text:
      Ex parte JOE BURTON (two cases).
    Nos. A-2850, A-2880.
    Opinion Filed April 12, 1917.
    (164 Pac. 135.)
    1. HABEAS CORPUS — Bail—Scope of Hearing — Jurisdiction of Appellate Coui’t. Prior to filing the petition in error in this court, only the question of excessive bail will be 'considered on habeas corpus. When an appeal is perfected, this oourt will, on proper showing, make all necessary orders relating to bail.

      %. APPEAL AND ERROR — Bail Bond — Supersedeas. The power and authority of trial courts to allow bail pending appeal can only- be exercised in the maimer provided by statute, and, where the trial count fixes the amount of defendant’s bail bond to be given as a supersedeas on appeal, it must fix the time within which such bond shall be given and the time within which the- petition in error shall he filed in the Criminal Court of Appeals; otherwise su’ch an appeal bond will not be effective as a supersedeas.

      Habeas corpus by Joe Burton against the Sheriff of Greer County.
    Petitioner remanded to custody.

      F. E. Riddle, Moman Prwiett, and Victor Sniggs, for petitioner.

      R. McMillan, Asst. Atty. Gen., and S'. B. Garrett, Co. Atty, for respondent.
   PER CURIAM.

On the 28th day of September, 1916, there was filed an application to this court for a writ of habeas corpus, alleging that petitioner, Joe Burton, was convicted in the district court of Greer county of manslaughter in the first degree, and on September 1, 1916, was sentenced to imprisonment in the penitentiary for 15 years; that said district court at the time of passing sentence fixed the amount of his appeal bond at $12,000, to be filed and approved within 20 days from date; that petitioner has filed and presented to the court clerk of Greer county his appeal bond in proper and legal form, with good and sufficient sureties, and that said court clerk arbitrarily refuses to approve the same; that all necessary steps have been taken to perfect his appeal from said judgment to this court; that unless said bond is approved the sheriff of Greer county will transport the petitioner to the penitentiary. On the same day a hearing was had upon the petition and a demurrer thereto filed by counsel for the state.

In the case of Ex parte Tyler, 2 Okla. Cr. 455, 102 Pac 716, it is said:

“If a party feels himself aggrieved by the action of a clerk of the district court in refusing to approve a bail bond, and complains that the action of the clerk is unreasonable, arbitrary, and oppressive, he should present his grievance to the trial court or judge thereof. Before filing the petition in error in this court, only the question of excessive bail will be considered. However, when an appeal is perfected, and the crime is a bailable one, pending the appeal this court will, on proper showing, make all necessary orders relating to bail.”

Following this rule, the demurrer was sustained, and the writ denied.

On the 29th day of November, 1916, another and similar application to this court for writ of habeas corpus was filed. It further alleged' that the sheriff of Greer county was then in Oklahoma City with petitioner on his way to the penitentiary.

A writ of habeas corpus was thereupon issued out of this court directed to the sheriff of Greer county, commanding him to produce forthwith before this court the petitioner, then in his custody, to the end that the matters and things therein alleged might be duly inquired into. The sheriff, in obedience to the demand of the writ, brought said petitioner before the court and made return to the writ.

It appears that when the court pronounced judgment no time was fixed for filing the petition in error in this court, and said court has since fixed no time for filing the same in this court.

In the case of Killough v. State, 6 Okla. Cr. 311, 118 Pac. 620, it is said:

“If the crime .of which the defendant is convicted be a bailable one, and the trial court fixes the amount of the defendant’s bail bond to be given as a supersedeas on appeal, it must fix the time within which such bond shall be given and the time in which the petition in error shall be filed in the Criminal Court of Appeals; otherwise such bail bond shall not be effective as a supersedeas. The power and authority of trial courts to allow bail and to fix the amount of the bail bond pending appeal can only be exercised in the manner provided by statute; * * * otherwise a plaintiff in error, when he has perfected his appeal must apply to this court for a supersedeas order fixing the amount of his bail bond.”

Following this rule the petitioner must be remanded to the custody of the respondent.


source: Caselaw Access Project

author: BRETT, J.

license: Public Domain

text:
    FARMERS’ STATE BANK OF TEXHOMA v. STATE.
    No. A-2848.
    Opinion Filed April 14, 1917.
    (164 Pac. 132.)
    1. CONTEMPT — Punishment—Jurisdiction. A 'contempt being an offense against the dignity and authority oí the particular court to which -the affront was offered, if the court has jurisdiction of the parties and the subject-matter out of which the contempt grows, it has jurisdiction to try and punish the contemnor, regardless of where or in what state the acts constituting the contempt may have been committed.
    2. SAME — Jury—Indirect Contempt — Question for Jury — Jury Trial. A party charged with indirect contempt is entitled to have a jury pass upon the question of his guilt or innocence, 'before penalty or punishment is imposed. But the jury’s province is limited solely to the question of guilt or innocence, and they have nothing to do with the penalty to be imposed.
    3. SAME — Violation of Injunction Order — Information. Where an information charging contempt for violating an injunction order is attacked upon the ground that it did not specifically plead that an injunction bond had been given, it is held that, since it did plead that the injunction order was “duly and legally issued,” it was sufficient as against demum-er, since the essentials of the legality of ail injunction order are so well understood and so thoroughly established.

      Error from District Court, Texas County; W. C. Crow, Judge.

      The Farmers’ State Bank of Texhoma was found guilty of indirect contempt, and it brings error.
    Affirmed.

      Breslin & Breslin, Embry, Crockett & Johnson, and E. L. Fulton, for plaintiff in error.

      R. McMillan, Asst. Atty. Gen., for the State.
   BRETT, J.

In this case the plaintiff in error appeals from a judgment finding it guilty of indirect contempt, by reason of it having willfully and knowingly violated an injunction order of the district court of Texas county, enjoining it from selling or disposing of .certain property, a portion of which was situated in the State of Texas, just across the state line. And this charge of contempt is based solely upon the sale of the property situated in the State of Texas.

The principal and most serious contention relied upon by plaintiff in error is that contempt is criminal in its nature, and, since all the acts constituting the contempt were committed in the State of Texas, that the district court of Texas county, Okla., had no jurisdiction to try or punish plaintiff in error for contempt by reason of these acts. But plaintiff in error fails to distinguish the difference between contempt and other criminal acts. Murder, larceny, arson, and such offenses in law are considered as an offense against the peace' and dignity of the state; hence the jurisdiction to try and punish a person for such offenses is placed alone in the hands of the particular county and state against which the offense has been committed. But contempt is an offense against the dignity and authority of the particular court to which the affront is offered. If that court is willing to overlook and condone the insult, no other court, even in the same county, has a right to interfere. But if a court has jurisdiction of the parties, and the subject-matter out of which an indirect contempt grows, the affront is none the less directly, against the dignity and authority of that court, no matter to what county or state the offender may go to violate the order of the court. If that were not true, then injunction orders in many instances would be a farce. It would be ridiculous to say that an order enjoining the sale of personal property, over which the court had jurisdiction, could be violated with impunity, if the litigant only took the pains to cross the state line before disposing of it. And it makes no difference as to the character of the property, whether real or personal, or where it is situated; if the court has jurisdiction to enjoin its sale, a violation of that order, wherever committed, is an offense against the dignity and authority of the court making the order, and that court, and that court alone, has the right to punish or complain. And it has that right, regardless of the location or the place to which the contemnor may have gone to violate its order. This distinction, to our minds, is so clear and essential that we deem it unnecessary to discuss that feature further.

The next assignment of error deserving attention is that the court refused to instruct the jury that if they found the defendant guilty, they might fix the punishment; and plaintiff in error relies upon section 5933, Rev. Laws 1910, to support this contention. But plaintiff in error has clearly overlooked the provisions of section-25 of the Bill of Rights, which are that:

“Any person accused of violating or disobeying, when not in the presence or hearing -of the court, or judge sitting as such, any order of injunction, or restraint, made or entered by any court or judge of the state shall, before penalty or punishment is imposed, be entitled to a trial by jury as to the guilt or innocence of the accused.”

Under this section, the province of the jury is specifically limited to the question of “the guilt or innocence of the accused.” . For • it provides, in matters of contempt growing out of the violation of injunction orders, not committed “in the presence or hearing of the court, or judge sitting as such,” that, “before penalty or punishment is imposed” the accused shall “be entitled to a trial by jury as to the guilt or innocence of the accused.” Under such conditions, the offense not being committed in the presence of the court, the court is wholly dependent upon evidence to establish the guilt or innocence of the accused. Hence it is provided that under these conditions a jury may be had, and may make a finding “as to the guilt or innocence of the accused” under the evidence introduced. But the province of the jury provided for -in that section is only to pass upon the guilt or innocence of the accused, and they have nothing to do with the penalty or punishment to be imposed, for that is not even fixed by law, but is, and should be, left to the sound discretion of the court.

The only remaining assignment that does not present questions that have been passed upon so frequently that we deem it unnecessary to repeat what has heretofore been so frequently said, goes to the sufficiency of the information, objecting particularly because the information did not specifically allege that an injunction bond had been given. But the information does repeatedly and in various ways allege that on a certain date the order of injunction was “duly and legally issued.” And it can hardly be maintained that, for the purpose of that pleading, this is not sufficient, as against a demurrer. In charging bigamy it would be sufficient to allege that the accused and his first spouse were duly and legally married, without alleging that a license was had, and a minister performed the ceremony in the presence of certain named witnesses. The facts of that allegation might be traversed, but the essentials to the legality of the transaction are so well established that to say they were duly and legally married would be sufficient as against a demurrer. And so it is in the instant case. The plaintiff in error might have traversed the allegation that an injunction order was duly and legally issued by showing by wayof defense that, as a matter of fact no bond had been given; but the essentials of the legality of an injunction order are so well ■established and so thoroughly- understood that to plead that the injunction order was duly and legally issued is sufficient as against a demurrer. But in this case the record shows, and plaintiff in error admits, that an injunction bond was duly given; hence, in the trial of the case, it did not attempt to traverse that fact.

Finding no reversible error, the judgment is affirmed.

DOYLE, P. J., and ARMSTRONG, J,, concur.


author: DOYLE, P. J.

text:
      Ex parte OWEN DOZA.
    No. A-2869.
    Opinion Filed April 14, 1917.
    (164 Pac. 130.)
    JURY — Right to Jury Trial — Violation of Ordinance — Constitutional Provisions. The Bill of Bights of the Constitution of Oklahoma declares that “the ¡right of trial by jury shall be and remain inviolate, and a jury for the trial of civil and criminal cases in courts of record, other than county courts, shall consist of twelve men; but. in ’county ¡courts and courts not of record, a jury shall consist of six men” (Const, art. 2, sec. 19), and that “in all criminal prosecutions the accused shall have the right to a speedy and public trial by an impartial jury of the county in which the crime shall have been committed” (Const, art. 2, sec. 20). Held, that a person prosecuted under a city ordinance for an offense which is also made a misdemeanor by statute, or an ordinance, the punishment for a violation of which is or may be imprisonment, is entitled 'to a jury trial in the_ court of original jurisdiction, and ito accord to the accused the right to be tried by a jury in the county court on appeal after conviction in the municipal court does not satisfy the requirements of the Constitution. In such erases a judgment of conviction in the municipal court not based uuon a verdict of guilty by a jury is void.
    Application of Owen Doza for writ of habeas corpus..
    Writ allowed, and petitioner ordered to be discharged.

      Firman S. Winn, for petitioner.

      B. D. Shear, Municipal Counselor, and Frank Watson, for respondent.
   DOYLE, P. J.

On the 11th day of November, 1916, a duly verified petition for writ of habeas corpus was presented to the Presiding Judge, averring, in substance, that the petitioner, Owen Doza, was unlawfully restrained of his liberty by W. B. Nichols, chief of police of Oklahoma City, upon a mittimus issued upon a judgment of the municipal court of said city on November 1st, wherein the petitioner was adjudged guilty of being drunk, and was sentenced to pay a fine of $99 and to be confined for 90 days in the city jail; that petitioner by reason of his poverty was unable to procure bond for appeal in said case, and further averring:

“That the ordinance of said city authorizing punishment as above set forth for being drunk is in conflict with the laws of the State of Oklahoma, in that the punishment prescribed by the state for said offense is a fine of $10, no more or no less, and for the reasons above stated his imprisonment is wholly illegal and without authority of law.”

The writ was issued, and in obedience to the writ petitioner was brought before the court on the following day and return made to the writ. The issue in this case is the same as in the case of Ex parte Johnson, ante, p. 30, 161 Pac. 1097. For the reasons given in the opinion in that case we are of opinion that the proceedings had upon the trial and conviction of the petitioner in the municipal court were illegal and void, and it is ordered that he be discharged.

ARMSTRONG and BRETT, JJ., concur.


author: ARMSTRONG, J.

text:
    TOM HAWTHORN v. STATE.
    No. A-2670.
    Opinion Filed April 16, 1917.
    (164 Pac. 134.)
    OBSTRUCTING JUSTICE — Information—Demurrer. An information in a criminal case should plead sufficient facts to constitute an offense against the laws of the state, and when such facts a>re not pleaded and a demurrer is seasonably filed, the same should be sustained by the trial court.

      Appeal from County Court, Love County; J. H. Hays, Judge.

    Tom Hawthorn was convicted of resisting an officer, and he appeals.
    Reversed.

      T. B. Wilkins, for plaintiff in error.

      R. McMillan, Asst. Atty. Gen., for the State.
   ARMSTRONG, J.

The plaintiff in error, Tom Hawthorn, was convicted at the January, 1916, term of the county court of Love county’ of interfering with an officer in the discharge of his official duties, and his punishment fixed at a fine of $100 and imprisonment in the county jail for a period of 30 days.

The information, after alleging venue and time, is as follows:

“That in the county and state aforesaid and on the day and year aforesaid the said Tom Hawthorn did unlawfully, willfully, and purposely interfere with W. H. McGaugh, a deputy sheriff then and there engaged in the execution of a legal search warrant upon the premises located on Main street in the city of Marietta, and known as the Rock Hotel, by then and there advising the person in charge of said premises not, to permit said officer to seize certain intoxicating liquor there found, and for the seizure of which said search warrant was issued, contrary to,” etc.

A demurrer was filed to the information on the ground, among others, that it failed to state facts sufficient to constitute an offense against the laws of this state. It will be noted that the information charges Tom Hawthorn with interfering with the execution of a search ■ warrant, by advising the proprietor of the hotel to refuse to permit the seizure of certain intoxicating liquor there found. There are no acts or conduct set out in the information further than this general statement.

The proof shows that the controversy out of which this trouble arose occurred at a hotel where Tom Hawthorn was rooming; that a search warrant was being executed against the hotel; that four pints of whiskey were found in the hotel; that at the time the search warrant was being executed Hawthorn was present and said to the proprietor of the hotel: “I wouldn’t let them have it; the law allows you a gallon of whiskey.” Hawthorn apparently had been drinking. The remark referred to was made concerning the depffiy' sheriff, Culwell. There is no proof tending to indicate that the person addressedheard the statement, or, if he did hear it, that he paid any attention to it. There was no resistance offered to the search.

The statute under which the prosecution was brought reads as follows (Rev. Laws 1910, sec. 2150) :

“Any person who attempts, by means of any threat or violence, to deter or prevent any executive officer from performing any duty imposed upon such officer by law, is guilty of a misdemeanor.”

The foregoing information does not charge that the officers were interfered with by any threats or violence. It simply charges that plaintiff in error advised the owner of the hotel not to permit officers to seize four pints of whiskey.

There is nothing disclosed by the record which indicates that any force or violence was offered or intended by any of the remarks made.

The information fails to state an offense and the facts disclosed fail to prove any. The demurrer should have been sustained.

For the reasons stated, the judgment is reversed.

DOYLE, P. J., and BRETT, J., concur.


author: PER CURIAM.

text:
      Ex parte MRS. J. W. DIX.
    No. A-2693.
    Opinion Filed April 16, 1917.
    (164 Pac. 988.)
    Petition for bail by Mrs. J. W. Dix, held on preliminary examination to appear on a complaint charging her with murder. Petitioner admitted to bail, fixed at $15,000.

      Pruiett & Sniggs, for petitioner.

      R. McMillan, Asst. Atty. Gen., S. T. Roberson, Co. Atty., and E. F. Maley, Asst. Co. Atty., for respondent.
   PER CURIAM.

The petitioner, Mrs. J. iW. Dix, on a preliminary examination held to appear to the district court of Canadian county on a complaint charging that in said county on the 27th day of February, 1916, she' did kill and murder one Henry Baustert by shooting him with a pistol, applied to this court for a writ of habeas corpus for the purpose of discharge on bail, upon the ground that she is not guilty, and upon the ground that the proof was not evident nor the presumption great, and does not even raise a presumption of guilt; that her application to the district court of Canadian county was denied.

After a careful examination of the evidence offered, we are of opinion that the petitioner should be let to bail, and that her bail should be fixed at the sum of $15,000. It is therefore ordered that the petitioner, Mrs. J. W. Dix, be and she is hereby admitted to bail upon the charge of murder now pending against her in the district court of Canadian county, and that her bail is hereby fixed at the sum of $15,000, and that she be released from custody upon giving bond in said sum, conditioned as- required by law.


author: PER .CURIAM.

text:
      Ex parte O. F. FOSTER.
    No. A-2798.
    Opinion Filed April 16, 1917.
    (164 Pac. 990.)
    Application by O. F. Foster for- writ of habeas corpus. Writ issued, directed to sheriff of Texas county, Okla., returnable to the district court of that county.

      E. L. Fulton, for petitioner.
   PER .CURIAM.

Application of O. F. Foster for writ of habeas corpus presented to this court. Writ issued, directed to the sheriff of Texas county, Okla., and made returnable to the district court of Texas county, at 9 o’clock a. m., August 25, 1916.


text:
      Ex parte GEORGE GOWNLOCK.
    No. A-2894.
    Opinion Filed April 16, 1917.
    (164 Pac. 130.)
    JURY — Right to Jury Trial — Violation of Ordinance. Section 1, c. 147, Sess. Laws 1915, defines “municipal courts” “to mean and include all the courts of the State of Oklahoma, organized and existing in • the various towns and cities thereof which shall have and possess, under the laws of the state, original jurisdiction to hear and determine offenses against the ordinances of municipalities,” and defines an “offense" “to mean the doing of some act, or the failure to perform some duty, commanded by some municipal ordinance or by law, and for the violation of which a penalty or punishment is provided thereby,” and declares such proceedings to be “criminal in their nature; and except as otherwise specifically provided, shall be governed by, and subject to, general laws relating to criminal procedure.” Held that, in respect to “offenses” under city ordinances, the punishment for which is or may be imprisonment, conviction of the accused without a jury trial would be in contravention of section 7 of the Bill of Rights, providing that “no person shall be deprived of life, liberty, or property, without due process of law,” because under the 'Constitutional provisions a jury is an essential part of every tribunal for the trial of criminal cases, and such constitutional provisions place the right to trial by jury beyond the power of the Legislature to abrogate or abridge it, and it is beyond the power of the Legislature to confer jurisdiction on any tribunal to try criminal oases without providing for jury trials.
    Petition by George Gownlock for writ of habeas corpus.

    Petitioner ordered to be discharged.

      O. A. Cargill, for petitioner.

      B. D. Shear, Municipal Counselor, and Frank Watson, for respondent.
   DOYLE, P. J.

On the 20th day of December, 1916, a duly verified petition for writ of habeas corpus was presented to the Presiding Judge, averring in substance that the petitioner, Geo. Gownlock, is unlawfully restrained of his liberty by the officers of the city of Oklahoma City, upon a judgment of the municipal court of said city entered on the 18th day of October, 1916, imposing a fine of $99 and confinement for 30 days, and further averring:

“That he was deprived of a fair trial, in this that he was deprived of an opportunity to produce witnesses to prove that he was not guilty of the offense charged; that he was deprived of his statutory right to plead, and that there was no competent evidence introduced to show that he was guilty of the offense charged; that immediately after his summary conviction, he was transferred to the county roads, where he has been confined and working for the last 3(3 days.”

The writ was- issued, and in obedience to the writ petitioner was brought before the court on the following day, and return made to the- wit.

The issue in this case is the same as in the case of Ex parte Johnson, ante, p. 30, 161 Pac. 1097. For the reasons given in the opinion in that case, we are of the opinion that the proceedings had upon the trial and conviction of the petitioner in said municipal court f were illegal and void, and it is ordered that he be discharged.

ARMSTRONG and BRETT, JJ., concur.


text:
      Ex parte FREEMAN MITCHELL.
    No. A-2895.
    Opinion Filed April 16, 1917.
    (164 Pac. 134.)
    JURY — Right to Jury Trial — Violation of Ordinance. The 'constitutional guaranties intended to secure the liberty of the citizen and the' right to a trial by jury cannot be evaded'by the nature of the powers vested in the municipality under its charter or the nature of the jurisdiction conferred upon the municipal court.
    Application of Freeman Mitchell for writ of habeas corpus.

    Writ allowed, and petitioner discharged.

      O. A. Cargill, for petitioner.

      B. D. Shear, Municipal Counselor, and Frank Watson, for respondent.
   DOYLE, P. J.

On the 20th day of December, 1916, a duly verified -petition for writ of habeas corpus was presented to the presiding judge, averring in substance that the petitioner, Freeman Mitchell, is illegally restrained of his- liberty by the officers of the city of Oklahoma City, and is now compelled to work upon the county roads; that on the 29th day of November, 1916, he was convicted in the municipal court of said city on a charge of theft, and was sentenced to pay a fine of $99 and the costs and to serve a sentence of 90 days in the city jail. The writ issued, and in obedience to the writ the petitioner was brought before the court the following day and return made to the writ.

The issue in this case is the same as in the case of Ex parte Johnson, ante, p. 30, 161 Pac. 1097. For the reasons given in the opinion in that case, we are of opinion that the conviction of the petitioner in the municipal court was illegal and void, and it is ordered that he be discharged.

ARMSTRONG and BRETT, JJ., concur.


text:
      Ex parte A. L. BEAL. Ex parte SAM IVERS.
    Nos. A-2896, A-2902.
    Opinion Filed April 16, 1917.
    (164 Pac. 988.)

      Habeas corpus by A. L. Beal and by Sam Ivers against W. B. Nichols, Chief of Police of Oklahoma City.
    Writs allowed, and petitioners discharged.

      Albert S. Giles and J. D. Chastain, for petitioners.

      B. D. Shear, Municipal Counselor, and Frank Watson, for respondents.
   PER CURIAM.

Upon petitions alleging that they were illegally restrained of their liberty, writs of habeas corpus issued, directed to W. B. Nichols, chief of police of Oklahoma City, and in obediance to the same the petitioners were brought before the court and returns made to the writs.

Upon the hearing, for the reasons stated in the opinions in Ex parte Johnson, ante p. 30, 161 Pac. 1097, and Ex parte Monroe, ante p. 62, 162 Pac. 233, the writs were allowed, and the petitioners discharged.


text:
      Ex parte JAMES H. CROUCH.
    No. A-2736.
    Opinion Filed April 18, 1917.
    (164 Pac. 133.)
    HABEAS CORPUS — Discharge—Sufficiency of Petition. Where the facts averred in a petition for a writ of habeas corpus,- if. established, will not warrant the discharge of the prisoner, the writ will be denied.
    Application by James H. Crouch for writ of habeas corpus.

    Writ denied.

      W. F. Ham, for petitioner.

      R. McMillan, Asst. Atty. Gen., for respondent.
   DOYLE, P. J.

This was an application to this court for a writ of habeas corpus. It appears from the petition that the petitioner was tried in the district court of Oklahoma county, Edward Dewes Oldfield, presiding judge, and was convicted of manslaughter' in the first degree, and was sentenced to imprisonment in the penitentiary for the term of ten years. Under said sentence he was committed to the custody of M. C. Binion, sheriff of said county, on a commitment directing said sheriff to transport petitioner to the penitentiary at McAlester, and the petitioner claims that his imprisonment is illegal, and among other things states that such illegality consists in this:

“That the alleged verdict of the jury and purported judgment and sentence imposed by the said Edward Dewes Oldfield, pretending to act as a judge of the district court of the Thirteenth judicial district of the State of Oklahoma, within and for Oklahoma county, said state, is void by the reason that Edward Dewes Oldfield at the time said alleged' verdict was returned by the jury, and at the time said judgment and sentence were imposed upon this petitioner was not and at this time is not a de jure or de facto judge of the Thirteenth judicial district of Oklahoma, but at the times last aforesaid said Edward Dewes Oldfield was, and now is, an usurper of the office of judge of the said district court.”

To the petition the state interposed a demurrer on the ground that the facts stated in the petition, if established, will not warrant the discharge of the prisoner. The demurrer was sustained, and the writ was denied.


text:
      Ex parte JOHN M. COUCH (two cases).
    Nos. A-2916, A-2917.
    Opinion Filed April 18, 1917.
    (164 Pac. 134.)
    Petition by John M. Couch for writs of - habeas corpus.

    Demurrer to petitions sustained, and writs denied.

      Homer Hurst, for petitioner.

      R. McMillan, Asst. Atty. Gen., for respondent.
   PER CURIAM.

On February 5, 1917, there was filed and presented two petitions for writs of habeas corpus on behalf of John M. Couch, and demurrers were filed thereto. The demurrers are sustained, and the writs denied.


text:
    VINCENT KERRIEL et al. v. STATE.
    No. A-2605.
    Opinion Filed April 19, 1917.
    (164 Pac. 136.)
    INTOXICATING LIQUORS — Unlawful Sale — Sufficiency of Evidence. Evidence, in a prosecution for the unlawful -sale and delivery of intoxicating liquor, held insufficient to justify a conviction.

      Appeal from County Court, Coal County; P. E. Wilhelm, Judge.

    Vincent Kerriel and Mary Kerriel were convicted of a violation of the prohibitory law, and they bring error.
    Reversed.

      George Trice, for ■ plaintiffs in error.

      S. P. Freelmg, Atty. Gen., and R. McMillan, Asst. Atty.. Gen., for the State.
   PER CURIAM.

The plaintiffs in error were informed against, tried, and convicted in the county court of- Coal county ón a charge that they “did unlawfully sell and deliver to Sim McGee, certain intoxicating liquor, to wit, a drink commonly called ‘Choctaw Beer.’ ” In pursuance of the verdict they were each sentenced to be confined in the county jail for 30 days and to pay a fine of $50. From the judgments they appeal.

In the view we have taken of the disposition necessary to be made of this case it is neither important nor necessary to. consider more than one of the questions presented, and that one is the sufficiency of the evidence to sustain'the verdict.

Sim McGee was the only witness called by the state.-• He testified that he was a full-blood Choctaw, and that some time in March he went to the defendants’ place. He was asked if he bought any beer from the defendants, and he answered “that he bought some Choc;” that he bought 25 cents worth. He was then asked:

“Q. Who gave it to you? A. She did. Q. Who did you pay ? . A. Paid her.”

On cross-examination he said he had been in jail four times, and was drunk at that time.

The defendant Vincent Kerriel testified that this Indian came to his home one morning and was very drunk, and asked his wife for something to eat and' something to drink, and she put him out of the house, and he said he was going to have her arrested:

Mary Kerriel testified that she had to drive this little Indian away from her house two or three different times; that the last time she drove him away he said, “I go tell Pát Wilhelm and get you arrested;” that she never sold or gave him any Choctaw beer.

This was substantially all the evidence in the case.

On a consideration of the evidence we are of opinion, as a matter of law, that the evidence was insufficient to justify a conviction. The judgment is therefore reversed.


text:
      Ex parte GROVER BLUM.
    No. A-2876.
    Opinion Filed April 19, 1917.
    (164 Pac. 136.)
    HABEAS CORPUS — Nature of Wri&wkey;Discharge — “Habeas Corpus.” Tlie writ of “habeas corpus” is a writ of right, granted to inquire into all cases of illegal imprisonment, and a person imprisoned in -the penitentiary under a void commitment issued by a court clerk upon the verdict of a jury, where no judgment was rendered upon such verdict, will he discharged from such illegal imprisonment and remanded to the custody of the trial court
    Application of Grover Blum for writ of habeas corpus. Sheriff of Tulsa county directed to take petitioner into custody and to commit him to county jail subject to further orders of superior court of Tulsa county.

      Jno. J. N. Sykes, for petitioner.

      S. P. Freeling, Atty. Gen., R. McMillan, Asst. Atty. Gen., and J. P. Evers, Co. Atty., for respondent.
   DOYLE, P. J.

A writ of habeas corpus having been duly issued out of this court, directed to the warden of the state prispn at Granite, commanding him to produce before this court Grover Blum, then in his custody, to the end that the legality of his imprisonment might be inquired into, such warden, in obedience to the mandate of the writ, has brought the said Grover Blum before the court and made return to the writ. It appears, both by the petition upon which the writ was allowed and issued and by the return of the warden to the writ, that the petitioner was convicted in the superior court of Tulsa county on an information charging him with the crime of conjoint robbery, and his punishment fixed at five years’ imprisonment in the penitentiary. Said verdict was returned on the 27th day of February, 1914. It is averred in the petition that a motion for new trial was duly filed and was not passed upon by the' court: It is further averred that no judgment was ever entered or sentence imposed upon the verdict rendered in the case. These facts are admitted in the return of the respondent, but respondent further answers:

“That shortly after said verdict was rendered, and while said court was still in session, the defendant escaped from custody. That the defendant afterwards was arrested by the sheriff of Tulsa county, brought before the court, and the clerk of said court without having looked back to ascertain whether said judgment had been entered, and assuming that judgment had been entered, thereupon issued a commitment on which the petitioner is now and has been confined in the state penitentiary. Therefore this respondent denies that the petitioner is illegally incarcerated inasmuch as the failure to enter the judgment by the clerk, or the failure of the judge to pronounce judgment after verdict rendered, was. merely directory so far as the defendant was concerned, and Was not such error as to authorize the issuance of the above writ.”

Upon the answer and return of the respondent we are of opinion that the petitioner is illegally imprisoned, and it is ordered that he be discharged therefrom.

The sheriff of Tulsa county, present in court, is directed to take the petitioner into his custody and commit him to the county jail of Tulsa county, there to remain subject to the further orders of the superior court of Tulsa county.

ARMSTRONG and BRETT, JJ., concur.'


text:
      Ex parte BUFORD HAYES.
    No. A-2539.
    Opinion Filed April 24, 1917.
    (164 Pac. 989.)
    Buford Hayes applied for a writ of habeas corpiis.

    Demurrer to petition sustained, and writ deniéd.
   PER CURIAM.

Demurrer to. petition sustained, and writ denied.


text:
      Ex parte W. G. COX.
    No. A-2654.
    Opinion Filed April 24, 1917.
    (164 Pac. 989.)
    Application by W. G. Cox for a writ of habeas corpus to be let to bail.
    Writ denied, and bail refused.

      Kennamer & Coalcley, for petitioner.

      R. McMillan, Asst. Atty. Gen., and George L. Sneed, Co. Atty., for respondent.
   PER CURIAM.

This was an application to this court for a writ of habeas corpus for the purpose of discharge on bail.

It appears from the petition that upon a preliminary examination before Isaac 0. Lewis, justice of the peace, of Madill, the petitioner, W. G. Cox, was held to the district court of Marshall county to answer upon a charge that he did kill and murder Marion Cox, his son;, that he made application for bail before Jesse M. Hatchett, judge of the district court of Marshall county, at chambers, and the said judge refused to allow bail. It is further averred that petitioner is not guilty of said charge. Attached to said petition is the deposition of the petitioner, wherein he states that in a gun fight with another son, Oliver Cox, the said Oliver Cox fired the fatal shot.

Without entering into a discussion of the evidence, we deem it sufficient to say that upon a careful consideration of the same, we are of opinion that petitioner is not entitled to be admitted to bail as a matter of legal right.

It is therefore considered and adjudged that the writ be denied, and bail refused.


text:
    BERT FILES v. DISTRICT JUDGE et al.

    No. A-2918.
    Opinion Filed April 24, 1917.
    (164 Pac. 988.)
    Prohibition by Bert Files against the District Judge and District Court of Garfield County.
    Demurrer to petition sustained, and writ denied.
    See, also, Ex parte Files, ante, p. 163, 162 Pac. 1136.

      G. W. Buckner, for petitioner.

      E. McMillan, Asst. Atty. Gen., for respondent.
   PER CURIAM.

Petition for writ of prohibition

against the district judge and district court of Garfield county, prohibiting further proceedings in two criminal cases, wherein petitioner was convicted, on the ground that b.y reason of former jeopardy said court had lost jurisdiction.

Demurrer to petition, interposed by counsel for the state, sustained, and writ denied.


author: MATSON, J.

text:
    CHARLES BASHARA v. STATE.
    No. A-2306.
    Opinion Filed April 26, 1917.
    (164 Pac. 324.)
    1. TRIAL — Instruction—Assumption as to Provocation of Difficulty. The court instructed the jury as follows: “You are further instructed, gentlemen of the jury, that while the law permits a person to defend himself or his wife against real or aioparent danger, such is defensive and not offensive; and therefore you are instructed that a person under -the law cannot arm himself and invite and provoke a difficulty, and thereupon assault and slay his adversary, and invoke the right of self-defense. And you are instructed, gentlemen of the jury, if you believe from the evidence in this case beyond a reasonable doubt that, this defendant armed himself with a rifle and sought the deceased, either acting alone or in conjunction with his wife, for the purpose of provoking or engaging in a difficulty with the deceased, and in furtherance of any such design between husband and wife either husband or wife invoke, and provoke a difficulty with the deceased, and thereupon the defendant shot and killed the deceased, then the defendant cannot invoke the right of self-defense.” Held, that the-foregoing instruction does not assume that the appellant invited or provoked a difficulty with tire deceased.
    2. HOMICIDE — Instruction—Self-Defense—Provocation of Difficulty —Evidence. Evidence examined, and held sufficient to authorize the trial court to give the aforesaid instruction in this case.
    3. APPEAL AND ERROR — Harmless Error — Instruction. Where no objection is made or exception taken to the giving of an instruction at the time it is given, and said instruction is partially erroneous, the giving of said instruction ,is not reversible error, unless some constitutional or express statutory right of the defendant has been invaded.

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

    Charles Bashara was convicted of manslaughter in the first degree, and he appeals.
    Affirmed.
    The appellant, Charles Bashara, was a merchant in the town of Tuttle, Okla. His place of business was located ’ on the north side of Main street. The deceased, Selby, was engaged in the real estate business in said town, and his place of business was situated just east of Bashara’s store. There was an open space about 18 inches wide between the buildings occupied by these parties. In windy weather a considerable amount of trash blew into this space, and Selby went to Bashara and got permission to place some upright planks across this opening. Some time later Bashara became angry at the manner in which he claimed Selby was using this place between the buildings, claiming that the manner of its use was very annoying to him and his family. After that these planks were torn down, and on the morning of this occurrence they were found in the street in front of the premises. Selby and his partner, Steward, got the planks and nailed them between the opening again. Immediately thereafter Bashara came out and tore them down and threw them back into the street. Again they were nailed up by Selby, and thereafter Bashara went to see a justice of the peace about it, but the justice refused to do anything, and Bashara returned home, informing his wife of that fact. Immediately Mrs. Bashara told her husband that she would tear the planks down If they had to be torn down. This was agreeable to Bashara, and Mrs. Bashara then proceeded to attempt to tear the planks down with her hands. While she was making this attempt Selby stepped out in front of his-building and admonished her not to tear the planks down; that if they were on her premises, he would tear them down himself. Mrs. Bashara remarked that she did not propose to have that space used for the purpose for which it had been used, and that she intended to tear those planks down. She then proceeded to go to a little building in the rear of her store to get an axe; and she immediately returned with the axe and commenced to knock the planks down. Selby still admonished her to leave the planks alone, and according to the witnesses for the defendant, laid his left hand upon her and- pushed her back and away from the planks. According to the witnesses for the state, Selby never touched her. About this time the appellant appeared upon the scene at the ' west end of his store building. He says that he told his wife not to let Selby hurt her; that at that time Selby was pushing her with his hand; that he thought Selby intended to hurt her; that Selby’s attention was attracted to him and he immediately remarked, “You -, - coward, why don’t you come and remove these .planks?” Selby was wearing a knit sweater, which was entirely buttoned up in front. At this remark the defendant says he stepped back into a little building occupied by him as a dining room and kitchen just to the west of his store building, and procured his Winchester rifle, immediately returning! When he returned he says' Selby made the remark, “Ybu -, - cowl ard, I will plug you one,” and accompanied this remark with a motion of his right hand to his breast; that thereupon he leveled his rifle upon him and fired the fata! shot; that when he fired Selby had his hand inside of his sweater, and was attempting to withdraw something from it, and that he saw something move around that looked to him like a ball. The witnesses for the state testified that at the time Selby was shot he was making no attempt whatever to draw a gun or to make any other demonstration of violence toward this appellant; that the appellant stepped out from the west side of his building and told his wife to stand back, and that she stood back against the wall of the building, and that the appellant immediately fired the fatal shot; that at that time Selby was standing on his own porch merely admonishing Mrs. Bashara not to remove the planks. Selby reeled to the rear and fell dead just inside of the front door of his office. After. his death an automatic sixshooter was found buttoned up under his sweater. Several witnesses testified on rebuttal for the state that a short time after the killing the appellant said, in explaining the homicide, that at the time he shot the deceased the latter was making a motion with his right hand toward his hip pocket. This occurred in Chickasha while accused was in the custody of the sheriff. It is evident that, according to the testimony of the witnesses for the state, the crime committed here was murder. The evidence on the part of the defendant tends to sustain his plea of self-defense. The parties to the transaction had had some minor difficulties prior thereto, but nothing of a serious nature. . Certain evidence was introduced tending to show that the deceased had on one or two occasions threatened the appellant. The jury found the appellant guilty of manslaughter in the first degree, and sentenced him to imprisonment in the penitentiary for a term of ten years. From this judgment of conviction an.appeal was taken to this court.

      Barefoot & Carmichael, Bond, Melton ■& Melton, and F. E. Riddle, for plaintiff in error.

      S. P. Freeling, Atty. Gen., and R. McMillan, Asst. Atty. Gen., for the State.
   MATSON, J.

(after stating the facts as above). The only alleged errors relied upon for reversal in this case are the giving of certain instructions, the first of which is instruction No. 15, to which instruction objection was made and exception taken at the time of its giving, and which instruction is as follows:

“You are further instructed, gentlemen of the jury, that while the law permits a person to defend himself or his wife against real or apparent danger, such is defensive and not offensive; and therefore you are instructed that a person under the law cannot arm himself and invite and provoke a difficulty, and thereupon assault and slay his adversary, and invoke the right of self-defense. And you are instructed, gentlemen of the jury, if you believe from the evidence in this case beyond a reasonable doubt, that this defendant armed himself with a rifle and sought the deceased, either acting alone or in conjunction with his wife, for the purpose of provoking or engaging in a difficulty with the deceased, and in furtherance of any such design between husband and wif§, either husband or wife invoke and provoke a difficulty with the deceased, and thereupon the defendant shot and killed the deceased, then the defendant cannot invoke the right of self-defense.”

The contentions of counsel for appellant that this instruction is erroneous are as follows:

“The court clearly in this last language assumes without sufficient testimony, which point was controverted, that the defendant, to carry out the design which he had formed to slay the deceased, and in furtherance of such design and conspiracy between him and his wife, invited or provoked a difficulty, etc. If there were any testimony tending to show a collusion or conspiracy between the defendant and his wife, certainly the jury should have been permitted to have passed upon and determined that issue.”
“The court in the case at bar, in giving the instruction complained of, very strongly intimates a conspiracy or collusion between the defendant and his wife to provoke a difficulty with the deceased for the purpose of slaying him. We doubt if there is sufficient testimony in the record' warranting the court to charge upon an issue of conspiracy by and between the defendant and his wife; but if there be such testimony, certainly a jury should have been permitted to determine this issue; and the detriment to the defendant by the court’s assuming such state of facts cannot be calculated.”

We cannot agree with these contentions. First, said instruction does not assume that the defendant invited or provoked a difficulty. The instruction assumes nothing. It will be noted that the court instructed the jury that if they believed beyond a reasonable doubt from the evidence that the defendant armed himself and sought the deceased, -either acting alone or in conjunction with his wife, for the purpose of provoking or engaging in a difficulty with the deceased, and in furtherance of any such design did provoke a difficulty with the deceased, and thereupon killed him, then the defendant could not invoke the right of self-defense. The clause, “If you believe from the evidence beyond a reasonable doubt,” qualifies everything that follows it in the sentence. This was a correct exposition of the law, as this court has repeatedly held in the following cases: Moutry v. State, 9 Okla. Cr. 623, 132 Pac. 915; Koozer v. State, 7 Okla. Cr. 336, 123 Pac. 554; Rollen v. State, 7 Okla. Cr. 673, 125 Pac. 1087.

But it is contended that the court should have gone further and instructed the law to be that, if after any such design on the part of the defendant to seek the deceased for the purpose of engaging in a difficulty, he abandoned such design and then thereafter his life was put in immediate danger, he would have the right to defend himself. The court is only required to instruct upon the law as applicable to the facts. In this' case there was not a syllable of evidence falling from the lips of any witness on either side that there was any withdrawal from this conflict on the part of this appellant. As we view the evidence, from his own testimony, the appellant is at least guilty of manslaughter in the first degree. The testimony of his wife would also corroborate this view. The testimony of the only other witness for the defendant does not show a justification or excuse for the homicide.

As to the further contention that the foregoing instruction is not warranted by sufficient testimony in the record, we conclude that this contention is not meritorious. We have carefully examined this record and reached the conclusion that the acts and conduct of the appellant and his wife on the occasion of this homicide' disclosed a state of facts which fully authorized the1 giving of this instruction. Considered, then, from all the angles complained of, we are of the opinion that the trial court did not err in giving the aforesaid instruction on the- law of self-defense.

It is also contended that the court erred in giving instruction No. 19, as follows:

“Evidence has been offered in this case, gentlemen of the jury, relative to certain previous difficulties and threats, and certain opprobrious epithets alleged to have been used by the deceased as against the defendant. You are instructed that even though you should believe from the evidence that the deceased used such epithets and engaged with the defendant in previous difficulties, such previous difficulties or epithets cannot serve as a justification or defense in this case, unless you should find the defendant justifiable and excusable in doing what he did under the evidence and the instructions given you in this case.”

An examination of the record discloses that no objection was made or exception taken to the giving of this instruction. In the absence of any such objection or' exception, an erroneous instruction could not be ground for reversal unless fundamentally wrong. The instructions are to be considered as- a whole, and we find that in this case the court, by instruction No. 17, fully informed the jury relative to threats and former difficulties. In instruction No. 17 the court, among other things, said that such threats were competent for consideration by the jury, together with all the other facts and circumstances in the case, “in determining the guilt or innocence of this defendant.” Considered as - a whole, and in view of the fact that the defendant under his own testimony and' that of his witnesses is at least ‘guilty of manslaughter in the first degree, this court cannot say that there was prejudice in the giving of this, instruction, which counsel for the defendant did not see fit to object to at the time. It is the duty of counsel to call the trial court’s attention to alleged errors in instructions, in order that he -may have an opportunity to correct them; and, where this is not done, this court has repeatedly held that' only such errors in the instructions as directly conflict with the constitutional and plain statutory rights of the defendant will be considered.

Upon an examination of the entire record we find no error prejudicial to the appellant, and the judgment is accordingly affirmed.

DOYLE, P. J., and ARMSTRONG, J., concur.


text:
    ROY T. WEST v. STATE.
    No. A-2426.
    Opinion Filed April 26, 1917.
    (164 Pac. 327.)
    1. WITNESSES — Competency—Wife Against Husband. In a prosecution against a husband for willful and corrupt perjury in making a false affidavit in a suit for divorce against his -wife in order to obtain service of summons by publication as required by the statutes of this state, the wife is a competent witness for the state on the trial pf such criminal prosecution.
    2. APPEAL AND ERROR — Harmless Error — Instructions—Penalty. Where the statute fixes the maximum punishment for a crime, but fails to provide a definite minimum punishment therefor, and the 'court instructs the jury as to punishment practically in the. language of the statute, and no more' definite instruction as to the minimum term of imprisonment is requested by counsel for the defendant, the giving of such instruction in the absence of such request is not prejudicial error.
    3. SAMS. Mere technical objections to the wording of the court’s instructions do not meet with the favor of this court. The judgment of conviction will not be reversed on the ground of misdirection of the jury unless in the opinion of this court, after the examination of the entire' record, it ’ appears that the error complained of has probably resulted in a miscarriage of justice or constitutes a substantial violation of a constitutional or statutory right of the defendant.

      Appeal frofn, District Court, Oklahoma County; George W. Clark, Judge. '

    Roy T. West was convicted of perjury, and he appeals.
    Affirmed.

      Pruiett, Sniggs & Tripp, for plaintiff in error.

      S. P. Freeling, Atty. Gen., and R. McMillan, Asst. Atty Gen., for the State.
   MATSON, J.

This was a prosecution against the appellant lodged in the district court of Oklahoma county charging him with the crime of perjury, in that in said court, in an action which the appellant had then pending against his wife, Rhoda A. West, for divorce, the said. appellant filed a false affidavit in order to procure constructive service of summons upon the said Rhoda A. West by publication, the information in substance alleging that the said affidavit was false, and that the said defendant at the time knew that it was false, and that the same was filed in said divorce proceeding for the purpose of procuring service of summons by publication; the material allegations contained in said affidavit so filed being as follows:

“That the said defendant did not know whether said Rhoda A. West was at the time in the State of Oklahoma; that the last time he had heard of her was about 18 months prior thereto, and at that time the said Rhoda A. West was in St. Louis, in the State of Missouri; that he was unable to procure service of summons upon the said Rhoda A. West within the State of Oklahoma for the reason that he did not know her whereabouts; and that her whereabouts could not be ascertained by any means within his control.”

The state clearly established upon the trial every material allegation of the offense. The only testimony introduced on behalf of the defendant was as to his previous good reputation for truth and as a law-abiding citizen.

Two alleged errors are called to the attention of ^this court by reason of which counsel for appellant claim that this judgment should be reversed: First, that the court erred in admitting the testimony of Rhoda A. West, the wife of appellant, over his objection and exception; second, that the court erred in failing to instruct the jury as to the minimum punishment which could be inflicted for said' offense.

Section 5882, Rev. Laws 1910, provides:

“Except as otherwise provided in this and the following chapter, the rules of evidence in civil cases are applicable also in criminal cases: Provided, however, that neither husband nor wife shall in any case be a witness against the other except in a criminal prosecution for a crime committed one against the other, but they may in all criminal cases be witnesses for each other, and shall be subject’ to cross-examination as other witnesses, and shall in no event on a criminal trial be permitted to disclose communications made by one to the other except on a trial of an‘offense committed by one against, the other.”

It is contended on behalf of the appellant that perjury committed under the circumstances as above set forth is not a crime committed against the wife within the meaning of the above statute, and that therefore the wife is an incompetent witness against her husband in such a proceeding. With this contention we cannot agree. It may be admitted that, if our statute were simply a declaration of the common-law rule, then the wife would be incompetent to testify in this proceeding. Under the common law neither the wife nor the husband was a competent witness either for or against the other, but from the necessity of things an exception obtained to this rule, and the rule was enlarged upon to the extent that in criminal prosecutions against one for personal violence committed upon the other either the wife # or the husband, as the case might be, was permitted to testify against the other in such proceedings. But.this court has held that our statute is not declaratory of the common-law rule; that there are other interests not only affecting society at large, but also peculiarly affecting the marital relations, which are as sacred to be protected as prosecutions involving the elements of violence. Therefore this court held in the case of Heacock v. State, 4 Okla. Cr. 606, 112 Pac. 949, that in a prosecution for adultery the husband or wife is a competent witness to prove the offense. Also in the case of Hunter v. State, 10 Okla. Cr. 119, 134 Pac. 1134, L. R. A. 1915A, 564, Ann. Cas. 1916A, 612, it was held:

“In a prosecution against a father for willfully failing to supply his children with necessary food, clothing, shelter, or medical attendance, his wife is a competent witness against him.”

In that case the court, speaking through Furman, J., said: •

“In reason and in justice we believe that, whenever a husband or wife is guilty of conduct which constitutes a public offense, and which also constitutes a direct violation of the legal rights of the other, the crime is against such other, as well as against the public, and that such husband or wife should be permitted to testify in all such cases. Suppose a husband should publish a libel or slander upon his wife, would it not be a prostitution of reason and a mockery upon justice to exclude her evidence upon the ground that it would impair the sanctity of the home and destroy the confidence, peace, and harmony of the marital relations to permit her to testify? Many other illustrations could be offered. What we are after is the principle involved, the ground upon' which the testimony of the wife is excluded. Considering the substance rather than the form of things, we are of the opinion that the idea that the wife can only testify against her husband for an assault committed upon her person is a relic of barbarism. We decline to perpetuate any such idea in Oklahoma.”

In the case of Dill v. People, 19 Colo. 469, 36 Pac. 229, 41 Am. St. Rep. 254, the exact question here involved was under consideration by the Supreme Court of Colorado, and that court, in a very able and exhaustive opinion by Elliott, J., held:

“Where a husband is indicted for willful and corrupt perjury in making a false affidavit in a suit for divorce against his wife, the wife is' a competent witness for the state on the trial of such indictment.”

In the body of the opinion it was said:

“In the case at bar, defendant was charged with committing the crime of perjury in an action for divorce against 'his wife. The .purpose of the affidavit was to aid him in his suit against her; it was to give the court jurisdiction of the cause without personal service of process upon his wife; and the object of that portion of the affidavit of which perjury is predicated was to enable him to- give the court jurisdiction without mailing a copy of the summons to his wife. If in making such affidavit defendant committed perjury, the effect of his crime was to diminish the wife’s chances of obtaining notice of the divorce suit and thus deprive her of the privilege of making any defense. It is clear, therefore, that she was the particular individual whose private rights and interests would be affected by the crime. It is true the crime of perjury committed in such a case was a crime against the public administration of justice; the public are deeply interested — every good citizen is interested — in punishing and preventing the crime of perjury; but the perjury in this case was calculated to inflict upon the wife of defendant a direct private injury to her individual rights and interests. That the crime was against her, in the sense in which every crime is an injury to a particular individual, cannot be doubted. In the first place, the perjury -was liable to deprive her of the right of making defense; if deprived of that right, she might be. wrongfully deprived of her husband, and of her right to support from his estate or from his labor; besides, if divorced, she would be subjected to the stigma of having been false to her marital vows. A decree of divorce, in the estimation of all good people, causes ignominy and •disgrace to fall, more or less heavily, according to the nature of the case, upon the party adjudged to be in the wrong. The rule of the common law that a wife may testify against her husband in a case where he is charged with a crime of violence against her person rests, it is said, upon the principle of affording her the means of self-protection. In the ruder period in which the common law took its rise life and limb were principally regarded. Property was also esteemed worthy of protection. But the property rights of the wife were greatly restricted, and her personal status was almost entirely merged in that of her husband. In the present age there have “been great changes; other than tangible things are more highly esteemed. Should it, therefore, be deemed strange that modern legislation should give the wife the means of protecting that which is often dearer to her than life, liberty, or property?”

The reasons given and the argument supporting those reasons that 'the wife is a competent witness against her husband in a prosecution such as this meet the entire approval of this court. The doctrine is firmly established in this state, and we do not propose at this time to take a backward step. This crime was peculiarly injurious to the wife. It was a crime committed against her to her particular injury. It tended to deprive her of certain legal and property rights protected by the laws of this state. In our opinion, it would be absurd to say that the false making of such an affidavit in a divorce proceeding was not a crime against her. -It-is also immaterial whether or not by reason of such affidavit a divorce was obtained; It was through no fault of this appellant that discovery was made of' his attempt to obtain a' divorce through perjury and fraud upon the court, and had - not this been discovered and prosecution commenced two days before the case was set for triai we doubt. not that by such means this appellant would have procured his divorce. It is also immaterial, as we view the matter, whether or not had ’ such divorce- been obtained this prosecuting witness could have by law set it aside. Such corrupt practices must be put to an end, and under our criminal procedure it is the duty of this court to so construe the law that the purposes for which it was enacted may be fully carried into effect. We are required under our statutes to give a liberal construction to the law in order to effectuate its- purposes. We admit that in the case of People v. Carpenter, 9 Barb. (N. Y.) 580, it was held that in a proceeding of this kind the wife was not a competent witness against her husband, but the New York court followed, the common-law rule, which this court has already seen fit to discard. We therefore hold that in a prosecution for perjury based upon the making of a false affidavit in a divorce proceeding in order to procure constructive service upon his wife, "such crime, under our statutes, is a crime against the wife, and that she is competent to testify for the state.

It is also contended that the court erred in giving the following instruction:

“The punishment prescribed by the law of the State of Oklahoma for' the crime charged in the information is imprisonment in the state penitentiary for a period not exceeding five years. If you find the defendant guilty of said offense, you will, in addition thereto, assess his punishment therefor.”

Under the statutes of this state the crime of perjury is punishable by imprisonment in the state penitentiary for various terms of years according to the circumstances under which the false oath was taken. If taken upon a trial for a felony, the punishment is by imprisonment for a period of not less than ten nor more than twenty years. If taken upon any other trial or proceeding in a court of justice punishment is for a term of not less than five nor more than ten years. In all other cases punishment is by such imprisonment not. to exceed five years. This offense comes within the punishment prescribed in the last provision of the statute, and it is contended on behalf of the appellant that the instruction is erroneous and prejudicial in that it fails to define the exact minimum term of imprisonment. It will be noted that the court told the jury that, if thJey found the defendant guilty, they should assess his punishment at imprisonment in the penitentiary for a period not exceeding five years. The instructi'on therefore was practically identical with the statute, except that the court told the jury that in assessing the punishment the jury must fix a definite period of time. In our opinion, this instruction was equivalent to saying that the jury might fix any period of time not to exceed five years’ imprisonment. But it is contended that in the case of Colbert v. State, 4 Okla. Cr. 487, 113 Pac. 561, it was held that an instruction which only states the maximum term of imprisonment and omits to state the minimum or alternative punishment that may be imposed, is reversible error. The Colbert Case is easily distinguishable from this. In that case the punishment prescribed by statute was “by fine of not more than one thousand ($1,000.00) dollars, or by imprisonment for not more than 15 years, or by both such fine and imprisonment.” The court in instructing the jury only instructed that, “if they should find the defendant guilty, they should assess his punishment which is not over 15 years in the state penitentiary.” In that case the court entirely overlooked the fact that the jury might find the defendant guilty and assess only a fine against him of not more than $1,000 or that the jury might find the defendant guilty and assess both a fine and imprisonment. In other words, in the Colbert Case the court failed to instruct the jury fully as to the punishment provided for the offense by failing to give the alternative punishment that might have been imposed, and for that reason, as indicated in the opinion, the judgment was reversed. Not so in this case. Here the court instructed, as to the punishment provided by the statute. If counsel for the appellant had desired a more definite and certain instruction than that given, he should have requested it at the time. This was not done. Also it is our opinion that the jury was not misled by the instruction given.

In the case of State v. Rose, 178 Mo. 25, 76 S. W. 1003, it was held:

“An instruction that the jury, on finding defendant guilty, should assess his punishment at imprisonment in the penitentiary for a term of not less than two years or more than seven years, or by imprisonment in the county jail not exceeding three months, was not misleading for failing to designate the minimum punishment by imprisonment in the county jail.”

In the body of the opinion it is said:

“The first contention of appellant is that the failure of the court to designate by express terms in instruction No. 1 the minimum punishment as to the imprisonment in the county jail was unfair to defendant, and constitutes error. „ That part of instruction No. 1 of which .complaint is made, after requiring, in usual form, the jury to find a certain state of facts, concludes as follows: ‘Then you will find the defendant guilty as charged in the information in this case, and assess his punishment at imprisonment in the penitentiary for a term of not less than two years nor more than seven years, or by imprisonment in the county jail not exceeding three months.’ It will be observed that in this instruction the jury are told in éxpress terms what is the maximum punishment by imprisonment in the county jail — not to exceed three months in the county jail. This is the usual form of an instruction intended to guide the jury in fixing the punishment, and we are of the opinion that it is not misleading; and it requires but very ordinary intelligence to understand, from the use of the terms ‘or by imprisonment in the county jail not exceeding three months,’ that any length of time of imprisonment may be fixed, so that it does not exceed the time expressly designated. There is no merit in this contention, and it must be ruled against the appellant.”

We hold, therefore, that where the statute fixes the maximum punishment for an offense, but fails to provide a definite minimum punishment therefor, and the court instructs the jury as to the punishment practically in the language of the statute, and no more definite instruction is requested by counsel for the defendant, the giving of such instruction in the absence of such a request is not prejudicial error.

It is also contended that the court- erred in giving the following instruction:

“The defendant is not required by law. to prove his innocence, but the burden is upon the state to prove his guilt. He is, in law, presumed to be innocent of the offense charged against him, and of each and every necessary ingredient of that offense; and unless his guilt is established upon the trial of the case to your satisfaction beyond a reasonable doubt, or if, after a careful consideration of such evidence, facts, and circumstances, you have a reasonable doubt as to his guilt, you must acquit him.”

It is claimed that this instruction is misleading because of the word “such” before the word “evidence”; that it left the jury to form their own conclusion as to what evidence was meant to be considered. With this we cannot agree, for the reason that the instruction, considered as a whole, clearly refers to the evidence, facts, and circumstances established on the trial of the case. Technical objections of this kind do not meet with the favor of this court. The substantial rights of the appellant were not prejudiced by this instruction, and- it states the law correctly.

For the reasons above given, the judgment of the district court of Oklahoma county is affirmed.

DOYLE, P. J., and ARMSTRONG, J\, concur.


text:
    W. W. WOMACK v. STATE.
    No. A-2437.
    Opinion Filed April 26, 1917.
    (164 Pac. 477.)
    1. APPEAL AND ERROR — Conflicting Evidence — Conviction. Questions of fact are for the jury to determine. Where there is direct conflict between the evidence for the state and that of the defendant, and the evidence for the state is sufficient to justify a verdict of guilty, the judgment of conviction will not be reversed because of such conflict in the evidence.
    2. . INTOXICATING LIQUORS — Unlawful Sale — Instruction. Where the evidence on the part of the state will support either the inference that the unlawful sale was entirely consummated by the appellant, or by him and another, it was not improper for the court to instruct the jury as follows: “You are instructed that under the laws of Oklahoma any person who in any way knowingly fakes part in the sale of intoxioating liquor illegally, whether the act is completed by himself alone, or in conjunction with another, is guilty of violating the law the same as if he had completed the whole illegal act himself.”

      Appeal from County Court, Harper County; A. H. Walker, Judge.

    W. W. Womack was convicted of selling intoxicating liquor, and he appeals.
    Affirmed.

      R. S. Smedley and C. W. Hofmeister, for plaintiff in error.

      S. P. Freeling, Atty. Gen., and R. McMillan, Asst. Atty. Gen., for the State.
   MATSON, J.

Appellant was convicted in the county court of Harper county of the offense of selling a pint of whisky to one U. M. Mix, and sentenced to pay a fine of $50 and to serve 30 days’ confinement in the county jail. From this judgment of conviction an appeal is taken, and two alleged errors are relied upon for reversal: First, that the verdict is contrary, to the evidence; second, that the court erred in giving the following instruction:

“You are instructed that under the laws of Oklahoma any person who in any way knowingly takes part in the sale of intoxicating liquors illegally, whether the act is completed by himself alone, or in conjunction with another, is guilty of violating the law the same as if he had completed the whole illegal act himself.”

The prosecuting witness, U. M. Mix, swore positively that in July or August, Í912, he purchased a pint of whisky from this appellant and paid him $1 therefor; that the purchase was made after night, and that the whisky was delivered to him in the town of Buffalo, in Harper county, Okla., at the county’s coalhouse, which appeared to be directly back of the courthouse; that just before the purchase was made he had a conversation with the appellant about buying some whisky, and that the appellant told him to be at that place at that time, and that a man appeared there with the whisky, and he supposed it to be appellant; that he was the 'only person he had spoken to about purchasing whisky at that time. The state also introduced in evidence a certified copy of the record of the United States Revenue Department showing that the appellant had taken out a retail liquor dealer’s license designating his residence in the town of Buffalo as his place of business, and covering the period of time during which this sale was made and for some time prior and subsequent thereto. The appellant flatly denies making any sale to Mix of any kind of liquor, but admits that he took out the license, but claims that he took it out because he was told by the revenue collector that it would be necessary for him to have a license in order to purchase liquor to bathe a sick horse that he claims to have had about the time this sale was made. He also admits that he ordered about a gallon of whisky a week during this period of time from liquor' dealers in Kansas City, Mo., but claims he used the same exclusively for doctoring the horse. He paid $45 for the privilege granted by the retail license. If the testimony of the witness Mix is to be believed, together with the fact that the appellant procured a retail liquor dealer’s license covering the period of time when this sale was made, then the state has made out a clear case of guilt against him. The witness Mix was not impeached as to his general reputation for truth and veracity. He was shown to be a man who had lived in that country a great number of years, and was running a threshing machine at the time of this purchase. He seemed to be worthy of belief. The defense interposed was somewhat unique. It had a tendency, in our opinion, to discredit the testimony of the appellant and to render his story less worthy of belief than that of the prosecuting witness, Mix. The fact that appellant paid the tax required by the United States of retail liquor dealers would indicate that he was possessed of a “blind tiger” in addition to the “sick horse.” We do not propose to tolerate the establishment of hospitals of this kind for such purpose in this state. This court has repeatedly held that, where the evidence on the part of the state is such as would justify the jury in arriving at the conclusion that the defendant was guilty, the judgment of conviction will not be reversed on the ground of the insufficiency of the evidence unless it appears from the record that the jury was influenced by passion or prejudice. Davis v. State, 10 Okla. Cr. 169, 135 Pac. 438; Calvert v. State, 10 Okla. Cr. 185, 135 Pac. 737; Sayers v. State, 10 Okla. Cr. 233, 135 Pac. 1073; Maggard v. State, 9 Okla. Cr. 236, 131 Pac. 549.

There is nothing in this record to convince this court that the elements of passion or prejudice entered into the verdict in this case.

It is also contended that the court erred in giving instruction No. 8, which is as follows:

“You are instructed that under the laws of Oklahoma any person who in any way knowingly takes part in the sale of intoxicating liquors illegally, whether the act is completed by himself alone,-or in conjunction with another, is guilty of violating the law, the same as if he had completed the whole illegal' act himself.”

Counsel for plaintiff in error assert that the case of Steen et al. v. State, 4 Okla. Cr. 309, 111 Pac. 1097, sustains the contention that the foregoing insruction was erroneous. In this counsel are mistaken. In the Steen Case this court expressly held:

“One who sol'cits a person to purchase liquor and pilots him to another who has the liquor and sells it assists in making the sale and is indictable and punishable as a principal in the transaction.”

Instead of supporting the contention of counsel the Steen Case absolutely refutes it, but it is contended because the state did not show that the appellant was,in the habit of selling intoxicating liquor to other people, or had the general reputation of being a bootlegger, that this judgment should be reversed. Such evidence would have been absolutely incompetent, for the reason that a person cannot be convicted of an offense by proof that he has been guilty of other like offenses, or that he has the general reputation of doing the thing charged against him. Circumstances might arise where evidence of that kind would be competent, but not in a case where a sale of intoxicating liquor is charged. The fact that it was proved conclusively that the appellant paid for the United States revenue tax required of retail liquor dealers makes out a prima facie case of his intent to sell liquor. He admits that he paid this tax. The record sho.ws that he had paid for a period covering from December, 1911, up to and including June, 1913. He voluntarily by that act entered into a business which he must have known, and was required to know, was in violation of the laws of this state. Unless he had intended to engage in that business, it is our opinion that he would not have parted with $45 for that privilege. His intent must have been to profit by violating the laws of this state, and when a person enters into an unlawful occupation for the purpose of gain he does so after full and deliberate consideration.

The judgment of the trial court is affirmed.

DOYLE, P. J., and ARMSTRONG, J., concur.