text:
    JOHN Q. ADAMS v. STATE.
    No. A-3711.
    Opinion Filed Jan. 27, 1922.
    Rehearing Denied Sept. 23, 1922.
    (209 Pac. 189.)
    (Syllabus.)
    1. Indictment and Information — Unnecessary for Information to Allege Preliminary Examination or Waiver — Presumption in Absence of Demurrer or Plea in Abatement. The fact that there has been a preliminary examination or a waiver thereof need not be stated or averred in the information, or shown affirmatively by the prosecution. That the defendant did not have a preliminary examination is a fact to b'e established on a plea in abatement or on a motion to quash; otherwise all essential preliminary proceedings will be presumed.
    2. Indictment and Information — Judgment Sustaining Demurrer of One Defendant not Inuring to Benefit of Codefendant. Where there is nothing in the record to disclose a contrary intent, where one of several persons jointly charged with an offense demurs to the information on the ground of the insufficiency 0,‘f the facts as alleged in the information, a judgment sustaining such demurrer will inure to the benefit of the demurrant only, and, under the circumstances here, such judgment will not inure to, the benefit of those who later voluntarily appear and plead to the information.
    3. Constitutional Law — Indictment and Information — Dismissal as Judicial Function not Delegable to County Attorney. “The court may, either of its own motion or upon the application of the county attorney, and th'e furtherance of justice, order an action or indictment to be dismissed; but in that case the reasons of thei dismissal must be set forth in the order, which must be entered upon the minutes.” Rev. Laws 1910, § 6099. Mere permission to file an amended information is not sufficient. This is a judicial function, made so by statute, that cannot be delegated to the county attorney.
    4. Evidence — Testimony Elucidating System by Which Coconspir-ators Defraud. Where coconspirators pursue a well-defined system and method of defrauding certain classes of individuals, any testimony elucidating that system is competent, whether the occurrence or declaration testified to was previous or subsequent to the act complained of in the information, so long as it was done in pursuance of the common fraudulent design.
    5. Judgment and Sentence — Waiver of Statutory Right to Two Days Between Verdict and Judgment. A defendant may waive his statutory right of insisting that at least two' days shall elapse between the rendering o£ a verdict and thfe rendition of judgment.

      6 Trial — Refusing Instructions Covered by Instruction Given.— Instructions relating to the testimony of accomplices examined,, and held sufficient.
    Appeal from District Court, Marshall County; Geo. S-Marsh, Judge.
    John Q. Adams was convicted of forgery in the first degree, and sentenced to serve ten years in the state penitentiary, and he appeals.
    Affirmed.
    R. C. Roland, for, plaintiff in error.
    S. P. Freeling, Atty. Gen., and B. L. Fulton, Asst. Atty-Gen., for the State.
   BESSEY, J.

John, Q. Adams, plaintiff in error, referred to in this opinion as the, defendant, was by information filed in the district court of Marshall county, November 19, 1918,. charged with knowingly, fraudulently, and feloniously making and forging a certain described deed to real estate. At the trial, on September 10, ,1919, the jury rendered a verdict finding the defendant guilty, and assessing his punishment at confinement in the state penitentiary for a period of 10 years.

D. F. Underwood and Sam Jackson were charged jointly with this defendant for this crime, and on May 23, 1919, D. F. Underwood, by his attorney, demurred to the information filed on the grounds that it did not state facts sufficient to constitute the crime of forgery; that said information did not charge that the property described therein was the subject of forgery; that said information, failed to charge whom the defendants are charged with attempting to defraud. This demurrer was by the court sustained, and an order made permitting the county attorney to file an amended information, but no amended information was filed pursuant to said order. The reeord further discloses that on the 9th day of September, 1919, the defendant John Q. Adams filed a separate demurrer to the information, which was by the court overruled, and that the defendants, upon their motion, were then granted a severance. Thereupon this defendant announced ready for¡ trial and the trial proceeded, with the result before stated.

The facts in this case disclose that John Q. Adams and D. F. Underwood had an agreement and understanding with Sam Jackson that the latter should impersonate an Indian allottee, by the name of Jimmie Thomas, and other Indian allottees, and should falsely and fraudulently execute forged and spurious deeds, purporting to be executed by Jimmie Thomas and other Indian allottees, to portions of their allotted lands, without the knowledge or consent of the allottees; that pursuant to this conspiracy and fraudulent agreement and understanding Sam Jackson executed a deed to a portion of the land belonging to Jimmie Thomas, and signed the name of Jimmie Thomas to this purported conveyance, and by fraud and deception, and as a part of the conspiracy, acknowledged this purported conveyance before a) notary public; that these defendants received the purchase price named in the deed for the execution of this spurious deed and divided it among themselves.

The assignments of error urged by the defendant in his brief may be summarized as follows:

(1) That the record does not disclose that there was any preliminary hearing, and that the district court was therefore without jurisdiction.

(2) That the amendment to the record shows that a demurrer to the information, was filed on behalf of D. F. Underwood, a codefendant, and that the demurrer as to Underwood was sustained and that the county attorney failed to file an amended information.

(3) Error of the court in permitting the witness Sam Jackson to testify to conversations had with his coconspirator, Underwood, in the absence of this defendant.

(4) Error of the court in permitting the state to show a series of acts and transactions by these' conspirators before and after the execution of the spurious deed here at issue.

(5) That' the testimony of Sam Jackson, an accomplice, was not corroborated by independent testimony.

(6) That the verdict was rendered on September 10, 1919, a motion for a new trial was filed and overruled, and judgment rendered on September 11th, and that the rendition of judgment was therefore premature.

(7) Error of the court in refusing to give instructions numbered 1, 2, and 3, requested by the defendant.

The Constitution of this state provides that no person shall be prosecuted for a felony by information without having first had a preliminary examination before an examining magistrate, or having waived such preliminary examination. The defendant does not claim that no preliminary examination was had, but now makes the objection for the first time that the record does not show that a preliminary hearing was had or waived. If the defendant did not have a preliminary examination it would be necessary for him to make some showing to that effect; the mere fact that such examination does not appear of record is not sufficient. In criminal eases prosecuted upon information in courts of record there is a presumption that the court had jurisdiction, and that the defendant had or waived a preliminary hearing: In the case of Williams v. State, 6 Okla. Cr. 373, 118 Pac. 1006, the third syllabus is as follows: ■

“The fact that there has been a preliminary examination or a waiver thereof need not be stated or averred in the information, or shown affirmatively by the prosecution. That the defendant did not have a preliminary examination is a fact tobe established on a plea in abatement or on a motion to quash; otherwise all essential preliminary proceedings will be presumed.”

To the same effect, see Robbins v. State, 12 Okla. Cr. 294, 155 Pac. 491.

The defendant made no objection in the trial court to the effect that no preliminary hearing had been had or waived, and he cannot here, for the first time, urge such objection. In the case of McDaniel v. State, 8 Okla. Cr. at page 220, 127 Pac. 358, it was held that a defendant has a right to insist upon such an examination before being called upon to plead, but this right may be, waived when called upon to plead, as well as when called before a magistrate for examination. This is not a matter which goes to the merits of the trial, but only to the regularity of previous proceedings. Doubtless there was a preliminary examination; otherwise the objection would have been urged in the trial court.

It is next urged that, because the court sustained a demurrer attacking the sufficiency of the; information,' filed on behalf of the codefendant Underwood, such ruling of the court amounted to a judgment of the court that the information was insufficient as to the other codefendants.

A demurrer urged by one of several parties may be passed upon without affecting the rights of the others. 31 Cyc. 349; U. S. v. Piatt, 157 U. S. 113, 15 Sup. Ct. 498, 39 L. Ed. 639; Dyal v. Hays (Ark.) 12 S. W. 874; Farwell v. Jackson, 28 Cal. 105; Freeland v. Jasper Co., 27 Ill. 303; National Ins. Co. v. Bowman, 60 Mo. 252. Ordinarily, where one of several parties demurs to an information on the ground of the insufficiency of the information, and the exceptions urged might apply to all of the defendants alike, a judgment on the demurrer should apply only to the defendant who files it; but there are decisions to the contrary, holding that the sustaining of a demurrer attacking the sufficiency of an information may inure to the benefit of thej codefendants who did not demur. 39 Cent. Dig. 1867; Tate v. Goode (Ga.) 33 L. R. A. (N. S.) 310, notes and annotations.

In this case it is difficult to glean from the record the meaning and effect of the order made in sustaining the demurrer of defendant Underwood. The grounds for demurrer urged by 'Underwood were that the information does not state facts sufficient to constitute the crime of forgery; that the information does not disclose that the property described therein* was the subject of forgery; and that the information fails to charge whom the defendants attempted to defraud. From an amendment to the record it appears that on January 23, 1919, the court made an order, upon presentation and hearing of the demurrer of Underwood, and did “sustain said demurrer and quash the information on file in said cause and granted the county attorney permission to file an amended information within ten days thereafter.” It further, appears that no amended information was filed. Thereafter, on the 9th day of September, 1919, defendant John Q. Adams filed a demurrer to the information on the ground that the same did not state facts sufficient (to constitute the crime charged. This demurrer on the part of the defendant Adams was on the same day heard and overruled; a severance was ordered and the defendant Adams announced ready for trial.

Section 6099, R. L. 1910, is as- follows:

“The court may, either of its own motion or upon the application of the county attorney, and the furtherance of justice, order an action or indictment to be dismissed, but in that case the reasons of the' dismissal must be set forth in the order, which must be entered upon the minutes.”

Section 5799, R. L. 1910, provides that, when the objection that the facts stated do not constitute a public offense appears upon the face of the information, objection may be taken by demurrer, or, at the trial, under a plea of not guilty, and in arrest of judgment. Section 5795, R. L. 1910, provides that if the demurrer is sustained the judgment is final upon the information demurred to, unless the court directs a new information to b'e filed. The court cannot delegate this authority to the county attorney, leaving it to his discretion to file or not to file an amended information. Ex parte Williams, 116 Cal. 512, 48 Pac. 499. Section 5796 provides, that, if the court does not direct the! defendant to be further prosecuted, he must be discharged. There is no wide difference between civil and criminal pleading. Bishop’s New Crim. Law, § 320.

Where several persons join in the commission of an offense the action is joint or several, and, whether prosecuted jointly or severally, each defendant must plead for himself. Bliss on Code Pleading (3d Ed.) 414, 418, et seq.

While a demurrer, strictly speaking, is not a plea, it is an objection.to a plea and the rules of pleading apply.

We do not understand why the demurrer was sustained as to Underwood and overruled as to this defendant, unless it was because there were three grounds urged in the demurrer interposed by Underwood 'and only one of those grounds was urged in the separate demurrer filed by Adams. From the recitals in this record, considered together with the subsequent conduct of this defendant in filing a separate demurrer and the conduct of the court in entertaining, hearing, and ruling on the demurrer, it would seem that the parties interested were of the opinion that the demurrer sustained as to Underwood did not affect the prosecution of the co-defendant Adams. We therefore hold, under the circumstances here, that the voluntary appearance of Adams by filing Ms separate demurrer to tbe information, and after an adverse adjudication thereon, voluntarily appearing and entering his plea) of not guilty, and announcing ready for trial, gave the court jurisdiction to try the offense as to him, and that the judgment afterwards rendered on the verdict was not void because of the sustaining of the demurrer as to the defendant Underwood.

It is next contended that the court erred in permitting the witness Sam Jackson to testify to conversations he had with Underwood in the absence of this defendant. These conversations related, for the most part, to the agreement and understanding had among the three defendants indicative of a conspiracy by which they were to co-operate in uttering forged and spurious deeds. The testimony as a whole amply supports tMs theory, and it therefore follows that any act or declaration of one coconspirator may be introduced against the other conspirators when done or made pursuant to their common design. In the ease of Mathews v. State, 19 Okla. Cr. 153, 198 Pac. 112, the eleventh syllabus is as follows:

“It is immaterial in what order testimony predicated upon a conspiracy is introduced, if the series of facts and circumstanced shown in evidence ultimately makes a prima facie case of conspiracy. A conspiracy may, and generally must, be proved by a number of independent acts, conditions, and circumstances tending to show an unlawful common purpose of the conspirators.”

The conspiracy here involved did not relate alone to the forgery of the deed here at issue; it contemplated the forgery of other deeds, with the manifest purpose and intent to cheat and defraud various Indian allottees out of their, lands. The responsibility of coeonspirators for the declarations and conduct of others acting with them is not confined to the accomplishment of the common purpose for which the conspiracy was entered into, but extends to and includes all declarations made and collateral acts done incident to and growing out of tbe common design. Burns v. State, 8 Okla. Cr. 554, 129 Pac. 657.

In the case of Blanck v. State, 14 Okla. Cr. 339, 169 Pac. 1130, with reference to a conspiracy, the court said:

“The entire scheme was conceived in iniquity. This court has repeatedly held that the least degree of concert of action or collusion makes the act of one conspirator the act of all, and each conspirator is liable for the act of each other conspirator done in pursuance of such conspiracy” — citing many authorities.

It therefore follows that, where the conspirators pursued a well-defined system and method of defrauding certain classes of individuals, any testimony elucidating that system would be competent, whether the occurrence or declaration testified to was previous to or .subsequent to the act complained of in the information, so long as it was done in pursuance of the common fraudulent design.

It is next urged that the defendant was entitled to at least two days after the return of the verdict before the court should pronounce judgment against him. This is another right that may be waived. The defendant, interposed no objection to the rendition of judgment upon that ground at the time. He did interpose an objection to sentence being pronounced upon the verdict, but it appears that this was an objection to the judgment itself, and not an objection and exception to the fact that it was rendered too soon. Kerkendall v. State, 5 Okla. Cr. 570, 115 Pac. 612; Howard v. State, 2 Okla. Cr. 200, 101 Pac. 131; McCord v. State, 2 Okla. Cr. 209, 101 Pac. 135.

Finally, it is urged that the court erred in refusing to give instructions numbered 2 and 3, requested by the defendant, touching upon the weight and effect of the testimony of an accomplice. The matters complained of were fully covered by instruction No. 5, given by the court, as follows:

“You¡ are instructed that the? witness Sam Jackson is an accomplice of the defendant, J. Q. Adams, as that term is hereinafter used, and that a! conviction cannot be had in this case upon the testimony of an accomplice unless it be corroborated by such other evidence as tends to connect the defendant with the commission of the offense; and the corroboration is not sufficient if it merely! shows the commission of the offense or the circumstances thereof.”

This instruction correctly states the law applicable to the testimony, and there was no error in refusing to give the instructions requested by the defendant.

The judgment of the trial court is affirmed.

DOYLE, P. J., concurs.

MATSON, J., not participating.


source: Caselaw Access Project

author: BESSEY, J.

license: Public Domain

text:
    C. W. BISHOP v. CITY OF TULSA.
    No. A-3893.
    Opinion Filed Sept. 23, 1922.
    (209 Pac. 228.)
    (Syllabus.)
    1. Statutes — Law Creating Municipal Courts for Certain Cities “General Law” and not Special Law. — Chapter 199, Laws 1919, creating and relating to municipal courts, and providing that the act shall apply to cities having more than 50,000 and less than 80,000 inhabitants, as determined by the last, preceding federal census, is a “general law,” and not special within the meaning of the Constitution.
    2. Statutes' — Law Applying Uniformly to Designated Class a “General Law.” A statute which applies to all persons or things of a designated class uniformly throughout the state, omitting no person or thing belonging under that classification, is a general law within the meaning of the Constitution.

      3. Constitutional Law — Statutes—Validity in Part — Effect of Provision for Unconstitutional Method of Selecting Jury. If a statute provides for an impossible or unconstitutional method of selecting a jury, that fact alone will not necessarily make other portions of the statute invalid. If a construction can he given an act which will render it constitutional, that construction will be adopted, even though it may eliminate a part of the act.
    4. Municipal Corporations — Creation of Monopoly to Regulate Disposal/ of Garbage — Police Power. It is within the police power of cities of this state to regulate the orderly, sanitary disposal of garbage, and such cities, pursuant to ordinances, may create a monoply for that purpose.
    5. Samer— By-Products of Kitchen or Restaurant not "Garbage”. Ey-products df Oj kitchen or restaurant, used or cared for in a harmless, inoffensive, sanitary manner, are not necessarily* “garbage” within the ordinary meaning of the term. The product called “hog; food,” as shown in evidence here, was not “garbage” as ordinarily defined.
    Appeal from Municipal Court of Tulsa; F. D. Prentice. Judge.
    C. W. Bishop was convicted of violating the garbage disposal ordinances of the City of Tulsa, and he appeals.
    Reversed and remanded.
    Rogers & Jones, Melvin Haven, and Win. T. Thompson,, for plaintiff in error.
    S. P. Freeling, Atty. Gen., and E. L. Fulton, Asst. Atty. Gen., for defendant in error.
   BESSEY, J.

C. W. Bishop was convicted, on the 20th day of November, 1920, in the municipal court of the city of Tulsa of violating the garbage disposal ordinances of the city, and was assessed a fine of $19 and costs, from which conviction he appeals to this court. At the same time the appeal was filed a petition for a writ of prohibition was filed by said defendant and granted, pending this appeal.

Plaintiff in error, herein referred to as thé defendant, was one of the owners of a number of restaurants known as Kansas City Waffle Houses. Ordinances Nos. 741 and 742 of the city of Tulsa provided that the board of commissioners should employ some person as city garbage collector, and that it should be unlawful for any other person to transport garbage along or over the streets or alleys of the city; that the garbage should be deposited by the occupants of premises in a certain kind of can or container, from which it should be' collected by the city garbage collector, who. was also authorized to charge the occupant of the premises for the removal of the garbage. Originally the penalty provided for the violation of this ordinance wak a maximum fine of $100, but the ordinance was subsequently amended so as' to provide for a maximum fine of $19 and costs.

The testimony in this case shows that at. these several restaurants the trimmings from meats, fruits, bread, and vegetables, not suitable to serve to the patrons of high-class restaurants, together with certain scraps or leavings from the tables, were spread upon concrete floors and mixed with meal, bran, and oats, making a practically dry, composite mixture of high nutritive value. This mixture was then placed in cans and labeled “Hog Food,”and was taken by the defendant and his associates to their hog lots beyond the city limits, where it wa$ 'fed to their hogs. There is evidence to show that this product-was sanitary, giving off no offensive odor; that in extremely warm weather a small per cent, of benzoate of soda was added to arrest! possible decomposition; and that this product was similar to other products advertised and sold as hog food, under various trade-names, in the open market.

The defendant says this conviction should be set at ling the municipal court of the city of Tulsa is unconstitutional; (2) that the ordinances under which the defendant was naught fon the following reasons: (1), Because the act ereat-prosecuted are unconstitutional; (3) that the accusation is not supported by the law or the evidence.

Defendant claims that the act establishing the municipal court for the city* of Tulsa purports to. be a general law, but is in fact a special law, prohibited by the Constitution, not having a uniform application throughout the state. The title and section 1 of this act are as follows:

“An act creating and relating to municipal criminal courts in cities * * * of more than fifty thousand inhabitants, defining the jurisdiction thereof, providing a codé of procedure therefor, providing for the appointment of judges and clerks thereof, repealing all acts and parts of aets in conflict herewith, and declaring an, emergency.
“Be it enacted by the people of the state of Oklahoma:
“Section 1. That in cities of the state of Oklahoma having a population of more than fifty thousand (50,000) and not exceeding eighty thousand (80,000) inhabitants as determined by the last preceding federal decennial census, or by the last preceding special federal census, there shall be, and is hereby, created and established a court of record which shall be known as the ‘municipal court of the city of-’ naming the city wherein such court is established).”

Laws 1919, e. 199.

Section 32 of article 5 of the Constitution of this state provides as follows:

“No special or local law. shall be considered by the Legislature until notice of the intended introduction of such bill or bills shall first have been published for four consecutive weeks in some weekly newspaper published or of general circulation in the city or county affected by such law, stating in substance the contents thereof, and verified proof of such publication filed with the Secretary of State.”

Section 46 of the same article provides that the Legislature shall not, except as otherwise provided in the Constitution, pass any local or special law authorizing the regulation of the affairs of counties, cities, towns, wards, or school districts, or prescribe the powers or duties of officers of such municipal organization.

Section 59 of the same article id as follows:

“Laws of a general nature shall have a uniform operation throughout the state, and where a general law can be- made applicable, no' special law shall be enacted.”

It is well settled that a statute which applies to all persons or things of a designated class uniformly throughout the state, omitting no person or thing belonging under that classification, is a general law within the meaning of the Constitution. Ex parte Anderson, 33 Okla. 216, 124 Pac. 980; 26 R. C. L. 813-818.

The court will take judicial notice of federal censuses, and by so doing it is( apparent that the provisions of this law applied at the time of the enactment of the act to only two cities in the state, viz., Tulsa and Oklahoma City.

The question of whether a statute is general or special in its nature and scope has been the subject of much discussion in this and other states. It is well settled everywhere that all statutes are entitled to the presumption which favors their constitutionality. Ex parte Hunnicutt, 7 Okla. Cr. 214, 123 Pac. 179; 25 R. C. L. 999, and cases cited; C., R. I. & Pac. R. Co. v. Beatty, 34 Okla. 321, 118 Pac. 367, 126 Pac. 736, 42 L. R. A. (N. S.) 984.

With this rule of construction in mind, let us see whether this is a general law or a local or special law; and, i'Jj the latter, was it one the! law authorizes and was it legally enacted? This court has adopted another rule of construction, that the question of whether a general or special law is applicable is primarily for the; Legislature to determine. This rule is also supported by the weight of authority in,' other states. Chickasha Cotton Oil Co. v. Lamb et al., 28 Okla. 275, 114 Pac. 333; Hatfield v. Garnett, 45 Okla. 438, 146 Pac. 24; 25 R. C. L. 825, and eases cited.

Construing the clause “as determined by the last preceding census” according to the rules of construction above mentioned, we think the act means the census' next preceding the organization of such a court, and that it is prospective as well as retrospective in its operation. If at some time subsequent to the enactment of this act Muskogee or some other city acquired 50,000 inhabitants it would automatically come within the classification and be entitled] to a court, as in the act provided. Any other conclusion would not be in harmony with the established rules of constitutional and statutory construction. It would be equivalent to this court’s saying that where a statute is susceptible of either of two constructions, one upholding its constitutionality and the other holding it in violation of the Constitution, the statute should be held invalid. ¡The contrary is the true rule.

The fact that certain portions of the statute providing for a trial by jury may be in conflict with the Constitution will not necessarily operate to render the statute void as a whole. It is an , established rule of statutory construction that, if a) construction can be given an act which will render it constitutional, that construction will be adopted, even though it may eliminate a part of the act, if the remainder may be disassociated from the part eliminated and leave a sensible and complete law of which it can be said that it probably would have been enacted by the Legislature had it known that the part eliminated was unconstitutional and void. 26 R. C. L. 1003, and cases cited; 6 R. C. L. 130. In the instant case the accused was not entitled to a jury. The offense charged was a mere petty offense, of which the police magistrate had jurisdiction, without a jury. Ex parte Daugherty, 21 Okla. Cr. 56, 204 Pac. 937; Ex parte Johnson, 20 Okla. Cr. 66, 201 Pac. 533; Ex parte Bochmann, 20 Okla. Cr. 78, 201 Pac. 537.

It is next urged that the. garbage disposal ordinances in question are void because they operate to deprive individuals of their property without due process of law, and create a private monopoly for profit in the person designated and authorized to dispose of the garbage. It is well settled that it is within the police power of cities of this' and other states to provide for the orderly sanitary disposal of garbage. In nearly all cities ordinances of the character here at issue have been enacted, and, within constitutional limitations, have been upheld by the courts when attacked, as being no interference with private property rights and not void for unreasonableness. Kimball v. Woodward, Health Com’r, 233 Mass. 275, 123 N. E. 684, 15 A. L. R. 275; Pantlind v. City of Grand Rapids, 210 Mich. 18, 177 N. W. 302, 15 A. L. R. 280.

Finally, it is contended that the accusation is not supported by the law nor the facts as shown by the record. The ordinance at issue makes no. attempt to define the word “garbage.” Where no legal definition is given, a word should be given its ordinary meaning — the interpretation given the word by recognized lexicographers. Webster defines “garbage” as:

“Offal; refuse or waste animal or vegetable matter from a kitchen, market or store; anything filthy. ’ ’

The Century Dictionary defines the word thus:

“Refuse organic.matter in general, especially the refuse animal and vegetable matter from a kitchen; any worthless offensive matter.”

It has been held that grease and cracklings from which the fat has been rendered, hauled away within 24 hours, is not garbage within the ordinary meaning of the term. Nash v. Dist. of Columbia, 28 App. D. C. 598, 8 Ann. Cas. 815. The word “garbage” involves a rejection of the material for use. It does not follow, that it means a rejection for all purposes. City of Rochester v. Gutberlett, 73 Misc. Rep. 607, 133 N. Y. Supp. 541.

The term “garbage” is not equivalent to the term “byproduct.” A by-product is:

A “secondary or additional product of valuesomething produced in the course of business in addition to the principal product. ’ ’

It is well known that packing houses, oil refineries, and «orne other kinds of manufactures make by-products amounting in value to a material part of their gross income. The right to such by-products, when cared for in such a manner as not to interfere with public or private rights, amounts to a private property right thalj cannot be abrogated or destroyed "by police regulations. The utilizing of valuable by-products rshould be encouraged rather than prohibited.

The record here* shows that this by-product called “hog food” was a valuable product; that it was not unsanitary or ■offensive, and was not refuse or useless matter as defined above. One witness testified that by a slight variation of the hog food ■formula a product commonly designated “hash” could be made. We cannot say as a matter of law that restaurant hash is necessarily garbage, though some of it should, as a matter ■of right, be¡ so classified.

We therefore hold that this accusation is not supported by sufficient testimony, and that “hog food,” as shown' here, as a matter of law is not garbage within the meaning of this ordinance. The' conviction of the trial court is reversed, and ■the cause remanded for further proceedings not inconsistent with this decision.

DOYLE, P. J., and MATSON, J., concur-


author: PER CURIAM.

text:
    CARL C. RATABAUGH v. STATE.
    No. A-3681.
    Opinion Filed Sept. 23, 1922.
    (209 Pac. 230.)
    Appeal from County Court, Payne County; Wilberforee Jones, Judge.
    Carl C. Ratabaugh was convicted of malicious mischief, and he appeals.
    Reversed and remanded.
    [Former opinion, published in 209 Pac. 178, withdrawn.]
    John P. Hickam, for plaintiff in error.
    The Attorney General, for the State.
   PER CURIAM.

This is an appeal from the county; court of Payne county, wherein the defendant was convicted of the crime of malicious mischief, and sentenced to pay a fine of $25.

On the trial in the court below the defendant represented himself, and, being a farmer and not versed in the trial of lawsuits, failed to make any objections or reserve any exceptions, such as to reserve many questions of law that properly could have been presented in this court on appeal. However, it is contended that there is an entire failure to prove that degree of malice which this court has held to be necessary in a prosecution ofj this kind. See Colbert v. State, 7 Okla. Cr. 401, 124 Pac. 78.

This prosecution arose over a dispute as to the location of a division line between the lands of the defendant and those time the county surveyor made a survey between the two pieces of his neighbor, McFeaters, and the controversy had been a of land for the purpose, presumably, of establishing a road, matter of dispute between them for some years, up until the Defendant appealed from that survey, and his appeal pended in the district court for a considerable length of time, when it was dismissed on the motion of the county attorney for failure to prosecute the same. Neither defendant nor his counsel were present in the court at the time such appeal was dismissed. Counsel for defendant, having had a matter in another court, upon his return filed an application to have the appeal reinstated, and, as near as we can glean from this record, such matter was pending at the time it is contended that defendant tore down a fence erected by the prosecuting witness, McFeaters, which defendant contends was erected upon his (defendant’s) land, and which fence inclosed defendant’s house and outbuildings upon land which McFeaters claimed was his.

Under the circumstances, we believe that the act of defendant in removing the fence from land upon which his house and outbuildings had been standing for several years, and from a line located by a survey from which defendant had appealed, does not show such malice against the owner of the property injured, necessary to sustain a conviction under the malicious mischief statute. The criminal courts should not be employed in instances of this kind, but the individual should be required to resort to civil remedies.

For reasons stated the conviction is reversed, and the cause remanded for further proceedings, not inconsistent with this opinion.


text:
    JESS LITTRELL v. STATE.
    No. A-3359.
    Opinion Filed Dec. 10, 1921.
    Rehearing Denied Sept. 23, 1922.
    (208 Pac. 1048.)
    (Syllabus.)
    1. Appeal and Error — Discretion of Trial Court — Continuance. Ordinarily a motion for a continuance is addressed to the sound discretion of the court, and the court’s refusal to grant a con-tlnuance will not be disturbed unless manifest injustice has been done. Held, in this case, there was no abuse of discretion.
    2. Jury — Extent of Constitutional Right to Impartial Jury. The defendant has a constitutional right to an impartial jury, but he has no inherent right to have his case tried before jurors residing in any particular community or communities, or to demand that jurors of certain occupations shall be included or excluded.
    3. Same — Defendant not Entitled to Challenge Array. Where the jurors were selected from a list of 600 names taken at random from territory containing more than*five-sixths of the total population of the county, there was no abuse of discretion on the part of the trial court in overruling ;a challenge to the array.
    4. Same — Statutory Proceedings for Selection oif Jurors Directory but Should Be Followed. The mode of selecting jurors provided by statute is directory, and unless it manifestly appears that some slight deviation from the statutory method has been abused, to the prejudice of the accused, the overruling of a challenge will not be disturbed.
    (a) ‘Because the statute is directory should not be .considered as a license to materially deviate from the statutory method of - selecting jurors. Such departures are dangerous, and may under certain circumstances, amount to reversible error,
    5. Evidence — Evidence Showing Commission of Different Offense. Evidence otherwise reltevant is' not rendered inadmissible because it shows the commission of another and different offense. Evidence disclosing another offense is often admissible for the purpose of showing felonious intent or circumstances indicative of guilt of the crime with which the defendant is charged.
    6. Trial — Prosecutor’s Interrogating Defendant’s Witnesses out of Court not Error. Alleged misconduct of the assistant county attorney in improperly interrogating witnesses for the defendant out of court, as disclosed in the body of the opinion, held not rteversible error.
    Appeal from District Court, Oklahoma County; John, W. Hayson, Judge.
    Jess Littrell was convicted of bank robbery and sentenced to serve a term of 25 years, in the state penitentiary, and he appeals.
    Affirmed.

      H. M. Carr, J. Q. A. Harrod, and A. B. Burris, for plaintiff in error.
    S. P. Freeling, Atty. Gen., and W. C. Hall, Asst. Atty. Gen., for the State.
   BESSEY, J.

Jess Littrell, plaintiff in error, in this opinion designated as the defendant, was ori the 15th day of November, 1917, convicted of robbing the First National Bank of Harrah on the 12th day, of January, 1917, and his punishment was fixed at imprisonment in the state penitentiary for a term of 25 years. From this judgment and sentence he appeals.

It appears from the record that ^ this defendant had been a resident of Nowata county, Okla., and that he was, arrested in Okfuskee county, Okla., on January 18, 1917, charged with having killed L. M. Bouldware. On the same day a warrant was issued, charging this defendant with ;the robbery of the bank at Harrah six days previous.. After a mistrial in Okfus-kee county upon the charge of murder the robbery charge here at issue was set for trial in Oklahoma) county for November 7, 1917. The defendant claimed that he was not ready for trial, and the cause was passed over and reset for November 12, 1917.

The defendant contends that the judgment in this case should be reversed for reasons substantially as follows:

(1) That the defendant’s motion for a continuance should have been sustained.

(2) That the defendant’s challenge to the jury panel should have been sustained.

(3) That incompetent evidence was admitted, to the prejudice of the defendant.

(4) That some of the defendant’s witnesses were intimidated by the assistant prosecuting attorney, to the prejudice of the defendant.

The grounds principally relied upon for a continuance were that the authorities had succeeded in keeping the defendant in jail, and that, if he had been at liberty, he would have had a better opportunity to prepare for and organize his defense. The record shows that he had employed counsel, and that he and his counsel for some months previous knew that the case would cornel; on for trial in due course in Oklahoma county. Considering the application as a whole, no good cause for a further continuance was set updn the motion. A motion for a continuance is addressed to the sound discretion of the trial court, and the court’s refusal to grant a continuance will not be disturbed unless manifest injustice has been done. Richards v. State, 15 Okla. Cr. 582, 179 Pac. 777; Reed v. State, 14 Okla. Cr. 651, 174 Pac. 800. See, also, other eases cited in the above opinions.

It is next urged that the court j should have sustained the defendant’s challenge to the jury panel. The grounds urged in this challenge were that the 600 persons designated by the jury commissioners from which to seleet jurors were all residents of Oklahoma township, in Oklahoma county, and that the jur$' commissioners met on the 10th day of July for the purpose of selecting the jury _list instead of on) the first Monday in July, as the law directs. It is claimed that the jury list, having been selected from one municipal township in Oklahoma county, was not representative of the body of the people of the county, .and that such procedure tended to prevent the defendant from having a fair and impartial trial.

The defendant has a constitutional right to a fair and impartial jury, but the defendant has no absolute or vested right to have his ease tried before jurors residing in any par-tieular community or communities. This court will take judicial notice that Oklahoma City is in Oklahoma township, in Oklahoma county, and is the most populous city in the''state, whose citizenship is of a cosmopolitan character, and that the number 'of inhabitants in Oklahoma township is more than five-sixths of the total population of the county. The defendant’s counsel in his brief admits that) the defendant had the reputation of being a violator of the law. The record shows that he was a fugitive from justice on charges of illegally transporting liquor in Oklahoma; that he was charged with murder in another county; and that he was here charged with bank robbery. The defendant complains that the jury in this ease was composed of 12 business men from Oklahoma City, and that the result might have been different if the jury had been composed of some cowboys, old settlers and frontiersmen, stockmen, and farmers.

The defendant has no right to insist upon or demand that jurors of certain occupations shall be included in the jury. The right of the accused in the selection of a jury is one of exclusion of incompetent jurors, not one of inclusion of particular persons or classes of persons who are competent. Mathews v. State, 19 Okla. Cr. 153, 198 Pac. 112.

It would be aj^novel position to contend that because an accused person bears (or enjoys?) a bad reputation as an habitual criminal, he should be given privileges and safeguards not accorded to- others. The disadvantages of a bad reputation affect people in their business and social relations everywhere, and the ill effects of such reputation cannot always be eliminated in the 'trial of cases. If courts should attempt to do so it would result in the miscarriage of justice rather than be instrumental in the administration of justice.

In the case of Watson v. State, 9 Okla. Cr. 1, 130 Pac. 816, it appeared that one-half of the 200 names on the jury lisias selected were of persons living in Cheeotah township, and that none were selected' from two l other municipal townships in the county. There was no claim nor showing that these irregularities were corruptly conceived, or that the jury commissioners were in any way prejudiced against the defendant. Before the defendant can avail himself of such irregularities on the challenge to the panel, he must show intentional omission on the part of the jury commissioners, from which he has suffered material prejudice. However, in the Watson Case it is stated that it,is the duty of district courts to compel a compliance not only with the spirit of these statutes,^but, so far as possible, with the letter thereof. This declaration we again approve and emphasize. But the statutes providing for the selection of jurors are directory only, and any slight deviation from the mode prescribed therein will not be sufficient grounds for sustaining a challenge to the panel unless it appears that such irregularities are prejudicial to the substantial rights of the defendant. Bearing in mind that .the defendant has no inherent or vested right to have a ease tried before any particular men or class of men, we hold that in this case there was no prejudicial error in the court’s refusal to sustain the challenge to the panel. Blankenship v. State, 10 Okla. Cr. 551, 139 Pac. 840, L. R. A. 1916A, 812; Moore v. State, 9 Okla. Cr. 9, 130 Pac. 517; Wood v. State, 3 Okla. Cr. 553, 107 Pac. 937.

The defendant next complains that the court permitted F. C. Carter, Who was acting as a deputy sheriff, to testify to resistance to arrest on! the part of the defendant five days after the robbery. It appears that the defendant was in hiding a few miles distant from the place of the robbery, and that when he and others were discovered and .surrounded by the officers he fired several shots at this officer and wounded another deputy there. Defendant came out of the house and literally shot his way through the officers’ lines, sending one bullet through the;hat of Frank Carter and others uncomfortably close to him, and finally made his escape front this posse. Certainly this flight, resistance to arrest, and escape on the part of the defendant was admissible in evidence, as a circumstance indicative of guilt, and this notwithstanding the fact that he committed another crime in so resisting arrest. Jones on Evidence, § 287, states the law as follows:

“'Thus flight, * ** attempt to escape, ¡resistance to arrest, are all facts which may tend to show consciousness of guilt, and are in common practice received in evidence as relevant.”

Evidence otherwise relevant is not rendered inadmissible because it shows the commission, of another and different offense, and such circumstances may be shown in detail, if otherwise admissible, for the purpose of showing felonious intent or circumstances indicative of guilt of the crime with which defendant is charged. Vickers v. U. S., 1 Okla. Cr. 452, 98 Pac. 467; Hunter v. State, 3 Okla. Cr. 533, 107 Pac. 444; Miller v. State, 9 Okla. Cr. 255, 131 Pac. 717, L. R. A. 1915A, 1088.

The defendant next complains that he was prejudiced by the alleged misconduct of the assistant prosecuting attorney in interrogating a witness subpoenaed by the defendant in the corridor of the courtroom, that the witnesses for the defendant were in a room near by and a Mr. Armstrong went into the room where these witnesses! were assembled and ordered them to leave the room and go out into the lobby, and that while in the lobby this objectionable interrogation of the witness Mullins took place. Mr. Mullins was later called into court, in the absence of the jury, and, after being sworn, testified as follows:

“By the court: Mr.¡Mullins, the court has been informed that some one has been to you and told you that you should-n’t testify to certain things in this case.
“Mr. Carr: I beg the court’s pardon. I didn’t say that, I said Mr. Mullins bad said to me that there was a person who had come to him and told him that he wanted to get him right; that he wanted him to be very sure about that dance; that Jess Littrell was down there, and he wanted to be mighty careful about fixing the date.
“The Witness: I don’t think I recall that, Mr. Carr.
“The Court: Well, make your statement.
“The Witness: Why? there was nothing as far as my part, nothing that was intended.
“Mr. Carr: Just state what was said.
“Witness: Well, we were talking about that date, and of course I was not positive as to the date, and I didn’t know, and he spoke to me and said that I should be positive or something to that effect, and I said I could not be.
“Mr. Carr: You didn’t say that to me at all. You told me that he told you that you were treading on pretty soft and dangerous ground and had better be careful.
. “Witness: Well, he didn’t say those words exactly.
“Q. He didn’t say those words exactly? A. No; but that is what he meant by it, was that I didn’t have the dates right, and of course I didn’t know the dates, and of course being down there! and we just naturally spoke about the boy going down there and the time I went down with the doctor.
“Q. Who was this party that was talking to you? A. That gentleman over there.
“Q. Which gentleman,
“Mr. Scothorn: If the court please, I am the one that talked to him.
“The Court: Mr. Scothorn, I think that was very improper, and as an. officer of this court you should be severely reprimanded. I don’t think I ever heard anything of that kind occurring in my experience that I have had with any of the officers here in this county.
“Mr. Scothorn: Now, if the court please, I was told that this witness would not swear that it was on the 12th and I was toldl that by Dr. Morgan. Dr. Morgan) went out and got this man and took him down and he didn’t say that was the date.
“Mr. Mullins: That’s it.
“Mr. Scothorn: And I certainly think that I had a right to ask this man, and I asked him what hour, and he said along early in the morning or from 11 to 12 o’clock, and I asked him what date, and he couldn’t fix the date, and that’s all that I said.
“The¡ Court: I think that that was improper; it was highly improper for you to talk to this witness. When that occurs again during the trial of this case, or any other person here, they will be severely reprimanded by this court. These witnesses should come here and testify what they know without any undue influence or coercion by anybody or any attempt by anybody to influence a witness.
“Mr. Scothorn: Does the court hold that the state cannot talk to these witnesses ? Do I understand that by the statement you have just made?
“The Court: I think it was improper, this occurrence was improper, and must not occur during the trial of this cause. That’s all.”

Assuming that the assistant county attorney succeeded in getting the witness Mullins to change his testimony from a positive declaration, indicating an alibi, to what may be termed neutral or uncertain testimony in that regard, under the circumstances here it would not amount to prejudicial error. The defendant produced a large number of other witnesses who testified concerning the same state of facts, indicating a positive, absolute alibi, which was the only defense interposed by the defendant. The testimony evidently was not believed by the jury, and the testimony of Mullins was, at most merely; cumulative. On tbe other hand, the testimony quoted, to our mind', indicates that this witness testified carefully and conscientiously, and wasi actually not certain about the date of the dance, and there is no showing that in fact the witness Mullins modified his testimony by reason of the conversation had with the assistant prosecuting attorney. A person convicted of a crime upon such positive, convincing testimony as appears in this record has no legal right to have a verdict set aside on the grounds that his defense was frustrated in whole or in part, unless it is shown that there is some probability that such defense is true. Section 6005, R. L. 1910, commonly known as the harmless error statute, was intended to operate under just such circumstances.

Finding no substantial error in this record, the judgment of the trial court is affirmed.

DOYLE, P. J., and MATSON, J., concur.


text:
    STATE v. M. W. HUDSON.
    No. A-3802.
    Opinion Filed April 19, 1922.
    (204 Pac. 133.)
    Appeal from District Court, Payne County; Arthur It. Swank, Judge.
    M. W. Hudson was charged by information with the crime of perjury. From a judgment setting aside the information, the state takes a pretended appeal.
    Appeal dismissed.
    John P. Hickam, for defendant in error.
   PER CURIAM.

This is a pretended appeal by the state from a judgment for defendant quashing and setting aside a certain information filed in the county court of Payne county, Okla., in which the said defendant, M. W. Hudson, was charged with the crime of perjury, alleged to have been committed in a certain civil action for damages in said conrt between M. W. Hudson et al., plaintiffs, and tbe Commonwealth Cotton Oil Company, defendant.

Counsel for the state attempted to take this appeal by service of a notice of appeal upon the court clerk of Payne county and also by service of a similar notice upon counsel for defendant. No notice was served upon defendant himself, nor is there any proof that defendant could not be found within the county and that in his absence a notice was posted for three weeks in the office of the court clerk as provided by section 5992, Revised Laws 1910. There was no attempt to perfect this appeal by the service of any summons in error, nor is there any waiver of the issuance and service of any summons in error by counsel representing the defendant.

Where the appeal is taken by the service of notices as provided in section 5992, the statute must be strictly complied with by the service of a written notice, where the appeal is taken by the state, both upon the clerk of the court where the judgment was entered and a similar notice upon the defendant, if he can be found within the county, and if the defendant cannot be found within the county, then it is incumbent upon the county attorney to post a written notice for three weeks in the office of the court clerk. In this case the state attempted to take the appeal solely by serving the notices required by section 5992, and failed to either serve a notice on the defendant or to show that he could not be found in the county, and thereafter failed to post a notice in the manner above set out. Before this court can acquire jurisdiction of an appeal, either the notices required by section 5992 must be served in the manner and upon the persons therein designated, or else a summons in error must be issued and served, or its issuance and service waived as provided in the Code of Civil Procedure. Neither of these methods was complied with by counsel for the state. It is apparent, therefore, that this court has never acquired jurisdiction of the appeal, and the same must be dismissed. State v. Childers, 17 Okla. Cr. 627, 191 Pac. 1043.

For reasons stated, the pretended appeal is dismissed.


text:
    ANDREW JENNINGS v. STATE.
    No. A-3955.
    Opinion Filed April 19, 1922.
    (206 Pac. 1117.)
    Appeal from District Court, Muskogee County; Benja-mine B. Wheeler, Judge.
    Andrew Jennings was convicted of the crime of preventing witnesses from attending court, and appeals.
    Appeal dismissed.
    De Graffenried & De Graffenried, for plaintiff in error.
   PER CURIAM.

Plaintiff in error, Andrew Jennings, was convicted on an information charging that he did commit the crime of preventing witnesses from attending ’court, and on February 28, 1921, the court sentenced Mm to be confined in the penitentiary at McAlester for the term of one year. From the judgment an appeal was perfected. Bis counsel of record has this day filed a motion to- dismiss the appeal, which motion is sustained, and the appeal herein is dismissed, and the cause remanded to the trial court. Mandate forthwith.


text:
    JESS LITTRELL v. STATE.
    No. A-3360.
    Opinion Filed Dec. 19, 1921.
    Rehearing Denied Sept. 23, 1922.
    (209 Pac. 184.)
    (Syllabus.)
    Jury — “Impartial Juror”1 — Juror not Disqualified by Opinion Formed from Reading Newspaper. The words “impartial jur- or,” as expressed. in the Constitution, have noi such fixed meaning as would preclude the Legislature from defining, in somte measure, what should constitute an impartial juror. There was no intention to exelude persons who read newspapers, and it Was never intended that an opinion formed from such information should necessarily disqualify such person as a juror.
    a. The mere fact that a juror has a settled impression or opinion as to the merits of the ease, resulting from reading newspaper accounts or from current rumor, and not obtained from personal knowledge of the facts or from witnesses who purport to know the facts, does ndt necessarily render the juror incompetent. R. L. 1910, §§ 5858 and 5861.
    b. Ordinarily, where a juror testified that He believes he can and the court finds as a matter of fact that he would, if selected, render an impartial verdict upon the evidence, he is an impartial juror, under our Constitution and the statutes of this state.
    Same — Trial Cou'rt to Be Satisfied that Juror Examined Is Indeed Impartial. Trial courts should be careful not to permit persons of doubtful or uncertain qualifications to serve as jurors. The trial court should be satisfied from an examination of the prospectiva juror that he is indeed impartial, as defined by the statutes and decisions of this state.

      3. Evidence — Relevant Evidence Showing Another Offense. Evidence otherwise relevant is not rendered inadmissible because it shows the commission of another and different offense.

      <k Trial — Constitutional Right to Be Confronted by -Witnesses— Waiver. The constitutional right of a defendant to b'e confronted by the witnesses against < him is one that may be waived. Where, without first having laid a sufficient predicate of the introduction of a transcript of tlfe i evidence of an absent witness for the state, taken at a former trial, such transcript, over the objections of • the defendant, is read to the jury, and where the same witntess at the former trial was called, and testified on behalf of the defendant, and, at the request of the defendant á transcript of the latter testimony is introduced and read to the jury, the absence of a proper predicate for the introduction off the testimony of this witness is waived, where such testimony on behalf of the defendant is incomplete and refers to the testimony on behalf of the state, and the testimony as a whole is clearly favorable to the defendant.
    Appeal from Superior Court, Okfuskee County; John L. Norman, Judge.
    Jess Littrell was convicted of murder, an'd sentenced to serve the term of Ms natural life in the state penitentiary, and ; he appeals.
    Affirmed.
    H. M-. Carr1 and A. B. Burris, for plaintiff in error.
    S. P. Freeling, Atty Gen., and W. C. Hall, Asst. Atty. Gen., for the State.
   BESSEY, J.

Jesá Littrell, plaintiff in error, in this opinion referred to as the defendant, was on the 24th day of November, 1917, in the' superior court of Okfuskee county,» convicted of the crime of murder, committed on the 18th day of January, 1917. His punishment by a verdict of the jury was fixed at imprisonment in the state penitentiary for life. From the judgment on the verdict, subsequently rendered, he appeals to this court.

The facts in this case, briefly stated, are that the defendant, with two or more confederates, on the 12th day 'of January, 1917, by intimidation and force of arms, robbed* the First National Bank of Harrah, in Oklahoma county. About five days later certain peace officers of Oklahoma county attempted to arrest this defendant and companion, Russel Tucker,; at the residence of one John Weleher in Oklahoma county. While resisting arrest and endeavoring to escape, these two, Littrell and Tucker, fired a number of shots at the officers, one of whom was wounded. Tucker and the defendant escaped, and the sheriff’s force of Oklahoma county were notified, and they in turn notified the various sheriffs and police departments throughout the state of the crime committed and the resistance of arrest and! escape of the criminals.

On the following morning, the 18th of January, the defendant and Tucker were located at the home of a negro, Williams, in Okfuskee) county, where! they were eating breakfast. When the sheriff’s posse approached this house, the defendant and Tucker fled through a rear door, and made an attempt to evade arrest. In resisting arrest, and attempting to effect their escape, they opened fire upon the officers, and a battle ensued in whieh the defendant shot and killed a deputy sheriff, L. M. Bouldware. The defendant subsequently surrendered to the officers, after having been severely wounded. Before Bouldware was shot and killed by the defendant, Tucker had been shot and killed by some member of the posse.

This defendant was tried and convicted in Oklahoma county, on the 15th day of November, 1917, of robbing the bank,at Harrah, and his case was appealed to this court. The sentence and judgment of the trial court, fixing his punishment at imprisonment in the state penitentiary for a term of 25 years, has just been affirmed by this court. 21 Okla. Cr. 466, 208 Pac. 1048, Some! of the matters and things urged by the defendant in this case as reversible error are similar to the matters urged in the robbery case, and, for tbe sake of brevity, these will not be treated in detail in this opinion.

It is first urged by the defendant that the jury before whom he was tried was biased and prejudiced, for the /reason that a number of them testified that they had formed or expressed opinions on the merits of the case, based upon.newspaper reports purporting to give the facts surrounding the homicide, and from indefinite rumors current in Okfuskee county. In order to illustrate the objections urged on this assignment of error, we quote from the examination of¡ juror Z. Ott given on his voir dire. We quote' this parts of the record as being more or less typical of the qualifications of some of the other jurors, except that the alleged disqualifications of Mr. Ott iare more pronounced than in the case of any other juror of whom complaint is made:

“Q. Mr. Ott, did you know Mr. Bouldware in his lifetime?
A. No, sir.
“Q- Do you know the defendant? A. No, sir.
“Q. Do you know his brother, Ed Littrell? A. No, sir.
“Q. Have you ever heard what purported to be the facts in this ease? A. Just heard the talk, and read it in the Ledger and the News.
“Q. Heard the talk of the community? A. Yes, sir.
“Q. Have you) formed or expressed an opinion as to the guilt or innocence of this defendant? A. Yes, sir.
“Q. That opinion is based solely on the public notoriety and public reports? A.. Yes, sir.
“Q. You haven’t talked to any of the eye witnesses, or who claimed to be.1 eye witnesses? A. No, sir.
‘ Q. If chosen as a juror in,this case, could you and would you try this ease solely on the law and evidence, and disregard what you have heard? A. It would take evidence to change my view.
“Q. Could you, and would you, if chosen as a juror, try the case solely on the law and the evidence as given from the court and the witnesses?
“By Mr. Carr: Objected to as not a qualifying question.
“By the Court: Overruled.
“By Mr. Carr: Exception.
“A. Yes, sir.
“Q. You will? A. Yes, sir.
“Q. You will give the defendant and the state both a fair and impartial trial? A. Yes, sir.
“Q. Have you any conscientious scruples against the infliction of the death penalty in a proper case where the law and the evidence justify it? A. No, sir.
“Q. Do you know of any reason, if chosen as a juror, why you could not give both the state and the defendant a fair and impartial trial? A. No, sir.”
Pass the juror.
Examination by Mr. Carr:
“Q. You; say you have an opinion as to what ought to be done with this defendant at thig time? A. Yes, sir.
“Q. And that has been formed from what you have heard people talk about the case and from what you have read in the Ledger and! the’News? A. Yes, sir.
“Q. You read the account and what the witnesses testified in the trial in September? A. Didn’t read all of it.
“Q. Did you read what Berry Jones said? A. Yes, sir.
“Q. And his name is indorsed as one of the witnesses on the information. Did you read what W. 0. Green said? A. I don’t remember.
“Q. And Rash McKinnon? A. I don’t know.
"Q. And from reading that testimony was formed an opinion as to what ought; to be done with this defendant? A. Yes, sir.
"Q. And you have that opinion now? A. Yes, sir.
"Q. That opinion would take evidence to remove? A. Yes, sir.
"Q. Do you know whether or not you could totally disregard that opinion before you went into the jury box? A. Well, it would take evidence to change it.
"Q. You couldn’t disregard it until you heard the evidence? A. No, sir.
“Q. You would go into the jury box with that much bias, whichever way it might be? A. Yes, sir.”
Section 5858, R. L. 1910, among other things, defines actual bias which will operate as a disqualification of a juror as follows:
"The existence of a state of mind on the part of a' juror, in reference to the ease, or to either party, which satisfies the court, in the exercise of a sound discretion, that he cannot try the issue impartially, without prejudice to the substantial rights of the party challenging-”

This statutory provision must be considered along with the provisions of section 5861, R. L. 1910, which is, in part, as follows:

"No person) shall be disqualified as a juror by reason of having formed or expressed an opinion upon the matter or cause to be submitted to such jury, founded upon rumor, statements in public journals, or common notoriety, provided it appears to the court, upon his declaration, under oath or otherwise, that he can and will, notwithstanding such opinion, act- impartially and fairly upon the matters to be submitted to him.”

From a perusal of the testimony quoted, it will be seen that this juror was not acquainted with the defendant or with the deceased. From portions of the testimony not quoted, it appears that he was not an officer, and that he had no business relations with the lawyers interested in the case. There was no showing made that the juror had any leaning or bias one way or another, except that he had formed an opinion as to the merits of the case, based upon newspaper reports and common notoriety. He stated, under oath, that, notwithstanding such opinion, he could and would give the defendant impartial consideration. The trial court had the advantage of observing thisi juror during his voir dire examination, and was better able, under the exercise of a sound discretion, to determiné, whether or not the juror, if chosen, would consider the testimony produced at the trial fairly and impartially.

The words “bias” and “prejudice,” as relating to jurors, are not exactly synonymous. A1 man cannot be prejudiced against another without being biased against Mm, but he may be biased without being prejudiced. Bias is a particular influence which sways the judgment; the inclination of the mind towards a particular subject. It is not to be supposed that the Legislature expected to secure in a juror a state of mind absolutely free from all inclination towards one side or the other. If a juror is under such an influence as to sway his mind to one side or the other so as to prevent his deciding a cause according to the evidencé, he is incompetent; otherwise not. Black’s Law Dictionary (2d Ed.) 130.

The words “unprejudiced,” “fair,”, and “impartial” are- terms more or less relative in their nature. Strictly speaking, scarcely any of us are absolutely impartial; absolute fairness’ and impartiality' might involve the education or want of education) of a! juror, his religious or political affiliations, Ms early training, his business and social relations. To consider all of these matters would involve the courts in a labyrinth of mental philosophy from which no practical rules of practice could be deduced. To meet these exigencies the statutes of this and all other states give to an accused the right to challenge a number of jurors peremptorily, without urging or expressing any cause for such challenge. Under our Constitution every accused person has a right to a trial by an "impartial” jury, a jury not favoring or disfavoring an individual because of the emotions, affections, or prejudices of the human mind. Randle v. State, 34 Tex. Cr. R. 43, 28 S. W. 953.

The words "impartial juror,” as> expressed in the Constitution, have no such fixed meaning as would preclude the Legislature from defining, in some measure, what shall constitute an impartial juror. There was no intention to exclude persons who read newspapers, and it was never intended that an opinion formed from such information should necessarily disqualify such person as a juror. The mere fact that a juror has a settled impression or opinion as to the merits of the cause, resulting from reading newspaper accounts or from current rumor, and not obtained from personal knowledge of the facts or from witnesses- who purport to know the facts does not necessarily render the juror incompetent. Ordinarily, where a juror testifies that he believes he can, and the court finds as a matter of fact that he would, if selected, render an impartial verdict upon the evidence, he is an impartial juror, under our Constitution and the statutes of this state. McHugh v. State, 42 Ohio St. 154, 161. The decisions of this court have beerb,practically to the same effect. Quite an exhaustive analysis of this subject may bje found in the case of Horn v. State, 13 Okla. Cr. 354, 164 Pac. 683. See, also, Gentry v. State, 11 Okla. Cr. 355, 146 Pac. 719.

The case here at issue resulted in a great deal of newspaper notoriety, but the circumstances, a,s reported, were not of such a character as would tend to' , arouse passion or prejudice in the' minds of readers not directly interested. It may be assumed that many of the residents of the county had read of the affair, but we cannot assume that because of this the residents of the county, in a general way, were prejudiced or not impartial.

The deductions drawn in this opinion, and other cases cited, to the effect that an opinion expressed or entertained, based on rumor or newspaper reports, does not necessarily disqualify a juror, should not be construed by trial courts as a license to permit persons of doubtful or uncertain qualifications to serve as jurors. The trial court should be satisfied, from the examination of the prospective juror, that he •is indeed impartial, as defined by the statutes and decisions of this state. In this ease we cannot say that the court abused his discretion in permitting the juror Ott, and others of whom complaint is made, to serve as jurors.

It is next urged that the court erred in admitting, over the objections of the defendant, evidence of his commission of other crimes. In the case of Jess Littrell v. State, 21 Okla. Cr. 466, 208 Pac. 1048, in which this same defendant was convicted of the crime of bank robbery in Oklahoma county, it was held that evidence otherwise relevant is not rendered inadmissible because it shows the commission of another and different offense. The objections urged in the robbery case are similar to the objections urged here, except that in the instant case the defendant himself, in the cross-examination of witnesses, brought out and emphasized the fact that he was accused and had been convicted of other .crimes.

It is further contended that the court committed error in admitting the transcript of the testimony of B. W. Williams taken at the former trial of this cause, without first having established a sufficient predicate for the introduction of such testimony. It is true, indeed, that the record does not disclose that the witness Williams was dead, had become insane, or was ill and unable to attend the trial, or that he was beyond the jurisdiction of the court, and no showing of diligence was made as a condition' precedent to the introduction of his testimony taken at the former trial. Bert Davis v. State, 20 Okla. Cr. 203, 201 Pac. 1001.

At the former trial Williams was ,a witness for both the state and the defendant. The record here shows that, after the transcript of the record of Williams’ examination as a witness for the state had been read to the jury, the defendant then offered in evidence the transcript of his testimony as a witness for the defendant, which was also read to the jury. The latter by itself ,was incomplete, and, in order to be intelligently considered by the jury, the testimony of Williams' both as a witness for the state and as a witness for the defendant were necessarily considered together, and this testimony, on the whole, was much more favorable for the defendant than for the state. The constitutional right of the defendant to be confronted by a witness against him is one that may be waived. The court will not relieve an accused person from a criminal conviction where by his own voluntary action he introduces material evidence' of an absent witness in his own behalf, connecting up portions of his evidence not covered by other testimony. State v. Vanella, 40 Mont. 326, 106 Pac. 364, 20 Ann. Cas. 398; 16 C. J. Criminal Law, § 2122.

Under the circumstances here, this defendant waived his right to be confronted by the witness Williams.

The defendant urges numerous other assignments of error, some of which are similar to those treated in case No. A-3359, supra. All of these have been carefully examined and found without sufficient merit to warrant a reversal of this case. The matters urged by defendant as grounds for a reversal of this case relate to questions of practice and procedure of a technical nature. The defendant did not testify in his own behalf) and no witness for the defense disclosed facts in any way tending to justify or excusei the commission of the homicide. The evidence was clear and convincing that the defendant was guilty of murder as charged.

The judgment of the trial court is affirmed.

DOYLE, P. J., and MATSON, J., concur.


author: BBSSEY, J.

text:
    JOHN ELLIS v. STATE.
    No. A-3765.
    Opinion Filed Jan. 19, 1922.
    Rehearing Denied Sept. 23, 1922.
    (208 Pac. 1051.)
    (Syllabus.)
    1. Evidence! — Evidence as to Assault Connected with the One Charged. Where otae is charged with a particular felonious assault and it appears that several assaults were then made, covering a short period of time and wtere so connected as to amount to one inseparable transaction, testimony concerning all the assaults so connected is admissible to prove the assault charged.
    2. Appeal and Error — Instruction Favorable to Defendant. Instructions relating to self-defense and justification examined and found sufficient.
    Appeal from District Court, Carter County; Thos. W. Champion, Judge.
    John Ellis was! convicted of assault with deadly weapon, and he appeals.
    Affirmed.
    Butherford Brett and James H. Mathers, for plaintiff in error.

      S. P. Freeling, Atty. Gen., and B. L. Fnlton, Asst. Atty. Gen., for the State.
   BBSSEY, J.

John Ellis, plaintiff in error, in this opinion referred to*, as the defendant, was by information filed in the district court of Carter county, September 21, 1919, charged with haying assaulted his wife with a dangerous weapon July 21, 1919. At the trial, October 21, 1919, a verdict was rendered finding the defendant guilty as charged and assessing his punishment at confinement in the county jail for a period of 12 months. From the judgment on the verdict defendant appeals.

Of the several assignments of error but three are seriously urged in defendant’s brief, viz.:

(1) That the evidence is insufficient to support the verdict.

(2) The reception of incompetent and prejudicial testimony.

(3) That the court erred in stating the law of the case, as appears in instructions numbered 10 and 11, as given by the court.

It would serve no good purpose to recite the facts in' detail. The testimony on the part of the defendant, as well as that onj the part of the state, shows that he struck his wife one or more times with a pistol or revolver. There was no sufficient justification shown for the assault, if indeed such an assault made upon a woman who did not invite the difficulty could, under any circumstances, be deemed justifiable. The defendant and his wife had separated on account of his previous cruel treatment of her, as she claims, and an action for divorce was then pending. At this time she was staying with a neighbor on an adjoining farm- As she and the! neighbor’s wife were passing the premises of the defendant, be went to where she was and struck her withj a gun and dragged her through the fence and compelled her to go to the house, where he continued to abuse her by striking her repeatedly with a whip. A physician and others testified that after the difficulty her head, hair, and clothing were bloody, her face, neck, and shoulders were bruised, and other marks of violence were found on her body. The evidence, without a doub't, amply supports the verdict.

After the assault with the gun and after the wife was by force compelled to go to the house, the defendant continued to beat her with a buggy whip. Defendant claims that the beating with the whip was a separate and different assault, and that the testimony: concerning the beating with the whip was incompetent and prejudicial. We think not. To our mind this was one inseparable transaction, and the evidence of the whole transaction was. permissible as a part of the res gestae, and the testimony of the whipping was properly admitted to show motive and to show the state of mind of the defendant at the time, and for the purpose of enabling the jury to determine the facts in aggravation or mitigation of the punishment. Price v. State, 1 Okla. Cr. 369, 98 Pac. 447; Moran v. Ter., 14 Okla. 544, 78 Pac. 113.

Moreover, the defendant’s own testimony went largely into the circumstances of the whipping, and he has no cause to complain of its possible effect on the1 jury. The defendant cannot complain of facts brought out by him for the ptir-pose of justification where the facts elicited, contrary to his wishes, turn out; to be to his disadvantage.

The instructions complained of have been examined and are held, under all the evidence, to fairly state the law applicable to the case. The evidence discloses that the wife also had a pistol, but did no overt act indicating an apparent effort to use it. Instruction No. 10 in effect told the jury that if the evidence showed that she attempted to attack the defendant in such a way as to reasonably causq him to believe that he was in danger and that for this reason only defendant struck in his own necessary self-defense, then the assault would be justified. This instruction was scarcely justified by the evidence, but in any event the instruction was most favorable to the defendant, for the giving of which he has no cause of complaint. Instruction No. 11 related to the .striking after the danger or apparent danger ceased, and that if the defendant continued the assault with the dangerous weapon then he would be guilty. Under the defendant’s theory of the case, this instruction was proper.

The judgment of the trial court is therefore affirmed.

DOYLE, P. J., concurs.

MATSON, J., nqt participating.