his bond for stay of execution of judgment as fixed by the court, which was duly approved; and the defendant duly released thereon. And it further appearing to the court that the time for taking an appeal to the Criminal Court of Appeals, to wit, a period of one year from date of judgment, has expired, and that said defendant has not perfected his appeal to said court, and that he has not surrendered himself to the sheriff or any other officer of this court for the fulfilment of said judgment and sentence, and that he has not paid or satisfied the same in $ny maimer whatever, it is therefore considered, ordered and adjudged by the court that the sheriff of Noble- county arrest said defenedant, arid detain him in the county jail of Noble county in accordance with the judgment and sentence pronounced against said defendant, and that the clerk of this court forthwith deliver to the sheriff of Noble county a duly certified copy of- said judgment and sentence, and of this .order, and that said certified copies shall bo full warrant and authority to the said sheriff for the arrest and detention of said defendant. H. E. St. Clair, County Judge.”

Upon this order of the court a commitment issued and the defendant was on said day taken into custody.

It is further averred that said county court was without jurisdiction to issue said order of commitment for the' reason that the time for perfecting said appeal expired June 4, 1909, and that defendant was within the jurisdiction of said court at all times, and that by operation of law his sentence began upon the expiration of time allowed to file a petition in error with case-made attached in this court or at the farthest the maximum time, 120 days, from June 11, 1909, at which time the act fixing the time in which an appeal must be taken took effect, in which event his sentence began to run October 10, 1909, and continued to be in full force and operation from that day until December 19, 1909, at which time the judgment and sentence of the court had been fully satisfied. Copies of all the proceedings and of the judgment and order of the court and of the commitment were attached to and made a part of the petition.

Counsel for the state filed a general demurrer on the ground that said petition does not state facts sufficient to entitle petitioner to the relief prayed foi.

Counsel for petitioner rely upon the doctrine declared by the Supreme Court in the case of Ex parte Clendenning, 1 Okla. Cr. 221, 97 Pac. 650, 19 L. R. A. (N. S.) 1041. As we view it, the doctrine of that case is not applicable to the case at bar. In the Clendenning case the judgment was that the defendant pay a fine of $75 and costs, and be imprisoned- 30 days in jail, After judgment the court suspended the jail sentence during good behavior, and the defendant on this condition was discharged. Some six months later at a subsequent term of the court, the suspension of the jail sentence was set aside and annulled, and the judgment and sentence ordered enforced. The question there presented was:

“Whether or not a court after delivering its judgment and sentence in a criminal ease may stay the same, in the absence of appeal or other legal proceedings taken, looking to its modification, and after the term at which it was rendered had expired, and after the time embraced therein has elapsed, whether it has jurisdiction to then issue commitment in execution of its judgment, and incarcerate the defendant thereunder.-”

The Supreme Court in an elaborate and instructive opinion by Justice Dunn held that:

“The court has no power or jurisdiction after the expiration of time of the sentence and of the term of court when rendered to call it back and -issue a commitment thex'eunder.”

Let us assume a void bail bond is given and approved as a supersedeas in a criminal case, a common occurrence, and after the expiration of the period of time fixed by the sentence this defect is discovered, under the doctrine of the Clendenning Case, would the defendant be entitled to his discharge? We think not. Such is not the law.

In the case at bar an appeal was attempted to be taken to this court and a recognizance was taken after conviction for the appearance of the defendant to answer any judgment rendered by the Criminal Court of Appeals of Oklahoma, or of the county court of Noble county in the further progress of said cause. The judgment itself specifically provides:

“That said term of imprisonment shall begin and date from the date of his, defendant’s, surrender to, or arrest by the sheriff of Noble county for the purpose of such imprisonment.”

The date fixed by a sentence for the punishment to commence is directory merely, and forms no part of the sentence itself; hence, if from any cause it is not carried into effect at the period named, the party' may be brought before the court again upon motion, and a new period be prescribed. It was held by this court in tbe case of William Ridley v. State, ante, p. 350, 106 Pac. 553, that:

“Under tbe provisions of Procedure Criminal, article 14, c. 89, Snyders Comp. St. 1909, after a plea or verdict of guilty tbe court must render judgment, and assess the punishment or penalty prescribed by law. The time fixed for executing a judgment and sentence or for the commencement of its execution is not one of its essential elements, and strictly speaking, is not a part of the judgment and sentence. The essential part of the judgment is the punishment, and the amount thereof, without reference to the time when it shall be executed. Except in eases where the defendant has been convicted of two or more offenses before judgment on either, the order of the court in reference to the time when the sentence shall be executed is not material.”

Our statute on the subject is simply declaratory of the common law, and where the judgment and sentence is imprisonment for a certain term, and from any cause the time elapses without the imprisonment being endured, it would still be a valid, subsisting unexecuted judgment.

“The judgment 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. Where the penalty is imprisonment, the sentence of the law is to be satisfied only by the actual suffering of the imprisonment imposed, unless remitted by death or by some legal authority. The expiration of time without imprisonment is in no sense an execution of the sentence.” (Ex parte Collins, 8 Cal. App. 367, 97 Pac. 188; State v Cockerham, 24 N. C. 204; Dolan’s Case, 101 Mass. 222.)
• “Where the convicted defendant is at liberty and has not served his sentence, if there Be no statute to the contrary, he may be rearrested as an escape, and ordered into custody upon the un-executed judgment.” (1 Bishop, New Crim. Proc. Par. 1384; In re Shaw, 31 Minn. 44, 16 N. W. 461; Ex parte Vance, 90 Cal. 208, 27 Pac. 209, 13 L. R. A. 574; People v. Patrich, 118 Cal. 332, 50 Pac. 425.)

When the county court of Noble county issued the order of commitment, there was a valid, subsisting, unexecuted judgment against the defendant, and while the defendant was at all times within the jurisdiction of the court, upon his failure to perfect his appeal, he did not demand that the judgment and sentence be carried into execution. The judgment being valid and the sentence unserved, the commitment of the defendant in execution of the judgment was a legal and valid imprisonment.

For the reasons stated, the demurrer is sustained, and the application for writ of habeas corpus is denied.

FUBMAN, PRESIDING Judge, and OWEN, Judge, concur.


text:
    Jess Humphrey v. State.
    No. A-52.
    Opinion Filed February 11, 1910.
    (106 Pac. 978.)
    1.'. APPEAL — Case-Made — Authentication. The statute requiring the case-made to be attested by the clerk, and the seal of the court thereto attached, is mandatory, and without such authentication the case-made is not properly presented to this court.
    2. TRIAL — Presence of Accused — Felony Cases. In a criminal prosecution for a felony, the defendant must be present, in person, during' the trial, and the record must affirmatively show this : fact.
    (Syllabus by the Court.)

      Error from District Court, Seminole County; A. T. West, Judge.

    Jess Humphre}', the plaintiff in error, was tried in the district court in Seminole county at the June term, 1908, on information charging him with murder. He was convicted of manslaughter, and sentenced to imprisonment for the term of 10 years, and to pay a fine of $10 and costs of the prosecution. The ease is before us on appeal. Motion filed by the defendant In error to strike the case-made from the files for lack of authentication.
    Beversed and remanded.

      Crump & Rogers, for plaintiff in error.
    — Citing: Day v. Territory, 2 Okla. 409; Leroy v. Territory, 3 Okla. 596; Ward v. Territory, 8 Okla. 12.

      Charles West, Attj. Gen., and Chas. L. Moore, Asst. Atty. Gen., for the State.
   OWEN, Judge.

The plaintiff in error was tried in the district court of Seminole county. The judgment of the court in passing sentence was on the 17th day of June, 1908. The certificate of the trial judge attached to the case-made is as follows:

“I, A. T. West, judge of the district court of Seminole county, Oklahoma, and the judge before whom the ease of the State of Oklahoma, Plaintiff, v. Jess Humphrey, Defendant, was tried, do hereby certify the foregoing to be a full, true, and complete bill of exceptions tendered to me by the said defendant in said case, and I do now sign and settle the same as a correct and true bill of exceptions and do hereby direct the clerk of this court to file the same as a part of the record in said cause. A. T. West, Judge of District Court of Seminole County, Oklahoma.”

The certificate is not attested by the clerk, nor was the seal of the court attached. Section 6951, Snyder’s Comp. Laws 1909 (section 5618, Wilson's Rev. & Ann. St. 1903), among other things provides as follows:

“The case and amendments shall be submitted to the judge, who shall settle and sign the same and cause it to be attested by the clerk or the probate judge, and the seal of the court to be thereto attached. It shall then be filed with the papers in the ease. ' The original case-made shall be filed with the petition in error.”

This court has repeatedly held such provisions of the statute mandatory. The case-made and record must be authenticated as required by statute. Chandler v. State, ante, p. 254, 105 Pac. 376; Bradford v. State, ante, p. 367, 106 Pac. 535. The motion to strike the case-made must be sustained.

Attached to the record filed in this court appears the certificate of the clerk of the district court, bearing the imprint of the seal, as follows:

“I. J. E. Lawhead, clerk of the district court of Seminole county, Oklahoma, do hereby certify that the above and foregoing is a correct, true, and complete transcript in the case of the State of Oklahoma, Plaintiff, v. Jess Humphrey, Defendant. J. E. Lawhead, District Clerk.”

This is proper authentication of the transcript of the record. As was said by this court in the case of Reed v. U. S., 2 Okla. 652, 103 Pac. 371, the record proper, under our statute, includes the information, the plea of the defendant, the verdict of the jury, the sentence of the court, instructions given by the court, and those requested by the defendant, together with all indorsements made thereon. This record is properly before the court for review. By the provisions of section 6019, Snyder’s Comp. Laws 1909 (section 5580, Wilson’s Rev. & Ann. St.), the clerk’s minutes of the trial are also made a part of the record. The transcript of the clerk’s minutes filed in this case fails to disclose the presence of the defendant in court during the argument of the counsel, and when the verdict was returned and received by? the court. Section 6775, Snyder’s Comp. Laws 1909 (section 5436, Wilson’s Rev. & Ann. St.), is as follows:

“If the indictment is for a felony, the defendant must be personally present at the trial.”

This question was presented to the Supreme Court of Oklahoma in the case of Day v. Territory, 2 Okla. 410, 37 Pac. 806, and again in the case of Leroy v. Territory, 3 Okla. 596, 41 Pac. 612. In construing the statute, in the ease of Day v. Territory, the court said:

“A leading principle that pervades the entire, law of criminal procedure is tiiat after an indictment is found, nothing shall be done in the absence of the prisoner. While this rule has, at times, in cases of misdemeanor, been somewhat relaxed, yet in felonies it is mot in the power of the prisoner, either by himself or his counsel, to waive the right to be personally present during the trial. It would be contrary to the dictates of humanity to let him waive the advantage which a view of his sad plight might give him, by inclining the hearts of the jurors to listen to his defense with indulgence. And it appears to be well settled that where the personal presence is necessary in point of law, the record must show the fact. Thus in a Virginia case the records showed that on two occasions during the trial the prisoner appeared by attorney, and there was nothing to show that he was personally present on either day in court. This was probably the result of mere inadvertence in making up the record, yet the court must look only to tlie record as it is. It is the right of any one, when prosecuted on a capital or criminal charge, to be confronted with his accusers, and witnesses, and it is within the scope of this right that he be present, not only when the jury are hearing his case, but any subsequent stage, when anything may be done in the prosecution by which he is to be affected. And in a Pennsylvania case it was held that the record must show affirmatively the prisoner’s presence in court, and that it was not allowable to indulge the presumption that everything was rightly done, until the contrary appears. Lewis v. United States, 146 U. S. 372 [13 Sup. Ct. 136, 36 L. Ed. 1011]; Prine v. Commonwealth, 18 Pa. 103, 104; Dunn v. Commonwealth, 6 Pa. 384; Ball v. United States, 140 U. S. 118 [11 Sup. Ct. 761, 35 L. Ed. 377] supra. From the record, it does not appear affirmatively that the defendant has been afforded his constitutional right of presence during the trial. It may be, and more than likely is true, that the defendant was in fact present at all times, and that the error is an inadvertence in making up the record when his case was called for consideration: but it would be a dangerous precedent to establish, for the court to assume such to be truth, and thus give its assent to a conviction where the records fail to show that the defendant was actually present on his trial, thereby saying to the world that the trial of a defendant may take place, in this territory in his absence, in violation of a sacred and humane con-titutional, as well as a statutory, immunity.”

It may appear technical to reverse the case for the failure of the record to show the presence of the defendant, when in all probability the defendant was present at each step taken daring the trial. Courts of last resort must establish precedents under which innocent men are to be tried. The law presumes every man innocent, and this presumption clings to him until overcome by competent evidence in a fair trial conducted according to law. Even though the evidence in this case is sufficient to warrant the verdict of guilty, yet we must not declare a rule in this case that would deprive an innocent man of any substantial right. It is not the fault of appellate courts when such a precedent must be declared in a case where the proof shows the defendant guilty. The fault, if any there be, is with the trial court, the clerk, and the prosecuting attorney in their failure to have the record speak the truth.

For the failure of the record to affirmatively show the presence of the defendant during the argument in the case, and when the vei'dict was returned in open court against him, the case must be reversed and remanded, with directions to grant a new trial.

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


text:
    State v. S. Feeback.
    No. A-484.
    Opinion Filed February 28, 1910.
    (107 Pac. 442.)
    1. INTOXICATING LIQUORS — Unlawful Possession — Sufficiency of Indictment. An indictment which charges as follows: “S. Feeback did commit the crime of unlawful possession of intoxicating liquors, in that he, the said S. Feeback, did then and there wrongfully and unlawfully have the possession of certain intoxicating liquors, to wit, fifty cases of whisky, with the intention on the part of him, the said 6. Feeback, of violating the provisions of article III, chapter 69 of the Session Laws of 1807-08, of the state of Oklahoma, contrary to the form of the statutes in such cases made and provided, and against the peace and dignity of the state of Okahoma” — is sufficient to charge the offense of unlawful possession of liquor.
    2. UNDICTMENT AND INFORMATION — Sufficiency — Statutory Offenses. It is a rule of universal application that, when a statute creates an offense and sets out the facts which constitute It, the offense may be sufficiently charged in the language of the statute.
    3. INDICTMENT AND INFORMATION — Sufficiency. The true test of the sufficiency of an indictment is not whether it might possibly have been made more certain, but whether it contains every element of the offense intended to be charged, and sufficiently apprises the 'defendant of what he must be prepared to meet; and, in case any other proceedings are taken against him for the same offense, whether the record shows with accuracy to what extent he may plead his former acquittal or conviction.
    (Syllabus by the Court.)

      Error from Greek County Courtj Josiah 0. Dav-'s, Judge.

      S. Feeback was charged with having the unlawful possession of intoxicating liquors. A demurrer and motion to quash were sustained, and the state brings error.
    Reversed and remanded, with directions.

      Fred S. Caldwell. Counselor to the Governor, for the Sta+e.
    —Citing: Rapalje on Criminal Procedure, secs. 90, 91; Bailey v. Commiu.. 78 Ya. 19; State v. Foster, 30 Kan. 365; State v. Hodgson, 69 Yt. 134; State v. Pennington, 41 W. Ya. 599; People v. Talbot, 120 Mich. 486; State v. Delvechio, 25 TJtah, 18; Wells v. State. 118 Ga. 556; Peters v. U. S., 94 Fed. 127; Schley v. State, 48 Fla. 53; Commw. v. Detohirst, 190 Mass. 293; Stevens v. State, 89 Md. 669; State v. Sonier, 107 La. 794; Semon v. State, 158 Ind. 55; Peterson v. State, 64 Neb. 875; Bolen v. People, 184 Ill. 338; State v. Beebe, 115 T-owa, 128; State v. Rosenblatt, 185 Mo. 114; Perkins v. Territory, 10 Okla. 606; Smith v. Territory, 11 Obla. 656; Commw. v. Cone, 2 Mass. 132; Phelps v. People, 72 N. Y. 334; State v. George, 93 N. C. 567; Mitchell v. Commw. (Ky.) 11 S. W. 209; State v. Bcw-tholomew (N. J.) 54 Atl. 231; State v. Eeniner (Mo.) 77 S. W. 522; Utsler v. Territory, 10 Okla. 463; 22 Cyc. 339, 341-344.

      Stanfield ”& Rutherford and Hughes & Miller, for defendant in error.
    — Citing: 1 Bishop, Cr. Proc. (2d Ed.) 626, 627; Pearce v. Stale, 1 Sneed, 63; Weston v. Territory, 1 Okla. Cr. 407; Michael v. State, 2 Okla. Cr. 703; State v. Dolan, 58 W. Ya. 263; State v. Howard, 66 Minn. 309; State v. _ Child, 42 Kan. 614; State v. Doran, 99 Me. 329; State v. Solio (Del.) 54 Atl. 684.
   OWEN, Judge.

The charging part of the indictment in this case is as follows:

, “ * * * Do present and find that in said Creek county, and state of Oklahoma, on the 26th day of May, in the year of our Lord one thousand nine hundred and nine, and prior to the finding of this indictment, S. Feeback did commit the crime of unlawful possession of intoxicating liquors, in that he, the said S. Feebacic, did then and there wrongfully and unlawfully have, the possession of certain intoxicating liquors, to wit, fifty ease; of whisky, with the intention on the part of him- the said S. Feeback, of violating the provisions of article III, chapter G9 of the. Session Laws of 1907-08, of the state of Oklahoma, contrary to the form of the statutes in such cases made and provided, and against the peace and dignity of the state of Oklahoma.”

The statute referred to, and under which this indictment was drawn, after prohibiting the manufacturing, selling, bartering, giving away, furnishing, shipping from one part of the state to another, and soliciting the purchase or sale, of liquors, embraces this language: “To have possession of any such liquor with the intention of violating any of the provisions of this act.” Section 4180, Snyder’s Comp. Laws, 1909.

To this indictment the defendant interposed a demurrer and motion to quash, for the reason that the indictment does not state facts sufficient to constitute a cause of action. The trial court sustained this demurrer, but ordered the defendant detained in custody on his present bond. Counsel for the defendant insist that the action of the trial court in sustaining the demurrer was in accordance with the decision of this court in the case of Michael v. State, 2 Okla. Cr. 703, 103 Pac. 1069. The conclusions reached in the Michael Case are correct under the information in that case. The information there charged the unlawful possession of the liquor, “with intent to use the same in violating the law.” This language does not indicate what use was intended. The offense sought to be punished here is purely statutory, and consists in having the possession with the intention of violating any of the provisions of the statute. It is a rule of universal application that, when a statute creates an offense and sets out the facts which constitute it, the offense may be sufficiently charged in the language of the statute. Bishop in his work on criminal procedure announced the rule in this language:

“The allegations must cover so many of the statutory terms as will show a -prima facie violation of the written law, and need cover no more.”

The indictment in this case, in effect, charged the defendant with having the unlawful possession of the liquor with the intention to violate all the provisions of the statute against selling, bartering, giving away, etc. In the Michael Case the court said it was necessary to allege the defendant’s intention to violate some one of the provisions. The crime is none the less complete if he intended to violate all of them. Violating the provisions against selling, bartering, giving away, furnishing, or removal from one part of the state to another is no part of the offense of having the unlawful possession with the intention to- violate the law: Possession of the liquor with the intention of violating any provisions of the statute is a criminal overt act. This is the offense described in the statute. The information in the Michael Case was not in the language of the statute, nor was the language used equivalent to the words of the statute. To say that a man intends to use the liquor in violating the law does not charge any offense for the reason that it is too indefinite. If he used the liquor for,the purpose of making alnother drunk in order to perpetrate a fraud, or to procure the commission of a murder, or any other crime, that would be using the liquor in violating the law, but would not be sufficiently definite to charge a crime.

Counsel for the defendant in the case at bar urge that !he indictment is defective because it does not charge which particular provision of the statute he intended to violate. The true test of the sufficiency of an indictment is not whether it might possibly have been made more certain, but whether it contains every element of the offense intended to be charged., and sufficiently apprised the defendant of what he must be prepared to meet; and in case any other proceedings are taken against him for the same offense, whether the record shows with accuracy to what extent he may plead his former acquittal or conviction. Peters v. U. S., 94 Fed. 127, 36 C. C. A. 105, and authorities there cited. Applying this test to the case at bar, we think this indictment sufficient. Before a conviction could be had, the state must prove two facts: First, possession of the liquor mentioned in the section of the statute; second, the intention on the part of the defendant to violate one, or all, of the provisions of this statute. It is never necessary for the prosecution to set out the evidence relied upon to sustain a conviction, nor allege the particular acts in which the crime consists.

We are not unmindful of the rule that where a statute defines a crime in general terms, such as murder, arson, burglary, etc., then the indictment must allege the particular acts which constitute these crimes under the common law, but that rule has ho application to the case at bar. A different rule prevails where the crime is' purely statutory. Haughn v. State, 159 Ind. 413, 65 N. E. 287, 59 L. R. A. 789; State v. George, 93 N. C. 567; Commonwealth v. Cone, 2 Mass. 132; State v. McIntosh, 92 N. C. 794; State v. Liles, 78 N. C. 496; State v. Tisdale, 39 La. Ann. 476, 2 South. 406; Commonwealth v. Harris, 13 Allen (Mass.) 534. The last-mentioned case is where the defendant was charged with setting up a lottery, and, in disposing of the objection to the indictment, the court said:

“To the first and second indictments it is objected that the acts done, which amount to the setting up of a lottery, should be set forth. But this cannot be necessary. It is never requisite that the indictment should disclose the evidence by which it is to be supported. The acts done, when all combined, only compose the one act of setting up a lottery, which is made an offense by the statute; and we think this offense is sufficiently described by using the words of the statute. The tests are these: If every allegation may be taken to be true, and yet the defendant be guilty of no offense, then it is insufficient, although in the very words of the statute. But when by using the words of the statute the act in which the offense consists is fully, directly, and expressly alleged without any uncertainty or ambiguity, then it is sufficient so to allege it.”

If it be necessary to allege what particular provision of the statute the defendant intended to violate, then it would be necessary to prove it, and that evidence may be encountered by opposing evidence, and if, on the whole, however clear the proof might be of the possession of the liquor and of the criminal intent and purpose, yet, if it was evident that the intention was to violate some provision of the statute not mentioned in the indictment, or even if it should be doubtful whether that was the case, the defendant must be acquitted. This'would give a facility to the commission of crime which we are sure the statute never intended. It would enable the defendant, by proving himself guilty of a different crime, to secure his acquittal of the crime for which he was charged. If he be charged with having possession of the liquor with the intention of selling the same, it would be a sufficient defense to prove that he intended to barter it, or give it away, or ship it from one portion of the state to another. Such construction would not only furnish a facility for the commission of crime, but it would render ineffective this provision of the statute.

Section 6697, Snyder’s Comp. Laws 1909, is as follows:

“The indictment must be direct and certain as it regards:
' (1) The party charged. (2) The offense charged. (3) The particular circumstances of the offense charged, when they are necessary to constitute a complete offense.”

Section 6705 of the same statute is as follows:

“No indictment is insufficient, nor can the trial, judgment, or other proceedings thereon be affected, by reason of a defect or imperfection in the matter of form which does not tend to the prejudice of the substantial rights of the defendant upon the merits.”

We think the indictment in this case sufficient under the requirements of these sections of the statute. The offense charged is having possession of the liquor with the intention of vkdating the provisions of the statute. The particular circumstances of the offense are sufficiently set out in alleging that he did have the possession; with such intention, and pointing out the identical statute he intended to violate. We are unable to understand in what way he could have been prejudiced on the merits by the failure of the indictment to allege what particular provisions he intended to violate. That was a matter peculiarly within his own knowledge, and proof that he intended to violate any or all of the provisions would warrant a conviction. The holding in the case of Michael v. State, supra, in so far as it conflicts with the holding here, is overruled; _

The case is reversed and remanded, with directions to set aside the judgment sustaining the demurrer and motion to quash, and to proceed-in accordance with the views herein expressed.

FUBMAN, PresidiNG Judge, and DOYLE, Judge, concur.