text:
    O. H. LEE v. STATE.
    No. A-590.
    Opinion Filed April 16, 1912.
    (122 Pac. 1111.)
    1. RAPE — Assault—Information—Requisites. In a prosecution for an assault upon a female child under the statutory age of consent, with intent to commit a rape, it is not necessary to allege or prove that the acts were done against her will. Whether she consented, submitted, or resisted is wholly immaterial.
    2. SAME — Consent of Female. Since, by statute, a female under the age of 16 years, or over the age of 16 and under the age of 18 years, and of previous chaste and virtuous character, is legally incapable of consenting to carnal knowledge of her person, she is incapable of consenting to an assault upon her with. intent to commit rape, and every act done in furtherance of a purpose and intent to know her carnally is unlawful and felonious; and, if such acts would constitute an assault if done without her consent, no act of hers can waive the assault.
    3. SAME — Criminal Prosecution — Instructions. In a prosecution for assault with intent to commit rape upon a female child under the statutory age of consent, instructions were properly refused which in effect required that, in order to convict, the jury should be satisfied that the defendant assaulted the female with the felonious intent to have sexual intercourse with her by force or violence, sufficient to overcome any resistance she might make. The doctrine on this question declared in Young v. Territory, 8 Okla. 525, 58 Pac. 724, and Rector v. Territory, 9 Okla. 530, 60 Pac. 275, is expressly overruled.
    4. APPEAL — Review—Discretion of Trial Court. Applications for ■ continuance are addressed to the discretion of the trial court. This court will not reverse a judgment of the trial court upon its action in a matter of discretion, unless there appears a clear abuse of such discretion.
    5. SAME — Examination of Witnesses. It being within the discretion of the trial court to permit leading questions, where the diffidence of the witness is occasioned by sex and tender years, the discretion of the court therein will not be disturbed, in the absence of abuse.
    6. SAME — Harmless Error — Instructions. In a prosecution for as- ■ ' sault with intent to rape, an instruction that rape is divided into two degrees, first and second, and each is made punishable by imprisonment in the state prison, is not prejudicial to the defendant.
    (Syllabus by the Court.)

      Appeal from District Court, Pontotoc County; 0 Robert M. Rainey, Judge.

    O. H. Lee was convicted of felonious assault, and appeals.
    Affirmed.
    The plaintiff in error, hereinafter designated the defendant, was tried upon an information which charged him with having made an assault with the intent to commit rape; that on August 29th he feloniously did wound, strike, and illtreat one Minnie Ethridge, with the unlawful and felonious intent, against the will of her, to carnally know, ravish, and have sexual intercourse with the said Minnie Ethridge; she being a female child underage of fifteen years, and of the age of twelve years, and not the wife of the defendant.
    The record discloses the following facts: The defendant and his wife were visiting the parents of the prosecutrix, at their home near Fitzhugh, Sunday, August 21st. That prosecutrix at the time was twelve years old. That the defendant is an own cousin to prosecutrix’s mother, and the defendant’s wife an own cousin to prosecutrix’s father. That just before the noon hour the prosecutrix and the defendant went after water to a well in a clump of trees about 200 yards from the house. The testimony tended to show that the defendant there assaulted the prosecutrix. Her father appearing upon the scene, the defendant jumped up and ran about twenty steps up against a wire fence. The father asked his daughter what it meant. That she appeared to be dazed, and he could not understand what she said. That he called the defendant and asked him what it meant, and he answered: “Nothing ; I never hurt her.” The father then said: “Lee, this means something; and as sure as I find there is anything wrong, I will kill you.” That they returned to the house, and after dinner the defendant and his family left and went to their home, about two miles from the Ethridge place. The father of the prosecutrix borrowed a loaded pistol from a neighbor and followed the defendant home, and there told him that if he did not leave the country he would kill him. That the defendant promised to leave before the following Saturday.

      On behalf of the defendant, his wife testified that the prosecutrix told her the next day that her husband did not try to assault her, and that her father forced her to say that he did. The defendant, in his own behalf, testified that after drawing the water from the well he stepped out to get a toothbrush. That he never even touched prosecutrix. That while he was reaching for his knife her father appeared, and commenced cursing him and calling prosecutrix vile names, and accused them of wrongdoing. That defendant explained to him what he was doing, and denied any wrongdoing, and Mr. Ethridge then apologized for saying what he did. That they then returned to the house for dinner. That before his marriage he had lived with the Ethridge family for several years.
    The defendant was found guilty by the verdict of a jury, and his punishment fixed at a fine of $300. October 9, 1909, judgment was rendered accordingly. From the judgment, and an order overruling a motion for a new trial, the defendant appeals.

      Duke Stone and Leslie Maxey, for plaintiff in error.

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

(after stating the facts as above). The questions raised by the errors assigned will be considered in the order of their presentation in the brief of counsel for the defendant.

When the case was called for trial October 5, 1909, the defendant filed an application for a continuance, which, omitting the formal part, is as follows:

“Comes now the defendant and moves the court to continue this cause to another term, or until he can get the following witnesses present, who have been regularly subpoenaed in the cause, as shown by the attached subpoenas, showing that said witnesses have been served. That none of said witnesses are absent by reason of the fault, procurement, or consent of the defendant. That if said witnesses were present they would testify as herewith set out, and that all of their testimony is very material to defendant’s defense: (1) That by said Maggie Ethridge, the defendant expects to prove that she is a sister-in-law to prosecutrix, Minnie Ethridge. That said .witness had a conversation with prosecutrix soon after the alleged crime, and that said prosecutrix, Minnie Ethridge, told witnesses that her father made her tell a lie about the drawers being torn, and that her' father made her lie about the alleged assault of the defendant. That no assault was made on prosecutrix by defendant. That the said witness saw the drawers of the prosecutrix just after the alleged assault, and that the same showed no signs of being torn or in any way mutilated. That said prosecutrix, as defendant is informed and verily believes, would testify that defendant assaulted her, as alleged, and that by same her drawers were torn, and this defendant is reliably informed by reliable information that said witness, Maggie Ethridge, would testify as aforesaid, contradicting said evidence of prosecutrix. That said testimony is material, and the defendant had used due diligence to obtain said evidence, as shown by the subpoenas attached. (2) That by said Will Allen, who is the constable at Fitzhugh, defendant expects to prove that he talked with the said S. Y. Ethridge, the father of the prosecutrix, and in regard to the alleged assault, and that said S. Y. Ethridge, claimed to be an eyewitness to the assault, and that said Ethridge made several different conflicting statements about how said assault occurred; the exact statements the said defendant is unable to set out at this time. (3) That by said Andy Jones and Jim Jones defendant expects to prove that they have known the defendant for a number of years, and now know and have known defendant’s reputation during all this time in the community where he lives, and where the alleged crime took place, and that they are acquainted with his reputation in that community for virtue and chastity, and that it is good, and has always been good. That defendant believes said testimony to be true, and alleges same to be true. Wherefore, defendant prays that this cause be continued.”

The action of the trial court in overruling the application for continuance is assigned as error. It appears that the application was based on the absence of witnesses who had been subpoenaed, but were not in attendance, and that an attachment, which, so far as the i-ecord shows, was not asked, would have been sufficient to secure their attendance, had it been asked The defendant was entitled to have attachments issue to compel the attendance of these witnesses, and to have the trial postponed until the attachments were executed. ITe did not ask for attachments; and no reason is given for the nonattendance of any of these witnesses. If attachments had issued and proved unavailing on account of sickness, absence, or other sufficient reason, then a different question would be presented. The application is defective in failing to show where these witnesses reside, or any probability of procuring their attendance at some future time; and the court could not determine from the application that there was any more probability of their obeying a subpoena at the next term of court than at the present term. Applications for continuance are always addressed to the sound discretion of the trial court; and no rule is more firmly established in this state than that this court will not reverse a judgment of the trial court, upon the ground that it refused to grant a continuance, unless it appears that such court has manifestly abused its discretion in refusing it.

The next error assigned is that the court erred in the admission and rejection of evidence. Counsel in their brief state:

“Under this assignment, we desire to call the court’s attention to the leading character of the questions of the county attorney in examining the prosecuting witness, as follows: Q. State to.the jury what happened. A. I left him at the well, and I went about ten steps from the well and was picking up haws; and when the last bucket of water was poured I supposed he would say, ‘Come on.’ Q. Then what happened? A. He jerked me up and threw me down on the ground. Q. Then what? A. Had his arm around my neck and my -head under his arm; and when he picked me up I thought he was playing. Q. Go ahead and tell what happened. (Objected to as leading the witness.) Judge: Just tell it. A. Jerked me up and threw me on the ground; and when he did that I knew what he meant then, and commenced fighting and scratching. Q. What did he do? A. Ripped my drawers open. Q. Whereabouts? A. On the side. Q. Then what? Go ahead. After he ripped your drawers, then what? A. He was fixing to. Q. Go ahead. A. He was fixing to put; then papa walked up. Q. What was the condition of his pants? What did he do with his pants, and what condition were they in? A. He did not do anything, just fixing to. Q. Tell the jury just what he did. State whether or not he unbuttoned his pants. (Objected to as leading. Objection overruled. Defendant excepts.) A. Yes, sir; unbuttoned his pants. Q. What else did he do? A. , He did not do anything, just fixing to, when papa walked up. Q. Did he take out his privates? A. Yes, sir. (Objected to as leading and suggestive. Objection overruled. ' Defendant excepts.)”

Permitting leading questions, where the diffidence of the witness is occasioned by sex and tender years, is within the discretion of the trial court; being a discretionary matter, it falls within the familiar rule that the discretion of the trial court in respect thereto is not subject to review, except for a manifest abuse thereof. The other objections made to the rulings of the court on the admission and exclusion of evidence are without merit.

The next assignment of error is based upon the instructions -given by the court. Instruction No. 5 is as follows:

“You are further instructed that rape is divided into two degrees, first and second, and that each degree is made punishable by imprisonment in the state prison.”

This instruction must be considered in connection with instructions Nos. 3 and 4, defining what constitutes a felony and what constitutes rape. The provision of the Penal Code (section 2319, Comp. Laws 1909), defining the offense for which the defendant was on trial, provides:

“Every person who is guilty of an assault with intent to commit any felony, except an assault with intent to kill, the punishment for which assault is not prescribed by the preceding section, is punishable by imprisonment in the state prison not exceeding five years, or in a county jail not exceeding one year, or by a fine not exceeding five hundred dollars, or by both such fine and imprisonment.”

The statute does not say, “Every person who is guilty of an assault with intent to commit rape shall be punished,” etc., but uses the word “felony,” thereby including other felonious assaults; and it was the duty of the court to inform the jury that rape, in any degree, is a felony. While the instruction could have been simplified by saying, “You are instructed that the crime of rape is a felony under our statutes,” we think the defendant was in no way prejudiced in any substantial right by this or any other instruction given by the court.

The important question presented for decision is upon the next assignment of error, that the court erred in refusing to give the following requested instructions:

“I charge you in this case, if you believe from the evidence that at the time alleged the prosecutrix voluntarily consented to an act of intercourse, or attempted intercourse, between her and the defendant, and that said act was not against her will, and no force was used, then you will acquit the defendant. Refused. Robt. M. Rainey, Judge.”

“I charge you in this case that in the charge of rape a partial or half-hearted resistance on the part of the prosecutrix would not suffice; that, before the crime of assault to rape can be shown, the proof must show that the female resisted to the full extent of her powers, under the circumstances, and that her resistance was overcome by force. Refused. Robt. M. Rainey, Judge.”

In support of this assignment, counsel cite the cases of Young v. Territory, 8 Okla. 525, 58 Pac. 724, and Rector v. Territory, 9 Okla. 530, 60 Pac. 275. In the Young case, Mr. Chief Justice Burford, who wrote the opinion of the court therein, says:

“The material averments of the indictment are as follows: ‘John Young, on the 19th day of June, in the year 1897, in the said county of Woods, did willfully, violently, unlawfully, and ‘feloniously, in and upon one Ethel Gray, make an assault, and her, the said Ethel Gray, being then and there a female under the age of fourteen years, and of the age of twelve years, and her, the said Ethel Gray, did wound and illtreat. with intention her, the said Ethel Gray, and against her will, feloniously to ravish and carnally know. * * *’ There is no allegation that the defendant intended to have sexual intercourse with the said Ethel Gray by force and violence, sufficient to overcome any resistance she might make. This is necessary, in order to constitute rape under this subdivision. There must have been an intent, at the time of the assault, to have sexual intercourse with Ethel Gray; and the defendant must have itnended to use the amount of force necessary to overcome her resistance, and all the resistance she might make. If she did not resist, it would not be rape; hence it must be alleged that defendant assaulted the female with intent, then and there, to have sexual intercourse with the said Ethel Gray, and by force or violence to overcome her resistance, and this intent and purpose must be proved.”

The Rector case-reaffirms this doctrine.

There is no testimony in this case from which it can be fairly inferred that the prosecutrix consented to an act of sexual intercourse. She herself expressly denied it. There is testimony tending to show -that she submitted, without objection, to the acts constituting the alleged assault. However, as the jury had the right and might have drawn a different conclusion from the evidence, we think it our duty to consider the principle of law enunciated in the decisions cited. The question, then, presented for decision is whether the consent of the prosecutrix does or does not deprive the acts of the defendant of the character of an assault. The decisions of the territorial Supreme Court, construing the provisions of our Penal Code and Procedure Criminal,. enacted while we were under territorial government, are most valuable to us as authorities, and we pay them the highest respect. However, upon careful consideration, our. opinion is' that the doctrine declared in the case of Young v. Territory, supra, on this question should not be followed, but should be expressly overruled as not sound in principle and contrary to the overwhelming weight of authority. Upon the question whether an accusation for assault with intent to commit rape by force,, where the female is over the age of consent, should contain an averment that the defendant assaulted the female by force and violence, sufficient to overcome any resistance she might make, the authorities are not harmonious. That question is not before us. Carnal knowledge of a female child under sixteen years of age is rape under- our statute, with or without the use of force, no matter what may be the circumstances, and the question of consent is wholly immaterial; whether the prosecutrix submitted to the acts of the defendant in ignorance of his criminal intent, or whether she exercised a positive will, and consented or submitted to what the defendant did with full knowledge that his purpose and intent was to have carnal connection with her, is immaterial.

The prosecutrix being under the age of consent was conclusively incapable of legally consenting to an assault with intent to have carnal knowledge of her. Every attempt to commit a felony against the person involves an assault; and if the acts of the defendant, done in furtherance of a purpose to have carnal knowledge of the prosecutrix, constituted an assault to commit rape, if done without her consent, then no act of hers could waive such assault.

That there may be an assault with intent to commit rape upon a consenting female, where she is under the age of consent, on the ground that in law she cannot consent to such an assault, is held in the following cases: People v. Johnson, 131 Cal. 511, 63 Pac. 842; Gibbs v. People, 36 Colo. 452, 85 Pac. 425; Territory v. Keyes, 5 Dak. 244, 38 N. W. 440; Schang v. State, 43 Fla. 561, 31 South. 346; Hanes v. State, 155 Ind. 112, 57 N. E. 704; State v. Johnson, 133 Iowa, 38, 110 N. W. 170; Com. v. Roosnell, 143 Mass. 32, 8 N. E. 747; People v. Chamblin, 149 Mich. 653, 113 N. W. 27; State v. Wray, 109 Mo. 594, 19 S. W. 86; Liebscher v. State, 69 Neb. 395, 95 N. W. 870, 5 Ann. Cas. 351; State v. Jackson, 65 N. J. Law, 105, 46 Atl. 764; Singer v. People, 75 N. Y. 608; State v. Dancy, 83 N. C. 608; State v. Sargent, 32 Ore. 110, 49 Pac. 889; Croomes v. State, 40 Tex. Cr. R. 672, 51 S. W. 924, 53 S. W. 882; State v. Clark, 77 Vt. 10, 58 Atl. 796; Glover v. Commonwealth, 86 Va. 382, 10 S. E. 420; State v. Hunter, 18 Wash. 670, 52 Pac. 247; Loose v. State, 120 Wis. 115, 97 N. W. 526; Ross v. State, 16 Wyo. 285, 93 Pac. 299, 94 Pac. 217; Cyc. vol. 33, p. 1434, footnote 51. See, also, volume 2, Am. Ency. L. (2d Ed.) p. 987, and page 361, vol. 1, of Supp., and cases cited in the footnotes.

The instructions requested and refused are based upon the theory that the felonious intent cannot be shown without proof of resistance on the part of' the prosecutrix, or that the force used by the defendant was against her will, and in effect require that, in order to convict, the jury should be satisfied that the defendant assaulted prosecutrix with the felonious intent to have sexual intercourse with her by force or violence, sufficient to overcome any resistance she might make. As we have seen, this is not the law with reference to an assault committed with intent to rape a female child under the statutory age of consent. The court very properly refused to give these instructions.

Having considered all the assignments argued, and finding no prejudicial error in the record, the judgment of the district court of Pontotoc county is affirmed.

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


source: Caselaw Access Project

author: DOYLE, J.

license: Public Domain

text:
    WALTER DEEN v. STATE.
    No. A-873.
    Opinion Filed April 16, 1912.
    (122 Pac. 941.)
    1. INDICTMENT AND INFORMATION — Sufficiency. An information is sufficient which states the facts clearly and distinctly, in ordinary and concise language, without repetition, and which, construed under the ordinary rules of construction of the English language, would enable a person of common understanding to know what was meant, and to apprise the defendant of the exact-nature of the offense with which he was charged, although the same does not contain all the phraseology and technical language ordinarily used in criminal pleading.
    2. SAME — Definiteness. The modern rule of criminal pleading does not require the use of ancient forms, crude phraseology, prolix and abstruse expressions to accompany the averments in an information, if the charge is set forth in plain, common-sense English language. No greater particularity is required than is necessary to express the same fact in everyday parlance.
    (Syllabus by the Court.)

      Appeal from District Court, Jefferson County; Frank M. Bailey, Judge.

    Walter Deen was convicted of felonious assault, and appeals.
    Affirmed.

      Gilbert & Bond, for plaintiff in error.

      Chas. West, Atty. Gen., Smith C. Matson, Asst. Atty. Gen., and B. G. Spilman, Asst. Atty. Gen. (Andrew Wood, of counsel), for the State.
   DOYLE, J.

On June 25, 1909, an information was filed in the district court of Jefferson county, charging the defendant with the crime of assault with intent to kill. On February 17, 1910, an amended information was filed. The charging part reads as follows:

“The said Walter Deen, then and there being, did then and there, unlawfully, willfully, feloniously and of his malice aforethought, and with a premeditated design then and there existing in the mind of him, the said Walter Deen, then and there to effect the death of one W. M. Isaac, and without authority of law, with a certain gun which gun then and there being a deadly weapon,, did then and there make an assault upon the person and body of the said W. M. Isaac, and the said Walter Deen then and there in the manner and form as aforesaid and with the intent as afore1said did shoot off and discharge at and towards the said W. M. Isaac the aforesaid gun with the intent of him, the said Walter Deen, then arid there feloniously and of his malice aforethought, and with a premeditated design then existing in the mind of him, the said Walter Deen, then and there to effect the death of him, the said W. M. Isaac, and without authority of law to kill and murder him, the said W. M. Isaac, contrary to,” etc.

Upon arraignment the defendant filed a general demurrer to the information, which was overruled and exceptions allowed. Upon his trial he was found guilty. March 3, 1910, judgment and sentence was entered in accordance with the verdict, fixing the defendant’s punishment at two years’ imprisonment in the state penitentiary. From the judgment he appeals.

The first objection presented by counsel for the defendant is that the information does not state facts sufficient to constitute a public offense. As it was said by the Supreme Court of Oklahoma Territory in the case of McHugh v. Territory, 17 Okla. 1, 86 Pac. 433:

“The only answer that is necessary to make to this contention is to refer to the decision of this court in the case of Heatley v. Territory, reported in 15 Okla. 72, 78 Pac. 79. The language used by Chief Justice Bur ford in rendering that opinion, in our opinion clearly, concisely, and unequivocally states the law. The language of that opinion is as follows: ‘The first objection presented by counsel for plaintiff in error is that the indictment does not charge a public offense. There is some repetition and surplusage in the indictment, but under section 2206, Wilson’s Rev. & Ann. Stat. 1903, the material averments necessary to charge a public offense are that “that in the county of Greer, and Territory of Oklahoma, on the second day of September, 1903, one Jeff B. Heatley did then and there intentionally, wrongfully, and feloniously shoot one R. Bell with a certain firearm, to wit, a shotgun, with the intent then and there and thereby to kill him, the said Bell.” The indictment contains all this and more. To hold that it was necessary that the indictment should aver that the shotgun was loaded with gunpowder and leaden bullets, and was had and held in the right hand of him, the said Heatley, and that it was shot off and discharged at and against the body of him, the said Bell, and such other ancient and unnecessary phrases as are usually found in forms presented by Chitty and other law writers of the remote past, would be to do violence to those provisions of our Criminal Code which prescribe the requisites of criminal pleading. By second 5357, Wilson’s Rev. & Ann. St. 1903, it is provided that the indictment must contain “a statement of the acts constituting the- offense, in ordinary and concise language, and in such manner as to enable a person of common understanding to know what is intended.” And by section 5365, subd. 6, it is enacted, among other requirements, that the indictment is sufficient if it can be understood therefrom “that the act or omission charged as the offense is clearly and distinctly set forth in ordinary and concise language without repetition, and in such manner as to enable a person of common understanding to know what is intended.” * * * It is a common and ordinary mode of expressing the fact to say that one person “shot another,” and when it is said that a man was “shot,” or that one person “did shoot” another, every person of common understanding knows what is intended without explanation; and, in order to set forth such fact in ordinary and concise language, it is no longer necessary to express in words each component or constituent embraced in the act. The term “did shoot” embraces the weapon, the load, the discharge, and the act of discharging, and it is so meant and understood by courts, counsel, jurors, and witnesses ; and why should more particularity or repetition be required in a pleading than is required to express the same fact in everyday parlance? The law does not require it, and the necessity for following ancient and obsolete forms made up of repetitions, unnecessary particularization, and crude phraseology, if it ever existed, no longer prevails. Stutsman v. Territory, 7 Okla. 490, 54- Pac. 707; People v. Steventon, 9 Cal. 274; People v. Choister, 10 Cal. 311. The tendency of prosecuting attorneys to abandon prolix, abstruse, and superfluous terms and phrases in criminal pleading is rather to be commended than condemned. When the character of the firearm is designated, the manner of using it, the intent with which the act is done, and the person against whom the act is directed, are averred in plain, commonsense English language, the act charged as the offense is sufficiently pleaded, and the law requires no more.’ ”

The proof on the part of the state tended to show that the defendant sent word by his little boy to Isaac to come over to his house and get some cattle that he had herd-lawed; that the prosecuting witness was caring for cattle that belonged to J. W. White ; that he rode over to the defendant’s house; the defendant was standing in his horse lot. Isaac said, “Where is them cattle?” And the defendant answered, “Isaac, I thought I sent for you to come up here and fix that fence.” Isaac said, “I have fixed it.” Defendant said, “You are a God damned lying son of a bitch. Fall off that horse. I am going to kill you.” Isaac said, “I guess not.” Defendant said, “Fall off of that horse. I am going to kill you.” And Isaac said, “I do not have to fall off the horse”; and the defendant said, “You God damned son of a bitch, you beat me up one time, and I am going to kill you.” After making this threat several times, the defendant with a Winchester shot at Isaac, who had jumped off the horse on the other side from the defendant. The second shot struck the horse, going through his body, but missing Isaac. There was a seven-wire fence .between them. As Isaac ran away, the defendant fired another shot at him. Isaac at the time was in J. W. White’s pasture. The second shot killed the horse. Isaac was unarmed. Henry Salmon testified that while he was a half á mile away he witnessed the shooting, and saw the defendant follow Isaac and shoot at him. The motion to direct a verdict was very properly overruled. The defendant testified on his own behalf, and his testimony alone is sufficient to sustain the verdict and judgment.

The instructions of the court were fair, and no good purpose would he served by reviewing the obj ections to them, further than to state that we find no error in any of the matters complained of in the assignments pertaining them.

From our examination of. the record in this case, we are clearly of opinion that the defendant had an impartial trial. The judgment of the district court of Jefferson county is therefore affirmed.

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


author: PER CURIAM.

text:
    BASH BEARD v. STATE.
    No. A-801.
    Opinion Filed April 16, 1912.
    (122 Pac. 941.)
    WEAPONS — Carrying Weapons — Constitutional Law. The provisions of the Penal Code (sections 2744 and 2745, Comp. Laws 1909), prohibiting the carrying of weapons therein named, are not violative of section 26 of the Bill of Bights.
    (Syllabus by the Court.)

      Appeal from Latimer County Court; Cliff V. Peery, Judge.

    Bash Beard was convicted of a misdemeanor, and brings error.
    Affirmed.

      Hudson & Pounders, for plaintiff in error.

      Chas. West, Atty. Gen., and B. G. Spilman, Asst. Atty. Gen., for the State.
   PER CURIAM.

The plaintiff in error was convicted on an indictment returned into the district court and duly transferred to the county court of Latimer county, wherein he was charged with carrying on or about his person a pistol, and was sentenced to pay a fine of $25. From this judgment he appeals.

The undisputed facts, as shown by the record, are that the defendant, having trouble with another employee at a mine, announced that he would get his gun and kill him; that he went to the mine office, and returned, carrying a pistol.

Section 2744, Comp. Laws 1909, provides:

“It shall be unlawful for any person in the state of Oklahoma to carry concealed on or about his person, saddle, or saddle bags, any pistol, revolver, bowie knife, dirk, dagger, slungshot, sword cane, spear, metal knuckles, or any other kind of a knife or instrument manufactured or sold for the purpose of defense except as in this article provided.”

Section 2745 provides:

“It shall be unlawful for any person in the state of Oklahoma, to carry upon or about his person any pistol, revolver, bowie knife, dirk knife, loaded can, billy, metal knuckles, or any other offensive or defensive weapon, except as in this article provided.”

It is contended by defendant’s counsel that these provisions of the Penal Code are in conflict with and repugnant to section 26 of the Bill of Rights, which provides:

“The right of a citizen to keep and bear arms in defense of his home, person, or property, or in aid of the civil power, when thereunto legally summoned, shall never be prohibited; but nothing herein contained shall prevent the Legislature from regulating the carrying of weapons.”

This question was directly passed upon by the Supreme Court of the state in the case of Bx parte Thomas, 1 Okla. Cr. 210, 97 Pac. 260, 20 L. R. A. (N. S.) 1007. In an able and elaborate opinion by Mr. Justice Dunn, it was held that these provisions of the Penal Code are not violative of section 26 of the Bill of Rights of the Constitution of Oklahoma, but were valid laws of the territory of Oklahoma at the time of its admission, and were neither repugnant to the Constitution nor locally inapplicable, and therefore extended to and put in force in the state by the provisions of section 21 of the Enabling Act (Act June 16, 1906, c. 3335, 34 St. 277), and section 2 of the Schedule to the Constitution.

The principles of law enunciated in said case have our unqualified approval. We are clearly of opinion that the appeal in this case is wholly without merit.

The judgment of the county court of Latimer county is therefore affirmed.


author: FURMAN, P. J.

text:
    R. E. KEITH v. STATE.
    No. A-1128.
    Opinion Filed April 16, 1912.
    (123 Pac. 172.)
    TRIAL — Impeachment of Verdict — Affidavit of Jurors. Unless required by statute, a verdict cannot be impeached by the affidavits or testimony of jurors, showing misconduct on their part in arriving at the verdict.
    (Syllabus by the Court.)

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

    R. E. Keith was convicted of violating'the prohibitory law, and appeals.
    Affirmed.

      G. W. Wheatley,, for appellant.

      Smith C. Matson, Asst. Atty. Gen., W. B. Disney, Co. Atty., P. A. Galvin, and Alvin S. Mahoney, for the State.
   FURMAN, P. J.

There is no question in this case as to the sufficiency of the evidence to sustain the verdict, and but one proposition is submitted in the brief of counsel for appellant, and that is that the court erred in refusing to allow the appellant, by taking the testimony of two jurors, to show’ the manner in which the jury arrived at its verdict.

It has been repeatedly decided by the unanimous opinions of this court that the affidavits of jurors cannot be received for the purpose of impeaching their verdict.

In the case of Vanderburg v. State, 6 Okla. Cr. 486, 120 Pac. 301, Judge Doyle, speaking for the court upon this very question, said:

“It will be sufficient to say on this question that jurors will not be allowed to impeach their verdict by their affidavits or testimony after they have been discharged.”

In the case of Spencer v. State, 5 Okla. Cr. 11, 113 Pac. 226, this court said:

“Jurors cannot be heard to impeach their verdict, unless expressly authorized to do so by statute, and then only in the manner provided by statute. When jurors are impaneled, they are sworn to decide the case submitted to them according to the law and the evidence. For a juror to make an affidavit that he has violated his oath and rendered a verdict upon any other ground than the sworn evidence in a case places him in contempt of court. * * * If, after being discharged and mingling with the public, jurors are permitted to impeach verdicts which they have rendered, judgment based upon verdicts of juries would rest upon a very uncertain foundation. Litigants against whom verdicts had been rendered would be continually importuning jurors, and attempting to obtain from them affidavits upon which such verdicts could be assailed. This would result in perjury and bribery. There would be no end of litigation in cases tried before juries. Therefore, for the security of litigants, and to prevent fraud and perjury, as well as for the protection of the jurors themselves, courts will not allow jurors to impeach their own verdict, unless they are permitted to do so by the express provisions of the statute. We have no statute permitting this to be done.”

In the case of Petitli v. State, 2 Okla. Cr. 134, 100 Pac. 1123, this court said:

“This question was before the Supreme Court of Louisiana in a civil case. That court said: 'A second bill of exceptions was taken to the refusal of the judge to permit the jury to prove that their verdict was really for the plaintiff, and that the word “defendant” was written in the verdict through error, instead of “plaintiff.” * * * The ■ ruling- was correct.’ Chevallier v. Dyas et al., 28 La. Ann. 360. In another civil case, the Supreme Court of South Dakota said: 'Affidavits of jurors will not be received to impeach their verdicts, unless authorized by statute, and only then upon the grounds and in the manner permitted by the statute.’ Gaines v. White, Sheriff, 1 S. D. 434, 47 N. W. 524. The rule is clearly stated and the authorities are cited on page 730 of Abbott’s Trial Brief in Criminal Causes (2d Ed.), as follows : ‘After Separation. — After the verdict has been rendered, and the jury, after being discharged, have separated, they cannot be recalled to amend their verdict. But the mere announcement of their discharge does not, before they have dispersed and mingled with the bystanders,' preclude recalling them. Sargent v. State, 11 Ohio, 472; Mills v. Commonwealth, 34 Va. 751; People v. Lee Yune Chong, 94 Cal. 379, 29 Pac. 776; State v. Daw kins, 32 S. C. 17, 10 S. E. 772; Allen v. State, 85 Wis. 22, 54 N. W. 999. And see civil authorities in Abbott’s Civil Trial Brief (2d Ed.) div. 8. And that it is reversible error to send out, for further deliberation upon their verdict, a jury in a criminal case who have rendered an incomplete sealed verdict during the night, and have been allowed to separate, see Parley v. People, 138 111. 97, 27 N. E. 927. * * *’ The written verdict of the jury must control. If it had been read to them before their discharge, as the law contemplates, then it would have still been subject to their control, and could have been altered or corrected as they desired, if permitted by the court; or, it could have been returned to them, with directions from the court to retire and continue with the consideration of their verdict. After a jury has been discharged and has mingled with the public, the persons who served on it are no longer a jury, and have lost all connection and control over their verdict. They have nothing more to do with the verdict than any other private citizen. If they were allowed to contradict or impeach the verdict which they have returned into court, the door would be opened to all manner of abuses. All conceivable attempts would be made to cajole, browbeat, and even to corrupt jurors to testify that there was some such mistake made as would require the court to set aside verdicts in many cases. Especially would this be true in verdicts of conviction in criminal cases.”

This question was also decided adversely to the contention of counsel for appellant in the case of Colcord v. Conger, 10 Okla. 460, 62 Pac. 276. Chief Justice Burford, of the Supreme Court of Oklahoma Territory, quoted from Thompson on Trials, sec. 2618, as follows:

“Upon grounds of public policy, courts have almost universally agreed upon the rule that no affidavit, deposition, or other sworn statement of a juror will be received to impeach the verdict, to explain it, to show on what grounds it was rendered, or to show a mistake in it, or that they misunderstood the charge of the court, or that they otherwise mistook the law or the result of their finding, or that they agreed on their verdict by average or lot.”

Chief Justice Burford then proceeded as follows:

“And this statement is amply sustained by a multitude of authorities. In fact, the only courts, it seems, which have made exceptions to this rule, are the courts of Kansas, Iowa, and Tennessee; and they limit the inquiry to matters which do not inhere in the verdict.”

We might well rest our decision of this case upon the authorities above cited and reasons hereinbefore given; but in a number of cases now pending before us this question is again raised. We will therefore go into the discussion of this matter more fully than we have heretofore done, with the statement that we will not discuss it again, except for the gravest reasons.

In support of their contention, counsel for appellant cite the following cases: Perry v. Bailey, 12 Kan. 544; Wright v. I. & M. Telegraph Co., 20 Iowa, 195; Fain v. Goodwin, 35 Ark. 109; Fredericks v. Judah, 73 Cal. 604, 15 Pac. 305; Dixon v. Pluns, 101 Cal. 511, 35 Pac. 1030; People v. Azoff, 105 Cal. 632, 39 Pac. 59; Weinburg v. Somps (Cal.), 33 Pac. 341; Flood v. McClure, c Idaho (Hasb.) 587, 32 Pac. 254; Griffiths v. Montandon, 4 Idaho, 377, 39 Pac. 548; Giffen v. Lezmston, 6 Idaho, 231, 55 Pac. 545; Bernier v. Anderson, 8 Idaho, 675, 70 Pac. 1027; Paducah Ry. Co. v. Commomvealth, 80 Ky. 147; Gordon v. Trevarthan, 13 Mont. 387, 34 Pac. 185, 40 Am. St. Rep. 452; Murphy v. Murphy, 1 S. D. 316, 47 N. W. 142, 9 L. R. A. 820; Gaines v. White, 1 S. D. 316, 47 N. W. 142, 9 L. R. A. 820; Gaines v. White, 1 S. D. 434, 47 N. W. 524; Wood v. State, 15 Tex. App. 135, 44 Am. Rep. 701.

As a matter of first impression, the cases above cited appear to sustain the contention of counsel for appellant; but when the statutes of the states in which these decisions were rendered are examined it will be found that they cannot be considered as authority in this state. For instance, the statute of California (Code Civ. Proc. sec. 657, subd. 2) is as follows:

“Misconduct of the jury; and whenever any one or more of the jurors have been induced to assent to any general or special verdict, or to a finding on any question submitted to them by the court, by a resort to the determination of chance, such misconduct may be proved by the affidavit of any one of the jurors.”

It is provided in the Texas Code of Criminal Procedure 1879, art. 777, that new trial in felony cases shall be granted for certain causes therein mentioned. Among the enumerated causes is that set out in subdivision 3, where the verdict is decided by lot, or in any other manner than by .a fair expression of opinion by the jurors; and in subdivision 8, we find the following provision:

“Where, from the misconduct of the jury, the court is of opinion that the defendant has not received a fair and impartial trial, and it shall be competent to prove such misconduct by the voluntary affidavit of a juror; and a verdict may in like manner, in such cases, be sustained by such affidavit.”

Section 6896, Comp. Laws 1909, provides:

“A court in which a trial has been had upon an issue of fact has power to grant a new trial when a verdict has been rendered against a defendant by which his substantial rights have been prejudiced, upon his application in the following cases only: * * * 4. When the verdict has been decided by lot, or by any means other than a fair expression of opinion on the part of the jury.”

It will be observed that this statute is á limitation upon and not an extension of the common-law grounds for a new trial in criminal cases, and that the statute does not require the granting of a new trial as a matter of right upon the grounds therein stated, but leaves the matter to the discretion of the courts. It nowhere, provides that the affidavits of jurors may be received for the purpose of impeaching their verdict; neither does it attempt to state what evidence courts should consider in determining these questions. So we must look elsewhere for any provision of our statute regulating the introduction of such testimony. We find this provision in section 6494, Comp. Laws 1909:

“The procedure, practice and pleadings in the district courts of this state, in criminal actions or in matters of a criminal nature, not specifically provided for in this Code, shall be in accordance with the procedure, practice and pleadings of the common law, and assimilated as near as may be with the procedure, practice and pleadings of the United States or federal side of said court.”

We must then look to the common law to settle this question. At common law, it was not competent to impeach a verdict by the evidence of the jurors; and, as our statute does not change this rule of the common law, we feel that we should adhere to it.

We do not deem it necessary to copy the statutes of all the states on this subject, the decisions of which are cited by counsel for appellant; but an examination of these statutes will show that, with one exception, they all, in mandatory terms, require the courts to receive affidavits of jurors for the purpose of impeaching their verdict. The case of Perry v. Bailey, 12 Kan. 544, is the exception referred to. Upon an examination of this case, it will be found that the cases cited and relied upon as authorities were rendered in states where the statutes, in express terms, provide for the impeachment of a verdict by the affidavits or testimony of the jurors. We are therefore of the opinion that the case of Perry v. Bailey, supra, is not supported by the authorities upon which it rests. We have no statute in Oklahoma requiring that the affidavits of jurors be received for the purpose of impeaching their verdict. Therefore the authorities cited and relied upon by counsel for appellant are not in point.

It is expressly stated in nearly all of the cases cited by counsel for appellant that the settled rule, founded upon considerations of necessary’ policy, when not controlled by statute, is that the testimony of a juryman cannot be received to impeach and defeat his verdict. It is time that hardships may arise under the rule forbidding the introduction of the testimony or affidavits of jurymen, for the purpose of impeaching their verdict; and, while it may be that justice may occasionally miscarry, unless such evidence be admitted, on the other hand, to receive such evidence opens wide the door to corrupt practices. The jury will be subjected to influences after they have been dismissed from duty as jurors, to induce them to repent of their verdict and endeavor to revoke it. They would be liable to be tampered with. It would be difficult to place a limit to the corruption such a practice might engender. In addition to all of this, there is another reason why jurors should not be allowed to impeach their verdicts by their voluntary affidavits or testimony. If this were permitted to be done, it would take from the court the power to grant a new trial and give it to the jury. Manifestly this would be inconsistent with the theory of our judicial system, revolutionary in character, and contrary to public policy. In the absence of a statute in this state, directing the introduction of affidavits and testimony of jurors to impeach their verdict, wé do not feel authorized to follow those courts which permit this to be done, when not directed by statute; and we feel that the safer and better plan is to adhere to our former decisions on this subject.

In the case of Phillips v. Rhode Island Co., 32 R. I. 16, 79 Atl. 342, 31 L. R. A. (N. S.) 930, which was decided in 1910, an instructive discussion of this question is presented, and nearly all of the cases on this subject are reviewed. The court there said:

“In Tucker v. Town Council of South Kingstown, 5 R. I. 558, 560, the court, speaking by Ames, C. J., said: ‘The affidavits of the jurymen as to what took place in the jury room, or as to the grounds upon which they found their verdict, and which were read de bene at the hearing, must be rejected; a rule of policy, well settled both in England and in this country, excluding for the security of verdicts, this mode of impeaching them.’ The general rule that the affidavits of jurors as to their own misconduct during the trial are inadmissible to impeach their verdict is, we think, supported by the great weight of authority, both in this country and in England. In Owen v. Warburton, 1 N. R. 326, where the affidavit of a juryman that the verdict was decided by lot was offered, Mansfield, C. J. (pages 329, 330); said: ‘We have conversed with the other judges upon this subject, and we are all of the opinion that the affidavit of a juryman cannot be received. It is singular that almost the only evidence of which the case admits should be shut out; but, considering the arts which might be used if a contrary rule were to prevail, we think it necessary to exclude such evidence. If it were understood to be the law that a juryman might set aside a verdict by such evidence, it might sometimes happen that some juryman, being a friend to one of the parties, and not being able to bring over his companions to his opinion, might propose a decision by lot, with a view afterwards to set aside the verdict by his own affidavit, if the decision should be against him.’ ”

As was well said by Chief Justice Mansfield, if a verdict can be impeached by the affidavit or testimony of a juror, then in any criminal case tried in the state, no matter how conclusive the testimony and how regular the trial may have been in other respects, it will be in the power of one juror to secure a reversal of a conviction, and at the same time do it in such a manner as to conceal the purpose for which it was done, and-thereby exempt himself from punishment. Such a juror could insist that the amount of punishment should be arrived at by lot, or he could make statements to the other jurors highly damaging to the defendant ; then afterwards it would not be necessary for him -to file an affidavit as to how the verdict was reached in the case, for, if the right to impeach a verdict by affidavit of a juror exists, the right to have the entire jury summoned and placed on the stand and examined as to what occurred in the jury room also exists; and when a verdict was rendered, as above indicated, such juror might have been the most zealous for conviction, when, as a matter of fact, he was working solely in the interests of the defendant. If this can be done, it places in the hands of a defendant the power to set aside any verdict that might be rendered against him, provided only he can find a juror who will be willing to carry out the program. It may be stated that this is an extreme illustration; but it must be remembered that the extreme case is the test of the rule. We might fill a volume by quoting from authorities supporting our views on this question; but, as it has been decided three times by this court, we do not deem it necessary to quote further from authorities. If any persons, however, desire to investigate the question more fully, they will find that the following cases sustain our position. We have carefully examined each of these cases: Dana v. Tucker, 4 Johns. (N. Y.) 487; Clum v. Smith, 5 Hill (N. Y.) 560; Meade v. Smith, 16 Conn. 346; O'Barr v. Alexander, 37 Ga. 195; Allison v. People, 45 Ill. 37; Knowlton v. McMahon, 13 Minn. 386 (Gil. 358), 97 Am. Dec. 236; Vaise v. Delaval, 1 T. R. 11; Prior v. Powers, 1 Kebbe, 811; Jackson v. Williamson, 2 T. R. 281; Rex v. Woodfall, 2 Burr. 2667; Ward Blackwood, 48 Ark. 396, 3 S. W. 624; Pleasants v. Heard, 15 Ark. 403; Haight v. Turner, 21 Conn. 593; State v. Freeman, 5 Conn. 348; McCombs v. Chandler, 5 Har. (Del.) 423; Bishop v. State, 9 Ga. 121; Clark v. Carter, 12 Ga. 500, 58 Am. Dec. 485; Mercer v. State, 17 Ga. 146; Coleman v. State, 28 Ga. 78; Brown v. State, 28 Ga. 199; Rutland v. Hathorn, 36 Ga. 380; Coleman v. Slade, 75 Ga. 61; Jacobs v. Dooley, 1 Idaho, 41; Martin v. Ehrenfels, 24 Ill. 187; Reins v. People, 30 Ill. 256; Dunn v. Hall, 8 Blackf. (Ind.) 32; Elliott v. Mills, 10 Ind. 368; Sinclair v. Roush, 14 Ind. 450; Hughes v. Listner, 23 Ind. 396; FI aun v. Wilson, 28 Ind. 296; Commonwealth v. Drew, 4 Mass. 391; Hannum v. Belchertown, 19 Pick. (Mass.) 311; Murdock v. Summer, 22 Pick. (Mass.) 156; Cook v. Castner, 9 Cush. (Mass.) 266; Folsom v. Manchester, 11 Cush. (Mass.) 334; Sawyer v. Hannibal & St. J. R. Co., 37 Mo. 240, 90 Am. Dec. 382; State v. Coupenhaver, 39 Mo. 430; State v. Rush, 95 Mo. 199, 8 S. W. 221; Clark v. Reed, 5 N. J. Law, 486; Den v. McAllister, 7 N. J. Law, 46; Randall v. Grover, 1 N. J. Law, 151; Harrison v. Rowan, 4 Wash. C. C. 32, Fed. Cas. No. 6,142; People v. Columbia Common Pleas, 1 Wend. (N. Y.) 297; Green v. Bliss, 12 How. Prac. (N. Y.) 428; People v. Carnal, 1 Parker Cr. R. (N. Y.) 256; People v. Wilson, 8 Abb. Prac. (N. Y.) 137; Lafoon v. Shearin, 95 N. C. 391; Willing v. Swasey, 1 Browne (Pa.) 123; Stone v. State, 4 Humph. (Tenn.) 27; Saunders v. Fuller, 4 Humph. (Tenn.) 516; Mason v. Russel, 1 Tex. 721; Burns v. Paine, 8 Tex. 159; Boetge v. Panda, 22 Tex. 105; Thomas v. Zushlag, 25 Tex. Supp. 225; Sheldon v. Perkins, 37 Vt. 550; Edmiston v. Garrison, 18 Wis. 594.

The judgment of the lower court is therefore affirmed.

ARMSTRONG and DOYLE, JJ., concur


text:
    J. TETER v. STATE.
    No. A-950.
    Opinion Filed April 17, 1912.
    (122 Pac. 1115.)
    J.. CONTINUANCE — Absence of Witnesses. Where, in a criminal prosecution, the defendant filed a written praecipe in the county court for twelve witnesses eight days before the day set for trial, and the judge and clerk of said court neglected to issue a subpoena for said witnesses, and the defendant, on the day set for trial, files his verified application for continuance, setting forth the foregoing facts and what would be the testimony of the witnesses, if present, and such testimony is material, and the court overrules the application upon the county attorney consenting that the allegations of the affidavit for continuance shall be taken as and for the testimony of the absent witnesses, held, prejudicial error; that up to that time the defendant had used sufficient diligence to procure the attendance of his witnesses, and their absence was due to the failure of the judge or clerk of the court to issue the subpoena, and for this reason the continuance should have been granted.
    2. SAME — Sickness of Attorney. Ordinarily an application for continuance on account of the sickness of the defendant’s attorney is within the discretion of the trial court; yet, where defendant’s attorney is taken suddenly sick an hour before the ease is called for trial, which sickness resulted fatally two days thereafter, the court erred in refusing a continuance, and, under the circumstances, should have granted a new trial.
    (Syllabus by the Court.)

      Appeal from Washita County Court; L. R. Shean, Judge.

    J. Teter was convicted of a violation of the prohibition law, and appeals.
    Reversed.

      Le Roy Jones, for plaintiff in error.

      Chas. West, Atty. Gen., and B. G. Spilman and Smith C. Mat-son, Asst. Attys. Gen., for the State.
   DOYLE, J.

The plaintiff in enor was tried and convicted on an information, wherein he was jointly charged with one J. M. Dickerson with maintaining a place for the unlawful sale of intoxicating liquors.

Upon their trial, the jury returned the following verdict:

“We, the jury drawn, impaneled, and sworn in the above-entitled cause, do, upon our oaths, find the defendants guilty, as-charged in the information herein, and fix the punishment of J. Teter at a fine of three hundred dollars and sixty days in the county jail, and fix the punishment of J. M. Dickerson at a fine of three hundred dollars and sixty days in the county jail.”

There are numerous errors alleged in the petition; but the only one necessary to notice is the assignment that the court erred in overruling thé defendant’s application for continuance.

The defendant’s1 affidavit for continuance reads as follows :

“J. C. Teter, being duly sworn, deposes and says that he is one of the defendants in the above-styled cause. That said defendant cannot safely proceed to trial of said cause at this time for the want of material evidence, which defendant has been unable to procure by due diligence, to wit, the testimony of Henry Galispie, D. M. Alexander, A. F. Jackson, George Hatcher, W. P. Cooper, Dave Geahan, Joe Witten, B. J. Elrod, S. H. Eliot,. Mr. Lowe, Mr. Rogers, and Mr. Duncan, all of whom are residents of or near Sentinel, in said Washita county. That said defendant is charged with having, on the 7th day of April, 1910,. maintained a place, to wit, the Sentinel Wagon Yard, where intoxicating liquors were received and kept, for the purpose of selling, bartering, giving away, and otherwise furnishing the, same. That on the 30th day of August, 1910, deponent’s attorney, W. J. Knott, filled out a praecipe containing the names of said witnesses and requiring a subpoena to issue for their attendance before said court on this 8th day of September-, 1910, at 9 o’clock a. m., and that the same be delivered to the sheriff of said county for service, and on said last-named date W. J. Knott handed said praecipe to the clerk of this court and requested that he issue said subpoenas. That deponent and his said attorney, from that time until this morning, at abord 9 o’clock, supposed that said subpoenas had been issued, by the clerk and placed in the hands-of the sheriff for service, but upon an examination of the files and papers in said cause this morning deponent found that no subpoenas had been issued upon said praecipe for said witnesses, or either'of them, and that the files and papers of1 said cause .contained said praecipe as made and handed to the clerk by deponent. That .said witnesses, except Alexander and Lowe, are absent, but are now in Washita county, as deponent is informed and believes. Said praecipe is hereto attached, marked ‘Ex. "Ad That defendants expect to show the following facts by said witnesses, and if said witnesses were present they would testify as follows: That at and prior to the time of the commission of the .alleged offense they were frequently at said wagon yard on business, and were frequently in and out of the same and about the premises; that no liquor of any kind was kept at said wagon yard or received by defendant; that they did not see any intoxicating liquor sold, given away, bartered, or otherwise furnished 'by defendant, or any one else, about said wagon yard; and that they were in said wagon yard and about the premises often, and if there had been any liquor kept there, or sold or bartered, given .away, or otherwise furnished, said witnesses would have known it and seen the same; and that said witnesses saw nothing about said wagon yard, either inside or outside, to indicate that liquors were kept or in any wise handled or trafficked in by any one. 'That defendant cannot prove such facts by any other witnesses, and deponent believes them to be true. Wherefore, defendant asks that said cause be continued until the next term of this court, at which time defendant will be able to procure the attendance of said witnesses, and fleponent further says that his attorney, W. J. Knott, was taken sick a short time ago, about an hour ago, and on account thereof has been compelled to go home, and is wholly unable, on account of such sickness, to represent defendant, and, defendant having fully depended upon his said attorney to defend him, he is practically without counsel, as no other lawyer is acquainted with the facts of the case, and deponent has not bad time to consult and advise with any other attorney. J. C. T eter.

“Subscribed and sworn to before me this 8th day of September, 1910. L. R. Shean, County Judge. [Seal.]”

Attached thereto as an exhibit was a written praecipe, filed by the defendant in the comity court August 30th. The affidavit •as to what these absent witnesses would prove was not admitted; but the county attorney announced that he would consent that the affidavit be treated as the deposition of the absent witnesses. Thereupon the court refused the continuance.

This court is of opinion that forcing the defendant to trial under the circumstances was error. The diligence used by the defendant appears to have been sufficient. When the praecipe for subpoenas to issue for these witnesses was filed with the clerk of the court, it was the duty of the judge or clerk to issue subpoenas in accordance therewith. This they failed to do. A defendant should not be deprived of the right to have his witnesses in attendance on account of the carelessness, negligence, or failure of the clerk of the court to issue a subpoena therefor, when he has made proper application; and the county attorney’s consent that the allegations of the affidavit for continuance shall be be taken as and for the testimony of the absent witnesses did not cure this error. The defendant was entitled to the oral evidence of his witnesses in person before the jury, and not their evidence reflected through his affidavit. This ground of the application was amply sufficient for a continuance.

In addition thereto, the record shows that the defendant’s attorney, W. J. Knott, Esq., was taken suddenly sick about an hour before the case was called for trial, and was compelled to go to his home; that Mr. Knott’s sickness resulted fatally the second day thereafter. While an application for continuance on account of the sickness of an attorney i§ addressed to the sound discretion of the trial court, we think that in this case the continuance should have been granted, at least for a few days, if not for the term, by rea.son thereof; and we are clearly of opinion that the court erred in refusing to grant a new trial, under the 'circumstances of this case, for this reason alone.

This refusal to grant a continuance is not the only error in this case. One or two other assignments seem well taken. However, it is unnecessary to discuss the same, further than to say that the evidence in the case, in so far as it relates to the guilt of this defendant, is of very doubtful character.

For the reasons stated, the judgment of the county court of Washita county is reversed.

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


text:
    DICK BIRDWELL v. STATE.
    No. A-875.
    Opinion Filed April 18, 1912.
    (122 Pac. 1128.)

      Appeal from District Court, Pontotoc County; A. T. West, Judge.

    Dick Birdwell was convicted of larceny, and appeals.
    Affirmed.
    _

      Stone & Maxey, for plaintiff in error.

      Smith C. Matson and B. G. Spilman, Asst. Attys. Gen., for the State.
   PER CURIAM.

The plaintiff in error was tried in the district court of Pontotoc county on a charge of stealing two mules, and on.the 26th day of February, 1910, was convicted by a jury, and his punishment fixed at four years’ imprisonment in the state penitentiary. The facts upon which this conviction is based are substantially as follows:

W. C. Mayberry, on behalf of the state, testified: That he lived at Wetumka; was in Wetumka on the 4th, 5th, and 6th of last August (1909); knows the defendant by sight'; saw him there about that time; that the first time he saw defendant was when defendant and another man came into his office and wanted him to sell a team of mules for them; used to be a public auctioneer, and auctions occasionally now; that these parties wanted him to sell a team of mules, buggy, and harness for them; that the mules were small mules, one a bay, the other a brown, or dark bay; that defendant said his name was Bray, and the other said his name was Gray; that they started to sell the mules, and they bid them in; that he asked them about the title -to the mules, and they said it was good, no mortgage or anything else; that he asked them, where they lived, and they said they lived at Ada; that witness was suspicious; that he asked them if they could give references, and if they knew anybody in Ada; that they said they knew parties six miles from Ada; that he asked them if they knew the city marshal at Ada, and they said they did not; that they could not give any references there,'but could give references six or seven miles from Ada; that witness told the boys-who were bidding on the mules; that one of them said they raised the mules; that both were present all the time; that this was in August; that he did not remember the exact date, but that it was about noon when the sale took place; that it was in 1909; that when he started to sell the mules and buggy and harness all together, and they had been bid up to something like $100, Mr. Gray came up to him and said to sell the mules separate from the buggy and harness; that he stopped, and started in on the mules, and that it was then he asked them about the title; that he asked them where they lived, and they said six miles from Ada; that the mules had been bid up to about $100, when Mr. Gray came up to him, and asked if he could not buy the mules in; that this was quite a while after he had cried the sale, and that at first he had .told the buyers, if these men couldn’t give any references, or show that the property was clear, they would not have to take the property, if it was knocked off to them; that, when Gray came to him and asked if the property could not be bid in by them, he told him it could, and Gray bid $5 for them, and witness knocked the mules off to him; that witness went to the city marshal, and then back to his business; that the' city marshal did the rest of the business. Cross-examination: That Gray did most of the talking; that he said Bray owned the buggy and said he owned the mules; that witness did not think he heard Bray (accused) claim at any time that he owned either of them; that Gray did most of the talking; that witness believes Gray paid for the auctioneering — the one-who did most of the talking; that they both talked a little in witness’ office.

Monroe Reed, on behalf of the state, testified: That he was marshal at Wetumka in August, 1909; that he arrested a couple of parties there early in August; that one said his name was Bray, and the other said his name was Gray; that accused was the man who said his name was Bray; that they were eating-dinner in a restaurant when he first saw them; that it was 11 or 12 o’clock; that Mr. Mayberry pointed them out to him; that fie watched them until they put the team up to sell it; that Mr. Cray bid the team in himself; that Gray said it did not go for what he wanted it to go for; that Gray is not here; that the other one bid the team up, and seemed very nervous; that witness then arrested both of them; that they said they lived near Ada, and that they had brought the team up there and were looking for a location, and that they wanted the team sold; that witness then phoned to the marshal at Ada, and he said he did not know anything about them; that witness telephoned to Bebee, and that some man answered the phone, and said the team had been stolen; that witness then put them in jail; and that Mr. Smith, the sheriff, came after them. Cross-examination: That Bray did most of the talking; that it was not the other man, but this one, he thought; that the other man, Gray, claimed the mules; that the other man was the one who seemed nervous. Redirect examination:’ That a negro came up with Mr. Smith; that Smith directed him to turn the mules over to the negro.

Tom Phillips, on behalf of the state, testified: That he lived near Maxwell, Okla.; that he knows Amos Sampson; that Sampson is his half-brother; that witness sold his homestead, and lived at different places; -that in August, 1909, he lived two miles north of Bebee; that about that time he lost a couple of mules; that he got them from Mr. Smith at Wetumka, and took them back; that the city officer at Wetumka had them in charge; that Amos Sampson raised the mules; that they were two and three 3^ears old, respectively, when they were lost; that witness now owns the mules; that they were branded “Lazy Z” on the left shoulder; that one was a mouse-colored horse mule, and the other a light brown horse mule; that they were the same mules he got from the city marshal. Cross-examination: That witness did not know how the mules came in the possession of this man; that he knew nothing about it. Redirect examination: That he did not know where the mules were before they were taken; that Amos Sampson lived at Lula Armstrong’s place, two miles north of Bebee, in Pontotoc county.

George Wilfong, on behalf of the state, testified: That he is 26 years old, and lives a mile northwest of Bebee; that he lived on Charley Long’s place, about a mile and a half from Bebee southwest; that he remembered the occasion of some mules being taken from Amos Sampson, a negro, out there; that witness and Dick Birdwell got them; that Dick Birdwell lived north of Bebee, about the same distance as witness lived south; that witness and accused took the mules at night; that when the)^ got them they were in Pontotoc county; that witness went to Bebee that morning, got a rope from Bob Hatcher, and went down to the river; that witness went home; that witness and Birdwell left home together some time after dark; that they rode two horses; that the mules were at the negro’s home when they got them, about 100 yards west of the house; that the mules were tied; that they went home, put the mules to witness’ buggy, and took them on; that they stopped at Williamson’s house, and stayed, there until about 12 o’clock that day, when they went on and stopped at the place’ this side of where they were arrested; that they stayed all night there, and went on to Wetumka in the morning, where they arrived about 12 o’clock; that they put up the team and got dinner, and then hunted up the auctioneer and proceeded to sell the team; that they gave the names of Bray and Ray. Cross-examination: That witness had never told just exactly what he had told on the stand; that he had never before been asked the questions he was asked on the stand; that he had first told something like it to Rat Chester, his uncle; that he had told several others; that Birdwell was selling the mules, and that witness bid them in; that he was the one who claimed them, and that witness claimed the buggy and harness; that witness told Rat Chester this after he was arrested; that the reason he told it was because he was guilty of it; that it was the first time he was guilty of anything like this; that he gambles; that he had not gambled with Amos, the negro; and that he did not gamble with negroes; that Birdwell tried to trade the mules for some property and a horse to Oscar Williamson; that witness never saw Oscar Williamson before, and did not tell him that he won the mules of a negro; that witness’ uncle told him he would not help him if he did not tell the straight of it; that witness hired lawyers to defend him; that he did not know whether this would turn him loose or not, and that his lawyers liad not told him; that when he went to get these mules, one of them was tied with a halter; that he never won them off Amos; that he did not know when Amos tied them up; that they looked for them and found them; that witness supposed they would be loose in the field; that witness knew Amos had these two mules some time; that the moon was shining, and that it was about the 1st of August; that it was a light night; that witness was walking when he went in the field, and that he had a rope in his hand; that he told Bob Hatcher he was going for a yearling with the rope; that they looked some time for the mules; that they put the mules in a wagon yard the next night; that witness still has the buggy and harness; that Dick Birdwell lived something like five miles and a half from where witness lived; that Birdwell lived about a quarter of a mile from Amos Sampson; that witness lived about four miles from Amos; that both went to Mr. Mayberry; and that witness paid him. Redirect examination: That Dick Birdwell fixed up this gambling defense in this case, he thought. Recross-examination: That witness has not tried to get some fellows to steal some horses since being arrested.

Oscar Williamson, on behalf of defendant, testified: That in August, 1909, he lived one mile southwest of Francis, in Pontotoc county; that he remembered the occasion of Dick Birdwell and George Wilfong stopping at his house one morning; that they were working a span of mules; that he was not acquainted with George Wilfong at that time; that witness went to the tank that morning to water some stock, and that Wilfong went with him; that Wilfong wanted to trade him the mules for a bay mule of his; that Wilfong told him he had won them, he believed, from a negro; did not know Wilfong at the time; that Birdwell and Wilfong stayed there two or three hours, and left about 13 o’clock; that they did not eat dinner; that they went north. Cross-examination: That witness has known Dick Birdwell seven or eight years; that witness now lives three miles west of Purcell; that he has not for the past twelve months been associated with a good many criminals, nor has he run with them; that he did not run with Burwell and Jim Miller there; that he was not acquainted with them at all; that he did not live in Francis about a year before; that he is fanning; that he did not have any conversation with Birdwell about this team.

Tom Cowger, on behalf of defendant, testified: That lie-lives north of Bebee; that he is engaged in farming; that he has lived there a little over a couple of months; that one year he made a crop south of Bebee and moved over on the river; remembers the circumstance of he and Wilfong going from the Widow Steele’s in November of the previous year; that they were in a buggy, and were drinking whisky; that Wilfong said his friends told him to turn it off on Dick Birdwell, that that was the only way he could keep out of the pen, and that he won the mules off of the negro. Cross-examination: That it was some time the last of November ; that the conversation took place on the road, where the Bebee road connects with the Ada and Maxwell road, on George Wilfong’s place; that it was daytime; that witness took up the subpoena, and asked Wilfong why they were not both joined, and that Wilfong told him his friends had said he would have to turn it off onto Dick; that Wilfong had been drinking and seemed intoxicated.

Jim Dodgin, on behalf of the defendant, testified: That he lives at Bebee, had lived there nine years, and is a farmer; that he had known George Wilfong about four years; that he had known Birdwell about six years; that Wilfong came to where he and his brother were sawing wood one morning in the fall; that Wilfong talked about his case, and said he had won the mules off of the negro. Cross-examination: That he came up there and was inquiring about some horses, and got to talking about his troubles ; that Wilfong said, if he turned state’s evidence, he would lose his friends; and that he did not tell witness he was going to plead guilty in his case.

Dick Birdwell, in his own behalf, testified: That he has lived near Bebee five years; that he went to Wetumka with Wilfong at the time these mules were sold; that he told Wilfong that evening lie was going off to look for a job, and that Wilfong told him he could leave in the buggy with him; that Wilfong said he had won the mules, and was going up there to get rid of them; that he could go along with him if he wanted to; that he did not go into the field with Wilfong to get the mules; that he stayed on the horse, while Wilfong went and got the mules; that he could not see the mules from where he was; that Wilfong said he had won the mules off this negro, and that the negro said he. would tie them out in the field, because he did not want his brother to know he had lost them; that George had been gambling; that it was light, and about 10 or 11 o’clock; that Wilfong told him the mules were hitched; that one was tied up to a stump by a halter and the other with a bridle to a bush; that one had a bridle and one a halter; that Wilfong told him they were tied a hundred yards or so from the house; that there is a lot around the house; that there is a stable; that Wilfong came out close to where they were; that they went to Oscar Williamson’s and ate breakfast; that Oscar and Wilfong went down to the tank or pond to water some horses that morning; that witness was not close enough to hear the conversation; that from Oscar’s house they went to Holdenville; that they stayed there overnight; that Wilfong, before they got to Holdenville, said it might be a good idea for him to change his name, because they might inquire around for him for gambling; that witness told him, “all right”; that he had known him a good while and did not think he would do anything like that; that witness don’t believe yet Wilfong stole them,'but believes what Wilfong said;’that witness told them his own name was Ray, and Wilfong said his name was Gray; that at Wetumka George did the talking, and got the auctioneer to sell the mules, or try to sell them; that George paid the auctioneer; that witness never claimed the mules; that he never claimed any of it; that George bought them; that George said he was going to bid them in if they did not bring what he wanted; that witness was not to get any of the proceeds for the buggy and stuff, but was just going along with Wilfong, if he would pay his expenses; that witness was looking for a job, or any kind of work he could get. Cross-, examination: That witness was 33 years old; that he thought Rat Chestnut and George were trying to give him the worst of it; that George had been living out in that part of the country ever since he had; that he did not know right where Oscar Williamson lived, but knew it was in the neighboorhood there somewhere ;■ that witness has a family; that George told him he had won the mules; that witness told him, if he could prove it, that was the best; that George said there was not anybody there, and could not prove it; that that was when they were arrested; that Wilfong had told him he had won the mules before they went for them; that it was the same day; that Wilfong said the negro had tied them out there to keep his brother from knowing he had lost them that way.

Dr. Bearteet, on behalf of the defendant, testified: That he knew Amos Armstrong, the one who went by the name of Phillips and Armstrong and Sampson; that witness did not know whether he was a brother to Tom Phillips or not; that Amos Armstrong is the one who told him he had lost a span of mules gambling with George Wilfong; that Armstrong owed witness for some medicine he got for his sister; that he told witness, as soon as he sold his mules, he would pay him; and that the next time witness saw him, which was about a week from that time, he told witness he had lost the mules gambling, by playing poker. Cross-examination: That witness did not know when this was; thought it was some time in July or August; that one- day witness saw him in regard to the money matter, and when he asked him why he did not pay him, and whether he had sold the mules or not, he said he had lost them in gambling with Wilfong.

Dick Birdwell, recalled by the state, testified: That he did not think he told Mr. Mayberry they were up there at Wetumlca, and were just going through the country looking for a place, nor that they thought they would sell the team and go back home.

W. C. Mayberry, in rebuttal for the state, testified: That at Wetumka, that day, the defendant said they were looking for a place, driving through the country looking for a place, and that they thought they would sell their buggy and team and go home on the train; that it was the other man who owned the buggy, and the defendant who owned the team.

Dr. Bearteet, recalled by the state, testified: That this negro lives north of Bebee; that he knows Tom Phillips and George Wilf ong; that he had known Wilfong for nearly three years.

D. O. Chestnut, on behalf of the state, testified in rebuttal: That George Wilfong agreed during the last court to plead guilty; that it was along in the fall; that Birdwell and Wilfong and Tom Cowger and Brand and witness were somewhere near the drug store, and that he (Birdwell) said he won these mules from that negro shooting craps.

Tom Cowger, recalled for the defendant in rebuttal, testified :• That Dick Birdwell did not state in his presence and in the presence of Rat Chestnut that he (-Dick Birdwell) won the mules shooting craps.

There are a number of assignments of error relied upon by the accused for reversal of this cause, some of which are technically correct. But the testimony points conclusively to the guilt of the accused, and we are unable to find any error sufficiently prejudicial to justify a reversal of the judgment. The judgment of the trial court is therefore affirmed, with direction to execute the same.