text:
      Ex parte Bert Roller.
    No. A-448.
    Opinion Filed January 15, 1910.

    (106 Pac. 548.)
    1. SENTENCE AND COMMITMENT — Construction of Sentence— A sentence, reciting the conviction of the accused, and that he "be confined in the county jail * * * for a period of one year, said sentence to commence at once, further ordered that said defendant be assessed a fine in the sum of $300, and the costs of this prosecution. And it is further ordered that the said defendant be required to do and perform such labor and at such times and places as the board of county commissioners * * * may order and direct” — imposes imprisonment for or e year only; there being no order of commitment until the fine be paid.
    2. SENTENCE AND COMMITMENT — Necessity for Commitment. Under the statutes in force in this state, a defendant cannot be imprisoned under an order of court assessing a fine without an order that he be committed until fine is paid.
    (Syllabus by the Court.)
    Application by Bert Eoller for writ of habeas corpus.

    Writ granted, and petitioner discharged from custody.
    This is an action by Bert Boiler for writ of habeas corpus to be released from imprisonment in the county jail of Custer county. By stipulation it is agreed that the defendant was tried in the-district court for the Seventeenth judicial district in and for Custer county on the charge of murder, and was adjudged guilty of manslaughter in the second degree, his'punishment fixed at imprisonment in the county jail for one year, and to pay a fine of $300. Petitioner alleges that, having served the full term of one year’s imprisonment, he is now being unlawfully restrained for failure to pay the fine of $300 and costs of prosecution.

      Laclcey & Lawter and G. O. Davis, for petitioner.

      Charles West, Atty. Gen., and Chas. L. Moore, Asst. Atty. Gen., for respondent.
    No briefs reached the reporter.
   OWEN, Judge.

It appears from the agreed statement of facts filed with the petition that the verdict returned against the petitioner and the judgment thereon are in words and figures- .as follows to wit:

“In the District Court of the Seventeenth Judicial District of Oklahoma, in and for Ouster County.
“The State of Oklahoma, Plaintiff, v. Bert Roller, Defendant.
No. 34.
“Verdict.
“We, the jury, impaneled and sworn to try the issues in the above-entitled cause, do upon our oaths, find the defendant guilty of manslaughter in the second degree and assign his punishment to one year in the county jail and three hundred dollars ($300.00) fine. I. H. TheasheR, Foreman.”
“And now, on this 25th day of November, 1908, the s.ame being the last judicial day of the November term, 1908, of this court, this cause comes on for judgment and sentence upon the verdict heretofore returned herein, the defendant being present in open court in person and by his attorneys, Phillips & Mills, and the state being represented by F. A. Snodgress, county attorney, the court orders and directs the defendant to stand for judgment and sentence, whereupon the court asks the defendant if he has any reason why said judgment and sentence should not, át this time, be passed upon him and said defendant giving no legal reason why such judgment and sentence should not be passed upon him herein. It is therefore ordered, adjudged and decreed by the court that the defendant, Bert Eoller, be confined- in the county jail of said Custer county, state of Oklahoma, for a period of one year, said sentence to commence at once, and it further' ordered that said defendant be assessed a fine in the sum of three hundred dolars ($300.00) and the costs of this prosecution. And it is further ordered, that the said defendant be required to do and perform such labor a¡nd at such times and places, as the board of' county commissioners of Custer county, Oklahoma, may order and direct. W. N. MabeN, Judge.' '
Attest: JNo. BuoheNau, Clerk.
O. K. Feed A. SNOdgeess, Co. Atty.”

Indorsed:

“Filed Jan. 27, 1909, and recorded in Court Journal No.' '6, pages 220, 221. Jno. H. Buehenau, District Clerk.”

In determining this ease it is necessary to decide oine question only; that is: Can the petitioner be legally restrained of his liberty under this judgment for the nonpayment of the fine, after having served the full term of imprisonmeínt ?

It is urged on the' part of the state that' the imprisonment of petitioner is authorized Under setion 13, art. 2, of the state Constitution (Bunn’s Ed. § 22), which is as follows:

“Imprisonment for debt is prohibited, except for the nonpayment of fines and penalties imposed for the violation of law.”

Section 6917, Snyder’s Ann. St. 1909 (Wilson’s Rev. & Ann. ■St. 1903, § 5578), is as follows:

“A judgment that the defendant pay. a fine may also direct fhat he be imprisoned until the fine is' satisfied, specifying the extent of the imprisonment, which cannot exceed one day for every two dollars of the fine.”

It is not a question here whether the law imposes the penalty, •or whether the court -could have imposed imprisonment for the nonpayment of the fine. The fact is the court did not do so: We -agree with counsel for the state that under that section of the Constitution the Legislature could provide for imprisonment for the nonpayment of fines and penalties imposed for the violation of law. The question before us is as to the legality of the imprisonment under the judgment as pronounced by the court. It will be noticed that the judgment of the court assesses a fine in the sum of $300 and costs of the prosecution, but does not provide that the ■defendant be imprisoned until the fine and costs are paid. The judgment of the court should definitely state what will satisfy the judgment. The commitment based on the judgment must be equally as definite. The commitment in a criminal case bears the same relation to the judgment as does an execution io the judgment in a civil case., It must be of such a nature as to produce all the relief warranted by the judgment, .and no more. The. commitment, as it appears from the return filed, is.an exact copy of the judgment rendered and is notice to the sheriff that defendant is to ,be imprisoned in the county jail, for the full term of one year, and that the court has addressed a fine against the defendant in the sum of $300. . But there is no direction to th sheriff to detain the defendant in custody until the fine has been paid.

In the case of Ex parte Patterson, 29 Nev. 226, 87 Pac. 2, the defendant was committed under the following order:

“Wherefore, it is ordered and adjudged by the court that for said offense you, the said R. W. Patterson, be fined the sum of $500 and imprisonment in the county jail of said county of Washoe for the term of 180 days in addition to said fine, from date hereof.”

The Supreme Court of Nevada held that this judgment was plainly for an ábsolute fine of $500 without order of commitment to imprisonment until said fine be paid, and an absolute imprisonment for 180 days, and that the petitioner-could not be imprisoned for the nonpayment of the fine after having served the 180 days imposed upon him under the second part of the sentence.

Petitioner was entitled to be discharged from imprisonment when he had served the full term of one year’s imprisonment, and his imprisonment for the nonpayment of the fine under the judgment as rendered is therefore illegal.

The writ is granted, with orders to discharge the petitioner from custody.

FURMAN, PRESIDING Judge, and DOYLE, Judge, concur.


source: Caselaw Access Project

author: FURMAN, PRESIDING Judge.

license: Public Domain

text:
    W. L. Hughes et al. v. State.
    No. A-62.
    Opinion Filed January 18, 1910.
    (106 Pac. 546.)
    1. INTOXICATING LIQUORS — Apothecaries — Unlawfully Keeping Liquor. Section 8, art. 2, of the enforcement act (Laws 190Y-08, =>p. 600, c. 69), is applicable alone to those apothecaries or pharmacists who have complied, ' or attempted ■ compliance, with ■ the provisions therein contained. Other pharmacists or apothecaries who have not complied, or attempted compliance, with the conditions of said section, are not subject to the penalties therein prescribed.
    2. SAME — Indictment and Information. An information or indict - . ment which attempts to charge a violation of section 8, art. 2, of the enforcement act (Laws 1907-08, p. 600, c. 69), must allege the offense in the language, or uso substantially the language, of the section, and must allege a compliance with the conditions of said section S. If it fails to do this, it will not charge a public offense.
    3. INSTRUCTIONS — Credibility of Defendant. It is error for a trial judge to single out. the defendant personally, and instruct the jury upon the credibility of his evidence.
    (Syllabus by the Court.)

      Appeal from Muskogee County Court; W. C. Jackson, Judge.,

    W. L. Hughes and M. C. Simmons were convicted of a violation of the prohibition law, and appeal.
    Reversed and remanded.

      Brown &' Stewart, for appellants.

      Fred S. Caldwell, for the State.
   FURMAN, PRESIDING Judge.

The counsel for defendant filed an admirable brief in this case. The counsel for the state has filed the following confession of error:

“Comes now the state of Oklahoma by its attorney, Fred S. Caldwell, and represents to'this honorable court that at pages 1 and 2 of the record the charging part of the information upon which plaintiffs in error were prosecuted in the trial court appears in words and figures as follows: ‘That the said W. L. Hughes and M. C. Simmons, retail apothecaries in the county of Muskogee, state of Oklahoma, on the 24th day of October, 1908, did knowingly and unlawfully, have and keep in and about their apothecary and place of business intoxicating liquor, said liquor not being furnished by the state agency and local agency, Muskogee, Oklahoma, contrary to the form of the statute in such cases made and provided and against the peace and dignity of the state.’ And that at page 8 of the record the first ground in support of plaintiffs in error’s demurrer to the information appears in words and figures as follows : ‘First. That said1 information does not state sufficient grounds to constitute a public offense.’ Wherefore, it is the opinion of the state of Oklahoriia that upon the authority of Titsworth v. State, 2 Okla. Cr. 268, 101 Pac. 288, plaintiffs in error’s first assignment of error is well taken. And the state of Oklahoma further represents that at page 19 of the record the third paragraph of the trial court’s instructions to the jury appears in words and figures as follows: ‘The court’s instructions to the jury that the defendant in this case is a competent witness in this case, and you must consider'his testimony in arriving at a verdict, but, in determining what weight and credibility yon must give to his testimony in making up your verdict, you must’ take into consideration that he is the defendant in this case and on trial, his interest in the result of the trial, together with any other fact or circumstance of the trial affecting the credit to be given to the testimony of any of the witnesses in the case.’ And at page SO of the record it ap-' pears that the giving of such instruction was duly excepted to at the time. Wherefore the state of Oklahoma is of the opinion that upon the authority of Fletcher v. State, 2 Okla. Cr. 300, 101 Pac. 599, and Banks v. State, 2 Okla. Cr. 339, 101 Pac. 610, plaintiffs in error’s fourth assignment of error is well taken. Now, therefore, the premises aforesaid duly considered, the state of Oklahoma confesses error in said above-named cause as alleged- in plaintiffs in error’s first and fourth assignments of error, and pray that the judgment of the trial court be reversed and said cause be remanded to the county court of Muskogee county, state of Oklahoma, with instructions to permit the county attorney to amend the information.”

First. In Titsworth v. State, 2 Okla. Cr. 268, 101 Pac. 288, this court said:

“Section 8, art. 2, of the enforcement act (Laws 1907-08, p. 600, e. 69), is applicable alone to those apothecaries or pharmacists who have complied, or attempted compliance, with the provisions therein contained. Other pharmacists or apothecaries who have not complied or attempted compliance with the conditions of said section are not subject to the penalties therein prescribed. An information or indictment which attempts to charge a violation of section 8, art. 2, of the enforcement act (Laws 1907-08, p. 600, c. 69), must allege the offense in the language, or use substantially the language, of the section, and must allege a compliance with the conditions of said section 8. If it fails to do this, it will not charge a public offense.”

The Titsworth Case was approved and followed in Mason v. State, 2 Okla. Cr. 583, 103 Pac. 369.

■ Second In Fletcher v. State, 2 Okla. Cr. 300, 101 Pac. 608, this court said:

“A similar instruction was condemned by this court in the case of Green v. United States, 2 Okla. Cr. 55, 101 Pac. 112, and that case was reversed in part on this account. The same question came up again befóte us in the case of Hendrix v. United States, 2 Okla. Cr. 240, 101 Pac. 125! ■ Tbe 'instruction was again condemned;, but was Held’to be' harinless- error in'that case for' reasons given'in the’ opinion. We think that' it is error for the court' to' single out any Speciál witness' personally, and burden his testimony with any suggestions which might indicate to the jury that -in the opinion of the court such witness was liable to testify'falsely. Instructions as to' the1 credibility Of witnesses'should Be general and apply equally'to- all of the witnesses for the' state and the defendant alike. Because the witness may be the defendant is no reason -why he should be visited with condemnation upon the one hand, or clothed with' sanctity upon the other. He is before the'court as a witness, and should be treated by both the court and the j-uiy ' just as other witnesses' are treated — no better land no worse. Wfe trust that the courts of -. Oklahoma will cease to give such instructions in the future; otherwise it will result in the - reversal ■ of many convictions, which, blit for such instructions, would be affirmed.”

In Banks v. State, Fletcher’s Case was approved, and this court further said: ..

“Our views are well presented in the following authorities: ‘Because of the difficulty, however, in so framing an instruction, where the’ defendant’s name is 'mentioned at all, as not to give his testimony undue prominence, either for Or against'him, it would be better for trial judgestolet him pass,'with all the'other witnesses, under the purview'' of a general charge as' to the credibility- of all the witnesses, leaving to the' attorneys -in argument 'to call the attention of'the'jury to any'peculiar facts applicable to any particular' witness;’ Vaughn v. State, 58 Ark. 365, 24 S. W. 888. ‘From the high and authoritative position' of a judge presiding at a trial before a jury his influence -with them is of vast extent, and he has it in liis power, by words 'or'actions, dr both, to materially prejudice the fights and interests 'Of One or other of the parties. By words or conduct, he' may, on the one hand, support-the'-character -or .testimony-of a. witness, or, on the other, may destroy the same, ■ in the estimation of . the jury; and thus his personal and official influence is exerted ■to the unfair advantage óí one of the parties, with a corresponding-detriment to the cause of the other. We regret the necessity for an expression -of our disapproval- -of irregularity -of which complaint is'madej and, though we'do-not-impugn the--expression as designed to aid- the side of - the- plaintiff, we may -say we should not hesitate to-reverse the judgment because of it if the same depended in any materialdegree upon the testimony of the witness whose character, and standing was thus indorsed.’ McMinn v. Whelan, 27 Cal. 319. ‘It is a rule, applicable alike' in civil and criminal cases, that’ it is error for judge, directly or inferentially, to express an opinion to the jury, or in their hearing,- as,to the credibility, of a particular witness, or as to the weight which they should attach to Ms testimony. He must not single out a particular witness, and, mentioning him by name; instruct the jury to take ’into consideration his interest in the suit as- affecting his credibility:’ 2. Thompson on Trials, see. 2421. The trial court therefore -erred- in the instructions given upon the credibility of the defendant’s evidence.”

For the reasons given in the above authorities, the confession of error in this case is sustained, and the judgment of conviction is reversed, and the cause remanded for a new trial.

DOYLE and OWEN, Judges, concur.


author: . OWEN, Judge-

text:
    R. L. Meeks v. State.
    No. A-47.
    Opinion Filed January 18, 1910.
    (106 Pac. 533.)
    APPEAL AND ERROR — Failure to File Briefs. When no briefs are filed on part of plaintiff -in error, as required by rule 4 of this court, and no fundamental errors appear of record, the judgment of the lower court will be affirmed.
    (Syllabus -by the Court.)

      Error from, Pittsburg County Court; B. W. Higgins, Judge.

    The plaintiff in error, R. L. Meeks, was convicted in the county court of Pittsburg county, charged with violation of the liquor law and sentenced to imprisonment in the county jail for thirty days and to pay a fine of fifty dollars. The ease is before us on appeal. Motion by Fred S. Caldwell, attorney for the Governor, to affirm the judgment of the lower court.
    Affirmed.

      'Boyd & Moore, for plaintiff in error.

      Fred 8. Gaildwell, for the State.
   . OWEN, Judge-

Counsel for the governor moves this court to affirm the judgment of the lower court for the reason that no briefs have been filed as provided. for in section 1, rule 4, of this court, adopted July 1, 1909.

• It appears that the petition in error was filed in this court on- December 4, 1908, and that this case was submitted in its regular order on the docket of this court. Section 1 of rule 4 is as follows:

“In each cause filed in this court, counsel for plaintiff in error shall, unless otherwise ordered by the court, serve his brief upon 'the Attorney General within forty days after filing his petition in error and shall at the same time file ten copies of said brief with the clerk of this court, and the Attorney General shall, unless otherwise directed by the court, have thirty days after service on him of plaintiff in error’s brief in which to serve and file his answer briefs. The briefs are not required to be printed, but when so dfesired may be printed. Proof of service of briefs may be filed with the clerk of this court within ten days after service.”

Do briefs on part of plaintiff in error having been filed as required by the rules'of this, court, and no fundamental error appearing of record, the motion to affirm must be sustained. Belt v. State, 2 Okla. Cr. 705, 103 Pac. 1069.

The judgment of the lower court is. affirmed.

FURMAN, PRESIDING Judge, and DOYLE, Judge, concur.


author: FURMÁN, PRESIDING Judge. OWEN, Judge.

text:
      Ex parte J. F. Hudson.
    No. A-411.
    Opinion Filed January 21, 1910.
    (106 Pac. 540.)
    1. • CONSTITUTIONAL LA.W — Administration of Justice. Section 15, Bunn’s Const. OMa., providing that "right and justice shall he administered without sale, denial, delay or prejudice,” is self - executing.
    2. JUDGES — Disqualification—Prejudice. "When the prejudice of the trial judge is made the ground of a motion for a change of judge, the Legislature may prescribe the method of determining this matter, but it is without power to abolish this ground of disqualification.
    3. JUDGES — Disqualification—Procedure. A defendant seeking to disqualify a trial judge upon any ground must follow the procedure prescribed in section 5. Act. March 22, 1909 (Sess. Laws 1909, p. 169, c. 14, art. 1).
    4. STATUTES — Constitutional Law — Enacting Clause. The act of March 22, 1909 (Sess Laws 1909, p. 167, c. 14, art. 1), prescribing the disqualifications of judges of courts of record, and providing 'for the election of a special judge pro tempore when the regular judge is disqualified, and repealing section 8, art. 1, c. 27, p. 285, .Sess. Laws 1907-1908, is free from constitutional objections.
    5. STATUTES — Enactment—Style of Bill. That portion of section 8, art. 5, of the official copy of the Constitution, which provides that “the style of all bills shall be ‘Be it enacted by the people of the state of Oklahoma,’ ” 'applies only to bills adopted by the people under the initiative and referendum clause' of the constitution.
    Doyle, J„ dissenting.
    (Syllabus by the Court.)
    Application of J. F. Hudson for writ of habeas corpus

    Writ denied.

      Nance & Priest, for petitioner.

      Fred S. Caldwell, for the State.
    No briefs reached the reporter.
   FURMÁN, PRESIDING Judge.

On the 3rd day of .November, 1909, the defendant was convicted in the county court of Adair county of the offense of selling whisky. On the 6th day of November, 1909, defendant applied to this nourt for a writ of habeas corpus,. alleging that, he was in the custody of the sheriff of Adair county by virtue of such conviction, and that the conviction was illegal for want of jurisdiction of the county court to try said cause upon the ground that before the beginning of the trial th'e' defendant had • filed in said court his affidavit, alleging that the county judge who was presiding at said trial was so biased and prejudiced against the defendant that he could not obtain a fqir and impartial trial before said county judge on account of such bias and prejudice, and that said county judge had disregarded said affidavit, and refused to allow defendant a change of judge, and that on this account the judgment of conviction was void and the restraint of the • defendant illegal.

Section 15, Bunn’s Const. Okla., is as, follows:

“The courts of justice of the state shall be open to every person, and speedy and certain remedy afforded for every wrong and. for every injury to person, property, or reputation, and right and justice shall be administered without sale, denial, delay or prejudice.”

The clear meaning of this provision is to prohibit the trial of any c.ause by a judge o.r juror who are prejudiced against either party to the cause. Prohibitive clauses of' a constitution are always self-executing, and. require no legislative provisions for their enforcement. In Davis v. Burke, 179 U. S. 403, 21 Sup. Ct. 210, 45 L. Ed. 251, the Supreme Court of the'United States says:

“* * * Where a constitution' asserts' a certain right, or lays down-a certain principle of law ,-or procedure, it speaks for the entire people as their supreme law, and is full authority for all that is done in pursuance of its provision. In short, if complete in itself, it executes itself. * * '

This question was considered and decided in Rea v. State, ante, p. 276, 105 Pac. 384. It is not necessary to repeat here what we said there. In Lincoln v. Territory, 8 Okla. 546, 58 Pac. 730, the Supreme Court of Oklahoma Territory, in construing the territorial statute upon this 'subject, said:

“It follows, then, as a matter of course, that the judge who would proceed with the trial after the making and filing of such an affidavit would do so without power or .authority, and the trial would b,e a .nullity.” •

If a trial would be a nullity on account of the violation of a statutory provision, it would certainly be a violation on account of the violation of a constitutional provision. Finding this provision in the Constitution, it is our plain duty to enforce it.

' The Legislature of Oklahoma, on March 22, 1909, passed an act (Sess. Laws 1909, p. 167, c. 14, art. 1) providing for the disqualification of judges, the title of which is as follows:

“An act. prescribing the disqualifications of judges of courts of record. and- providing for the selection or appointment of a special judge or judge pro tempore when the regular judge is disqualified and repealing section 8, article 1, chapter xxvii of the Session Laws of 1907-08.”

The first section provides:

“No judge of any court of record shall sit in any cause or proceeding in which he may be interested, or in the result of which he may be interested or related to any party to said cause within the fourth degree of consanguinity or affinity, or in which he has been of counsel for either side,- or in which he called in .question the validity of any judgment of (or) proceeding, in which he was of counsel or. interested, or the validity of any instrument or paper prepared or. signed by him as counsel or attorney, without the consent pf the parties to said action entered of record: Provided, that the disqualifications herein imposed shall not exclude the disqualifications at common law.” (Sess. Laws Okla. 1909, p. 167.

This act repeals all other' acts or parts of acts in conflict with it. It also provides for the selection of a special judge when the regular judge is disqualified. This act does not mention'the disqualification on account, of prejudice of the judge. It is. clear that the legislature did not intend to include in the grounds of disqualifications enumerated all of the grounds upon which - a ■ judge, would be disqualified, because it ■ is expressly stated that disqualifications at commofn law are not excluded^ Even if the Legislature wished to exclude constitutional disqualifications, it- was without power to do so. The only serious question in this case is as to whether the act of March 22, 1909, is valid, because it omits what is known as the enacting clause.

In determining this question it is important to examine the original copy of the Constitution. Section 3, art. 5, of the official cop}'- of the Constitution is as follows:

“Referendum petitions shall be filed with the Secretary of State not more than ninety days after the final adjournment of the session of the Legislature which passed the bill on which the referendum is demanded. The veto power of the Governor shall not extend to. measures voted on by the people.- All elections on measures referred to the people of the state shall be had at the next election held throughout the state, except when the Legislature or the Governor shall order a special election for the express purpose of making such reference. " Any measure referred to the people by the referendum shall take effect and be in force when it shall have been approved by a majority of the votes east thereon and not otherwise. The style of all bills shall be: ‘Be it enacted by the people of the State of Oklahoma.’ Petitions and orders for the initiative and for the referendum shall be filed with the Secretary of State and addressed to the Governor of the state, who shall submit the same to the people. The Legislature shall make suitable provisions for carrying into effect the provisions of this article.”

It will be observed that among other things this section provides that “The style of all bills shall be ‘Be it enacted by the people of the State of Oklahoma.’ ” Some courts hold that similar provisions in their Constitutions are not mandatory, but merely directory.

In City of Cape Girardeau v. Riley et al., 52 Mo. 428, 14 Am. Rep. 427, the Supreme Court of Missouri said:

“The very question presented arose in a case in Maryland. The Constitution in that state is the same as ours in regard to the style of laws. A law was there passed omitting the required style, and it was decided that the constitutional provision was directory only, and. not mandatory, and that the omission of the enacting clause did not render the act- unconstitutional and void. McPherson v. Leonard, 29 Md. 377. So, in Mississippi it is held that the provision is directory, and that it is not essential that there should be a literal adherence to the formula of words prescribed by the Constitution, but that the acts need only to show the authority by which they are adopted, and that it was the intention of the Legislature that they should have the effect of laws. Swann v. Buck, 40 Miss. 268. After a diligent search 1 have failed to find any case holding that a law was unconstitutional or void on account of an omitted or imperfect enacting clause. The enacting clause is certainly not of the essence of the law. It furnishes no aid in its construction, and its provisions are as clear and intelligible without it as they are with it. It is not material in indicating by what authority the law was enacted, for, being passed in due form by both houses of the Legislature and properly approved by the Governor, with no allegation of suspicion attached to it, it comes before' the courts bearing sufficient evidence that it is really and truly a law. To hold that a law supported by these sanctions was not valid because certain formal and immaterial words were omitted would be sacrificing substance to mere form, which I think the court is not justified in doing. Aside from these views, the act we aTe now considering does not pretend to be an original act. ■ It i's to reduce the law incorporating the plaintiff and the several acts amendatory thereto into one. The revision of a law does not have the effect of making the revised law entirely original, so as to be construed as though none of its provisions had effect but from the date of the revised law.”

In Swann v. Buck, 40 Miss. 292, the Supreme Court of Mississippi said:

“The first question is whether the resolution is- void for want of a sufficient enacting clause; and this involves another question, to wit, whether the Legislature has the constitutional power to pass a joint resolution at all, to have the force and effect of a law. By .the fourth section of the third article of the Constitution the legislative power of the State is vested in the two branches which constitute the Legislature, and it is ordained that The style •of their laws shall be: “Be it enacted by the Legislature of the State of Mississippi.” ’ As the style of this resolution is cBe-solved by the Legislature of the State of Mississippi/ if a literal adherence to the formula precribed by the Constitution is required, it would follow that the resolution is wholly void. The question.is one that does not seem to have received a judicial de-uision, so far as we have been able to discover; but in a work cited on the law and practice of legislative assemblies, by Mr. Cushing, the opinion is expressed that this form of .enactment must be strictly pursued, and that no .equivalent, language will, be sufficient. In the absence of any authoritative adjudication we are not prepared ;to adopt this conclusion. The argument against requiring a literal compliance with any form of a statute would be very strong on the score of convenience; for the plainest expressions of the legislative will, and the most, urgent in . their character, would be constantly .liable to be defeated by the slightest omission or.departure from the established phraseology. No possible good could be achieved by such strictness, and the greatest evil might result from it. . There are no exclusive words in the constitution^negativing the use of any. other language, and we thiink the intention will be best effected .by - holding- the clause to- be directory only.”

There are other authorities to the contrairy, but we are strongly impressed that Teason and 'justice support the views which those quoted present. We will not rest our decision of. this question upon this ground alone. The provision that “The style of all bills shall be ‘Be it enacted by the people of the State of Oklahoma/” both in its language-and-the position which it occupies in the Constitution, suggests the’ idea that its operation was intended to be confined to those bills which are initiated and enacted by the direct vote of the people, under the reserved powers of the people to enact laws independently of the will of the Senate and House of Represntatives. This provision, is found under the title of. “Initiative and Referendum,” which contains all of the .provisions of the Constitution relating to. this class of legislation. Then follows the general title, “The Legislature.” This is divided into subdivisions entitled, respectively, “The Senate/’ “The House of Representatives,” “Legislative Apportionment,” “Qualifications and Rights of Membérs,” “Powers and Duties,” “Limitations,”' “Miscellaneous Provisions,” All of. these provisions clearly show the most painstaking pare in thew arrangement, and in none of -them is any reierence to the style of the bills to be pkssed by- the Legislative Assembly. From a consideration of the subject-matter and'the context, it is' clear to us that the framers of the Constitution ihtended the' words, “Bq it enacted by the people of the state of Oklahoma”, should be used on all bills initiated and enacted by the people. Had the framers of the Constitution desired to fix the style-of bill? passed by the legislative body they would have done so,, and provided that the style of such bills should be “Be it - enacted by the Legislature of the state of Oklahoma.” The Constitution makes a clear distinction between the bills enacted by the people themselves and those enacted by the Legislature, and we have no right to -impose on legislative bills the conditions which were intended to apply only to the initiative and referendum. We, therefore,- hold that the act of March 22, 1909, is valid and in full force and effect, notwithstanding the fact that the style prescribed under the head of initiative and referendum was omitted. By. this act all other statutes with reference to the disqualification of judges were in express terms repealed. But this did not repeal the constitutional provisions, guaranteeing to all classes,of litigants the right to the administration of justice without prejudice. The Legislature may prescribe any fair and reasonable manner in ,which this prejudice may be determined. It may also prescribe the procedure to obtain the rights guaranteed under the Constitution. The right guaranteed is a fair trial before a judge or juror who is not prejudiced against the defendant. Ample provision is made 'in the act of March 22, 1909, for the selection of a special judge to try the case when the regular judge is disqualified.

Section 5 of the act prescribes the method of securing a change of judge in the event the trial judge refuses’ to certify to his disqualification and vacate the bench. That section' is as follows:

“Any party to any cause pending in a court of record may in term time or in vacation file a written application with the clerk ■of the court, setting forth the grounds or facts upon which the claim is made that the judge is' disqualified, and request- him to so certify, after reasonable notice to the other side, same .to be presented to such judge, and upon his failure so to do within three days before said cause is set for trial, application may be made to the proper tribunal for mandamus requiring him so to do.” ■ ■ •

Even though the provision of the Constitution prohibiting the trial of a ease by a prejudiced judge or juror is self-executing, the Legislature may enact laws prescribing the manner in which this provision may be enforced. In the case of State ex rel. Reardon, Co. Atty., v. Scales, Mayor, et al., 21 Okla. 690, 97 Pac. 586, our Supreme Court, speaking through Chief Justice "Williams, said:

“In the ease of Reeves v. Anderson et al., 13 Wash. 17, 42 Pac., 627, Mr. Justice Gordon, for the court, in discussing said section, says: ‘A. constitutional provision is said to be (not) self-executing “when it merely indicates principles, without laying down rules by means of which those principles may be given the force of law.” • Cooley, Const. Lim. p. 121. “Perhaps even in such eases (where the power is self-executing) legislation, may be desirable, by way of providing remedies for the protection of the rights secured, or of regulating the claim of the right so that its exact limit may be known and understood.” Id., 122. In our opinion, it was competent for the Legislature to supplement the constitutional provision by pointing out the manner in which the right conferred by the Constitution might be exercised, and by prescribing rules for the guidance of the city council in relation thereto/ ”

While the Constitution prohibits the trial oí a case before a prejudiced judge or juror, yet it is silent as to the manner in which the question of prejudice is to be decided. The machinery by which this should be determined, either as to judge or juror, is a proper subject of legislation. Manifestly a judge would have no more fight to pass upon his bias or prejudice than a juror would have to decide as to his qualification, for it is a. fundamental principle of law that no one should be permitted to be a judge when his own interests are involved. In case of juror, if a juror admits his disqualification, that settles it. If the juror denies disqualification, the trial judge passes upon that issue, and error of the trial court may be reserved for the determination of the appellate court. Under the statute now under consideration, if the trial judge admits his disqualification, he so certifies, and the election of a special judge takes place. If he does not regard himself as disqualified, he refuses or fails to so certify. Then the question can be presented to the appellate court by petition for mandamus. This secures to the defendant his right to have the matter of the prejudice of the trial judge adjudicated, and if such prejudice is made to appear, his constitutional, right to a trial before an unprejudiced judge will be protected. Hpon the other hand society will also be protected from having trials delayed indefinitely by allegations of the prejudice of the trial court, when, as a matter of fact, no such prejudice -exists, and the attempt to disqualify the judge is made solely for the purpose of delay and to defeat the enforcement of justice. This statute was hot in force at the time of the trial of any of the cases previously decided by this court in which the -question of .the prejudice of the trial judge was passed upon. What was said in previous decisions has no application to cases tried since the act ,of March 22, 1909, went into effect. Holding as we do -that this act is in effect, notwithstanding the lack .of the enacting clause, the defendant must follow the procedure as prescribed in the act before he is entitled to the benefits prescribed. Habeas^ corpus is not a proper remedy where the court ignores the provisions of this let and refuses to certify to his disqualifications. On.his failure to so certify the party complaining must proceed, under this section, by application to. the proper tribunal for mandamus requiring him to so certify..

Denied March 28, 1910.

(107 P’ac. 735.)

The writ of habeas corpus is denied and petitioner remanded to the custody of the sheriff of Adair county.

OWEN, Judge; concurs; DOYLE, Judge, dissents.

On Petition Eok Behearing.

OWEN, Judge.

The decision in this case was • filed 'Jánú-ary 21, 1910. On February 17, 1910, petitioner filed his application for rehéarihg. ' ' ■ ■ ■ ■

There is no contention made that the original decision is erroneous as to the holding that the act of the Legislature (Sess. Laws 1909, p. 167) providing for the disqualification of judges is in effect notwithstanding the failure of the Legislature to attach the enacting clause. It is urged here that section 5 of this act is in conflict with the Constitution,. because it prescribes an unreasonable remedy, which in effect deprives the defendant of his right to a trial without prejudice. As to whether the procedure prescribed is calculated, in some instances, to work a hardship on the party complaining, is not a matter to be determined by this court. That question was determined by the Legislature. The question for this court to determine is whether the section is in conflict with the Constitution, and whether the petitioner was bound to comply with its provision before he could pray for relief in this court. The language of the section is as follows:

■ ’ “Sec. 5: Any party to any cause pending in a court of record may in term time or in vacation file a written application with the clerk of the court, setting forth the grounds or facts .upon which the claim is made that the judge is disqualified, and request him to so certify, after reasonable notice to the other side, .same to be presented to such judge, and upon his failure so to do within three days before said cause is set for trial, application may be made to the proper tribunal for mandamus requiring him so to do.”

It was urged by counsel for the petitioner in the oral argument that in this state a plaintiff in a criminal case has the constitutional right to be tried before a judge without prejudice, and that when his affidavit is filed, alleging prejudice of the judge, that he is not bound to comply with the provisions of this act, and that his failure to do so is not a waiver of his constitutional right of a fair trial; that he cannot waive a constitutional right. With this contention we cannot' agree. The' Legislature had the right to regulate the method of obtaining-a fair trial. Boneparte v. U. S., ante, p. 345, 106 Pac. 347. , If the mere filing of the affidavit, would per se, .disqualify a judge, and there-was no method of determining this question before trial, a defendant whose conscience would permit him to make the affidavits to each succeeding judge could never be brought to trial. ' It is no answer to say only one change of judge is permitted by statute. This statute cannot deprive a defendant of his right to a trial before a judge without prejudice, and under the constitutional guaranty of this right any judge elected or appointed to take the place of the regular judge may be disqualified, but' the method prescribed by the Legislature must be followed. His right to be tried before a judge without prejudice is a personal right, and the doctrine is well settled that a personal right or privilege can always be waived. A party may waive any provisions, either of a Constitution or a statute, intended for his benefit. Farmers’ Nat. Bk. v. McCall (Sup.) 106 Pac. 866; Armfield v. Brown, 70 N. C. 27; Hahn v. Brinson, 133 N. C. 7, 45 S. E. 359.

A well-considered case on this question is that of Mehlin et al. v. Ice, 56 Fed. 12, 5 C. C. A. 403. In that case the question arose in .an action of forcible entry and detainer in the United States court in the Indian Territory. The matters in controversy had been determined in the district court of the Cherokee Nation. The defendant, Ice, was not a citizen of the Cherokee Nation, and in the United States court pleaded the lack of jurisdiction of the Cherokee court over his person. The United States Circuit Court in disposing of the question said:

“But it is said, conceding this to be so, and conceding that the District Court of the nation had jurisdiction of the subject-matter of the suit of Mehlin v. Ice, that it did not have and could not acquire jurisdiction over the person of Ice, because he was a white man, and a citizen of the United States, and that its proceedings are, for that reason, .a nullity. There is a conclusive answer to this contention. Ice was notified to appear before the clerk, and show cause why he should not be put out of the possession of the premises. In response to this summons he. entered a general appearance. He did not'challenge the jurisdiction of the court over the subject-matter of the suit or over his person. He' rested his right to the possession of the premises on a lease from Armstrong, and exhibited the lease, aind asked that Armstrong be made a party defendant, which was done. Conceding that Ice, being a white man, was for that reason not subject to the jurisdiction of the courts of the nation, this was a personal privilege, which' he might and did waive.' The eleventh amendment to the Constitution-of the United States declares the, judicial power of'the United States shall not extend.to a suit, against a state, but it has always been held that the immunity from suit granted by this article is a personal privilege, which the staté may waive at pleasure; and, when it does waive its privi-^ lege, and voluntarily submits to'the jurisdiction of a United' States court, it is concluded by the judgment. Beers v. State of Arkansas, 20 How. 527 [15 L. Ed. 991] ; Clark v. Barnard, 108 U. S. 436-447, 2 Sup. Ct. 878 [27 L. Ed. 780] ; Cunningham v. Railroad Co., 109 U. S. 446-451] 3 Sup. Ct. 292, 609 [27 L. Ed. 992.] The denial of jurisdiction to tlie Cherokee courts over white men in the Cherokee country is not any broader, and. 'is not founded on 'as high considerations of public policy, as the denial to the courts of the United States of jurisdiction over the states. A party may waive any provision either of a Constitution, treaty, or statute intended for his benefit. It is therefore competent for a white man to waive the treaty and statutory stipulations exempting him., from the jurisdiction of the Cherokee courts; and when he enters a general appearance to an action pending in those courts, and pleads to tlie merits, and there is a trial upon such plea, he thereby waives the exemption, and Sub-' mits himself to the jurisdiction of the court,' and will not after-wards be heard to contest the validity of the proceedings and' judgment of the Cherokee court upon the ground that it had no jurisdiction of his person. Shutte v. Thompson, 15 Wall. 151 [21 L. Ed. 123]; Shields v. Thomas, 18 How. 253 [15 L. Ed., 368] ; Jones v. Andrews, 10 Wall. 327 [19 L. Ed. 935] ; Bank v. Okley, 4 Wheat. 235 [4 L. Ed. 559]; U. S. v. Rathbone, 2 Paine, 578 [Fed. Cas. No. 16,121]; Hawes, Jur., §§ 9-11; In re Cooper, 93 N. Y. 507; State v. Poison, 29 Ia. 133; Brown, Jur. §§ 49, 50; Bostwick v. Perkins, 4 Ga. 50; State v. Fooks, 65 Iowa, 196, 452, 21 N. W. 561, 773; Railway Co. v. McBride, 141 U. S. 127, 11 Sup. Ct. 982 [35 L. Ed. 659]. The conclusion. reached on this branch of the case renders it unnecessary to consider the other assignments of error/’

It is urged that the-pronoun “him” in the phrase, “and request him to so certify,” refers to the clerk of the court, and that the pronouns “his” and “him” in the phrase, “and upon' his failure s'o 'to do.within, Ihree days before, said cause is set for, trial, application may be made to proper tribunal for mandamus requiring him so to do,” refers' to 'the clerk of. the court. • -With this contention we cannot agree. To place’ this construction upotn. this section would give it a ridiculous and nonsensical meaning.

1 It is urged that these' pronouns refer to the clerk for the reason that the first phrase' of this section provides that the application must be filed with the clerk. All papers must be filed with the clerk; and the purpose of filing with the clerk is to make the paper 'a matter of record in order that it may be presented to the judge. The' judge can only consider matters that have been made a' part of the records of his court, and in our opinion the pronouns referred to refer to the judge, not the clerk. Otherwise what could be the necessity of presenting the application to the judge after reasonable notice to the other side? There is no notice provided for before the filing of the application with the clerk. The section provides that the application may be filed either in term time' or' in vacation. It s'eems to us unreasonable to say the purpose of the act is to provide a remedy by mandamus to require the clerk to certify the application to the judge. Suppose for instance this were true, and on the clerk’s failure to so certify a mandamus issue to compel him to do so, and in compliance with the mandamus he delivers to the judge of the court of' which he- is clerk a certificate that the written application has been filed, and thereupon the' court refuses to concede that he is disqualified and refuses to vacate the bench, tfyen the complaining party has exhausted his remedy to no avail. The-purpose of the act is to enable either party to a lawsuit to avoid a trial before a disqualified judge. The judge will not be permitted to pass on his own qualifications so as to preclude the complaining party from further objections; and the purpose of the requirement thát the judge certify to his' disqualifications is that there may be an election of a special judge to' try the .case. There must be. some record of. the disqualifications of the regular judge before a special judge could acquire juris diction of the case. Suppose the ease -be tried before a special judge and no record of the disqualifications of the regular judge, then the appellate court would necessarily vacate the judgment on appeal, for the reason that the record failed to disclose the jurisdiction of the special judge. We can understand how in some cases the short time of three days, as fixed by this section in which to apply for a mandamus, might work a hardship; but these cases would be the exception rather than the rule. The three-day limitation is on the judge, and not on the complaining party. There is nothing to prevent the complaining party from filing his written application as soon as his case is in court, and if the judge arbitrarily withheld action on the matter until within three days before the time, and the party ivas then so far removed from the proper court to which he could apply for a mandamus, as to deprive him of the remedy, a motion for continuance would be in order until such time as would enable the party to present the matter to the proper court, and an arbitrary refusal to extend the time would no doubt be such an abuse of discretion as to constitute grounds for reversal of a judgment against the complaining party.

This act of the Legislature does not include prejudice as a ground of disqualification, but the grounds enumerated are not an abridgment on those of the common law and our Constitution. Section 15 of Bunn’s Edition of the Constitution provides that “right and justice shall be administered without sale, denial, delay or prejudice.” The statute of Alabama on this subject is very similar to ours, and was construed in the case of Ex parle Cornwell, 144 Ala. 497, 39 South. 354. The defendant was charged with embezzling the funds of a savings bank and filed an , affidavit alleging prejudice of the judge. The judge refused to certify that he was disqualified. The Supreme Court in. passing on the question said:

“The petitioner objected to being tried on said indictments by the respondent as judge of the city court, on the ground of in-cómpetency by reason of interest of said judge as a depositor in said bank, and requested the judge to certify his incompetencv under the statute in order .that a special judge might be selected to try petitioner on said indictments. This the respondent declined and refused to do. The present petition is for a peremptory writ of mandamus.to compel the respondent to,certify his incompetency. It is true that the respondent has no direct, pecuniary interest in the result of the prosecution by the state against the petitioner on the pending indictments. And, if the question of disqualification were left to be determined alone by the terms of the statute (section 2637 of the Code), under the facts in the present case, no disqualification could be said to exist. But, under the common law, there are other grounds thajn those mentioned in the statute, which go to the disqualification of the judge.. In Gill v. State, 61 Ala. 172, it was said: ‘According to the stern morality of the common law, a judge is required to be legally indifferent between the parties.’ In Freeman on Judgment, § 145, it is said to be ‘well settled by the common law that no judge ought to. act where, from interest or any other cause, he is supposed to be partial to one of the suitors.’ Any interest, the probable and natural tendency of which is to create a bias in the mind of the judge for or against a party to the suit, is sufficient to disqualify. The judge is human, and human nature, at best, is weak, and as far as it is possible a perfect equipoise should’ always be preserved in the administration of justice by the courts. Pecuniary interest in the result of the suit is not the only disqualifying' interest. If such were true, there would exist no disqualification in the judge to try a defendant on a charge of arson in the burning of the house of the judge. And yet no .one would for a moment question the. existence of such an interest in the result of the trial, the probable and natural tendency of which would be to create a bias, that would affect thfe competency of the judge. In Medlin v. Taylor, 101 Ala. 239 [13 South. 310], in a conte_sted election case, where the judge before whom the contest was instituted declined to sit, because his right to office by the same general election was being-contested, but in a different forum, it was said by this court, speaking through the present Chief Justice, then justice: ‘Judge Taylor not only had no pecuniary interest in the result of this contestation, but he had no interest whatever that could be affected by any possible termination of the issues involved’ — citing authorities. It is the opinion of this court, however, that under the doctrine of the common law, aside from our constitutional and statutory provisions, he had such a personal interest in the questions involved in the contestation of Medlin, in the nature of things, such a bias in favor of one of the parties to the case, as disqualified him to hear and determine the ^ame, and justified liis action in declining so to do. Here, as a result of the alleged embezzlement for which- the ■ petitioner was indicted and to be tried, the ’bank wherein- the judge was a depositor failed, and, unable to pay its depositors,-was put into the -hands of a receiver for the purpose- of winding up its-business. By the alleged mal-conduct of the petitioner, 'the'judge is made to'suffer a-loss of property — money deposited with the bank — to what extent does not appear, whether the total of his deposit, or only -a part, but that this is immaterial. Under the facts, we think that the judge had such a personal interest in the subject-matter of''the pending prosecutions, such as in the nature of things was calculated to produce in the mind a bias such as would impair,'if -not prevent, that equipoise which the stern morality of the common law demands in the administration of-justice. Our conclusion, therefore, is that the judge was by reason of interest in the result of the suit disqualified to try -the petitioner, and, unless he certifies his disqualification after being duly informed of our conclusion, the writ will issue as prayed for.”

Section 5 of the act is declaratory, of the common-law remedy . to avoid trial before a prejudicial judge,, and is not in conflict with the provision of the Constitution guaranteeing a trial without prejudice. Before the petitioner can invoke the aid of this court, he must comply with the requirements- of -this act or show cause for his failure to do so. ■ ■ ■ ■ •

The petition for rehearing is denied.

FURMAN, PebsipiNg Judge, concurs, DOYLE, Judge, dissents. .


author: PEE CTJBIAM. OWEN, Judge.

text:
      Ex parte Ed Hines.
    No. A-395.
    Opinion Filed January 21, 1910.
    (106 Pac. 544.)
    Application, of Ed Hines for writ of habeas corpus.

    Writ denied.
    . Nance •& Priest, for petitioner.

      Fred 8.' Caldwell, for the State.

      Denied March 28, 1910.
   PEE CTJBIAM.

All of the questions of law involved in this' case were discussed and decided in cause No. A-411, Ex parte Hudson (decided at the present term-of this court), ante, p. 393, 106 Pac. 540, and the opinion in said cause No. A-411 is adopted as the opinion in this cause.

The writ of habeas corpus is denied, and the defendant remanded to the custody of the sheriff of Adair county.

ON PETITION ROE BeHEARING.

OWEN, Judge.

This ease is in all things identical with Ex parte Hudson (case No. A-411, decided at this term of court, ante, p. 393, 107 Pac. 735, and the decision in that case settles all questions raised in this.

The petition for rehearing is denied.

FTJBMAN, PRESIDING Judge, concurs, DOYLE, Judge, dissents.


author: OWEN, Judge.

text:
    W. G. Gragg v. State.
    No. A-35.
    Opinion Filed January 21, 1910.
    (106 Pac. 350.)
    1. INDICTMENT AND INFORMATION — Sufficiency. It is not imperative under the laws of this state that an information shall contain the words “by the authority of the state of Oklahoma,” if the record discloses that the prosecution is in fact by the authority of the legal representative o'f the state authorized to prosecute. ■
    2. INSTRUCTIONS — 'Reasonable Doubt. An instruction to the jury which defines reasonable doubt to be a doubt that4'has a reason for it and. one for which a reason may he given is erroneous.
    (Syllabus by the Court.)

      Error from Tillmm County Court; T. E. Campbell, Judge.

    The plaintiff in error, W. G. Gragg, was tried in the county court of Tillman county on the 5th day of Februaiy, 1908, charged with selling intoxicating liquor. He was convicted and sentenced to imprisonment in the county jail for thirty days and to pay a fine of fifty dollars. The case is before us on appeal. Error confessed by counsel for the state.
    Eeversed.
    P. Mounts and W. W. Griffin, for plaintiff in error.

      Fred S. Caldwell, Counsel to the Governor, for the State.
   OWEN, Judge.

Counsel to the Governor, and representing the state before this court, has filed his confession of error in this ease, confessing that the trial court erred in the following instruction :

“(3) By the term ‘reasonable doubt’ as used in this instruction is meant a doubt that has a reason for it. It is a doubt that you can give a reason for, and is one which arises from a careful and impartial consideration of all the evidence and which in the graver transactions of life would cause a prudent and reasonable man to hesitate. In other words, it is such a doubt that will leave a juror’s mind, after a careful examination of all the evidence, in such a condition that he cannot say that he has an abiding conviction to a moral certainty of the defendant’s guilt.”

The Supreme Court of this state in the case of Abbott v. Territory, 1 Okla. Cr. 1, 94 Pac. 179, 16 L. R. A. (N. S.) 260, in an opinion delivered by Chief Justice Williams, reviews at great length the decisions and text-writers defining the term “reasonable doubt,” and in that case condemned an instruction in almost the identical language of the instruction here. In the case of Price v. State, 1 Okla. Cr. 358, 98 Pac. 447, this court, in an opinion delivered by Furman, Presiding Judge, condemned an instruction embodying the same definition of a reasonable doubt. ' In that case, the presiding judge used the following language:

“The words ‘reasonable doubt’ in our statute are used in their ordinary sense in common acceptance among the people. An instruction in the language of the statute is sufficient, and is by far the safest course to pursue. Any effort to elucidate the meaning of the words “reasonable doubt’ is dangerous, as will be found from an examination of the decided cases.”

We deem it unnecessary to discuss the matter further at this time. The conclusions in the Abbott and Price Cases are approved here. The confession of error filed by the counsel for the state must be sustained.

Inasmuch as this case will probably be tried again, we deem it necessary to pass on the objection made by the plaintiff in error in the court below, as to the form of the information filed in the county court. The information is as follows:

“I, Sam W. Johnson, county attorney of the county of Tillman and state of Oklahoma, duly authorized and empowered by law to inform of offenses committed and triable within the said county and state, come now here and give the court to understand and be informed, that at ánd within said county and state, on the 21st day of January, 1908, W. G. Gragg, then and there being, did then and there, willfully, unlawfully, sell, barter, give away, and furnish to one S. W. Surrett, certain intoxicating liquors, to wit, whiskey; the said Gragg not then and there being authorized by law to sell, barter, give away and furnish intoxicating liquors to the people of said county and state then and there being, contrary to the prohibitory law of the Constitution of the state of Oklahoma, and contrary to the form of the statute in such case made and provided and against the peace and dignity of the state of Oklahoma. S. W. Johnson, County Attorney.”

Counsel for plaintiff in error insist that this information is defective for the reason that it does not comply with that provision of our Constitution (article 7, § 19), which says:

“All prosecutions shall be carried on in the name and by the authority of the state of Oklahoma.”

It will be noticed that this information is made by Sam W. Johnson, county attorney of Tillman county, and says that he is “duly authorized and empowered by law,” etc. This same question was presented to this court in the case of Arie v. State, 1 Okla. Cr. 666, 100 Pac. 23, 33, and again in the case of Caples v. State, ante, p. 72, 104 Pac. 493. In these cases this court held that informations in substantially the same-form as the information here were sufficient. The weight bf authority seems to be that, where the Constitution requires criminal prosecutions to be carried on in the name and by the authority of the state, there need be no general statement of the same in the indictment or information when it appears from the record that the prosecution is actually conducted by the authority of the state. The. object of the Constitution in requiring the prosecution, to be in the name and by the authority of. the state is to exclude any foreign power from the exercise of such authority. In the case at bar, the county court should take judicial knowledge of the name of the county attorney. When the information was filed by the county attorney in his official capacity it was by the authority of the state. We deem it unnecessary to review the authorities cited in the Arie and Capíes Cases. The conclusions of this court reached in those eases are approved here.

The confession of error filed by the counsel for the state is sustained. The case is reversed, with direction to grant the' defendant a new trial.

.FURMAN, PRESIDING Judge, and DOYLE, Judge, concur.


text:
    State v. Homer Jones.
    No. A-22.
    Opinion Filed January 21, 1910.
    (106 Pac. 351.)
    1. APPEAL AND ERROR — Transcript of Record. A certificate in proper form, signed by the county judge and attested with the seal of the court, is sufficient authentication of the transcript of the record made in his court.
    2. WEAPONS — Carrying of Concealed Weapon — Information. An information which charges “that one Homer Jones, late of the 'county of Caddo and state of Oklahoma, on the 11th day of , ¡February, in the year -of our. Lord one thousand..nine hundred and eight, at and within the said county and state, did then and there intentionally and unlawfully and willfully carry concealed on and about his person a pistol, a weapon contrary .to the form of the statute in such case made and provided, and against the peace and dignity of the state of Oklahoma,;’ sufficiently charges an offense under section 2744, 'Snyder’s Comp. Laws, Okla. 1909 (section 2502, Wilson's' Rev. & Ann. St. 1903.)
    (Syllabus 'by the Court.)

      Error from Caddo County Court; B. F. Holding, Judge.

    The defendant in error, Homer J ones, was tried in the county court of Caddo county on the charge of carrying concealed weapons on his person. The county court sustained an objection to the introduction of testimony, for the reason that- the information failed to state facts sufficient to constitute a criminal offense against the laws of the state of Oklahoma. From this judgment the state appeals.
    Keversed.

      Chas. West, Atty. Gen., aná-Ghas. Jj. Moore, Asst. Atty..Gen., for the State.

      ■Moms & Starkweather, for defendant in error.
   OWEN, Judge.

Counsel for the defendant in error in the brief filed in this case urge one reason only for affirming the judgment of the lower court. The reason urged is that'there is no transcript of record before this court, for the reason that the purported transcript is signed by the county judge, and not by the clerk of his court. The certificate of the county judge' is as follows :

“I, B. F. Holding, judge of the county court of Caddo county, state of Oklahoma, do hereby certify that the foregoing is a full, true, and correct transcript of the record in the above-entitled-cause, and I hereby certify that the foregoing was presented to me as the case-made in the above-entitled action; that the foregoing case-made was duly served upon the defendant within the time allowed by the court, and, no amendments being suggested by the defendant thereto, I now settle and sign the same as a true ánd correct case-made, and direct that it be attested and filed by the clerk of said court, and I further certify that the 'above- and foregoing case-made contains all of the motions, orders, .judgments, objections, and exceptions, and all other proceedings .had therein.
“Witness my hand at Anadarko, in said Caddo County, Oklahoma, this 17th day of June, 1908.
“[Signed] B. F. Holding, County Judge.
“Attest: T. G. Oelke, Clerk of County Court.”

It will be noticed that the judge certifies that “the foregoing is a full, true, and correct transcript of the record in the above-entitled cause,” etc. This constitutes a proper transcript. In the county court it is not necessary that the clerk certify to the transcript. As was said by this court in the case of Stewart et al. v. State (reported in this volume), 105 Pac. 374, the county judge is ex officio clerk of his own court. In that ease the case-made and amendments were signed and settled by the judge without being attested by the clerk of that court. Judge Doyle, in delivering the opinion of the court, said:

“There is no clerk of the county court in the sense that there is a clerk of the district court. The laws of this state do not require that there shall be a clerk of the county court.”

In that case the sections of the statute and the Constitution applicable to such ■ matters were fully reviewed, and we deem it unnecessary to again review them here.

It appears from the transcript that after the first witness was sworn the defendant in error objected to the introduction of testimony, giving as a reason for his objection that the information did not charge the defendant with the commission of a crime. The charging part of the information is as follows:

“* * * That one Homer Jones, late of .the county of C'addo and state of Oklahoma, on the 11th day of February, in the year of our Lord one thousand nine hundred and eight, at and within the said county and state, did then and there intentionally and unlawfully and willfully carry concealed on and about his person a pistol, a weapon contrary to the form of the statute in' such case made and provided, and against the peace and dignity of the state of Oklahoma.”

The section of the statute under which-this information was filed is as follows:

“It shall be unlawful for any person in the state of Oklahoma to carry concealed on or about his person, saddle, or saddle bags, any pistol, revolver, bowie knife, dirk, dagger, slung shot, sword, cane, spear, metal knuckles, or any other kind of ltnifé or instrument manufactured or sold for the purpose of defense except as in this article provided.” (Section 2744, Snyder’s Comp. Laws Okla. 1909; section 2502, Wilson’s Rev. & Ann. St. 1903.)

In the case of Ex parte Thomas, 1 Okla. Cr. 210, 97 Pac. 260, 20 L. R. A. (N. S.) 1007, our state Supreme Court, in an opinion by the present Chief Justice, Dunn, reviewed at great length the concealed weapon statutes, and under the conclusions reached in that case, which meet our entire approval, the information in this case charges the defendant with a violation of the section of the statute referred to, and the objection to the introduction of evidence made by defendant in error should have been overruled.

The judgment of the lower court is reversed, and the ease remanded.

FTJEMAN, PeesidiNg Judge, and DOYLE, Judge, concur.


text:
    J. M. Couch v. State.
    No. A-41.
    Opinion Filed January 21, 1910.
    (106 Pac. 351.)
    JUDGES — Change of Judge — Prejudice. Under the law in force in this state in August, 190S, upon the filing toy the accused of an affidavit in proper time, staling positively that he cannot have a fair and impartial trial, on account of the has and prejudice of the presiding judge of the court where the indictment or information is pending, a change of judge must be allowed.
    (Syllabus toy the Court.)

      Error from Mayes County Court; A. C. Breioster, Judge.

    J. M. Couch was convicted of crime, and brings error.
    Ee-versed and remanded.
    The plaintiff in error was convicted in the county court of Mayes county in the July term, 1908, charged with violation of the liquor law and sentenced to imprisonment in the county jail for 30 days and to pay a fine of $150. The case is before us on appeal. 'Error confessed by counsel for the state.

      W. S. Stanfield, Byron Kirhpatriclc, and A. W. Fisher, for plaintiff in error.

      Fred S. Caldwell, Counsel to the Governor, for the State.
   OWEN, Judge.

It appears from the record in this case, that, prior to the beginning of the trial, the plaintiff in error filed his application .in the form of an affidavit, alleging that the county judge was so prejudiced, against him that he could not have a fair- and impartial trial before said judge. This application was supported by the affidavit of three other persons. The court overruled the application and proceeded, over the objection of the defendant, to trjr the case. Counsel to the Governor representing the state in this case,.before this.court, has filed his,written confession of error conceding the court erred in overruling the application of plaintiff in error for a change of judge. Following the rule announced by this court in the case of Buchanan v. State, 2 Okla. Cr. 126, 101 Pac. 295, the confession of error must be sustained and the ease reversed.

The judgment of the lower court is reversed, and the case remanded, with direction to set aside the judgment, grant the defendant a new trial, and. sustain his application for change of judge.

FURMAN, PRESIDING Judge, And DOYLE,'Judge, concur-


author: PEE CUEIAM.

text:
    John Silva v. State.
    No. A-81.
    Opinion Filed January 25, 1910.
    (106 Pac. 556.)
    APPEAL AND ERROR — Notice of Appeal. Where, on conviction, no notices of appeal were served or filed, as required bv Comp. Laws 1909, sec. 6949, within a year, the appeal will he dismissed.

      Frror from Pittsburg County Court; B. W. Higgins, Judge.

    Jolm Silva was convicted of a violation of the prohibition law, and brings error.
    Dismissed.

      J. G. Uwrley, for plaintiff in error.

      Fred 8. Caldwell, Counsel to the Governor, for the State.
   PEE CUEIAM.

John Silva was tried and convicted in the county court of Pittsburg county of a violation of the prohibition law, and was on the 11th day of November, 1908, sentenced to. pay a fine of $50 and costs, and to be imprisoned for a period of 30 days in the county jail. On January 27, 190.9, there was filed with the clerk of this court a petition in error, with case-made attached. On December 27, 1909, Fred S. Caldwell, counsel to the Governor, and as attorney for the state, filed a motion to dismiss the appeal, which, omitting the formal parts, is as follows:

“Special Appearance and Motion to Dismiss. Comes now the state of Oklahoma by its attorney, Fred S. Caldwell, as counsel to the Governor, and' appearing specially herein for the purposes of this motion only, represents to'this honorable court as follows-: More than one year has elapsed since the rendition of the judgment from which plaintiff in error undertakes to prosecute this appeal, and no notices of appeal were ever served or filed as provided and required by Sec. 6949 of the 1909 Comp. Laws of Okla. Wherefore, the state of Oklahoma says that this court is without jurisdiction to entertain said appeal and that the same should be dismissed at plaintiff in error’s costs.”

The question presented by the motion in this case has been fully setttled. Upon'the authority of the case of Arispi v. Terri tory, 2 Okla. Cr. 79, 99 Pac. 1099, the motion to dismiss should be sustained.

It is therefore ordered that the purported appeal be, and the same is hereby, dismissed, and the cause remanded to the county court of Pittsburg county, with direction to enforce the judgment and sentence.


author: PER CURIAM.

text:
    Bert Files v. State.
    No. A-121.
    Opinion Filed January 25, 1910.
    (106 Pac. 555.)
    APPEAL AND ERROR — Notice of Appeal. Where, on conviction, no notices of appeal were served or filed, as required 'by -Comp. Laws 1909, see. 6949, within a year, the appeal will be dis- ■ missed.

      Error from Garfield County Court? John F. Curran, Judge pro tern.

    Bert Files was convicted of a violation of the prohibition, law, and brings error.'
    Dismissed.

      H. J. Sturgis, for plaintiff in error.

      Fred S. Caldwell; Counsel'tó the Governor, for the State.
   PER CURIAM.

Bert Files was tried and convicted in the county court of Garfield county of a violation of the prohibition law, and was on the 21st day of March, A. D., 1908, sentenced to pay a fine of $100 and costs, and to be imprisoned for a period of 60 days in the epunty jail. On March 19, 1909, there was filed with the clerk of this court a petition in error with. case-made • attached. On December 27, 1909, Fred S. Caldwell, counsel to the Governor, and' as attorney for the state, filed a motion to dismiss the appeal, which, omitting the formal parts, is as follows : ' ■

“Special Appearance and' Motion to Dismiss. Comes now the state of Oklahoma by its attorney, Fred S. Caldwell, as counsel to the Governor, and appearing herein specially for the purposes of this motion only, represents to this honorable court as follows: More than one year has elapsed since the-'rendition of the judgment from which the plaintiff in. error undertakes to prosecute this appeal and no notices of appeal have been served and filed as provided by Sec, 6949 of the 1909 Comp. Laws of Oklahoma. Wherefore, the state of Oklahoma 'says that this court is without jurisdiction to entertain said appeal, and-that the same should be dismissed at plaintiff in error’s costs.”

The question presented by the motion in this case has been fully settled. Upon the authority of the case of Arispi v. Territory, 2 Okla. Cr. 79; 99 Pac. 1099, the motion to dismiss should be sustained.

It is therefore ordered that the purported appeal be, and the same is hereby, dismissed, and the cause remanded to the county court of Garfield county, with direction to enforce the judgment and sentence.


author: DOYLE, Judge.

text:
    State v. J. E. Clifford.
    No. A-10.
    Opinion Filed January 25, 1910.
    (106 Pac. 557.)
    1. ANIMALS — Slaughter for Sale — Failure to Inspect — Complaint. A complaint, charging- that the defendant "did then and there, willfully, unlawfully and wrongfully offer for sale the mealt of one red calf, without the same having been inspected iby the live stock inspector or his deputy of the district of Claremore, Okla., and vicinity, before slaughter, 'or without having notified said inspector or his deputy of his intention to slaughter said calf for the purpose of offering the meat of the, same for sale,” is insufficient to state an offense for" failing to allege that the same was slaughtered for “public sale and use.” ■
    2. STATUTES — Construction. Where the . legislative intent is clear, statutes are not to be extended by construction to cases not fairly and clearly embraced in their terms.
    ■ (Syllabus by the Court.)

      Error from Rogers County Court; Archibald Bonds, Judge.

      J. E. Clifford was indicted for. offering for sale meat of a calf which had not been inspected. Demurrer to the complaint was sustained, and the state brings error.
    Affirmed.

      Charles West, Atty. Gen., and Charles L. Moore, Asst. Atty. Gen., for the State.

      II. Tom Kight, for deféndant in error.'
   DOYLE, Judge.

The defendant in error was charged by. a complaint filed before E. J. Humphrey, a justice of the peace, in and for Rogers county, as follows:

“That on the 28th. day of March, A. D. 1908, in the county of Rogers and state of Oklahoma, one J. E. Clifford, then and there being, did then and there, willfully, unlawfully, and wrongfully offer for sale the meat’ of one red calf'without the same having been inspected by’the live stock inspector or his deputy of "the district of Claremore, Oída.,' and vicinity, before slaughter, or without having notified said inspector or his deputy of his intention to slaughter said calf for the purpose of offering the meat of the same for sale.”

Upon a trial had, the defendant was found guilty, whereupon he appealed to the county court of Rogers county. On the 6th day of May, 1908, the defendant demurred to said complaint on the ground that the same does not state facts sufficient to constitute an offense. Which demurrer was- by the court sustained, to which ruling of the court the state excepted and prayed an appeal to the Supreme Court. On September, 18, 1908, a petition in error, with transcript attached, was filed in this court.

We are of opinion that the complaint in this case fails to charge a public offense, and that the demurrer was properly sustained by the county court. The section of the statute upon which the complaint is based (section 27, art. 1, c. 2, Snyder’s St". 1909) in part provides:

“It shall be the duty of" all persons slaughtering cattle for public sale and use to notify the inspector of the district, or his local deputy appointed by him for that purpose, of their intention so to do.”

The complaint does not allege that the defendant slaughtered the aforesaid red calf, for “public sale, and use”; otherwise it is unnecessary to notify the inspector or Ms deputy. The legislative intent is clear, and does not include cattle slaughtered for private use. The doctrine is fundamental in American law that there can be no constructive offenses, and that statutes are not to be extended bjr construction to cases not fairly and clearly embraced within their terms. Before a man can be punished his case must be plainly and unmistakably within the statute; and, if there be any fair doubt whether the statute embraces it, that doubt is to be resolved in favor of the defendant. The complaint should contain a statement of the acts constituting the’ offense, in ordinary and concise language, and in such manner as to enable a person of common understanding to know what is intended.

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

FUBMAN, PRESIDING Judge, and OWEN, Judge, concur.


text:
    S. H. Musgraves v. State.
    No. A-68.
    Opinion Filed January 25, 1910.
    (106 Pac. 544.)
    1. CONTINUANCE — Absence of Witness, (a) Application for a continuance should be most strongly construed against the pleader. Intendment and presumption will not be indulged in to support such applications.
    (b) A defendant should not sit still and wait until just before hisi trial before he begins to get ready for trial, but must exercise diligence in procuring process for his witnesses.
    (c) For an application for a continuance which was fatally defective in not showing proper diligence, see opinion.
    2. WITNESSES — Impeachment — Cross-Examination, (a) It is improper to ask a witness, for the purpose of affecting his credibility, as to whether he has ever been indicted, arrested, or imprisoned for crime. Slater v. United States, 1, Okla., Or. 2.73, 98 Pac. 110, and Price v. United States, 1 Okla., Cr. 291, 97 !Fae. 1056, approved.
    (b) It is permissible on cross-examination to inquire into the occupation, social connections, and manner of living of a witness. These matters, being voluntary on his part, may be shown for the purpose of affecting his • credibility.
    3. APPEAL AND ERROR — Objection's Waived. If instructions excepted to are not complained of and copied in full in the brief of counsel for the defense, they will be treated as waived, unless they relate to some fundamental matter.
    (Syllabus by the Court.)

      Appeal from Johnston County Court;-Nick Wolfe, Judge.

    S. H. Musgraves was convicted of violating the prohibitory law, and appeals.
    Affirmed.

      Young & Stobaugh, for appellant.
    — Citing: Graham v. State, 50 Ark. 161; Price v. U. 8., 1 Okla. Or. 291; 3 Rice on Evidence, p. 608.

      Fred 8. Caldwell, for the State.
   FURMAN, PRESIDING Judge.

First. The defendant presented the following duly verified motion for a continuance:

“In the Johnston County Court. State of Oklahoma, v. S. II. Musgraves, Defendant. Motion for Continuance. Comes the defendant, and moves the court to continue the trial of this cause until a future term of this court, and for cause says that he cannot safely go to trial on account of the.absence of Claude Cox, who until a very few days ago resided at Ada, Okla., and ¡now resides at Sulphur, Okla., as he is informed and believes that if he were present he would swear that the defendant was sick in bed at his home in Wapanucka, Okla., from the last days of December, 1907, until the 25th day of January, 1908, and was absent from his place until after the said 18th day of January, 1908, the day on which the state witness will swear that he bought liquor from the defendant; that on the 2d day of October, 1908, he caused a subpoena to issue out of this court for the said Claude Cox, and sent same to sheriff of Pontotoc county at Ada, Okla., and that on the 5th day of October, 1908, about noon, he was informed by the sheriff of Johnston county that the subpcena had •been returned not served, and that said sheriff of Pontotoc county writes a statement in which he says, £C'ox has just left here, and said he was going to Sulphur/ signed £T. J. Smith’; that at the time he caused said subpoena to issue said'Cox was a resident of Ada, Okla., and that after the suing out of said process he left for Sulphur in Murray county, Okla., and that he cannot get a sub-preña .served on him at Sulphur in time for him to be present at this term of this court, and that he verily believes that he can procure the attendance of said witness at the next term of this court,' and that he now resides within the jurisdiction of this court, and that said witness’" testimony ás above mentioned,' and many other facts'that he expects to prove by «said witness are true, and that he in good faith expected that he would be present at the present term of this court till he received information from the sheriff of Johnston county.”.

This motion was overruled by the court, and defendant reserved an exception to such motion.' It is the duty of the pleader to state in a motion for a continuance the 'facts relied upon in their strongest possible form in favor of the defendant. Intendment and presumption cannot be indulged in to support such a motion. The purpose of the evidence, on account of the absence of which a continuance, was, sought, was to prove an alibi. The allegations with reference to the sickness of the defendant and his absence from the place when the offense is alleged to have been committed are vague- and indefinite, and do not attempt to show the means of knowledge of the absent witness. It is nowhere stated in the motion that the witness wsjs not absent through the consent or procurement of the defendant. No reason is given why process was not procured for the witness at an earlier date. The law requires diligence in these matters. A defendant cannot sit still- and wait until just before his trial before he-begins to get ready for trial. He must be diligent ;• and, if special -reasons exist upon which a reasonably prudent man -would rely, which would cause him to fail to exercise the utmost diligence, he must state these reasons in his motion for a continuance as an excuse for not having exercised the utmost diligence. No such reasons are stated in the motion in this case. Continuances are not granted as matters of favor or convenience. Defendants' must learn that it is a very serious matter to violate the laws, of Oklahoma, and that when they are charged with-such conduct, they must be diligent in preparing their defense. There was no error in the action of the trial court in overruling the motion for a continuance. '

Second. The second ground relied upon by the defendant to secure a reversal is thus stated in the brief of his counsel;

“The court;, over the defendant’s objection, permitted the county attorney to ask defendant, on cross-examination, ‘Did you not run a joint there before statehood?’ and compelled him to answer same. To which the defendant excepted at the time. We submit that this was prejudicial error. The presumption of inno-cense clothes the defendant at every step of the trial until overcome by competent evidence. There was a time, not very remote, in the history of the jurisprudence of the Indian Territory side of this state, when the rules of evidence were disregarded by the courts, and anything which tended to show the guilt of the defendant was admitted on general principles, but in the case of Price v. United States, 1 Okla. Cr. 291, 97 Pac. 1056, recently decided by this court, jurisprudence has been clothed with her ancient apparel, and defendant is not allowed to be convicted on general principles, and the presumption of innocence taken from ' him by proof tending to show that he has been accused or charged with other wrongdoing. Certainly under the doctrine laid down in that case it is not competent to secure a conviction by showing that, some months before the alleged offense was committed, defendant was in a position in which he might have committed a similar offense against a different sovereignty.”

If it had been proven that the defendant had before statehood 'been arrested or imprisoned for any violation of law, or been accused of any violation of law, then the doctrine of the Price Case would be in point, and this conviction would be reversed. But we do not understand that any such attempt was made. The question simply went to the occupation of the defendant, prior to statehood. In Slater v. United States, 1 Okla. Cr. 283, 98 Pac. 113, this court said:

“* * * It is always permissible to inquire into the antecedents of a witness, by showing his occupation, social connections, manner of living, and such matters. * * * The presumption of law is that every person, to a large extent, has the right and power of selecting his occupation, social connections, and manner of living. Being matters largely of his own choice, they indicate his true character, and he is therefore responsible for them, and they may be inquired into for the purpose of affecting his credibility; but these reasons do not apply to indictments, arrests, or imprisonment before conviction, for the obvious reason that they are not matters of choice, but are involuntary, so far as the witness is concerned.”

The Price Case was based upon the Slater Case. An examination shows that the question as to the occupation of the defendant is in strict harmony with the principles of the Slater Case. When the defendant took the witness stand he became subject to the same treatment accorded to other witnesses; and, if he had been voluntarily engaged in any occupation which would tend to impair his credibility, the state had a right to inquire into the matter for the purpose of affecting his credit. There was therefore no error in the ruling of the court.

Third. The third ground relied upon for a reversal is stated in the brief of counsel for the defendant as follows: “We submit that the court erred in giving the instruction objected to by defendant.” But the brief does not set out the instruction complained of. It is the settled doctrine of this court that we will presume that the proceedings of courts of record are 'regular, and that the burden is upon the person who alleges error in such proceedings to place his fingers upon the error complained of, and to set it out fully in the brief, with his objections thereto. Over 600 eases have been appealed to this court. This vast volume of business, in addition to the cases transferred to this court from the Supreme Court, makes it impossible for this court to search records for errors on the mere suggestion thereof. We have therefore found it absolute^ necessary to require attorneys to copy in their briefs the portions of the instructions excepted to, and to treat all irregularities not so presented as having been waived, unless the error relates to some fundamental matter. If we were not so much pressed for time, we might relax this rule. But, situated as we are, we cannot do so. We have read • the evidence through, and find it conflicting, but this was a matter for the jury to settle. It is enough for us to know that there is evidence in the record which supports the verdict.

. Finding no material error in the record, the judgment of the lower court is affirmed. .

DOYLE and OWEN, Judges, concur.


author: OWEN; Judge.

text:
    May Cook v. State.
    No. A-27.
    Opinion Filed January 25, 1910
    (106 Pac. 558.)
    APPEAL AND ERROR — Filing Case-Made. Section 6951, ' Snyder’s Comp. Laws 1909, is mandatory in providing that the case-made must he filed with the papers in the ease in the lower court.
    (Syllabus by the Court.)

      Error from, Oklahoma County Court; Sam Hooker, Judge.

    The plaintiff in error, May Cook, was tried in the county court of" Oklahoma county on the 24th day of June, 1908, on a charge of selling intoxicating liquor. She was convicted ‘ and sentenced to imprisonment in the county jail for a'term of thirty days and to pay a fine of fifty dollars. The case is before us on appeal. Motion to strike the case-made from the files of this court.
    Motion sustained, and appeal dismissed.

      J. H. Beatty, for plaintiff in error.

      Fred S. Caldwell, Counsel to the Governor, for the State.
   OWEN; Judge.

Counsel to the Governor, and representing the state in this’ case, has filed his written motion to strike the case-made, which is Exhibit A to the petition of plaintiff in error, from-the files in this cause, for the reason that the same was not filed in the lower court as the law directs. Section 6951, Snyder’s Comp. 'Laws 1909, contains the following provision:

"The case 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 case. Such original case-made shall be filed with the petition in error. * * *”

The certificate attached to the ease-made is in the following language:

“I, Sam Hooker, judge of the county court, in and for Oklahoma county, Okla., do hereby state and certify that the above and foregoing is a true, full, complete, and correct transcript of the transcript of the proceedings had in the case of State of Oklahoma, Plaintiff, v. Mrs. May Cook, No. 1,269, pending in the county court of Oklahoma county, state of Oklahoma, and that the above and foregoing is a true and complete case-made of all of the pleadings,- motions, proceedings, evidence, verdicts, judgments, orders, and exceptions had, filed, taken, given, and made in said case, and contains all the evidence given and received, and all of '' the evidence given and rejected in the hearing of said cause, and I do further certify that the same has been duly served within the time allowed by law, and that notice of the signing of the same has been duly given, and that it contains all of the suggestions and amendments made by the prosecuting attorney, and the same is by me hereby settled, signed, and allowed by me as and for a case-made for the Supreme Court. Sam Hooker, Judge of the County Court.”

It will be noticed that this certificate concludes with the following language: “And the same is by me hereby settled, signed, and allowed by me as and for a case-made for the Supreme Court.” This certificate bears no evidence that it was filed in the lower court. There is no language indicating that it was filed. It does not meet the requirements of the' section of the statute above quoted.

The motion to strike the case-made from the files is sustained, and the appeal dismissed.

FURMAN, PRESIDING Judge, and HOYLE, Judge, concur.


text:
    Bruce Crow v. State.
    No. A-61.
    Opinion Filed January 25, 1910.
    (106 Pac. 556.)
    INSTRUCTIONS — Credibility of Defendant. An instruction, which says: “The defendant is a competent witness in his own behalf. Tou will judge the defendant as an interested witness. You are not to disbelieve him merely because he is the defendant in t)he case, but you will apply the rules of judging the credibility of witnesses to the defendant’s testimony,, and then you will give his testimony such credit as you think it entitled to, and no more” — improperly calls to the attention of the jury the interest the defendant has in the result of the trial, and is reversible error.
    (Syllabus by the Court.)

      Error from Sequoyah County Court; W. N. Littlejohn, Judge.

    The plaintiff in error, Bruce Crow, was tried in the county court of Sequoyah county in September, 1908, charged with the violation of the game .and fish law. He was convicted and sentenced to pay a fine of $50, a fee of $25 to the Game Warden, and the costs of the prosecution. The case is before us on appeal.
    Confession of error filed, and case reversed.

      T. F. Shackelford, for plaintiff in error.

      Charles West, Atty. Gen., and Chas. L. Moore, Asst. Atty. Gen., for the State.
   OWEN, Judge.

The Attorney General has filed his written confession of error, confessing that the lower court erred in giving instruction No. 9, which is as follows:

“The defendant -is a competent witness in his own behalf. You will judge the defendant as an interested witness. You are not to disbelieve him merely because he is the defendant in the case, but you will apply the rules of judging the credibility of witnesses to the defendant’s testimony, ánd then you will give his testimony such credit as you think it entitled to, nnd no more.”

Under the uniform decisions of this court the confession of error must be sustained. A similar instruction was condemned in the following named eases: Fletcher v. State, 2 Okla. Cr. 300, 101 Pac. 599; Green v. U. S., 2 Okla. Cr. 55, 101 Pac. 112; Hendrix v. U. S., 2 Okla. Cr. 240, 101 Pac. 125; and Reed v. U. S., 2 Okla. Cr. 652, 103 Pac. 371.

The confession of error is sustained, and the ease reversed, with direction to grant the defendant’s motion for a new trial.

FURMAN, PRESIDING Judge, and DOYLE, Judge, concur.


text:
    Al. Mumbrauer v. State.
    No. A-70.
    Opinion Filed January 25, 1910.
    (106 Pac. 559.)
    INSTRUCTIONS — Reasonable Doubt — Burden of Proof. An instruction in the following language; “If you believe from the evidence that the defendant did not, on or about the day and in . the county and state, aforesaid, deliver to the said J. W. Dob-son any intoxicating liquor or receive in exchange therefor any money, or if there is a reasonable doubt in your mind as to the guilt of the defendant, then it is your duty under the law to render a verdict of not guilty” — places the burden of proof on the defendant, and deprives him of, the benefit of the presumption of innocence, which prevails until he is proven guilty beyond a reasonable doubt.
    (■Syllabus by the Court.)

      Error from Creeh County Court; Josiah G. Davis, Judge.

    The plaintiff in error, Al. Mumbrauer, was tried in the county court of Creek county in September, 1908, charged with selling intoxicating liquor. He was convicted and sentenced to imprisonment in the county jail of Creek county for thirty days and to pay a fine of $100 and costs. The case is before us on appeal.
    Confession of error filed, and case reversed.

      Barnum & McGrow, for plaintiff in error.

      Fred S. Caldwell, Counsel to the Governor, for the State.
   OWEN, Judge.

The counsel for the Governor,' representing the state in this case, has filed his written confession of error, confessing that the lower court erred in 'instructing the jury as follows :

“If -you believe from the ’evidence that the defendant did not, on or 'about the day and in the county and state aforesaid,- deliver to the. said J. W. Dobson any intoxicating liquor,- or receive in exchange therefor any money, or if there is a reasonable doubt in your mind as to the guilt of the defendant, then it is your duty under the law to render a verdict of not guilty.”

Under the rule announced by this court in the case of Weber v. State, 2 Okla. Cr. 329, 101 Pac. 355, and the authorities cited there, the confession of error must be sustained.

The case is reversed, with directions to grant the defendant’s motion for a new trial. ■■ ■ '

FURMAN, PresidiNG Judge, and DOYLE, Judge, concur.