text:
    JOHN WILLIAMS v. STATE.
    No. A-1532.
    Opinion Filed April 12, 1913.
    (130 Pac. 1177.)
    APPEAL — Failure to File Brief. Where counsel for appellant fail to file a brief pointing out the specific errors upon which they rely, and also fail* to appear and make an oral argument when the case is set for' submission, the court will treat the appeal as abandoned, and will not examine the record, except for jurisdictional errors.
    (Syllabus by the Court.)

      Appeal from District Court, Craig Countyj Preston 8. Davis, Judge.

    John Williams was convicted of perjury, and appeals.
    Affirmed.

      Jas. S. Davenport, for appellant.

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

Appellant was prosecuted in the district court of Craig county, charged by indictment with the offense of perjury. lie was found guilty, and the jury assessed his punishment at confinement in the penitentiary for the period of five years. From this judgment he has appealed. But no appearance has been made in this court by any one representing appellant as counsel. Neither has any brief been filed pointing out the supposed errors upon which the appeal was taken. We therefore assume that the appeal has been abandoned.

In the case of Price v. State, 5 Okla. Or. 147, 113 Pac. 1061, this court said:

“There are three good and sufficient reasons which support the rule requiring that briefs must be filed: First. The Attorney General’s office is overcrowded with work, and it is unfair to that department, already burdened as it is, to be called upon to file a reply brief for the state, when no brief has been filed on the part of the appellant. Every presumption must be indulged in favor of the regularity of the proceedings of the lower court; and he who complains of a want of such regularity has the burden of showing where such irregularity exists, and how he has been deprived of a substantial right thereby. When no such showing is made, the judgment of the trial court should be affirmed, unless it appears, upon the face of the record, that the court was without jurisdiction. Second. It is unfair to the public, when our docket is already crowded with cases which should be disposed of, to require the judges of this court to spend time in examining the record in each case to see if errors were not committed by the trial court, although none are complained of. Third. It is unfair to the members of this court, who are already burdened with work to the limit of human endurance, to expect its members to search records for errors, either real or supposed, of which counsel for appellant do not complain, and of which they think so little that they have -not taken even the time and trouble to call the attention of the court to them. Where counsel perfect an appeal and fail to file briefs, it is equivalent to sa3'ing to the members of this court, T have taken this appeal only for the purpose of delay/ or Tf errors occurred in the trial of this cause, I do not know it, and I want you to get out .a search warrant and see if you can find any/ This is just what we understand when a cause is submitted, and we find that briefs have not been filed. Owing to the great multiplicity of appeals that have been taken, we are now oyer one year behind with onr work, although we give it onr entire and undivided time and attention. We cannot act in the double capacity as counsed for parties and as a court. This court does not act upon the presumption that everything which was done in, the lower court is erroneous until it is shown to be correct, and is not hunting for excuses to set aside verdicts and judgments; but, on the contrary, we act upon the presumption that all proceedings in the trial court are proper and regular until it is shown that such is not the case. The appellant assists in the selection of the jury, and he thereby vouches to this court for their intelligence, fairness, and integrity. Being thus recommended, the court must accept the verdict of the jury as being correct, unless the appellant clearly points out errors committed by the judge or jury. It is the duty of this court to decide questions properly submitted to it; and when no briefs have been filed, except in cases of the gravest character, we will not do more than examine the record for jurisdictional errors.”

.Owing to the gravity of this case, we have examined the record. The indictment is regular, the evidence is sufficient, and we find no prejudicial errors in the instructions of the court.

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

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


source: Caselaw Access Project

author: DOYLE, J.

license: Public Domain

text:
    RALLY WHITE v. STATE.
    No. A-1294.
    Opinion Filed April 12, 1913.
    (131 Pac. 189.)
    APPEALL — Failure to File Brief — Affirmance.-Where the defendant appeals from a judgment of conviction, and no briefs are filed, or arguments presented, this court will make an examination of the record proper, and, if no fundamental error is apparent, will affirm the judgment.
    ('Syllabus by the Court.)

      Appeal from Pontotoc County Court; Conway 0. Barton, Judge.

    Baldy White, alias Wallace Owens, was convicted of vagrancy, and he appeals.
    Affirmed.

      Crawford & Bolen, for plaintiff in error.

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

Plaintiff in error, Baldy White, alias Wallace Owens, was convicted in the county court of Pontotoc county of the crime of vagrancy, and was sentenced to pay a fine of $50. The judgment and sentence was entered on April 6, 1911. No briefs have been filed, and the Attorney General has filed a motion to affirm.

The information charged a violation of section 2790, Comp. Laws 1909, which enacts that:

“The following persons are vagrants within the meaning of this act. * * * Fifth, any professional gambler, or gamblers commonly known as tinhorn gamblers, card players, or card sharp. * * * ”

The evidence shows that the defendant conducted a poker room in the city of Ada, and that he had at various times been convicted of gambling in the police court of said city. We have examined the information, the instructions of the court, and the judgment and sentence, and we have discovered no error which will warrant a reversal of the judgment.

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

ABMSTBONG, P. J., and FUBMAN, J., concur.


author: EIIRMAN, P. J.

text:
    JONAS JONES v. STATE.
    No. A-1162.
    Opinion Filed October 15, 1912.
    Rehearing Denied April 15, 1913.
    (130 Pac. 1178.)
    1. APPEAL — Reoord—Transcript. A transcript of the record, not certified by the clerk of the district court, will not be considered on appeal.
    2. SAM'E — “Case-iMade”—“Transcript of Record:!’ A “case-made)” consists of those things which transpired in court during the trial, and which are not a part of the record, while a "transcript of the record” contains everything of which the clerk is required to make a record.
    (Syllabus by the Court.)

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

    Jonas Jones was convicted of murder, and his punishment assessed at confinement for life in the penitentiary, and he appeals.
    Dismissed.
    See, also, 3 Olda. Or. 593, 107 Pac. 738.

      James D. Whitehead, for appellant.

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

Section 6951, Comp. Laws 1909 (Kev.' Laws, 5994-5997), regulates the manner in which an appeal must be taken. Among other things it provides as follows:

“The plaintiff in error shall attach to and file with the petition in error the original case-made filed in the court below, or a certified transcript of the record _ of said case. * * * The ease and amendments shall be submitted to the judge who shall settle and sign the same and cause it to be attested by the clerk or county judge and the seal of the court to be thereto attached. It shall then be filed with the papers in the ease. Such original case-made shall be filed with the petition in error.'”

This statute was passed prior to statehood, and at that time many of the county judges -did not have clerks. Therefore the provision for the county judge to attest a case-made in his court. A case does not become a case-made until it is made as above directed and filed with the papers in the case. Prior to such filing, the matters therein stated are no part of the record.

The case-made consists of those things which transpired in court during the trial, and which are not a part of the record. The certificate of the trial judge that these things happened is necessary to make them a part .of the record and bring them before this court for review upon appeal. The transcript of the record is entirely another thing. It includes a copy of the record of the action, namely, the indictment, the clerk’s minutes of the trial, the charges given or refused, and the indorse-ments, if any, thereon, the verdict, and a copy of all orders or judgments of the court in the case. In fact, it contains everything of which the clerk is required to make a record. See section 6919, Comp. Laws 1909 (Rev. Laws, 5960). It is seen from this statute that a party appealing may bring up the entire case for review, if he so desires, which will include the case-made and transcript of the record, or if he desires, he may appeal alone upon a case-made or a certified transcript of the record.

There is in this record what purports to be a case-made, but upon an examination we find that it lacks every element of a case-made. This case has been before us once before. The first appeal will be found in 3 Okla. Or. 593, 107 Pac. 738. The opinion was delivered on the 30th day of March, 1910, and the case was reversed and remanded for a new trial.

More than two-thirds of what purports to be the case-made now before us relates entirely to the first trial of this cause, and purports to be a copy of the record of that trial, and states matters which did not occur upon the second trial, and of which the judge, who presided at the second trial, could have no personal knowledge, because be did not preside at the first trial.

We have not overlooked the case of Day v. State, decided at the May term of this court. See 7 Okla. Cr. 276, 123 Pac. 436. Judge Doyle, speaking for the court, there said:

“An application for a change of venue and affidavits in-support thereof, and proceedings had thereon, are not properly a part of the record, and can only be presented for review on appeal by incorporating the same into a bill of exceptions, as provided by • article 12 of Procedure Criminal (Comp. Laws 1909, sees. 6885-6894, Rev. Laws, 5936-5945), or -by a case-made. Only the record proper can be reviewed by this court on appeal by transcript under the certificate of the clerk of the trial court. For this reason, the question argued by the defendant’s counsel cannot be reviewed upon the record before us.”

This is in harmony with the views herein expressed, because the application for a change of venue and the affidavits in support thereof set out in this pretended case-made were presented to and passed upon by another judge. If appellant had desired to make these things a part of the ease-made, he should have presented them in proper form to Judge Rainey, who tried this case, otherwise it would be legally impossible for Judge Rainey to certify to them. Therefore we cannot consider the application and affidavits contained in this pretended case-made, which were presented to and passed upon by a preceding judge, and their improper incorporation in this record does not make. it a case-made. It is true that the order granting the change of venue is properly in the record, because it purported to be a judgment of the court; but we cannot consider it because not certified to by the clerk of the court, as the law directs. That portion of the purported ease-made now before us, which relates to the second trial of this cause, contains nothing except a copy of the clerk’s minutes of the trial, the verdict, the motion in arrest of judgment, and the order of the court thereon, and the final judgment of the court. These things were all matters of record, and, if appellant desired to bring them before us, he should have had the transcript of the record properly certified by the clerk of the court as the law requires. A judge cannot certify to the records of his court, because he is not the custodian of such record, save and except in those cases where a county judge has no clerk, and he perforins the clerical work himself.

As was said by Judge Doyle in the ease of Day v. State, supra:

“Only the record proper can be reviewed by this court on appeal by transcript under the certificate of the clerk of the trial court. For this reason, the question argued by the defendant’s counsel cannot be reviewed upon the record before us.”

In the case of Cohn v. State, 4 Okla. Cr. 492, 113 Pac. 219, Judge Richardson, speaking for this court, said:

“A transcript of the record proper, can be authenticated only by the custodian of the record, and this the special judge is not. The regular judge of the county court is the custodian of the records of the county court just as the clerk of the district court is the custodian of the records of that court.”

This case was tried before a special judge in the county court of Pittsburg county, and the special judge attempted to* verify a transcript of the record, and the appeal was dismissed, on the ground that he was not the custodian of the records.

In the case of Durant v. State, 3 Okla. Cr. 447, 106 Pac. 651, this court said:

“A transcript of the record, not certified to by the clerk of the district court, will not be considered on appeal.”

In the case of Sampson Lewis v. State, 3 Okla. Cr. 449,. 106 Pac. 647, this court said:

“There is no certificate of the clerk of the district court to-what purports to be the transcript of the record. The clerk-must certify to the accuracy of the transcript. There is nothing before this court which we can consider.”

In the case of Davis Makatch v. State, 5 Okla. Cr. 34, 113: Pac. 200, this court said:

“Where an appeal is attempted to be taken upon a transcript of the record, the clerk of the court, from which the-appeal is taken, must certify that the transcript contains a¡ true and correct copy of the record of tbe proceedings of the lower court.”

In the case of Dobbs v. State, 5 Okla. Cr. 481, 115 Pac. 371, this court said:

“Where an attempt is made to appeal a case unless the provisions of the law regulating the manner of taking an appeal are complied with, this court does not acquire jurisdiction of such case.”

If the record before us had been properly certified by the clerk of the district court of Atoka county, we could consider this appeal as upon a transcript of the record. But there is no such certificate in the record. The time for preparing and filing a certified transcript of the record has long since expired. Our statute upon the subject of appeals is so simple that even a child should understand it, and it has been so often construed by this court that we are at a loss to understand why lawyers will continue to attempt to take appeals without making the least effort to comply with the statute.

For the purpose of preventing further litigation with reference to this case, we will say that the proposition attempted to be raised by counsel for appellant is stated in his brief as follows :

“The plaintiff in error was indicted in the United States Court for the Central District of the Indian Territory, at Atoka, prior to the admission of the state into the Union. After statehood the district court of Atoka county, Olcla., assumed jurisdiction of the cause, and thereafter, upon May 18, 1908, plaintiff in error was granted a change of venue to the district court of Coal county. Thereafter, upon May 30, 1908, the court adjourned the May, 1908, term until court in course. Thereafter, upon July 18, 1908, a stipulation to withdraw the change of venue was filed by the county attorney, and Balls Bros, and James M. Humphrey, attorneys, then representing plaintiff in error, but no order was made in .either the district court of Atoka county or the district court of Coal county setting aside or canceling the order for the change of venue, or in any way changing or modifying the order made at the previous term of the court. Plaintiff in error was thereafter tried in the district court oí Atoka county, convicted, sentenced to the penitentiary for life, and appealed his case to this honorable court, where it was reversed. See 3 Okla. Cr. 593 [107 Pac. 738], The case was remanded to the district court of Atoka county, Okla., where plaintiff in error was again tried, at the 'October, 1910, term thereof, and again convicted and sentenced to life imprisonment in the state penitentiary. The plaintiff in error fled a motion in arrest of judgment, which motion was by the court overruled, and plaintiff in error now again appeals to this court. * * * The said district court of Atoka county, Okla., • erred in again attempting to assume jurisdiction of the said cause and in forcing plaintiff in error to go to trial, over his objections, when an order changing the venue in this action to Coal county had been granted upon the 18th day of May, 1908, by which said order the said district court of Atoka county, Okla., lost jurisdiction of the said cause. That the said order changing the venue to Coal county, Okla., still remains in full force and effect. That the same has never been vacated, neither has any attempt ever been made to vacate the same or to have the order annulled or set aside. That the said district court of Atoka county, Okla., was without jurisdiction to hear and determine the said cause.”

Even if everything claimed by counsel for appellant was properly before us, he would be confronted with the difficulty: It appears from the pretended case-made that the application for a change of ■ venue and the affidavits in support thereof were first presented to Hon. A. T. West, the regularly elected judge of the district court of ' Atoka county, and that on the ,12th day of May, 1908, such application for a change of venue was denied by him. On the 18th day of May thereafter we find the following order or judgment in the record before us:

“State of Oklahoma v. Jonas Jones. This cause coming on upon the motion to set aside former order of A. T. West, judge, overruling motion for change of venue. The court having heard the motion read and argument by attorneys for both state and defense, and being fully advised in the premises, finds that a change of venue should be granted. It is therefore ordered that this cause be, and it is hereby sent to Coal county for trial, and the clerk is ordered to make up transcript and transfer same to district court of Coal county, Okla. [Signed] W. S. Farmer, Special Judge.”

It is also made to appear in tbe record that on the same • day on which this order was entered, and before the order was made, W. S. Farmer was elected by the bar and took the oath of office as special judge of the district court of Atoka county to try this ease. At the time of this attempted election by the bar of a special judge, there was no law providing the machinery for the election of a special judge; neither does the record show that Judge West was disqualified or was unable to preside at the trial of this ease. Neither the lawyers in a •case nor the entire bar can take a case out of the hands of the -regular judge in this way. The regular judge must be disqualified from trying the case. Judicial power cannot be conferred in this manner.

Section 194, Williams’ Const. Okla., among other things provides:

“In the event any judge shall be disqualified for any reason from trying any case in his district, the parties to such case may agree upon a judge pro tempore to try the same, and if such parties cannot agree, at the request of either party a judge pro tempore may be elected by the members of the bar of the district, present at such term. If no election for judge pro tempore 'shall be had, the Chief Justice of the state shall designate some other district judge to try such case.”

This section of the Constitution is not self-executing, and did not go into effect until section 2014, Comp. Laws 1909 (Eev. Laws, 5814), was enacted by the Legislature, which provides the machinery for the election of a special judge. This law was not passed until the 22d day of March, 1909. The election, therefore, of Mr. W. S. Farmer to sit as special judge in this ease was v.oid, and he was not a judge either de facto or de jure, and had no right, or shadow of right, to set aside the previous order of Judge West overruling the motion for a change of venue, and such pretended order was void.

This question was not passed upon on the previous appeal, because at that time the members of this court were divided in opinion as to whether or not the provision of the Constitution, providing for the election of a special judge, was self-executing. ’At that time the writer was inclined to think that it was self-executing ; the other members of the court questioned this. TJpon more mature reflection, we unanimously reached the opinion that such was not the case. It was oh account of this conclusion that the Act of February 22, 1909, was passed by the Legislature. So even if the question attempted to be presented was properly raised by the record, this conviction would be affirmed. This court has not acquired jurisdiction of this cause. The record before us is a nullity.

The attempted appeal must be dismissed, with directions to the district court of Atoka county to proceed with the execution of its judgment.

ARMSTRONG and DOYLE, JJ., concur.


author: FURMAN, J.

text:
    ANDREW J. MILLER v. STATE.
    No. A-1523.
    Opinion Filed April 19, 1913.
    (131 Pac. 181.)
    1. PERJURY — Indictment—Sufficiency. An indictment for perjury need not set out the facts from which it will be made to appear that the alleged false testimony upon which the charge of perjury is predicated was material. It is sufficient if the express averment is made that said testimony was material to the question in issue.
    2. SAME — Materiality of Testimony — Degrees. Upon a trial for perjury, the degree of the materiality of the testimony upon which it is based is of no importance. Any false statement made by a witness which detracts from or adds weight and force to the testimony of any witness upon matters that are directly material thereby becomes material itself and constitutes “perjury.”
    (Syllabus by the Court.)

      Appeal from District Court, Cherokee County; John II. Pitchford, Judge.

      Andrew J. Miller was convicted of perjury, and be appeals.
    Affirmed.

      J. Berry King, for appellant.

      Smith 0. Matson, Asst. Atty. Gen., for the State.
   FURMAN, J.

First. A demurrer was filed to the indictment npon the ground that it did not set out the facts from which it appeared that the alleged false testimony upon which the charge of perjury was predicated was material. This demurrer was overruled by the trial court. The contention is that the facts must be set out in the indictment showing the materiality of the testimony alleged to be false. With this .contention we cannot agree. It would require the pleader to state all of the- evidence upon which he relied. This is never necessary. It is enough on this subject for the indictment or information to allege that the testimony which is charged to be false and perjured was material in the case in which it was given. The materiality of false statements is often a mixed question of law and of fact, and the degree of its materiality is wholly immaterial.. It is sufficient if it is so connected with the matter at issue as to have a legitimate tendency to prove or disprove some fact that is material.

This question has already been fully considered by the court. In considering the question as to whether or not certain testimony given before a grand jury was material, in the case of Coleman v. State, 6 Okla. Cr. 265, 118 Pac. 600, this court said:

‘Tf the statement assigned as perjury could not have influenced the grand jury in determining the issue before them, it was not material; but, if the statement was made for the purpose of influencing the grand jury and was such that it might have had this effect, then it was material. It is not necessary that the matter sworn to be directly and immediately material in order to constitute the olfense of perjury. It is sufficient if it is so connected with the matter at issue as to have a legitimate tendency to prove or disprove some fact that is material by giving weight or probability to or detract from the testimony of a witness thereto. This is sufficient, and makes the testimony material. It has therefore been held that perjury may be assigned upon false statements affecting a collateral issue as to the credibility of a witness; this being material to the main issue. This was directly passed upon by the Supreme Court of Kansas in the case of State v. Park, 57 Kan. 432, 46 Pac. 713. The Supreme Court of that state there laid down the.true rule as follows: ‘To constitute perjury, the false statements must be material to the subject under consideration, or such as would tend to influence the determination of the issues to be decided. The question whether the defendant had been previously prosecuted and punished for committing grand larceny in Missouri, although in a certain sense collateral' to the question on trial, can hardly be treated as immaterial. In the trial wherein false statements are alleged to have been made, Park voluntarily became a witness in his own behalf, and he was therefore subject to the same rules on cross-examination as any other witness. He having assumed the position of a witness, it was competent for the state upon cross-examination- to test his veracity and credibility. It is well settled in this state that, a defendant may be asked questions disclosing his past life and conduct; and the state may even go to the extent of inquiring if he has ever been convicted of the same offense as that for which he is upon trial. State v. Pfefferle, 36 Kan. 90, 12 Pac. 406; State v. Probasco, 46 Kan. 310, 26 Pac. 749; State v. Wells, 54 Kan. 161, 37 Pac. 1005. Not only was the statement of the witness therefore competent, but it had an important bearing upon the credit to be given to his whole testimony; and it is generally held to be perjury to swear falsely to anything affecting the. credibility of the witness himself or the credibility of another witness in the case. In Wood v. People, 59 N. Y. 117, it is held that: “It is not necessary that the false statement tends directly to prove the issue in order to sustain an indictment for perjury. If circumstantially material, or if it tends to support and give credit to the witness in respect to the main fact, it is perjury.” The Texas Court of Appeals has held that perjury may be predicated, on a false answer of a witness that he had never been convicted of a felony, as such answer affects his credibility, and is therefore material to the issue. Williams v. State, 28 Tex. App. 301, 12 S. W. 1103. See, also, United States v. Landsburg (C. C.) 23 Fed. 585; Washington v. State, 22 Tex. App. 26, 3 S. W. 228; 2 Bishop’s New Crim. Law, sec'. 1032; Clark’s Crim. Law of Canada, 389; Tiffany’s Crim. Law, 850.’,
“The degree of materiality is of no importance. Any false statement made by a witness which detracts from or adds weight and force to the testimony as to matters that are directly material thereby becomes material itself and may constitute perjury. Section 195, 3 G-reenleaf on Evi., is as follows: ‘As to the materiality of the matter to which the prisoner testified, it must appear either to have been directly1 pertinent to the issue or point in question, or tending to increase or diminish the damages, or to induce the judge or jury to give readier credit to the substantial part of the evidence. But the degree of materiality is of no importance; for, if it tends to prove the matter in hand, it is enough, though it be but circumstantial. Thus falsehood in the statement of collateral matter, not of substance, such as the day in an action of trespass, or the kind of staff with which an assault was made, or the color of his clothes, or the like, may or may not be criminal, according as they may tend to give weight and force to other and material circumstances, or to give additional credit to the testimony of the witness himself or of some other witness in the cause. And therefore every question upon the cross-examination of a witness is said to be material. In the answer to a bill in equity matters not responsive to the bill may be material. But where the bill prays discovery of a parol agreement, which is void by the statute of frauds, and which is denied in the answer, this distinction has been taken: That, where the statute is pleaded or expressly claimed as a bar, the denial of the fact is immaterial, and therefore no perjury, but that where the statute is not set up, but the -agreement is incidentally charged, as, for example in a bill for relief, the fact is material, and perjury may be assigned upon the denial.’ ”

That it is not necessary for an indictment for perjury to state the facts which show the materiality of false testimony was expressly decided by the territorial Supreme Court in the case of Cutler v. Territory, 8 Okla. 101, 56 Pac. 861. Chief Justice Burford speaking for the court there said:

“We have examined the indictment, and find that it contains all the material averments necessary to constitute a good charge of perjury, and that no error was committed in overruling the demurrer. The sufficiency of the indictment is challenged upon the ground that it does not appear from the alleged false matter that the testimony set out was material to any issue before the court. It is now well settled by the weight of modern authority that the materiality need not be made to appear, other than by an express allegation that said matters were material to the question to be determined. This indictment expressly avers the materiality of the alleged false testimony, and is sufficient. Rich v. U. S., 1 Okla. 354, 33 Pac. 804; Stanley v. U. S., 1 Okla. 336, 33 Pac. 1025; Territory v. Lockhart [8 N. M. 523] 45 Pac. 1106; People v. Von Tiedeman, 120 Cal. 128, 52 Pac. 155; State v. Sutton, 147 Ind. 158, 46 N. E. 468; Shaffer v. State [87 Md. 124] 39 Atl. 313.”

Mr. Bishop, in his New Criminal Procedure (volume 2, sec. 921), says:

“The materiality of the false testimony to the issue or point of inquiry being an essential element in the offense, it must be averred. And the pleader in doing this may at his election say that it was thus material or set out fads from which its materiality in law appears.”'

In 30 Cyc., under “Perjury,” p. 1435, it is said:

“It is sufficient to charge generally that the false testimony was in respect to a matter material to the issue, without setting out the facts from which such materiality appears.”

The law as announced above is properly settled against defendant’s contentions, and we deem it unnecessary to cite additional authorities.

Second. Upon the trial of this cause it was proven that one Blue 'Cromley had previously been tried in the district court of Cherokee county for murder, in which trial appellant was sworn and testified as a witness. His testimony upon the final trial was directly contradictory of statements which he had made as a witness at the preliminary trial of Blue Cromley. Being questioned about the matter, he not only denied having made such statements upon said preliminary trial, but also swore positively that he had not appeared and testified as a witness in such previous trial. It was then proven that as a matter of fact he had testified at the preliminary trial of Blue Crom-ley and had then testified positively to a different statement of facts to those which he testified to upon the final trial of said Blue Cromley. This denial of his previous testimony and of the fact that he had testified at such previous trial was material;, as it tended to affect his credibility as a witness upon said final trial.

We think the evidence sustains the conviction. The judgment of the lower court is therefore in all things affirmed.

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


author: ARMSTRONG, P. J.

text:
    O. O. GOBIN et al. v. STATE.
    No. A-1484.
    Opinion Filed April 19, 1913.
    (131 Pac., 546.)
    1. PHYSICIANS AND SU P.GEONS — Practicing Without Authority-Defense — Accessory, (a) On the prosecution of a person charged with violating- the medical practices act on the ’ground that he does not possess an unrevoked, valid certificate from the state board of medical examiners, the production at the trial and the introduction in evidence of such certificate is a complete defense to such charge.
    (b) The foregoing rule, however, is not intended to, and does not, protect such person from prosecution if he aids and abets another to violate the medical practices act in so far as his connection with such other unauthorized person is concerned.
    2. SAME. A person who does not possess a valid, unrevoked certificate from the state board of medical examiners is not entitled to practice medicine under the laws of this state, except in emergencies and such other cases as are specifically exempted by the statute. And this is true even though he worked with or under the directions of a duly authorized practitioner; and it is immaterial whether he works for a fee, percentage, or on a salary.
    3. SAME — Defenses—Accessory, (a) A physician who is authorized under the laws of this state to practice medicine has no more right to aid one who is not properly authorized to evade the law than such unauthorized person has to act on his own responsibility.

      (b) The medical practices act, a!s well as all other laws of this state, was enacted to be observed and enforced and not to be evaded and violated.
    ('Syllabus by the Court.)

      Appeal from Marsllall County Court; J. W. Fallcner, Judge.

    0. 0. Gobin and R. W. Freeman were convicted of violating the medical practices act, and they appeal.
    Affirmed.

      «Cruce & Potter, for plaintiffs in error.

      Chas. West, .Atty. Gen., for the State.
   ARMSTRONG, P. J.

Informations were filed against the plaintiffs in error, 0. 0. Gobin and R. W-. Freeman, in the county court of Marshall county, in two cases, charging them with practicing medicine without license. They were convicted in both cases and a fine of $250 and 60 days’ imprisonment imposed on each as the punishment in each case.

Much testimony was introduced on behalf of the state, but for the purpose of this opinion it is only necessary to .consider the testimony introduced by the plaintiffs in error. The plaintiff in error Gobin admitted that he had no license to practice medicine in Oklahoma; that he was in the employ of R. W. Freeman on a salary; that he was practicing medicine as the assistant of said Freeman; was collecting fees for his services and paying them over to Freeman. The plaintiff in error Freeman in his defense introduced a certificate from the state board of medical examiners authorizing him to practice medicine and surgery in this state. I-Ie testified also that Gobin was in his employ on a salary; that Gobin was practicing medicine under his directions and receiving fees therefor which were turned over to him.

There is no question but that Gobin’s conviction was entirely proper, and the judgment as to him should be affirmed. In State v. Paul, 56 Neb. 369, 76 N. W. 861, the Supreme Court of Nebraska, having under consideration the proposition here involved, says:

“A person not being a registered physician, nor acting gratuitously under an emergency, nor being a commissioned surgeon in the army or navy of the United States, nor being in the occupation of a nurse, nor administering usual or ordinary household remedies, who.for a remuneration treats any physical or mental ailment of another, is within the condemnation of the statute, even though he acted under the directions of a registered physician.”

The statute being construed by the Nebraska court is similar to ours; the purpose being the same.

The plaintiff in error Freeman, however, had the required certificate, and so far as his own acts are concerned independent of Gobin he cannot be convicted. Among other instructions the trial court gave the following:

“The court further instructs you, gentlemen of the jury, that if you find beyond a reasonable doubt that the defendants OR. W. Freeman and O. O. Gobin entered into an agreement by the terms of which the said E. W. Freeman signed up prescriptions in blank to be used by the said O. O. Gobin in the absence of the said E. W. Freeman, by filling in said prescriptions over the name of the said E. W. Freeman, and prescribing medicines for patients for a compensation, and that pursuant to said agreement between the said E. W. Freeman and O. O. Gobin the said E. W. Freeman did leave prescriptions signed in blank by him for the said O. O. Gobin, and did authorize the said O. O. Gobin to receive patients in his absence and to treat and prescribe for such patients for a compensation, from said patients to O. O. Gobin, or to E. .W. Freeman, or to both O. O. Gobin and E. W. Freeman, and that the said O. O. Gobin did receive patients' for treatment in the absence of the said E. W. Freeman and did prescribe for them, for a compensation, going to him or to the said E. W. Freeman, or to both him and the said Freeman, and you further find beyond a reasonable doubt, that the said O. O. Gobin did not have the certificate required by law to practice medicine and surgery, then it will be your duty to find both the said defendants, E. W. Freeman and O. O. Gobin, guilty, although you do find from the evidence. that the said R. W. Freeman did have a valid certificate from the proper state authorities to practice medicine and surgery.”

This instruction warranted the jury in finding the plaintiff in error Freeman guilty in case Gobin did not have a certificate to practice medicine in this state as provided by law even though Freeman had one if they should find further that Freeman was aiding and abetting Gobin.

Section 2045, Comp. Laws 1909 (Rev. Laws, 2104), provides as follows:

“All persons concerned in the commission of a crime, whether it be a felony or a misdemeanor, or whether they directly committed the act that constituted the ojíense or aided and abetted in its commission though not present, are principals.”

Under this statute the plaintiff in error Freeman, if he aided and abetted Gobin in a violation of the medical practices act, would be guilty and subject to punishment not because he (Freeman) did not have a license to practice, but because Gobin did not have, and because he (Freeman) aided and abetted Gobin in the commission of the offense. It is not contended that Freeman did not know Gobin was without authority to practice medicine in this state.

The only doubtful question that presents itself to the writer of this opinion in connection with this case is: Did the jury find Freeman guilty of practicing medicine without a license, or did they find him guilty of aiding and- abetting Gobin in practicing without a license? The law and instructions of the court properly applied to the facts are such that the jury would not have been warranted 'in finding Freeman guilty of practicing without a license. As said by this court in Wilson v. State, 8 Okla. Cr. 493, 139 Pac. 82, an unrevoked certificate issued by the state board of medical examiners is a complete defense to a charge of practicing medicine without license in this state. That being true, it was the duty of the jury to acquit Freeman in so far as his own acts independent and apart from participating with Gobin were concerned, and a conviction upon that ground would 'have to be reversed by this court. Under the instruction of the court quoted supra and the facts, however, the jury were authorized and fully warranted in convicting Freeman of aiding and abetting Gobin in case they found from the facts that Gobin did not have a certificate or license to practice medicine in this state. As said above, Gobin’s conviction was proper, and under the testimony of both Freeman and Gobin, Freeman is clearly guilty of aiding and abetting Gobin, and the conviction by the jury under this state of facts as to this feature of the case will not be disturbed.

The medical practices act does not any more contemplate or authorize a registered physician going out and employing all the unauthorized quacks in the country to aid and assist him for a compensation or otherwise, except in emergencies, in the practice of medicine, than it does the employment for the same purpose of the section hands on a railroad. The law is not only intended to protect legitimate practitioners, but also to protect the public against being imposed upon by an incompetent person holding himself out as a physician. The laws of this state were enacted to be observed and enforced and not to be evaded and violated. It is evident from this record that the plaintiff in error Freeman was seeking to aid Gobin in evading the law, and in doing so both of them violated it and incurred its penalties.

We have considered carefully and thoroughly the entire record in this ease and are of opinion that the judgment of the trial court should be affirmed as to each plaintiff in error in both cases, and it is so ordered.

DOYLE and FUEMAN. JJ., concur.


text:
    BEN WILLIAMS v. STATE.
    No. A-1478.
    Opinion Filed April 19, 1913.
    (131 Pac. 179.)
    1. HOMICIDE — Evidence—Burden) of Proof. In a prosecution for murder, if the state proves the killing- without tending to show that the offense only amounted to manslaughter or showing facts .sufficient to raise a reasonable doubt as to the defendant’s justification or excuse, the unlawfulness of the killing is presumed. Thereupon the burden shifts to the defendant to produce sufficient testimony to raise a reasonable doubt as to his justification or excuse.
    2. TRIAL — Credibility of Witnesses — Question for Jury. The jury are the exclusive judges of the credibility. of the witnesses and the weight of the evidence, and they are not bound to believe the testimony or any part of the testimony of any witness when in their judgment a witness may have testified falsely or may have been mistaken; and it is improper 'for the trial court to give an instruction which in the least trenches upon this prerogative of the jury.
    ('Syllabus by the Court.)

      Appeal from District Court, Garvin County; R. McMillan, Judge.

    Ben Williams was found guilty in the district court of Gar-vin county of the offense of manslaughter in the first degree, and his punishment was fixed by the jury at confinement in the penitentiary for the period of four years.
    Appealed. Reversed.

      Thompson & Patterson, for appellant.

      ■Charles West, Atty. Gen., for the State.
   FURMAN, J.

First. The record in this case contains about 800 pages of typewritten matter. Seventeen witnesses testified for the state and thirty-two witnesses testified for the appellant. So far as the merits of this case are concerned, the testimony as a whole constitutes a hopeless and irreconcilable maze of contradictions, but it is agreed by all that on Sunday afternoon, the 23d day of October, 1910, there was a negro baptizing near Hennepin, in Garvin county, Okla., and that after the religions ceremonies were over and the crowd had dispersed a fight with pistols occurred on the public road between the appellant, Ben i Williams, and the deceased, Calvin Newberry, in which Calvin Newberry was killed and the appellant was wounded.

It would be impossible to make a clear and concise statement of the facts of this case. In fact, after a careful examination of the record, we are unable to state what the facts of the case actually were. From the standpoint of the state there is abundant testimony to sustain a conviction for murder. From the standpoint of the defendant it is a clear ease of self-defense. The participants and all of the material witnesses are negroes. Witnesses on each side gave the most positive and direct testimony for and against appellant, and all of the material witnesses are flatly contradicted and are also amply sustained and corroborated. All of the witnesses fully sustained the respective sides by which they were placed upon the stand. This being the condition of the record, if the instructions of the court were correct, we would affirm the conviction upon the ground that the witnesses were all before the jury, and that the jury were in a much better condition to determine their credibility than the members of this court are.

A number of exceptions, were reserved to the charge of the court.' We only deem it necessary to notice two of the charges complained of. The sixteenth paragraph of the instructions of the court is as follows:

“(16) If after a consideration of all the evidence in this case you believe that the defendant, Ben Williams, was justifiable or excusable in his acts, as those terms have been defined to you in this charge, then in that event he should be acquitted.”

Section 6854) Comp. Laws 1909, is as follows:

“Sec. 6854. Burden of Proof in Mitigation of Murder.— Hpon a trial for murder, the commission of the homicide'by the defendant being proven, the burden of proving circumstances of mitigation, or that justify or excuse, it, devolves upon him, unless the proof on the part of the prosecution tends to show that the crime committed only amounts to manslaughter, or that the defendant was justifiable or excusable.”

Instructions substantially in the language of this statute have been repeatedly approved by this court. See Lumpkin v. State, 5 Okla. Cr. 488, 115 Pac. 478; Culpepper v. United States, 4 Okla. Cr. 103, 111 Pac. 679, 31 L. R. A. (N. S.) 1166, 140 Am. St. Rep. 668; Prince v. United States, 3 Okla. Cr. 700, 109 Pac. 241; Hawkins v. United States, 3 Okla. Cr. 651, 108 Pac. 561. The construction which we have uniformly placed upon this statute is that, if the prosecution proves the killing without tending to show that the offense only constitutes manslaughter or showing facts sufficient to raise a reasonable doubt as to the defendant’s justification or excuse, the unlawfulness of the killing is presumed, and thereupon the burden shifts to the defendant to produce sufficient testimony to raise a reasonable doubt as to his justification or excuse. But we have never held that this burden required the defendant to do more than to offer sufficient testimony to raise a reasonable’ doubt as to his justification or excuse. The instruction complained of we think states the law too strongly. The court should have instructed the jury that if after a consideration of all of the evidence in the case they believed the defendant, Ben Williams, was justifiable or excusable in his acts, or if they entertained a reasonable doubt upon this subject, they should find him not guilty. It would have been impossible for the-jury to misunderstand such instruction or to have been misled thereby.

Second. Section 24 of the instructions of the court is as. follows:

“(24) If you find that any witness has willfully testified, falsely to any material question, then you are. at liberty to disregard a part or the whole of the testimony of such witness,, except in so far as the same may be corroborated by other credible evidence.”

Under our statute in the first instance, the jury are the-exclusive judges of the credibility of the witnesses and the weight of the testimony. They are not bound to believe the testimony or any part of the testimony of any witness, when in their judgment the witness may have testified falsely, or may have been mistaken. There is no statute or principle of law which requires a jury to believe a witness simply because he may be corroborated. To instruct a jury that, if they find that any witness has willfully testified falsely to any material question, then they are at liberty to disregard in part or in whole the testimony of such witness, except in so far as the same may be corroborated by other credible evidence, is liable to create the impression upon the minds of the jury that, where a witness is corroborated, the jury are bound to accept his testimony as true. To this extent such an instruction trenches upon the province of the jury. See Gilbert v. State, 8 Okla. Cr. 329, 129 Pac. 671; McKnight v. State, 7 Okla. Cr. 235, 122 Pac. 1118; Sims v. State, 7 Okla. Cr. 7, 120 Pac. 1032; Henry v. State, 6 Okla. Cr. 430, 119 Pac. 278; Gibbons v. Territory, 5 Okla. Cr. 212, 115 Pac. 129; Rea v. State, 3 Okla. Cr. 269, 105 Pac. 381. We do not think, however, that the giving of this instruction is necessarily reversible error, because cases may arise in which such an instruction would be beneficial to the defendant, or in which the evidence was so clear and conclusive as to the guilt of the defendant that there could be no question but that he was not injured by such instruction. The better plan is for the trial court not to attempt to give the jury an instruction as to whom they shall believe or whom they may disbelieve, but to leave this matter to the common sense, sound judgment, and experience of the jurors. This was evidently the intention and purpose of the law.

It is insisted by the Attorney General that in this case the testimony is clear as to the guilt of appellant, and therefore the errors in the instructions of the Gourt are harmless. If the jury believed all of the testimony for the state and rejected all of the testimony for appellant, then the evidence would be clear and conclusive as to the guilt of appellant. But if, on the contrary, the jury believed all of'the testimony for the defendant, and rejected the testimony for the state, appellant was clearly justifiable. As before stated, the conflicts in the testimony are positive and irreconcilable. Under these conditions, we think it is error for the court to give an instruction which was calculated to create a misapprehension in the minds -of the jurors as to what their rights and duties were in settling the conflicts in the testimony and determining the credibility of the witnesses.

For the errors hereinbefore pointed out the judgment of the lower court is reversed, and the cause remanded for a new trial.

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


text:
    S. S. STAR v. STATE.
    No. A-1519.
    Opinion Filed April 22, 1913.
    (131 Pac. 542.)
    1. INDICTMENT AND INFORMATION — Time of Offense — Language. (a) The precise time at which an offense was committed need not be stated in an indictment, but it may be alleged to have been committed at any time prior to the filing of such indictment, except in cases where time is a material ingredient of the offense.
    (b) An indictment is sufficient if the offense charged therein is clearly set forth in ordinary and concise language, without repetition, and in such a manner as to enable a person of common understanding to know what is intended thereby.
    2. NEW TRIAL — Affidavit and Testimony of Juror. The affidavits or the testimony of the jurors cannot be used for the purpose of impeaching their verdict, but may be considered for the purpose of sustaining it.
    3.' TRIAL — Accusation—Indorsement of Names of Witnesses — Discretion — Continuance, (a) In felony cases the court in its discretion may permit the names of additional witnesses to be indorsed upon an indictment or information after the trial has begun, and such action will not be subject to review upon appeal unless it be made to appear that there was an abuse of this discretion to the injury of the defendant.
    (b) If, after announcing- ready for trial, the court permits the names of additional witnesses to be indorsed upon an indictment or information, and if the defendant is surprised thereat, and if the indorsement of the names of the additional witnesses requires the production of further testimony upon the part of the defendant, the defendant should withdraw his announcement of ready for trial and file a motion for a continuance, in which he should set up the facts constituting such surprise andi what evidence, if any, he could produce if the case were continue^, to rebut the testimony of such additional witnesses for the state.
    (c) The statute with reference to indorsing the names of additional witnesses upon an indictment or information in misdemeanor cases has no application to felony cases.
    4. TRIAL — Instruction on Circumstantial Evidence — Necessity—Sufficiency. (a) An instruction upon the subject of circumstantial evidence should never be given unless the testimony for the prosecution is wholly circumstantial.
    (b) Where an instruction on circumstantial evidence is necessary, it is a mistake for the court to give lengthy explanations of circumstantial evidence; but it is sufficient for the court to instruct the jury that the circumstances proven must not only be consistent with the guilt of the defendant, but they must also be inconsistent with his innocence and incapable of any other reasonable explanation, except that of his guilt.
    5. APPEAL — Objection Below- — Sufficiency—instruction- General exceptions to instructions of the court to the jury will' not be considered on appeal. The attention of the court should be directly called to the instruction objected to, in order that the court may have an opportunity to correct any error which it may contain.
    6. TRIAL — Argument of Counsel — Appeal and Error — Record, (a) Counsel for appellant cannot be heard to complain if the county attorney in his closing argument to the jury is permitted to go out of the record in his reply to arguments made by counsel for the defendant, which were also out of the record.
    (b) Where an appellant desires to present a question to this court, it is his duty to bring up enough of the proceedings of the lower court to enable this court to pass intelligently and safely upon the question presented.
    (Syllabus by the Court.)

      Appeal from District Court, McIntosh County; Preslie B. Cole, Judge.

      S. S. Star was convicted of the larceny of cattle, and appeals.
    Affirmed.

      S. M. Rutherford, for appellant.

      Smith 0. Matson, Asst. Atty. Gen., for the State.
   FURMAN, J.

First. In his brief counsel for appellant says:

“The defects in the indictment are that the time and place of the issuable facts contained in said presentment are not specific. The indictment alleges that on the 25th day of January this defendant, in connection with Jim Star, stole certain cattle belonging to one J. C. Crabtree. No other allegation of time is stated in the indictment, save and except the one specified in the beginning. This is not sufficient, as we contend.”

The charging part of the indictment is as follows:

“That in said McIntosh county, and state of Oklahoma, on the 25th day of January, in the year of our Lord one thousand nine hundred and ten, and prior to the finding of this indictment, S. S. Star, and James Star, did in the county and state aforesaid, and at the time aforesaid, unlawfully, feloniously and by fraud and stealth and with the intent to deprive the owner, J. C. Crabtree, thereof, take, steal and carry away thirty steers, described as follows, to wit, thirty steers being red in color and three years old each, which said thirty steers was then and there the personal property of the said J. C. Crabtree, and was then and there of the value of twenty-five dollars each, and said S. S. Star and James Star did so unlawfully, feloniously, and by fraud and stealth and with the intent to deprive the said owner, J. C. Crabtree, thereof, take, steal and carry away the said thirty steers, with the felonious intent to convert the said thirty steers to their own use, contrary to the form of the statutes in such cases made and provided and ’against the peace and dignity of tlie state.”

The contention of counsel for appellant is that time and place should not merely be mentioned at the beginning of the indictment, but should be repeated at each issuable and triable fact. They cite a number of authorities sustaining this contention. There can be no question but that this was the ancient rule, but conditions which brought this rule into existence have long since passed away and ceased to exist. Originally defendants were not allowed to be represented by counsel or to testify in their own bebalf. Neither were they allowed to summon witnesses and place them upon the stand for the purpose of explaining or contradicting testimony for the prosecution. It was deemed derogatory to the crown to permit the witnesses in its behalf to be contradicted. The injustice of these laws was. so manifest that the trial judges, in order to mitigate the hardships of the law, invented and built up an artificial technical system for the protection of men charged with crime, who otherwise would be at the mercy of the prosecution. But this condition, as before stated, no longer exists, and the technical system which was built up solely for the purpose of mitigating the rigors of the law should also cease to exist. Even if this did not result from common sense and justice, our statute in express terms repeals the artificial rules of pleading established by the common law.

Section 6700, Comp. Laws 1909 (Rev. Laws, 5742), on the question of time, is as follows:

“The precise time at which the offense was committed need not be stated in the indictment; but it may be alleged to have been committed at any time before the finding thereof, except where the time is a material ingredient in the offense.”

Section 6704, Comp. Laws 1909 (Rev. Laws, 5706), in express terms declares 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 a manner as to enable a person of common understanding to know what is intended.

Section 6705, Comp. Laws 1909 (Rev. Laws, 5746), is as follows:

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

We are therefore of the opinion, that the 'demurrer to the indictment in this case was properly overruled by the trial court.

Second. It is insisted in the brief of counsel for appellant that the court erred in not sustaining the motion for a new trial on account of the affidavit and testimony of the juror Le Blanche. The affidavit and testimony of the juror Le Blanche is to the effect that, something more than a year previous to the trial, said juror had met J. C. Crabtree, the owner of the stolen cattle, at a picnic; that, in a conversation with said Crabtree, said Crabtree had told him about the stealing of his cattle, and that said juror Le Blanche had forgotten this conversation with Crabtree and did not remember it until after being accepted on the jury. On cross-examination the juror Le Blanche testified that the statements made to him by said 'Crabtree did not in any manner affect his verdict, and that he did not communicate said statements to any of the other jurors. It was also proven that, when the jury retired to consider of their verdict, the vote on the first ballot stood 11 for conviction and one for acquittal, and that the juror Le Blanche then voted for an acquittal. The court did not err in refusing to grant a new trial on account óf the affidavit and testimony of the juror Le Blanche. It is the settled law in this state that the affidavit or testimony of a juror cannot be used for the purpose of impeaching the verdict of such juror. If this were permitted, it would subject jurors to all sorts of intimidations and temptations and would tend to unsettle and make insecure the verdicts of juries and the judgments of courts and would place a premium upon corruption. See Colcord v. Conger, 10 Okla. 460, 62 Pac. 276; Vanderdurg v. State, 6 Okla. Cr. 486, 120 Pac. 301; Keith v. State, 7 Okla. Cr. 156, 123 Pac. 172; and Overton v. State, 7 Okla. Cr. 204, 114 Pac. 1132, 123 Pac. 175. But, even, if this were not the law, the trial court did not err in its ruling upon the question, because the testimony shows that, notwithstanding the statements said to have been made to the juror Le Blanche by the owner of the cattle, said juror voted for acquittal and' only agreed to a conviction upon a consideration of the entire testimony and the argument of the other 11 jurors.

Third. Counsel for appellant complains at the action of the trial court in permitting the state to indorse the names of Cliff Sellers, Bob Sellers, Minnie Harris, Mollie Sellers, Claude Carlile, Jim Jackson, and Dan Foster upon the indictment over the objection and protest of counsel for appellant. The record discloses the fact that, when the case was called for trial, the state announced ready for trial and the defendant made a motion for a continuance which was' overruled, and then declined to make an announcement. Thereupon the court directed that a jury should be called. Mr. Eobertson, representing the state, requested permission to indorse the names of some additional witnesses upon the indictment, and stated that he did not know that they were important witnesses in the case until a short time before this and did not understand that he had the right to indorse their names on the indictment except in open court and by permission, and this was the- first day of the term on which the attorney for appellant had been in court; that he had not cared to ask permission because of his absence. Permission of .the court was granted to the county attorney to indorse the names of the witnesses upon the indictment, to which counsel for appellant excepted. But the record fails to show that counsel for appellant was surprised at the action of the court in permitting the names of said witnesses to be indorsed upon the indictment, or that the use of such witnesses by the state required the production of any additional testimony upon the part of appellant. Neither did counsel for appellant ask for time with which to prepare a motion for a continuance on account of the names of the additional witnesses indorsed upon the indictment. But the objection is made that the court should not have permitted the names of the additional witnesses to be indorsed upon the indictment after the trial had begun. In' support of this position, counsel for appellant cite the cases of Nelson v. State, 5 Okla. Cr. 368, 114 Pac. 1124, and Hawkins v. State, 6 Okla. Cr. 308, 118 Pac. 607. Neither of these authorities supports the contention of counsel for appellant. In fact, the case of Nelson v. State, supra, is decisive of this question as against the contention of counsel for appellant.

In Nelson’s case the court permitted the indorsement of the names of additional witnesses upon the indictment after the case was called for trial. 'Counsel for appellant filed a motion for a continuance, which was overruled. This court said:

“No facts sufficient to show that the defendant could meet the testimony of these witnesses having been set up, we think the court properly overruled the motion for a continuance.”

It is true that Nelson’s conviction was reversed, but it was upon another question entirely. The case of Hawkins v. State, supra, is not in point. This was for a conviction of a misdemeanor, and the decision was based upon an arbitrary statute which is applicable to misdemeanors only, which statute has no application to felony cases. But, even if the statute upon which the decision in Hawkins’ case was rendered was also applicable to felonies, we think a sufficient showing was made by the state to authorize the court to permit the indorsement of the names of the witnesses upon the indictment, even after the trial began, especially in view of the fact that appellant did not make any effort to continue the case in order that he might obtain additional witnesses to rebut the testimony of the witnesses, whose names were indorsed upon the indictment. In the later case of Ostendorf v. State, 8 Okla. Cr. 360, 128 Pac. 143, we discussed this question fully, and as applicable to both misdemeanors .and felonies, this court said:

“Where a witness has been improperly allowed to testify in a ease, and the defendant is surprised thereat, he should promptly withdraw his announcement of ready for trial and file a motion for a continuance, in which he should set up the facts which constitute such surprise, and also show how he would be injured by the reception of such testimony and why he should have additional time for preparation for trial on account of such testimony, and what evidence, if any, he could produce if given such time to rebut the testimony of such witness. A failure to do this constitutes a waiver of objection to the testimony of such witness.”

As many lawyers do not recognize the difference made in our statutes between felonies and misdemeanors in the matter of indorsing the names of witnesses on indictments or informations, we will quote these statutes.

Section 6644, Comp. Laws 1909 (Rev. Laws, 6694), is as follows:

“The county attorney shall subscribe his name to informa-tions filed in the county or district court and indorse thereon the names of the witnesses known to him at the .time of filing'the same. He shall also indorse thereon the names of such other witnesses as may afterwards become known to him, at such time before the trial as the court may by rule prescribe. All in-formations shall be verified by the oath of the prosecuting attorney, complainant or some other person: Provided, that when an information in any case is verified by the county attorney, it shall be sufficient if the verification be upon information and belief.”

It is seen that this statute relates only to misdemeanors, for in 1895, when this statute was enacted, a defendant could not be prosecuted for a felony by information, and this statute requires that the names of 'additional witnesses must be indorsed on the information before the trial begins. Placing a liberal construction upon this statute to prevent a miscarriage of justice, we have always held that, even after the trial has begun, the names of additional witnesses might be indorsed upon the information if the county attorney had not had previous knowledge of the fact that they were material witnesses, and when this could be done without placing the defendant at a disadvantage.

Section 6691. Comp. Laws 1909 (Rev. Laws, 5733), relating to prosecutions for felonies, is as follows:

“When an indictment is found, the names of the witnesses examined before the grand jury must be indorsed thereon before the same is presented to the court, but a failure to so indorse the said names shall not be sufficient reason for setting aside the indictment if the county attorney or prosecuting officer will within a reasonable time, to be fixed by the court, indorse the names of the witnesses for the prosecution on the indictment. The court or judge may, at any time, direct the names of additional witnesses for the prosecution to be indorsed on the indictment, and shall order that such names be furnished to the defendant or his counsel.”

This statute permits the indorsement of the names of additional witnesses upon an indictment or information at any time within the discretion of the court. We have therefore always held that in felony cases it is within the discretion of the court to permit the names of additional witnesses for the prosecution to be indorsed on an indictment after the trial has begun. See Vance v. Territory, 3 Okla. Cr. 208, 105 Pac. 307, and Stockton v. State, 5 Okla. Cr. 310, 114 Pac. 626. To prevent any advantage being taken of a defendant, we have also held that in felony cases, when the names of additional witnesses are indorsed upon an indictment after the trial has begun, the defendant might file a motion for a continuance under the conditions stated in Nelson v. State, 5 Okla. Cr. 368, 114 Pac. 1124, and Ostendorf v. State, 8 Okla. Cr. 360, 128 Pac. 143.

Fourth. Counsel for appellant complains at the action of the court in refusing to give a special requested instruction upon' the subject of circumstantial evidence. An instruction upon the subject of circumstantial evidence should never be given unless the testimony in the case on the part of the prosecution is wholly circumstantial. See Hendrix v. United States, 2 Okla. Cr. 240, 101 Pac. 125. While it is true that much of the testimony in this case against appellant is circumstantial, yet the state’s witness Cliff Sellers testified directly and positively as to the guilt of appellant. It is true that Sellers was an accomplice, but this does not alter the rule dispensing with the instruction upon circumstantial evidence, where there is direct and positive evidence of the guilt of the accused. The instruction requested by appellant upon the subject of circumstantial evidence was argumentative and confusing in its character and should not have been given in the form requested, even if all of the testimony in the case was purely circumstantial. In a case depending upon circumstantial evidence alone, the court should instruct the jury that the circumstances proven must not only be consistent with the guilt of the defendant, but they ¡must also be inconsistent with his innocence and capable of no other reasonable explanation than that of his guilt. It is a mistake for the trial court to give a lengthy instruction attempting to explain circumstantial evidence.

Fifth. Counsel for appellant complains in his brief of a number of alleged errors in the instructions of the court to the jury. We cannot consider these objections, because proper exceptions were not reserved to the instructions at the trial. The record shows that, after the instructions were read to the jury, counsel for appellant stated that he excepted to each and every instruction given by the court, and to each and every paragraph thereof. This only amounts to a general exception which we cannot consider for any purpose whatever. When counsel desire to except to any instruction, the attention of the court should be directly called to the instruction objected to in order that the court may be given an opportunity to correct any error which it may contain. If this is not done, errors in the instructions will be waived, unless they are fundamental. See Simmers v. State, 7 Okla. Cr. 11, 120 Pac. 1031. We find no fundamental error in the instructions of the court.

Sixth. Counsel for appellant complains at length of remarks made by the county attorney in his closing speech to the jury. The record contains a full stenographic report of the closing argument of the county attorney, which is interspersed with numerous objections made by counsel for appellant to portions of said" argument. The county attorney claims that he was only replying to arguments made by counsel for appellant. The trial court sustained the contentions of the county. attorney. If it be true that counsel for appellant had gone outside of the record in his argument, he cannot be heard to complain that the county attorney was permitted to reply to such arguments. The trial judge, who had beard both arguments, decided that the county attorney was within the record. We cannot presume error in any case, but, 'on the contrary, we must presume that all of the rulings of the trial court are regular unless the contrary is clearly made to appear from the record. In the case of Cowan v. State, 5 Okla. Cr. 313, 114 Pac. 627, this court held that, where an appellant desires to present a question to this court for decision and seeks to get it to review the decision of the trial court and pass upon any matter occurring during the trial, it is the duty of appellant to at least bring up enough of the proceedings of the lower court to enable this court to pass intelligently upon the question presented. Where this is not done, we will presume that the ruling of the trial court was correct. We cannot say from the record before us that the trial court erred in the matter complained of.

We think that the evidence in this case amply sustains the conviction; and, as no prejudicial error appears in the record, the judgment of the lower court is in all things affirmed.

DOYLE, J., concurs; ARMSTRONG, P. J. not participating.


text:
    WALTER RHEA v. STATE.
    No. A-1464.
    Opinion Filed April 19, 1913.
    (131 Pac. 729.)
    1. LARCENY — Persons Liable — Principal and Accessory. The law of Oklahoma (Comp Laws. 1909, sec. 2045, Penal Code, and section 6715, Procedure Criminal) abolishes the distinction between accessories before the fact and principals, and provides that all persons concerned in the commission of a crime, whether they directly commit the act constituting- the offense, or aid and abet in its' commission, though not present, are principals, and must be charged, tried,’ and punished as such. And also that no other facts need be alleged in any indictment or information against such an accessory than are required in an indictment or information against a principal.

      2. ACCOMPLICES — Testimony of Accomplice — Probative Effect. When a defendant is convicted on accomplice testimony, and the evidence is clear and direct, this court will not reverse the judgment of the lower court, unless it is able to say that the record does not contain .any evidence, independent of the testimony of the accomplice, which tends to connect the defendant with the commission of the offense.
    3. LARCENY — Sufficiency of Evidence- In a prosecution for larceny-of live stock, the evidence is held to support the verdict, and that no reversible error was committed on the trial.
    (Syllabus by the Court.)

      Appeal from District Court, Okfuslcee County; John Caruthers, Jtidge.

    Walter Rhea was convicted of cattle stealing, and he appeals.
    Affirmed.

      C. T. Huddleston and Stuart, Cruce & Gilbert, for plaintiff in error.

      •Chas. West, Atty. Gen., Smith C. Matson, Asst. Atty. Gen., and H. A. King, Spec. Asst. Atty. Gen., for the State.
   DOYLE, J.

Plaintiff in error, Walter Rhea, was convicted of the crime of larceny of live stock, and was in accordance with the verdict of the jury sentenced to a term of five years in thé penitentiary. The information charged the stealing of three steers from the owner, J. S. Hazelwood. The judgment and sentence was entered May 13, 1911. From the judgment an appeal by case-made was perfected.

The .petition sets forth various assignments of error ; the only one presented in the brief is that “the verdict of the jury is not supported by sufficient evidence, and the accomplice, Bob Mitchell, is not corroborated by any sufficient evidence to sustain a conviction."

- The evidence discloses the facts in the case to be substantially as follows: The defendant had hired Bob Mitchell and Robey Lovell to steal cattle; they would butcher them on his place and sell the beef through the country, and the proceeds were to be divided equally, one-third each. On the morning of October 18, 1910, the defendant, before leaving home to go to a circus at Weleetka, said to his employee that “he was about out of beef stuff and wanted some brought back.” Bob Mitchell went to Weleetka with the defendant that day, and when about three miles from Weleetka the defendant showed Mitchell some cattle, and told him to get those on the way back. Late in the afternoon in Weleetka on the same day the defendant told Robey Lovell and Mitchell to get the cattle on their way home that night, after the circus, and told them to meet his brother Rex Rhea on Sand Mountain. About midnight that night these three met on Sand Mountain and went west about half a mile to get the cattle the defendant pointed out to Mitchell. They drove four head out, and after going about a half a mile three head, got away. Then Rex Rhea went into J. S. Hazelwood’s pasture and drove out three steers, and they together drove them to the defendant’s place, and put them in his pasture, where he had told them that afternoon to put them. The defendant returned the next morning and asked Bob Mitchell if he got any cattle, and was told he had, and he asked, “What ones?” and was told and he said, “That is all right.” The next day the defendant had Mitchell and Lovell kill one that was branded. The next night they killed another of Hazelwood’s steers, and took the hide together with the first hide, and carried them to the hog pen, and the defendant poured coal oil on them and they burned them. On the Sunday following the defendant' heard Hazelwood was hunting his cattle, and he sent Mitchell and Rex Rhea to tie the remaining steer in the timber in the river bottom, and that night the defendant had his employees take the steer to his east pasture. A few days afterwards Hazelwood was at the defendant’s place. The defendant denied to Hazelwood of knowing anything about his battle, and said the beef that Lovell was selling was sold by him to Lovell, ánd that he did not know what had become of the hides. The defendant then paid Bob Mitchell $-31 and told him to leave the country. ITazelwood found the steer that had not been killed in the defendant’s east pasture.

Several witnesses testified to seeing three men driving four head of cattle along the road from Hezlewood’s pasture towards the defendant’s house that night, and that Robey Lovell, was peddling beef through the country about that time. The heads of the two steers that had been butchered were found on the defendant’s place.

The learned counsel for the defendant contend that the testimony shows beyond question that the larceny of the cattle that the defendant had advised was complete before it ever entered the minds of any of the thieves to steal Hazelwood’s cattle, and that the defendant had no knowledge of the fact that' Mitchell, Lovell, and Rex Rhea intended to steal Hazelwood’s cattle, and that the testimony only tends to show that the defendant was guilty of receiving stolen property knowing the same to have been stolen. We do not think this contention is well founded.

At common law an accessory before the fact is one who, being absent at the time of the commission of the crime, doth yet procure, counsel, or command another to commit a crime.

“It is likewise the rule that he who in any wise commands or counsels another to commit an unlawful act is accessory to all that ensues upon that unlawful act; but is not accessory to any act distinct from the other.” (Blackstone, 35, 1 Hale P. C. 617.)

It is the law of this state that:

“All persons concerned in the commission of crime, whether it be felony or misdemeanor, and whether they directly commit the act constituting the offense, or aid and abet in its commission, though not present, are principals.” (Penal Code, Comp. Laws 1909, sec. 2045 [Rev. Laws, 2108],

And, section 6715, Comp. Laws 1909 (Rev. Laws, 5757), Procedure Criminal provides:

“The distinction between an accessory before the fact and a principal, and between principals in the first and second degree, in cases of felony, is abrogated, and all persons concerned in the commission of a felony, whether they directly commit the act constituting the offense, or aid and abet in its commission, though not present, must hereafter be indicted, tried, and punished as principals, and no additional facts need be alleged in any indictment against such an accessory than are required in an indictment against his principal/'’

We think that the evidence on behalf of the prosecution not only shows that the defendant and his employees conspired to steal cattle, and that the taking of the cattle in question was in pursuance of this common design, and that the act of the defendant in pointing out the cattle first stolen on the night in question was merely incidental to the common design, but that he assisted in concealing and disposing of the property stolen, while the original asportation was . in progress. Larceny has been held to be a continuing offense, and when there is one continuing transaction, though there may be several distinct asportations in law, yet all who concur are guilty, though they were not privy to the first or intermediate act. Brown v. State, 7 Okla. Cr. 678, 126 Pac. 263.

In Pearce v. Territory, 11 Okla. 438, 68 Pac. 504, it is held:

“That the defendant was a principal in the commission of the larceny, although the agreement or arrangement was entered into in another county and the defendant was not present at the time the stolen property was taken from the-owner thereof; and further held that the district court of the county in which the property was stolen had jurisdiction to-indict and try the defendant as principal in the commission of said offense.”

The opinion by Mr. ¡Justice Hainer in that case presents an elaborate discussion of the question under consideration, and the doctrine therein announced on án appeal to the United States Circuit Court of Appeals was approved. Pearce v. Territory of Oklahoma, 118 Fed. 425, 55 C. C. A. 550. McClain in his work on Criminal Law, sec. 196, says:

“Every one connected with carrying out a common design to commit a criminal act is concluded and bound by the-act. of any member of the combination perpetrated in the prosecution of the common design. But it is not necessary that the crime committed shall have been originally intended. Each is accountable for all the acts of the others done in carrying out the common purpose, whether such acts were originally contemplated or not, if they were the natural and proximate result of carrying out such purpose; and the question whether or not the result is the natural and probable effect of the wrongful act intended is for the jury.”

And in section 573, Id., says:

“To be a principal one must have taken the property or assisted in the taking, and all persons who counsel, aid and abet, or advise, are equally guilty as accessories before the fact with those who actually commit the offense. One who forms or combines in the general plan and assists in receiving and disposing of the property is a principal, though not present at the taking.”

The credibility of witnesses and the weight and value to be given their testimony was a question solely for the jury’s determination, and it is the settled rule of decision of this state that, if there is evidence which corroborates the testimony of an accomplice and conduces to connect.the defendant with the commission of the crime, its sufficiency is for the jury to determine. McGill v. State, 6 Okla. Cr. 513, 120 Pac. 297; Alderman v. Territory, 1 Okla. Cr. 562, 98 Pac. 1026.

The defendant took the stand in his own behalf, and denied any knowledge of or participation in -the theft of Hazelwood’s cattle, but no explanation was offered of the incriminating circumstances surrounding the larceny, nor his possession of the stolen, cattle. We think the evidence discloses a well-planned conspiracy to steal cattle, and that the cattle in question were stolen in pursuance of this conspiracy, and that the evidence independent of the accomplice’s testimony is sufficient to sustain the verdict of the jury.

There being no error in the record, the judgment of the district court of Okfuskee county is affirmed.

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