text:
    VICTOR BONHAM v. STATE.
    No. A-1324.
    Opinion Filed October 14, 1911.
    (118 Pac. 159.)
    1. ARREST — Warrant of Arrest — Authority of County Clerk to Issue. . The issuance of a warrant of arrest in misdemeanor cases is a judicial act, and the clerk of the county court has no power to issue a warrant -of arrest for a defendant; based upon an information filed in said court. And where a motion is made in apt time to quash and set aside a warrant so issued it should be sustained. -
    2. JUDGMENT — Issues—Verdict. Where a defendant enters a plea of “not guilty," and also a plea of “former conviction of the same offense,” and both issues are submitted to the jury, there must be a verdict on both pleas, before a verdict of conviction can be properly pronounced and entered; and a judgment of conviction will be reversed if the jury fail to find a verdict on the latter plea, unless the record shows that it was waived or withdrawn.
    (Syllabus by the Court.)

      Appeal from Coal County Court; R. H. Wells, Judge.'

    Victor Bonham was convicted of violating the prohibitory law, and appeals.
    Reversed.

      Jahn & Gibson, for plaintiff in error.

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

The plaintiff in error was convicted in the county court of Coal county of the crime of having the possession of intoxicating liquor, with the intention of violating the provisions of the prohibition law, and, on July 26, 1911, was sentenced to be confined in the county jail of Coal county for a period of six months and pay a fine of $500. An appeal was taken by filing in this court, on August 21, 1911, a petition in error, with a transcript of the record.

A motion to advance the cause, for the reason that defendant was in jail, being unable to give bail pending his appeal, was sustained, and the cause was advanced and submitted at this term, upon the brief and oral argument on behalf of the defendant, and the Attorney General was allowed 10 days to file brief or a confession of error, neither of which has been filed. The record shows that on December 19, 1910, a warrant for the arrest, of plaintiff in error was issued upon an information that day filed by W. S. Moore, clerk of the said county court. Upon arraignment, the defendant filed a motion to quash and set aside the warrant so issued, for the reason that said warrant was not issued by the judge of the'county court, or any magistrate, and was therefore void, and that said warrant does not show on its face that it was issued upon the order of any court or magistrate. The motion was b}r the court overruled.

The first assignment of error is that: “-The trial court erred in overruling the motion to quash and set aside the warrant.” This assignment is well taken. In the case of Bowen v. State, 5 Okla.Cr. 605, 115 Pac. 376, it was held by this court:

“The clerk of a county court has no power to issue a ‘warrant of arrest’ for a defendant, based upon an information filed in said court; and, where a motion is made in apt time'to set aside a warrant so issued, it should be sustained by the court.”

It appears from an examination of the transcript that the defendant entered a plea of not guilty, and also a plea of former conviction of the same offense charged in this information, by the judgment of the county court of Coal county, rendered on the 27th day of January, 1911, in cause numbered 980, entitled “The State of Oklahoma v. Victor Bonham.”

Several of the assignments of error relate to the instructions requested and refused and the instruction given on the issue of former conviction; but it is only necessary to notice the fact presented by the record — that the jury rendered only a general verdict on the single plea of not guilty, and failed to return a verdict on the issue submitted upon the plea of former conviction entered in said cause. As was said by this court, in the case of Putman v. State, infra, 117 Pac. 460:

“One of the grounds of the motion for a new trial and the motion in arrest of judgment is as follows. ‘For the reason that said verdict of the jury is not a sufficient verdict, not in accordance with the law in such cases made and provided, is not a finding on the issues in this case, is not such a'verdict as will sustain a judgment and sentence, it being a general verdict on the single plea of “not guilty,” and no verdict of the jury at-all on the issue and plea of “former conviction” entered .in said cause.’ The provisions of Procedure Criminal pertinent to the question presented are as follows: ‘There are three kinds of pleas to an indictment: A plea of 1st, guilty; 2nd, not guilty; 3rd, a former judgment of conviction or acquittal of the offense charged, which may be pleaded either with or -without the plea of not guilty.’ Section 6764 [Comp. Laws 1909] : ‘When the defendant shall have been convicted or acquitted upon an indictment the conviction or acquittal is a bar to another indictment for the offense charged in the former, or for an attempt to commit the same, or for an offense necessarily included therein, of which he might have been convicted under that indictment.’ Section 6773: ‘An issue of fact arises, 1st, upon a plea of not guilty, or 2nd, upon a plea of ■ former conviction or acquittal of the same offense.’ Section 6873: ' ‘A general verdict upon a plea of not guilty, is either “guilty” or “not guilty,” which imports a conviction or acquittal of the offense charged in the indictment. Upon a plea of former conviction or acquittal of the same offense, it is either “for the state,” or “for the defendant.” ’ And section 6879 in part provides: ‘No judgment of conviction can be given unless the jury expressly find against the defendant, upon the issue, or judgment be given against him on a special verdict.’ The record shows that the issues upon both pleas were submitted to the jury, and that the jury returned a verdict on the plea of not guilty only, and made no finding on the issues raffed .upon the plea of former conviction, and the evidence offered in support thereof. It is' our opinion that the defendant was entitled to have both of his pleas passed upon by the jury, and a.verdict returned on each plea before a judgment of conviction could be properly pronounced and entered in the case against him.”

Under the provisions of our Procedure Criminal, where a defendant enters a plea of “not guilty,” and also a plea of “former conviction of the same offense,” and both issues are submitted to the jury, there must be a verdict on both pleas, before a judgment of conviction can properly be pronounced and entered, and a judgment of conviction will be reversed if the jury fail to find a verdict on the latter.

As our conclusion upon the assignments .considered' necessitates a reversal of the judgment of the trial court, it is not necessary that we consider the other assignments of error presented.

For the reasons stated, the judgment of the county court of Coal county is reversed, and the cause remanded. ’

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


source: Caselaw Access Project

author: DOYLE, J.

license: Public Domain

text:
    VICTOR BONHAM v. STATE.
    No. A-809.
    Opinion Filed October 14, 1911.
    (118 Pac. 149.)
    1. JUDGES — Application for Change — Denial. An application for change of judge, made conformably to section 1984, Snyder's-Stat., which section was repealed by section 2012, is insufficient, and was properly denied.
    2. NEW TRIAL — Grant of New Trial — Former Jeopardy. When a new trial is granted on the motion of the defendant, the granting thereof places him in the same position as if no trial had been had.
    (Syllabus by the Court.)

      Appeal from Coal County Co%irt; R. H. Wells, Judge.

    Victor Bonham was convicted of violation of the prohibition law, and appeals.
    Affirmed.

      G. T. Rails, for plaintiff in error.

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

The plaintiff in error was convicted in the county court of Coal County of the crime of having possession of intoxicating liquors with the intention of violating the provisions of the prohibition law, and on May 3, 1910, was sentenced to be confined in the county jail for a period of 100 days, and to pay a fine of $250. From this judgment, he appealed, by filing in this court, on June 27, 1910, a petition in error with case-made.1

It is assigned that: “The court erred in refusing to certify his disqualification to try said cause.” The record shows the filing of the statutory affidavits for a change of judge, conformably to section 1984, Snyder’s Stat. 1909. ■ This section was repealed by section 2012, Snyder’s Stat. The application for a change of judge was properly overruled.

It is also assigned that: “The court erred in overruling the motion to set aside the information.” The motion is as follows :

“Motion to Set Aside. Comes now the defendant herein and moves the court to set aside the information herein filed and dismiss this cause, for the following reasons: (1) This cause is the same cause which was tried in the county court at its April, 1909, term as number 348. Said cause was tried to a jury at said term of court, and a verdict-of guilty was rendered against this defendant; and thereafter, on the 9th day of April, 1909, a motion in arrest of judgment was filed by the defendant, which motion was sustained, and the court gave the county attorney time in which to file an amended information, and the said county attorney failed and refused to file an amended information, whereupon the court made an order dismissing the said cause. (2) The said county attorney having failed and refused to comply with the order of the court in filing an amended information is without authority to file a new information as a new action against this defendant. (3) The court is without authority to try the defendant upon this information as a substitute for the amended information ordered by the court, and is without authority to again put the defendant in jeopardy for the same offense. [Signed] C. M. Threadgill, Attorney for Defendant.”

This motion was not verified; nor was the record in the other cause offered in support thereof. Omissions or defects in a motion to set aside an indictment or information cannot be supplied or cured by inference or intendment. It was not requested that the motion to set aside be treated as a plea of former jeopardy, and no such plea was entered. The record before us fails to show the ruling of the court upon such motion; however, when a new trial is granted on the motion of the defendant, the granting thereof places him in the same position as if no trial had been had. If it was not overruled, it should have been.

The other assignments go to the correctness of the instructions given. We have carefully examined the record, and we find the instructions fairly state the law. The evidence is conclusive of the guilt of the defendant; he had a fair and impartial trial, and his conviction was just and right.

The judgment is therefore affirmed, and the cause remanded to the county court of Coal county, with direction to enforce its judgment therein.

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


author: FURMAN, P. J.

text:
    C. E. CARTER v. STATE.

      No. A-741.

    Opinion Filed October 14, 1911.
    (118 Pac. 264.)
    1. EMBEZZLEMENT — Instruction — Circumstantial Evidence. For approved instructions upon the charge of embezzlement, where the state relied upon circumstantial evidence, and where testimony of other similar offenses was admitted, see opinion.
    2. TRIAL — Instructions—Weight of Evidence. It would be error to instruct a jury that, where a defendant has not seen fit to offer any testimony of witnesses other than his own, the jury should not consider this as a circumstance against him.
    3. SAME — Invited Error. Where a defendant fails to take the witness stand in his own behalf, this fact should not be mentioned in any manner at the trial; but, when counsel for a defendant request an incorrect instruction, the defendant cannot complain if the trial court gives a correct instruction upon this subject.
    4. EMBEZZLEMENT — Instructions—Definition of Term. When a defendant, charged with embezzlement is proven to have received cash, as legal tender, and this fact is not disputed, it is not necessary for the court, in its instructions to the jury, to define the legal meaning of the word "money.”
    5. APPEAL AND ERROR — Estoppel to Allege Error. Whore irregularities occur during a trial which are brought about by the action of counsel for defendant, such irregularities will not ordinarily constitute grounds for a reversal upon appeal.
    6. SAME — Disposition of Cause. Where the evidence in a case is clear as to the guilt of an appellant, and there is no reason to believe that upon a second trial an intelligent and honest jury could arrive at any other verdict than that of the guilt of the accused, the judgment of the lower court will not be set aside for anything less than fundamental errors. Dusty legal cobwebs should never be permitted to obscure the truth, or interfere with the enforcement of justice.

      7. SAME — Harmless Error — -Error Favorable to Appellant. In a prosecution for embezzlement, the failure to instruct that if the jury found that other similar offenses had been committed,1 and that they constituted parts of a plan or system of the defendant of embezzlement to the very act of taking at issue, then the jury might consider the testimony as to those offenses to assist them in determining whether the defendant did take the money which he was charged with having taken, and also to show the intent with which the act was committed, was favorable to defendant, so that he could not complain of it.
    (Syllabus by the Court.)

      Appeal from District Court, Carter■ County; Stilwell H. Russell, Jiidge.

    C. E. Carter was convicted of embezzlement, and appeals.
    Affirmed.

      R. P. Turner, for appellant.

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

Appellant, C. E. Carter, was prosecuted, in the district court of Carter county, by indictment returned into said court at the November term, 1908, charging him with the embezzlement of $70 from Tyler & Simpson Company, a corporation, of which corporation C. E. Carter was then and there the bookkeeper and cashier. Trial was had in the spring of 1909; the defendant was found guilty, and his punishment fixed at one year and one day in the penitentiary. From this judgment, he has appealed, and the appeal has been properly perfected.

The evidence discloses that the Tyler & Simpson Company was engaged in the wholesale grocery business in the city of Gainesville, Tex., and aiso had a branch store and distributing house in the city of Ardmore, Okla., and had been engaged for many years in such business in both of these cities. The appellant, Carter, was employed' by them as cashier and bookkeeper at the Ardmore branch, and had been keeping the books and acting as cashier at said branch office since the year 1904; that nobody else had kept the books or handled the cash of said corporation at said Ardmore office from the year 1904 until Carter left the employment of the company in June, 1908', except Carter himself'; that he had complete control of the same and also knew the combination to the safe; that at the close of the day’s business it was his duty to, and he did, balance up the books and deposit the cash in the bank; that nobody had control of this business during all of said period but Carter.

The particular embezzlement set out in this indictment is alleged to have occurred on the 16th day of May, 1908. It is one óf a series of embezzlements occurring from 1906 up until the time that Carter left the employment of Tyler & Simpson Company. The indictment upon which this prosecution is based is one of nine or ten indictments, charging similar offenses, against this defendant, returned into the Carter county district court at the November term, 1908.

These indictments charge, in some instances, embezzlement, and in other instances the making of false entries upon the books of said corporation. The evidence also discloses that after the grand jury had investigated these charges and returned these indictments, and before a trial was had, the journal record of accounts of the said Tyler & Simpson Company was stolen from the office of the company at Ardmore. The record shows that this journal of accounts was kept in the safe of the company, securely locked, and that the combination of the safe had not been changed from the time the defendant, Carter, left the company until the books were stolen; that the safe was opened by unlocking it, and the books taken, and that the building was also opened by a key. The larceny of the books prevented the state from producing the evidence on any indictment charging a false entry, and if it h-ad not been for the fact that the system of accounting employed by the Tyler & Simpson Company was a very thorough one, and provided a double system, the state would have been without any evidence to convict this defendant of the crime of embezzlement after the larceny of the books. The state introduced original entries of receipts for the day’s business of May 16, 1908, showing where every item of money was received on that day by the defendant, and showing by his own entries in the daily ledger of accounts where he had given the firm credit for every item as reported. •

It was the duty of the defendant, Carter, as bookkeeper and cashier, and he did, on the 16th day of May, 1908, make a report to the home office at Gainesville, showing the business for that day. The record shows that on that day the total receipts were $1,778.16, and that the defendant reported them to the home office at Gainesville $1,708.16, making a discrepancy in the report of $70. The record 'also shows that the defendant' received in cash on that day approximately $600, and that when he made his daily deposit in the bank at the close of business that evening he only deposited $500 in cash in the bank. There is no testimony in the record as to what became of the cash which the defendant received that day, and which he failed to deposit in the bank- ■

The court instructed the jury as follows:

“The defendant, C. E. Carter, stands indicted by a grand jury of Carter county, state of Oklahoma, which said indictment was duly presented in the district court of Carter county, and which charges the defendant with the offense of embezzlement, in this: That he did, on the 16th day of May, 1908, in said county of Carter and state of Oklahoma, being at the time a person over the age of 18 years, and not being an apprentice to Tyler & Simpson Company, a corporation, and being then and there the bookkeeper and cashier of said Tyler & Simpson Company, and in control and care, by virtue of his employment as such bookkeeper and cashier, of $70 in money, of the value of $70, the personal property of the said Tyler & Simpson Company, then and there unlawfully, wilfully, feloniously, and fraudulently appropriated the said $70 to his, the said C. E. Carter’s, own use, contrary to the form of the statute in such case made and provided, and against the peace and dignity of the state. You will take with you in your retirement the indictment in this case, to which you are referred for a more specific description of the offense alleged in the indictment.
“(2) To the indictment and the offense charged therein, the defendant has entered his plea of not guilty, and you are instructed that by his plea of not guilty this defendant, as every defendant in a criminal case, is presumed by law to be innocent of the offense charged against him, and of every ingredient thereof, and that this presumption abides with him throughout the whole case, until it is overcome by competent evidence to your satisfaction, beyond a reasonable doubt. And if you have a reasonable doubt, after a consideration of all the evidence and the instructions of the court, as to the defendant’s guilt, it is your duty to resolve such doubt in his favor and acquit him. But if, after due consideration of all the- evidence, facts, and circumstances admitted before you by the court, together with the instructions of the court, you are convinced of his guilt beyond a reasonable doubt, it is your duty to convict him.
“(3) You are the sole judges of the facts proved and of the weight and value of the evidence and the credibility of the witnesses. In determining the credibility of a witness and the weight and value you will give to his testimony, you are permitted to take into consideration the demeanor of the witness upon the stand;, the probability or improbability of the witness’ statement; the opportunity the witness had of knowing or being informed of the facts about which he gives testimony; the witness’ relation to or feeling for or against the defendant; his interest, if any, in the case, and the result of the trial; and then, after such consideration you will give to each witness such credence and to his testimony such weight and value as in your judgment you may deem right and proper.
“(4) Under the law, the offense for which the defendant stands indicted is as follows: ‘Embezzlement is the fraudulent appropriation of property by a person to whom it has been intrusted.’ And it is further provided by the law as follows: ‘If any clerk or servant of any private person or copartnership, or corporation, except apprentices and persons within the age of eighteen years, fraudulently appropriates to his own use, or secretes with the fraudulent intent to appropriate to his own use, any property of another person which has come into his control or care by virtue of his employment as such clerk or servant, he is guilty of embezzlement.’'
“(6) You are instructed that testimony has been submitted to you by the court as competent for your- consideration tending to show that various other embezzlements of sums of money, other than as charged in the indictment, and that false entries thereof were made and committed by the defendant, and in this matter you are instructed that, if you believe from the evidence beyond a reasonable doubt that the defendant did embezzle such sums and make such false entries and fraudulently appropriate such sums of money to his own use as therein mentioned, then, in such case, said evidence is only to be considered by you as bearing upon the fact whether or not the defendant embezzled and fraudulently appropriated the specific amount alleged in the indictment, and at the time alleged in the indictment, and as tending to show the intent, if any, of the defendant in the commission of the offense alleged against him, and for this or such purpose alone you will consider such evidence of other offenses. And in this connection you are told that, although you may believe that such other offenses were committed by the defendant, but you should have a reasonable doubt that he committed the specific offenses alleged against him in the indictment, then it would be your duty to acquit him. Otherwise you should convict him.
“(6) You are instructed that the state relies for a conviction in this case upon what is known as circumstantial evidence, and in this matter you are instructed-that, to warrant a conviction upon circumstantial evidence, each fact necessary to the conclusion sought to be established — that is, the guilt o,f the defendant — must be proved by competent evidence, beyond a reasonable doubt, and that all the facts and circumstances proven should not only be consistent with the guilt of the accused, but consistent with each other and inconsistent with any other reasonable hypothesis or conclusion than that of his guilt, and sufficient to produce in your minds the reasonable moral certainty that the accused committed the offense charged against him. And you are instructed that when the circumstances are sufficient under this rule herein given you, they are competent and are to be regarded by the jury as competent for your guidance'as direct evidence.
“(7) Therefore you are instructed by the court that, if you believe from the evidence submitted by the court for your consideration, beyond a reasonable doubt, that the defendant, C. E. Carter, on or about the 16th day of May, 1908, in the county of Carter and state of Oklahoma, then and there being a person over the age of 18 years, and not then and there an apprentice of the said Tyler & Simpson Company, and you believe that he was then and there a bookkeeper and cashier of the said Tyler & Simpson, a corporation, and was then and there, by virtue of his employment as such bookkeeper and cashier, in the control and care of $70 in money, of the value of $70, or of a sum of money less than $70, but exceeding $20 in money, the same being the personal property of the said Tyler & Simpson Company, and that the said C. E. Carter did then and there, in said county of Carter and state of Oklahoma, on or about the 16th day of May, 1908, unlawfully, wilfully, feloniously, and fraudulently appropriate the said $70 in money, or any portion of said sum of $70 exceeding $20 thereof, to his own use, then it is your duty to convict him as charged in the indictment, and so say by your verdict.
“(8) If you find the defendant guilty, as charged in the indictment, of embezzling the sum of $70 in money, or of embezzling any sum of money exceeding $20 and not exceeding $70 in money, you may assess his punishment by imprisonment in the state penitentiary for a term not to exceed five years.
“(9) If you find the defendant not guilty, or entertain a reasonable doubt of his guilt, you will say by your verdict, We, the jury, find the defendant not guilty. * * *
“Gentlemen of the jury, you will now listen to the argument of counsel for the state and the defendant, and you are instructed that their arguments constitute a legitimate part of the trial of this cause, and you should carefully consider any suggestion which may be made by them within the record of this case, which might assist you in analyzing the testimony of the witnesses and applying the law, in order that you may be assisted in arriving at a just and true verdict, but care should be taken by you that the arguments of counsel be not confounded with the testimony of the witnesses, or confusing as to the law of the case as contained in these instructions.
“Forms of verdict will be furnished you, and after you have elected one of your number foreman, you will have him, for you, sign, as foreman, that form of verdict upon which you all may agree, and you will then as a body return it into court. You must not cast lots, or use any other method or means of chance in arriving at your verdict, but whatever verdict is rendered must be based upon the individual judgment of the juror and 'concurred in by the* whole jury.
“In reaching your verdict, no considerations of sympathy or passion or prejudice should enter into 3mm* deliberations, in the discharge of your duty as jurors, but you should carefully*, impartially, and faithfully return such verdict as is warranted by the evidence, as measured by these instructions, upon your oaths as jurors. S. H. Russell, Judge.”

The defendant requested the court to instruct the jury as follows:

“Gentlemen of the jury, you are instructed that in this case the defendant has seen fit to offer no testimony, either that of himself or other witnesses, in his own behalf. You are not to consider this as- a circumstance against him, when considering as to his guilt or innocence, but the same presumption of innocence heretofore mentioned in these instructions stands as his sufficient protection until you are satisfied of his guilt, by legal and competent evidence, beyond a reasonable doubt.”

This instruction the court refused to give, but did instruct the jury as follows:

“You are instructed, gentlemen, that, although the defendant has not seen fit to offer himself as a witness in his own behalf, that such failure to, do so upon his part shall -not create any presumption against him, or be considered by you in arriving at your verdict in this case.”

The court did not err in refusing to give the requested instruction. When a defendant fails to avail himself of accessible testimony, save that which is privileged, it raises a presumption against him which may be considered by the jury, and it would have been error for the court 'to have given the instruction requested. George v. U. S., 1 Okla. Cr. 320.

“The nonproduction of evidence that would naturally have been produced by an honest, and therefore fearless, claimant permits the inference that its tenor is unfavorable to the party’s cause. Ever since the case of the chimney sweeper’s jewel, this has been a recognized principle.” (Wigmore on Evi., vol. 1, p. 368.)

. It would be a novel idea that, when the state has made out a prima facie case, and the defendant declines to offer accessible rebutting- testimony, the jury should not consider this failure as a circumstance against him, unless the evidence not produced be privileged. We think that where a defendant fails to take the witness stand in his own behalf this fact should not be mentioned in any manner upon the trial of. the case. See Sturgis v. State, 2 Okla. Cr. 401, 102 Pac. 57. But, as counsel for appellant requested the court to instruct upon this subject, he -cannot complain at the instruction given by the court.

In his brief counsel for appellant complains that the court did not define the legal meaning of the word “money-.” Under the undisputed facts of the case, this was not necessary. The funds' embezzled were entered as cash, in the defendant’s handwriting. Having accepted this money as legal tender, and there being no testimony to the contrary, the defendant was not in a position to request the instruction refused.

Counsel for appellant in his brief discusses at great length a number of alleged errors occurring during the trial. Some of the matters complained of do not appear in the record, others were brought about by the action of counsel for appellant, and some do not constitute more than mere irregularities, which do not involve the substantial merits of the case. The evidence is conclusive as to the guilt of the appellant. The instructions of the court constitute an admirable exposition of the principles of law applicable to the case. They relieve us of the necessity of discussing some of the questions presented. We regard them as models of their kind, except as hereinafter pointed out, and with this addition we adopt them as part of our opinion in this case.

The only possible objection that can be offered to these instructions is that paragraph 5, with reference to other similar offenses, might have been broader, and the jury might have been instructed that if they found from the testimony, beyond a reasonable doubt, that the other similar offenses testified to had been, committed, and that they constituted parts of a plan or system of the defendant of embezzlement, to the very act of taking at issue, then the jury might consider the testimony as to these similar offenses, for the purpose of assisting them in determining as to whether the defendant did take the money which he was charged in the indictment with having taken, and also to show the intent with which the act was committed. See Wigmore on Evidence, vol. 1, § 329, p. 417; Ency. of Evidence, vol. 11, pp. 805, 806. But the failure to include this view of the law in paragraph 5 of the instructions was beneficial to the appellant, and he therefore cannot be ■ heard to complain at this omission. With the view above suggested incorporated in paragraph 5, the instructions given would be above criticism.

From a careful inspection of this record, .we are satisfied that the appellant is guilty, and we do not believe that an intelligent and honest jury could be impaneled, who, upon the same evidence, could arrive at any other verdict, except that they would probably increase the punishment of appellant. We therefore cannot see any good purpose that could be subserved by putting the state to the expense of another trial. We do not believe that dusty legal cobwebs should be permitted to obscure the truth, or interfere with the enforcement of justice.

The judgment of the lower court is therefore in all things affirmed.

ARMSTRONG and DOYLE, JJ., concur.


author: DOYEE, J.

text:
      Ex parte I. N. McCLURE.
    No. A-1442.
    Opinion Filed October 28, 1911.
    (118 Pac. 591.)
    1. PARDON — Power of County Court — Release From Jail — Effect on Sentence. The pardoning power, after conviction, is, under the Constitution, vested exclusively in the Governor. No court in this state has any pardoning power, and, where a defendant sentenced to imprisonment for six months in the county jail is released at the expiration of one month without authority of law, by order of the county court, the time of his absence cannot be considered as spent in jail in satisfaction of the sentence.
    2. HABEAS CORPUS — Grounds—Want of Jurisdiction. While it is well settled that mere irregularity in proceedings resulting in the imprisonment, however, flagrant, is not sufficient ground to discharge on habeas corpus, yet, if the petitioner be imprisoned under a judgment of a court which was without jurisdiction to render the judgment complained of,- such want of jurisdiction may be inquired into on habeas corpus, and, if found to exist, is ground for a discharge of the petitioner.
    3. JUDGMENT — Conviction—Sentence. A judgment of conviction and sentence must conform to the punishment prescribed, and be enforced in conformity with the 'statute.
    4. SAME — Jurisdiction—Sentence. Jurisdiction to render the particular judgment and sentence imposed is as essential to its validity as jurisdiction of the person and the cause.
    (Syllabus by the Court.)
    Application of I. N, McClure for writ of habeas corpus.

    Writ allowed.

      Z. B. Sanders and B. G. McAdams, for petitioner.

      Robert Wimbish, Co. Atty., for respondent. t
   DOYEE, J.

The petitioner, I. N. McClure, was tried and convicted in the county court of Pontotoc county upon an information filed therein September 13, 1911. The charging part of said information is as follows:

“Did on or about the 13th day of September, 1910, unlawfully, wrongfully, and wilfully go into and near the field of one E. A. Thomas, there situated, and did then and there, in the presence and hearing of the said F. A. Thomas and W. H. Hatcher and Mrs. W. H. Hatcher, use loud and vociferous language, and did use vulgar, obscene, and indecent language, and did curse and swear in .such a manner as did .openly outrage public decency, and public morals, and did then and there injure the persons aforesaid.”

On December 19, 1910, petitioner was adjudged guilty of the crime of disturbing the peace, and was sentenced to be confined in the county jail of said county for a period of six months, and to pay a fine of $100 and costs of prosecution; that, in default of the payment of said fine and costs, said defendant be further confined in said county j ail until said fine and costs were fully paid or satisfied according to law. Upon a commitment issued on said judgment, petitioner was confined in the county jail. On the 18th day of January the county court made an order fixing the amount of his bail bond, which was given, and petitioner was by order of the court released from said imprisonment.

It is alleged in the petition:

“That it was not intended at the time said order fixing the amount of his appeal bond, and extending the time for perfecting his appeal and making and approval of his supersedeas bond that his appeal would or should ever be perfected, but, on the contrary, it was specially agreed and understood by and between your petitioner and his attorneys, Galbraith & Sanders, and the said county judge, that your petitioner would file said bond and be discharged from prison on probation during good behavior, and that one of the conditions upon which your petitioner was discharged from prison was that he should report to his 'honor, Conway O. Barton, said county judge, twice a month for a sufficient length of time to his honor that your petitioner was refraining from the_ use of intoxicating liquors. That your petitioner •did for several months report as required by the court twice a month in person at the office of said court in the city of Ada, Okla., until along in the summer of 1911, when the said court advised your petitioner that he might report once a month, which he did until the --- day of-, 1911, when he reported, and, after having a conversation with the said court, was advised that he was satisfied with his conduct, and that he need not report' further. That your petitioner was led to.believe by said court, and did believe that he was discharged from any and all liabilities under said judgment, and for that reason made no attempt to perfect his said appeal. That but for the understanding with said court that he would be and was discharged from said judgment he would have perfected his appeal in said cause. That by reason of the above agreement and arrangement with said court your petitioner lost his right of appeal, and to have his case reviewed by the Criminal Court of Appeals. * * * That although your petitioner was by order of the court on the- 18th day of January, 1911, released and discharged from his said imprisonment on probation, h'e was on the 12th day of October, 1911, re-arrested and committed to said jail. That no order, warrant, commitment, or decree commanding the arrest of your petitioner has been issued by his honor, Conway O. Barton, county judge in said cause, since the original judgment entered on the 19th day of December, 1910.- * * * That your petitioner is now ready and willing to pay his said fine and costs, and has been ever since the date of the expiration of his said term of imprisonment.”

• The petition contains certified copies of the information, judgment, and order of release. It was filed and presented, to this court on October 23d. The respondent, L. E. Mitchell, sheriff of Pontotoc county at that time, appeared by Robert Wimbish, county attorney. The presence of the petitioner and respondent was waived. The respondent’s return was filed, and the cause was then and there argued and submitted.

The contention on behalf of petitioner that the unexecuted part of the judgment and sentence of imprisonment has been fully satisfied by the orders of the county court is not well founded. Where a judgment of imprisonment is not stayed as provided by law, and the defendant has not served his sentence and is at liberty, he may be arrested as an escape and ordered into custody upon the unexecuted judgment. Ridley v. State, 3 Okla. Cr. 350, 106 Pac. 549, 26 L. R. A. (N. S.) 110; Ex parte Eldridge,, 3 Okla. Cr. 499, 106 Pac. 980, 27 L. R. A. (N. S.) 625; Ex parte Alexander, 5 Okla. Cr. 196, 113 Pac. 993.

The county court was without power or authority to grant a parole. Under the Constitution that is the prerogative of the supreme executive power vested in the Governor, and the only effect of the order discharging petitioner on probation during good behavior was to modify the judgment imposing the fine and directing imprisonment until such fine is satisfied by making the fine in effect nothing more than a civil judgment to be satisfied by execution as on a judgment in civil action. To that extent only could the court modify the judgment rendered.

The important question presented in this proceeding on the uncontroverted facts is: Did the county court have the power or authority to render the judgment and sentence herein entered? The averments of the information are ambiguous, and are not direct and certain as to the offense charged. Evidently the prosecution was had .under the mistaken belief that the information was sufficient to charge the offense of disturbing the peace under section 2782, Snyder’s Stat. It is a well-settled rule of law that statutes prescribing punishment are to be strictly construed in favor of the defendant, and, where such a statute is capable of two constructions, the construction which operates in favor of the defendant is to be adopted.

The only offense, if any, charged in this information is a violation of section 2056 (Snyder’s Stat.) of the Penal Code, which provides:

“If any person shall utter or speak any obscene or lascivious language or word in any public place, or in the presence of females, or in the presence of. children under ten years of age, he shall be deemed guilty of a misdemeanor, and upon conviction thereof before any justice of the peace of this state, he shall be. liable to a fine of not more than one hundred dollars, or imprisonment for not more than thirty days, or both, at the discretion of said justice.”

The county court has original jurisdiction concurrent with justices of the peace in this class of misdemeanors. It is apparent that the judgment and sentence rendered and entered does not conform to the punishment prescribed by the statute for the offense charged. The maximum imprisonment for the offense of which the petitioner was convicted is 30 days. He was sentenced to six months.

The writ of habeas corpus does not lie to correct mere irregularity of procedure, where there is jurisdiction of the person and subject-matter. There must be illegality or irregularity sufficient to render the judgment void by reason of the court having exceeded the jurisdiction in the premises.

“While it is well settled that mere irregularity in proceedings resulting in the imprisonment, however flagrant, is not sufficient ground to discharge on habeas corpus, yet, if the petitioner be imprisoned under a judgment of a court which had no jurisdiction to render the judgment complained of, such want of jurisdiction may be inquired into on habeas corpus, and, if found to exist, is ground for a discharge of the petitioner.” (Ex parte Wilkins, infra, 115 Pac. 1118.)
"Jurisdiction is said to be of two kinds: First, the power to hear and determine the particular matter and render some judgment thereon; and, second, the power to render the particular judgment which was rendered, and the idea seems formerly to have prevailed that the jurisdiction of courts consisted entirely of the former of these powers, and that a discharge on habeas corpus could not be granted merely because the court had no power to render the particular judgment, if it had jurisdiction of the offense and of the person accused. The modern rule is that, even where a court has jurisdiction of the offense charged and of the person of the accused, it may so far transcend its powers in assessing the penalty for the offense .by. imposing a punishment of a character different from that prescribed by law, or otherwise, that the sentence will be void and furnish no authority for holding the accused in custody, though the conviction on which the sentence was entered was valid and correct; and in such a case the accused may be discharged on habeas corpus.'' (15 Am. & Eng. Ency. of Law, 170.)

Ordinarily the discharge of a petitioner on habeas corpus by reason of a' void sentence entered on a valid conviction will be without prejudice to the right of the prosecution to have judgment and sentence rendered and entered according to law. In the case at bar, however, the petitioner has served the maximum term of imprisonment prescribed by the statute.

A judgment of conviction and sentence must conform to the punishment prescribed and be enforced in conformity with the statute. Upon the record as disclosed by the petition and respondent's return thereto, we are clearly of the opinion that the petitioner is entitled to be discharged.

Wherefore, for the reasons stated in this opinion, the writ of habeas corpus is allowed, and the petitioner is discharged from custody.

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


text:
      Ex parte C. P. TORRANS et al.

    No. A-1140.
    Opinion Filed October 28, 1911.
    (118 Pac. 414.)
    BAIL — Right to Bail — Evidence—Manslaughter. Por facts which could not amount to more than manslaughter for the act of son in killing in defense of his father, see opinion.
    (Syllabus by the Court.)
    Application by C. P. Torrans and A¥. P. Torrans to be admitted to bail.
    Application granted.

      S. M. Rutherford and J. G. Harley, for petitioners.

      John W, Robertson, Co. Atty., for the State.
   FURMAN, P. J.

The evidence in this case is very meager as to the cause or origin of the difficulty which resulted in the death of Sam Baker, for which the applicants are now held. From the best we can gather from the record, Will Torrans, one of the applicants, had brought suit against Sam Baker, the deceased, on an open account. This had angered Baker. On the Saturday before the fatal difficulty, both of the applicants and Sam Baker were in the town of Checotah, in' McIntosh county, Okla. Mr. C. P. Torrans was standing on the street talking to Mr. John McCaughn, a witness in the case, when the deceased stepped up between the witness and C. P. Torrans and said to him, “Mr. Torrans, you started something you are not going to get off with,” and also said, “Will Torrans is a damned dog, ain’t he?” to which C. P. Torrans replied, “I don’t know that as he is.” Deceased, Sam Baker, had hold of C. P. Torrans during this time. Will Torrans, a son of C. P. Torrans, then came up and struck Sam Baker, and a fight ensued between Baker on one side and the Torranses on the other.

On the day of the killing the deceased, Batcer, and his two sons and his son-in-law, were in the town of Checotah, and according to the affidavit of J. J. McGill the following occurred:

“That on the 7th day of October, 1911, I was standing near a popcorn stand at the east side of Moncrief & McClain’s hardware store, in Checotah, Okla., with my brother, eating popcorn, when Will Torrans came up and went to eating some with me. Then he bought, a sack of popcorn, and about that time he says to me, ‘Those boys are after me, Joe, and I don’t want to have any trouble ’ with them.’ They were pointing toward us, then turned and walked off across the street to a shooting gallery. The boys referred to above are Carlile Freeman and Will Mike Baker. When they got to the shooting gallery, they met Sam Baker, and had a short conversation with him, and pointed up toward where we were standing. When they did this Will Torrans says, ‘Let’s walk up the street, Joe; those fellows are com-, ing after me, and I do not want to have any trouble with them.’ We walked to the corner of the First National Bank, and stood there and talked until they walked up and passed by Will, and this Freeman boy walked around us then, and he stepped up suddenly and without a word, and struck Will Torrans. Will Torrans then turned and ran, and Carlile Freeman took after him — hit him in the back of the head as he ran. Some one about that time hollered, ‘Kill him, pa; kill him!’ Sam Baker was down east of us where the row started, in front of the hamburger stand, and as Carlile Freeman was chasing Will Torrans down the street, and they passed Sam Baker, and he and Will Mike Baker took in after them, and they chased Will on down the street 15 feet, and then Will Torrans run into the hardware store, and old man Torrans came running up, and, as he started by Sam Baker, Sam Baker knocked him down and hit him several licks. I had gotten then within 4 or 5 feet of where they were fighting, and Will Torrans shoved the door'open and fired. Baker was fighting old man Torrans at the time he fired. He was stooping over old man Torrans when Will Torrans fired the shot from the door.”

Sid Nichols filed an affidavit in this case, which is as follows : '

“I was on the street there the day Sam Baker was killed. I saw Will Torrans and C. P. Torrans that day; also saw Sam Baker. I saw Will Torrans with a gun in his hand, and heard a report, and heard Baker say, T am shot.’ Just then C. P. Torrans fired his gun, but shot up in the air, and did not shoot Baker. Pie was standing about 8 feet from Baker when he fired. There were only two shots fired. A few days before the killing of Baker, I heard Baker say to his son and his son-in-law that the Torranses had him bested in the fight they had had on that day, but that he (Baker) would get them yet. On the day of the killing of- Baker, I saw him about 20 or 30 minutes before he was killed, and heard him ask his son-in-law if he had his gun with him, and he replied that he did not, but was going to get one, and Baker told him to do so. There were three of the boys there, two of Baker’s sons and his son-in-law. Baker appeared to be very nervous.”

T. J. Stout filed the following affidavit in behalf of applicants :

“T. J. Stout, of lawful age, being first duly sworn, on oath says: I am a constable in McIntosh county, Okla. That I knew Sam Baker in his lifetime. I know C. P. Torrans and Will Torrans. I made the arrest of C. P. Torrans and Will Torrans, when they were charged with killing Sam Baker. I at that time, at the request of C. P. Torrans, examined-the wounds on his head, immediately after the killing. I found as many as three bruises on the head of C. P. Torrans. They were red and bleeding, and were very severe. I also at the same time examined his hat, and found one hole about 1% inches, on the side of the ■crown,' which had been made with some instrument. The hole in the crown, as to location, corresponded exactly with the wound ■on the head of Torrans. I heard Sam Baker, two weeks before he was- killed, say that he intended to kill Will Torrans. One week before the killing he made the same threat, repeating what he ■ said, before. On the afternoon before Baker was killed, I communicated these threats to Will Torrans. Torrans stated to me that he would stay off the street as much as possible, and that if he had known that it would have caused trouble, he would not have sued him. Sam Baker had the reputation of being a very dangerous man. His reputation as a fighter, -and a man who would kill, was very well known over this country.”

H. B. Reubelt filed the following affidavit:

“On the day of the alleged killing of Sam Baker, shortly after 4 o’clock in the afternoon, I was standing upon the steps of the First National Bank in the town of Checotah. I noticed that the defendant Will Torrans was standing two or three feet from me on the pavement, and appeared to be talking to one or two gentlemen. All at once a person, bareheaded and with a quantity of black hair flowing, appeared to run around the corner of the bank and began to strike defendant Will Torrans over the head with both his fists with a kind of overhanded motion of the arm. He was running rapidly, and he struck his blows rapidly, and drove defendant Will Torrans before him, so that in a few seconds they both had disappeared from my view in the dense crowd that was then upon the pavement. In about a minute, as near as I can judge, I heard a shot, and in about a quarter of a minute I heard a second shot, and then a short time thereafter the two defendants passed me and went into the First National Bank, where I saw them disarmed.”

R. A. Coad filed the following affidavit:

“I was standing right at the south end of the First National Bank on the sidewalk, and Will Torrans and some man were running and fighting. The man was hitting Torrans over the head with both fists as he ran along east, and they ran about IS feet, below thé hardware store door, and Will Torrans fell, or the fellow knocked him down, and he came running back, and run in at the door, and about that time old man Torrans and Sam Baker was there fighting, or Sam Baker was hitting old man Torrans in the face in front of the hardware store, about three feet from the door that Will had gone in through to the hardware store. Sam Baker had old man Torrans knocked back in a reclining position against the glass window, and was hitting him in the face. Sam Baker turned to the left and stopped right in front of the door in a stooping position, and just as he stooped Will Torrans pushed the door open and fired. Baker turned and walked off, and in a few seconds I heard another shot fired west from me on the street. Some fellow be,gan hollering, 'Don’t do that!’ and I stepped back into the'hardware store, and turned right around and stepped out, and when I came out Sam Baker was standing with his hands on the southeast corner of the hamburger stand there, and a gentleman walked up there and brought him in.”

A. C. Naron filed the following affidavit:

“I am a resident of McIntosh county, Okla., and am in the mercantile business in Checotah. I have lived in this county for several years, and knew Sam Baker in his lifetime, and knew his general reputation as a fighting man. He was regarded as a very dangerous man at times.”

J. W. Steen, who represents McIntosh county in the Legislature, filed the following affidavit:

“My name is J. W. Steen, and my post-office address is Checotah, Okla. I have resided in Checotah, and in what is now McIntosh county, Okla., for the past 25 years. That during the past 10 years I have been personally acquainted with Sam Baker, until his recent death. I am well acquainted with the reputation Sam Baker bore in this county, as a law-abiding citizen, and I know that reputation was very bad; he being regarded as a very dangerous man, and a man who would kill at the slightest provocation. He was known the county over as a bad man. He was lawless and reckless, and had but very little regard for other men’s rights, when the least contrary to his opinion.”

It is a significant fact that, although the state placed a numr ber of witnesses on the stand, none of them could give an account as to just how this trouble occurred, or what the deceased, Sam Baker, was doing at the time he was shot. There is nothing in the state’s evidence to contradict the statements contained in the affidavits filed in behalf of the applicants. On the contrary, all the testimony in this case is consistent with these affidavits. Upon this testimony we do not think that the offense amounts to more than manslaughter, and we believe both of the applicants are clearly entitled to bail. Confessedly the fatal shot was fired by Will Torrans. If he had been assaulted on the street and knocked down, as the testimony shows he had been assaulted and knocked down, “by the son-in-law and the son of the deceased Baker, and while still suffering from the intense excitement of this assault he fired the fatal shot, he could not have been in that frame of mind which is necessary to constitute murder. See Ex parte Smith, 2 Okla. Cr. 24, 99 Pac. 893. Plaving heard of the threats of the deceased, Baker, to take his life, and the life of his father, in connection with the general reputation of the deceased as a dangerous man, if he saw the deceased, Baker, knock his father down, and 'standing over him, and continuing the assault, and he fired in defense of his father, if not entirely justifiable, he could not be guilty of more than manslaughter. If a son cannot defend his father under these circumstances, when would he have a right to defend him? To deny such right would be revolting to justice and in utter disregard of the most sacred ties of human nature. There is no law which requires a son to act the part of a contemptible coward and base counterfeit upon true manhood’s coin, when he sees his father in imminent danger of receiving serious bodily injury; but he may act in his defense instantly, with the most deadly and effective weapons at his command, provided only that he acts in good faith and upon reasonable appearances of danger. We are more than convinced of the correctness of our views by the fact that neither of the sons nor the son-in-law of the deceased, who were present at the time of the homicide, were placed upon the witness stand by the state.

Section 2290 of our Penal Code (Comp. Laws 1909) is as follows:

“Homicide is also justifiable when committed by any person in either of the following cases: 1. When resisting any attempt to murder such person, or to commit any felony upon him or her, or upon or in any dwelling house in which such person is; or, when committed in the lawful defense of such person, or of his or her husband, wife, parent, child, master, mistress, or servant, when there is a reasonable ground to apprehend a design to commit a felony, or to do some great personal injury, and imminent danger of such design being accomplished; or, when necessarily committed in attempting, by lawful ways and means, to apprehend any person for any felony committed; or in lawfully suppressing any riot; or in lawfully keeping and preserving the peace.”
“The right of self-defense in cases of this kind is founded on the law of nature, and is not, nor can be, superseded by any law of society.” (West v. State, 2 Tex. App. 476.)

What we have said in this opinion is based upon facts now before us. It may be that upon the final trial of this case evidence may be introduced which will change the question involved. We believe that in every case of homicide there should be a final trial before a jury.

We find upon the evidence before us that both of applicants are entitled to bail. The bond of William Torrans is placed at $5;000, and C. P. Torrans at $2,500, to be approved by the sheriff of McIntosh county, Okla.

ARMSTRONG and DOYLE, JJ., concur.