author: BAREFOOT,

text:
    A. WASHMOOD v. UNITED STATES.
    No. A-1210.
    Opinion Filed November 12, 1913.
    (136 Pac. 184.)
    1. COURTS — Jurisdiction—Crime Committed Before Statehood. The district court has jurisdiction to try a defendant for a crime committed prior to statehood, where the defendant was indicted prior to the erection of-the state.
    2. TRIAL — Transfer of Cause — Seal—Waiver of Objections, (a) In transferring a case from a place of holding court in the Indian Territory to another place in the same district, it is not necessary for the seal of the court to be attached to the certificate of transfer.
    (b) By making a motion to change the venue, defendant waives the right to raise the question that no seal was attached to the certificate of transfer.
    3. “ EVIDENCE — Testimony at Preliminary Hearing — Admissibility. Testimony given at a preliminary hearing is admissible upon proper proof of the death of witness.
    4. TRIAL — Instructions—Reasonable Doubt — Cure of Error. Bor instruction held not entirely correct but insufficient to reverse judgment, see opinion.
    5. SAME — Instructions—Burden of Proof — Cure of Error. An instruction which says: “If you find from the evidence that the defendant, A. Washmood, was not present at the scene of the killing of the said Ben Collins, or that he did not aid, abet, encourage, and advise the taking of the life of said deceased, or if, after a careful consideration of all the evidence, facts, and circumstances in the ease, as disclosed upon the trial, you entertain a reasonable doubt as to the killing, and as to his having aided, • abetted, encouraged, and advised its commission, then you should acquit said defendant, and return a verdict of not guilty' — held error, as placing the burden of proof upon the defendant, and requiring him to prove his innocence. The error in this respect was not cured by other instructions in the usual form, as to the “presumption of innocence and “reasonable doubt.
    6. HOMICIDE — Conspiracy — Evidence —• Sufficiency — Admissibility — “Conspiracy.” (a) Testimony reviewed and held insuffi- ' eient to constitute a conspiracy.
    (b) Testimony that certain parties who were indicted with the defendant had been hanged by a mob held inadmissible.
    (e) A conspiracy is a combination between two or more parties to do a thing criminal or unlawful in itself, and may be proven by facts and circumstances if sufficient, and, when shown to have existed, then the statements and acts of each of the conspirators made or done in pursuance of the common design may be proven against the others upon a prosecution against them for the commission of the crime; but nothing said or done by them after the crime has been accomplished is admissible. Certain declarations and acts held not to be made in pursuance of the common design, and therefore not admissible.

      Appeal from District Court, Carter County; George W. Clcu'k, Assigned Judge.

    A. Washmood was convicted of murder, and appeals.
    Reversed and remanded.
    The plaintiff in error, A. Washmood, was on the 17th day of October, 1906, indicted by grand jury in the southern district of the Indian Territory, at Ada, charged in eight counts with conspiracy to murder and with the murder of one Ben Collins. J. B. Miller, Henry Pruitt, Clint Pruitt, and Dan Sie were jointly indicted with plaintiff in error. It was alleged in said indictment that the crime was committed August 1, 1906, in the southern district of the Indian Territory, being in what is now known as Johnston county, Okla. Prior to said trial and upon application of the defendants the case was transferred on change of venue from Ada to Ardmore in the southern district of the Indian Territory. After the erection of the state and on motion of the county attorney of Carter county, Okla., when neither the defendant nor his attorneys were present, an order was entered transferring the case to Johnston county, for the reason that said crime had been committed in said county. The defendant, through his attorneys, made a motion to retransfer the case to Carter county, setting up in their motion that, when the change of venue had been granted from Ada to Ardmore, said motion was also to the effect that the change of venue should be granted from Tishomingo as well as from Ada, and that the court in passing upon the motion had granted the change of venue to Ardmore, and that the case should be tried there. The court sustained the motion to transfer the case back to Ardmore in Carter county, where it was 'tried on the 15th day of March, 1911. The defendant was convicted and sentenced to be hanged and has appealed to this court. For convenience the parties will-' be referred to as the state and the defendant. Judge Furman being disqualified, the Governor appointed Pión. B. B. Barefoot, as special judge, to sit in his place..

      Guy H. Sigler, R. A. Howard, and 5*. A. Maginnis, for plaintiff in error.

      Charles West, Atty. Gen., for the United States.
   BAREFOOT,

Special Judge (after stating the facts as above.). First. The first assignment of error is that the district court of Carter county was without jurisdiction to try the defendant for the reason that the crime with which he stood charged was one against the laws of the United States; the crime as alleged having been committed before the erection of the state. To substantiate this contention we are cited to the case of Sill Pickett v. United States, 216 U. S. 456, 30 Sup. Ct. 265, 54 L. Ed. 566, which has been recently decided by the Supreme Court of the United States; the same being a case which went to the Supreme Court from the Western district of Oklahoma. The Supreme Court of Oklahoma soon after the erection of the state had before it this identical question in the case of Higgins v. Brown, 20 Okla. 355, 94 Pac. 703. And in that case the Supreme Court held, in an opinion by Chief Justice Williams, that the state courts had jurisdiction to try cases arising before statehood. This case was followed by this court in the case of Baker v. State, 3 Okla. Cr. 265, 105 Pac. 379, and the Supreme Court of Oklahoma, since the decision by the Supreme Court of the United States in the Pickett case, in the case of Coyle v. Smith, 28 Okla. 121, 113 Pac. 944, has held that the Pickett case was not in conflict with the case of Higgins v. Brown, supra, and, whatever might be our individual opinions as to the ultimate decision by the Supreme Court of the United States when this exact question reaches them, we at this time follow the rule heretofore made by the Supreme Court of this state in Higgins v. Brown, supra, and by this court in Baker v. State, supra.

Second. The second assignment of error is that the seal of the court was not attached to the papers in this case when the same was transferred from Ada to Ardmore, and also when the transfer was made from Tishomingo back to Ardmore, and that therefore the court had no jurisdiction to try defendants. We do not think that this contention is sound, for the reason that Ada, Ardmore, and Tishomingo were all situated in the Southern district of the Indian Territory, and the same clerk was clerk at each of these places, and that it was not necessary for the seal to be attached where the transfer was made from one place to another in the same district. And, besides, the defendant made application for the transfer from both Ada and Tishomingo, and by making this transfer should not be allowed to make a technical objection which would result to his benefit. We think in making the motion to transfer he waived this irregularity.

Third. The third assignment of error relied upon by the defendant is the admission of the evidence of one Dr. Thomas, which testimony was given at the preliminary hearing. Proof being made that the witness was dead, his testimony was read at this trial. This question has been passed upon by this court against the contention of the defendant in the case of Mendenhall v. United States, 6 Okla. Cr. 436, 119 Pac. 594. See, also, Mattox v. United States, 156 U. S. 237, 15 Sup. Ct. 337, 39 L. Ed. 409. The Supreme Court of the United States, in the Mat-tox case, fully and completely discussed this question, giving reasons very fully as to why such testimony is not in conflict with that provision of the Constitution which gives the defendant a right to be confronted with the witnesses against him. It is useless for us to quote these reasons as they can be seen by reading that opinion.

Fourth. It is next contended by the defendant that the court erred in instruction No. 10, which is as follows:

“If the evidence, facts, and circumstances disclosed upon the trial establish to your satisfaction, beyond a reasonable doubt, that Ben Collins was murdered in the Southern district of the Indian Territory on August 1, 1906, in pursuance of a conspiracy theretofore entered into between two or more of the persons referred to in the indictment, and that the defendant, A. Washmood, prior to said murder became a party to said conspiracy, and joined in the furtherance of the common design to murder said Ben Collins, and the circumstances introduced in evidence and relied on by the state having reference to said conspiracy and murder, when taken together and as a whole, tend to show that the defendant, A. Washmood, either committed said murder, as charged, in some one of the last counts of the indictment, or that he was present, aiding and abetting, or ready and consenting to aid and abet, in the commission of said crime, or that he had advised and encouraged the perpetration of said crime, although not personally present at the time of its commission, and the circumstances in evidence are not susceptible of any other reasonable conclusion or explanation than that to a moral certainty said defendant, A. Washmood, is guilty as so charged, then the requirements of the law as tó the degree of proof necessary to support a verdict of guilty upon circumstantial evidence would be satisfied.”

It is contended by counsel for the defendant that this instruction was so worded that it deprived defendant of his right to be acquitted, if there was reasonable doubt in the minds of the jur)r as to his guilt. There can be no' question but that there is some merit in the contention of counsel. This instruction as it is worded has a strong tendency to confuse the question of reasonable doubt, and to tell the jury that they might convict the defendant whether they believed him guilty beyond a reasonable doubt. The reasonable doubt part of the instruction seems to refer only to the jury believing that Ben Collins was murdered beyond a reasonable doubt, and not that the defendant committed the murder, or was present aiding and abetting therein, beyond a reasonable doubt. However, if this were the only error committed in this case, this court would not reverse the case upon that ground, for the reason that in the last part of the instruction the court states that “the evidence must not be susceptible of 'any other reasonable conclusion or explanation than that to a moral certainty said defendant, A. Washmood, is guilty as so charged.” We believe that the jury would have inferred from the last part of the charge that it was necessary to convict the defendant beyond a reasonable doubt; while we believe that the instruction is not worded as it should have been, yet this error alone would not be sufficient to reverse this cause.

Fifth. It is next contended by the defendant that the court erred in instruction No. 18, which is as follows:

“If you find from the evidence that the defendant, A. Wash-mood, was not present at the scene of the killing of the said Ben Collins, or that he did not aid, abet, encourage, and advise the taking of the life of the said deceased, or if, after a careful consideration of all the evidence, facts, and circumstances in the case, as disclosed upon the trial, you entertain a reasonable doubt as to the said killing, and as to his having aided,, abetted, encouraged, and advised its commission, then you should acquit said defendant, and return a verdict of not guilty. (Given and excepted to by defendant.)”

In our opinion this instruction was erroneous. Practically the same kind of instruction has been passed upon by this court in the following cases: Weber v. State, 2 Okla. Cr. 329, 101 Pac. 355; Rea v. State, 3 Okla. Cr. 270, 105 Pac. 381; Clendenning v. State, 3 Okla. Cr. 379, 106.Pac. 540. As stated by the court in the above cases, this instruction tends to put the burden of proof upon the defendant by stating:

“If you find from the evidence that the defendant, A. Wash-mood, was not present at the scene of the killing of the said Ben Collins, or that he did not aid, abet, encourage, and advise the taking of the life of the said deceased.”

These words place the burden of proof upon the defendant,, and, as stated by Judge Furman in the Rea case, supra, “is the exact reverse of the law. Under our system the burden of proof is on the state. The defendant is presumed to be innocent until his guilt is established by the state by legal evidence beyond a reasonable doubt, and, if the state fails to do this, the defendant should be acquitted, whether the jury believe him innocent or not.”

The Court of Criminal Appeals of the state of Texas, in the case of Johnson v. State, 29 Tex. App. 151, 15 S. W. 647, had under consideration the following instruction:

“If you believe from the evidence that the defendant, acting either alone or in concert with Jeff Wood, did not poison Elizabeth Rucker as explained in paragraph 3, or if you believe that the deceased was poisoned by accident or by her own voluntary act, or if you believe that the deceased died from natural causes, or if you believe that the deceased was poisoned by some other person than the defendant, acting alone or in connection with Jeff Wood, then you will find the defendant not guilty.”

The court says:

“We think the paragraph is subject to an exception that it requires the jury to believe from the'evidence of the existence of conditions which entitled him to acquittal. It virtually requires the jury to believe from the evidence that he is innocent before finding him not guilt}'-, whereas, -the correct rule is that the jury must presume his innocence until his guilt has been established by the evidence beyond a reasonable doubt. If the jury entertained a reasonable doubt upon the whole evidence of the defendant’s guilt, it was their duty to acquit him, although they might not believe from the evidence the existence of the facts and conditions, or any of them, mentioned in said paragraph. It is true that in concluding his charge the learned judge gave the usual instruction as to the presumption of innocence and as to reasonable doubt, and ordinarily such instruction is sufficient; but in this case we do not think it was sufficient to correct and counteract the error in paragraph 5. * * * The vice of the paragraph is in requiring the jury to believe from the evidence that some one of said conditions existed in order to warrant a verdict of acquittal because thereof.”

As stated by Judge Furman, in the case of, Rea v. State, supra, after quoting from the Court of Criminal Appeals in the case of Johnson v. State, supra:

“It is apparent that within itself this instruction is inconsistent and contradictory. This court has held that, where the instructions on a material point in a criminal case are inconsistent, some correct, and others incorrect to the extent that they may be misleading to a jury, a conviction will be reversed” —citing Price v. State, 1 Okla. Cr. 358, 98 Pac. 447.

We think that the instruction given in this case was misleading; that in the first’part of the instruction the court placed the burden of proof upon the defendant, and that the last part of the instruction cannot be harmonized with the first part of said instruction; that the giving of the same was prejudicial to the rights of the defendant.

Sixth. It is next contended by the defendant that the testimony of the state is insufficient to sustain a verdict of guilty. In this connection we will pass upon the admissibility of certain testimony, which was offered by the state over the objection of the defendant, and in order to pass upon these objections intelligently it is necessary to review the testimony offered in this case.

The first witness called •by the state was Tom Smith, who testified that he was sheriff of Pontotoc county, Okla.; that he saw Jim Miller and B. B. Burrell at Ada; that he saw them the last time on April 9, 1908; that they were dead at that time. It was then asked the witness:

“Q. Do you know the cause of his (Jim Miller’s) death? A. Yes; he was hanged by a mob. Q. Do you know a man by the name of B. B. Burrell? A. Yes, sir. Q. Was he living or dead the last time you saw him? A. He was dead. Q. Do you Enow the cause of his death? A. He was also hanged by the mob.”

All this testimony was introduced over the objection of the defendant. The witness then gave a description of both Jim Miller and B. B. Burrell. It is' the contention of the state that this was the purpose of the witness’ testimony; but it certainly seems to us, after reading the whole record in this case, that the testimony of this witness in reference to the hanging of Jim Miller and B. B. Burrell at Ada by a mob was. inadmissible, and highly prejudicial to the rights of the defendant. This was the first witness placed upon the stand. Nothing at this time had been shown to connect the defendant in any way with either Miller or Burrell, and this testimony could have had but one •effect at the outset of this trial, to prejudice the minds of the jury against the defendant by showing that the men who had been indicted with him had been hanged by a mob in an adjoining county. It is therefore our opinion that this testimony was inadmissible, in so far as the witness was allowed to testify to the lynching of Miller and Burrell by a mob at Ada.

Mrs. Ben Collins, the wife of the deceased, was the next witness. She testified that the defendant, Washmood, had come to their house several times prior to the killing of her husband; that her husband and the defendant had talked about insurance; that the defendant came to their house in a buggy just about sundown on Wednesday, August 1, 1906, the day of the killing; that there were two roads going from the Collins home to the little town of Emmet, one known as the East road and one as the AVest road; that her husband had gone .to Emmet on Tuesday, ■and had not returned at the time the defendant was there, about sundown; that the defendant inquired of the hired man, Jasper Jones, where Mr. Collins was, and, on being told that he had gone to Emmet, the defendant left in his buggy, going in an easterly direction toward Emmet; that about 9 o’clock on the same night she heard a buggy and team drive up fast to the front gate of their home, which was about 200 yards east of the house, and drive away very, fast; that in-'a few moments she heard the repeated firing of guns; and that not less than eight shots were fired. She saw the flash of the guns, and hurried to the gate, and found her husband dead. The shots had been fired by some one. standing behind a fence near the gate. Her husband’s face was powder burned, and he was lying on his left side, holding his pistol.

Jasper Jones, the next witness, testified that he was working for Ben Collins, and had seen the defendant at Ben Collins’ on several occasions just, prior to the killing, talking insurance, and the defendant had met witness and Mr. Collins on Monday prior to the killing on AVednesday when they were peddling beef; that Mr. Collins had gotten out of the wagon, and got into the buggy and rode with the defendant, and was going with the defendant on Tuesday up about Wapanucka on some insurance business; and the witness also testified in reference to the killing in about the same manner as Mrs. Collins, and to finding shotgun shells the next morning in the corner of the fence near the gate where the deceased Ben Collins was killed.

J. D. Stephens, the next witness, testified that he lived about a mile and a quarter from Ben Collins, and on the road to Em-met; that he saw a man whom he took to be the defendant drive past his place in a buggy Sunday prior to the killing on AA^ednes-day, and inquired the way to Ben Collins’. He came back about 11 o’clock in the morning of the same day, going toward Emmet. He also saw a man whom he took to be the same man going toward Ben Collins’ house about sundown in a buggy on the day of the killing, which was about 7 o’clock. Somewhere about three-quarters of an hour after this he saw this same man in a buggy pass by his house, going toward Emmet; that there was only one man in the buggy, nor was there any one near him. He also testified that he heard the shots fired about 9 o’clock in the direction of Ben Collins’ house. He also testified to hearing a buggy pass his house after the shooting, and to his best opinion there were two men in the buggy.

Henry Whatley' testified that he lived three or four miles from Ben Collins’ place, and after the killing stayed there all night; that the next morning he saw shotgun shells and tracks near the scene of the killing.

Lee Dunn testified that on the evening of the killing he passed two buggies about sundown about 200 yards from the witness J. D. Stephens’ house, one being driven by a man whom he believed to be the defendant, and the other by a man whom he afterwards believed to be Jim Miller; he had never seen either of them before, and only saw Miller at Ada after he was dead; that the buggies were about five steps apart; and that the defendant was in the front buggy. It will be noted here that these buggies were at this time, according to .the witness, within 200 yards of J. D. Stephens’ house, yet Stephens testifies that there was only one buggy passed his house, in which the defendant was driving, and that he saw this buggy pass back about the time it. v-ould have taken to have gone to Collins’ house. The testimony of this witness seems to be in direct conflict with the testimony of the witness Stephens.

Willie Stephens testified that on the night of the killing he was staying at George Turnbull’s home near Ben Collins’ farm; that he heard the firing- of the guns about 9 o’clock in the direction of Ben Collins’, and that in about 30 or 40 minutes he heard a buggy pass the Turnbull residence; that two men were in the buggy- whom he heard talking. The men were traveling fast, and ran into a treetop that had fallen across the road. He also testified to tracking a team the next morning.

James Vaughn also testified to being at George Turnbull’s house on the night of the killing, and he heard the buggy pass after the shooting with two men in it. Mrs. Little Vaughn, the wife of the witness James Vaughn, testified to the same facts as her husband.

W. G. Jones, a deputy marshal, testified to going to the scene of the killing on the morning after it occurred, and to finding what he described as two ambushes near Ben Collins’ house, and to tracking a team near one of these ambushes. He testified that one of the horses had a nick out of its right hind foot,, which compared with the description of the horses driven by the defendant, Washmood, on the day of the killing. He also testified to finding the saddle and bridle taken from the horse-Ben Collins was riding on the night of the killing.

James H. Bridges, deputy marshal, testified to tracking horses and buggies near the scene of the killing, and that he heard the defendant say the next morning at Tishomingo that he was not around Ben Collins’ on the day of the killing.

P. W. Martin testified to working at a livery stable in Tish-omingo, and that the defendant hired a certain team from him on the day of the killing, and that one of the horses had a nick out of its right hind foot.

Mrs. Allie Armstrong testified that she was running a hotel at Tishomingo, and that the defendant stayed at her hotel the night before the killing, and engaged a room for Wednesday night for himself and two friends, and that he did not stay there.

James PI. Bridges, on being recalled, testified to finding a paper, a Daily Ardmoreite, dated July 26, 1906, and also a brown-hat in the woods near the road not far from the killing, and also-finding some cans and a can of peaches about ten feet from the-road.

L. W. Pearson testified that he was a salesman in a general' merchandise store at Emmet, and that he sold the defendant some-canned goods a few days before Ben Collins was killed. He did not remember just how long, but identified the cans offered in evidence as being the cans sold to the defendant.

George Dunn testified to seeing two men by the side of the road eating canned goods on the morning before Ben Collins was killed in the evening. He could not identify them, and could not testify that the defendant was one of them.

Wiley Melton testified to being city marshal at Tishomingo, and arresting the defendant the morning after the killing, and that the defendant told him he had not been to Ben Collins’, and that the defendant was wearing a straw hat.

C. D. Latham testified to seeing the defendant in a buggy on Monday before the killing, and that the defendant asked him the way to Bee.

Luther Horton testified to seeing the defendant pass his house in a buggy the day before the killing, going toward Emmet. He also testified to seeing a man whom he took to be Jim Miller in a buggy near Ben Collins’ on the morning of the killing.

E. R. Peachland testified that he was a liveryman at Tisho-mingo, and that he met the defendant on the road in the evening of the killing going from Tishomingo toward Ben Collins’ house; that the defendant told him he was going to Emmet that night, and to Bee the next morning.

Mrs. Mary Thomas testified to being the wife of the hotel keeper at Emmet; that Washmood, the defendant, stayed all night there several times prior to the killing; that two other men were there, and got supper, started away, and came back, and stayed all night; that afterwards she was told that one of them was Jim Miller. She also testified to the defendant coming to their hotel after the killing; that he drove up, and “hollered,” and awoke her and her husband; that the defendant said that it was early; that the defendant put up his team, and after putting it up came into the house, and went to bed. She testified that it was after 10 o’clock when the defendant came to the hotel. She also testified that her children and another boy, who was staying at the hotel, by the name of Newt. Dugger, had gone to church that night, and had returned before the defendant arrived. It will be noted that this is in direct conflict with the testimony of her husband, Dr. Thomas, and Newt. Dugger, each of whom testified that the defendant, Washmood, had gone to bed prior to the time of the arrival of the children from church.

Lem Thomas testified that he was the son of Dr. Thomas, who ran the hotel at Emmet; that he went to church on the night of the killing, and came back about 10:30, and was awakened by the defendant, Washmood, “hollering.”

Jacob L. Thompson, the next witness, testified that he was secretary to Governor Johnson; that he met a man in a buggy between sundown and dark near Ben Collins’ place, and the man asked him if he was Ben Collins. He testified that it.was a slim, stoop-shouldered man, who looked like Jim Miller,. who was hanged at Ada, and whom he saw after he was hanged by the mob.

Push Cheedle testified that he went to church at Emmet on the night of the killing, and after church was over he went down by a bridge near the church about 10 :30 or 11 o’clock, and saw a buggy pass going toward Emmet with the horses in a gallop.

W. J. Horton testified to meeting the defendant two weeks before the killing. Washmood asked him if Ben Collins had not come that road. He also met Washmood-on the Sunday before the killing, and that he was in a buggy. He also saw Jim Miller coming out of Emmet the day Collins was killed. He saw canned goods in the buggy. He also saw him a third time about sundown in that vicinity on the day of the killing. The defendant, Washmood, was not with him at any of the times. He also saw Dr. Thompson, the secretary of Governor Johnson, pass, and then saw Jim Miller pass in a buggy on the East road. He saw the deceased, Ben Collins, going towards his home, and saw Jim Miller following Collins in a buggy by himself. This was just a short while before Ben Collins was killed. He also testified to seeing B. B. Burrell about two weeks before the killing near one of the ambushes, and that he was driving a mule team.

A. P. Kirkwood testified that he owned a store at Lynn, which was about four miles south of Ben Collins’ house, and across the Washita river; that on Friday before the killing he saw the defendant, Washmood, at his store; that the defendant asked him if he had seen two men during that day; that he again saw the defendant on Monday before the killing, and that he came into the store with two other men, and bought three bottles of Longhorn and some canned goods; that after drinking the parties left. And he afterwards identified one of the parties who was with the defendant as being Jim Miller, and he identified him at Ada after he was hanged; that being the only time he had ever seen him.

Vessie Hendricks testified that she was living near the witness Stephens’ house, about two miles from Ben Collins’, prior to the killing; -that she saw buggies at the spring near her house on Sunday, Monday, and Tuesday, and Tuesday night before the killing; that there were two men riding in the buggy. Charles Hendricks, husband of Vessie Hendricks, testified to the same facts as his wife, and also testified to hearing the buggy running after the killing.

W. F. Gilmer, the next witness, testified that he saw the defendant in Durant on Saturday or Monday before the killing. He saw him at a restaurant, and also testified that he saw Jim Miller at the same restaurant. It will be noted that the other witnesses for the state testified that the defendant, Washmood, was in the vicinity of Ben Collins’ house, in Johnson county, both on Saturday and Monday prior to the killing of Collins on Wednesday, yet this witness for the state testified that he saw the defendant in the town of Durant on Saturday or Monday prior to the killing.

B. F. Phillips, the next witness, testified that he saw the defendant at a ferry on the Washita river between Ben Collins’ “house and the town of Lynn a few days before the killing. He also testified that two men crossed the ferry at the same time as the defendant, but that he does not believe that either of them was Jim Miller.

W. D. Graham testified that he was ferryman near Lynn, and that he saw the defendant, Washmood, several times before the killing, and also saw two other men in that vicinity at different times just prior to the killing.

Tom Campbell testified that he saw the defendant, Wash-mood, pass his house in a buggy, and that he inquired the way to Ben Collins’ house, on Saturday, July 7th, and also saw him in a buggy going south toward Lynn on the following Sunday.

The testimony of Dr. Thomas, who was dead at the time of the trial, was read from the stenographer’s report of the preliminary hearing. He testified that he was running a hotel in the town of Emmet; that the defendant, Washmood, came to hi's house on the night of the killing; that he arrived there about 10:15. He testified that his children came home from church after Washmood had arrived and gone to bed. He also testified that the defendant told him that he had passed Ben Collins on the road beyond the church, and that when the .defendant first arrived at his house he made some remark about it being early; and that he told the defendant that it was not early, but that it was about 10 o’clock. He also testified that the defendant seemed to be nervous, and that a brother of Ben Collins came to his house before the defendant left for Tishomingo.

W. W. Carter testified that he was in the hotel business at Madill, and that the defendant registered at his hotel on July 5th, and that the defendant, Washmood, and a man by the name of Alford registered on July 6th; that Washmood did not occupy his room on the 5th, and Alford signed for him on the hotel register on July 6th. He also testified that they had a friend there with them durnig one of the times they were there.

Fred V. Kinkaid testified that he was a court reporter; that Washmood testified at the former hearing that he had never met Jim Miller before he saw him in the Ada jail, and did not know the Pruitt boys until after the killing. George Terry testified to seeing the defendant, Washmood, and Jim Miller together several times before the killing at Tishomingo,' Durant, and at Ardmore. Pie testified that he saw them together six years prior to that time.

N. H. Simmons testified to knowing the deceased for six or eight years and the defendant, Washmood, for eight years, and testified that he saw them come in a buggy together to Ardmore about a week or ten days before the killing.

W. E. McLemore testified that he saw Henry Pruitt and Pote Pruitt in Ardmore a day after the killing, and saw Clint Pruitt come in the next day.

Martin Cavins testified that he saw Clint Pruitt and Pote Pruitt at a picnic in Orr some time in June or July, 1906, and saw a man with them at that picnic whom he heard was Jim Miller.

Henry Davenport testified to being at the Orr picnic, and seeing Clint and Pote Pruitt, and that Clint Pruitt introduced him to a man who was with them, calling him by the name of Jackson, and told him that he was a mean man. This conversation was not in the presence of the defendant.

Jim Cavins testified to being at the Orr picnic along the latter part of July, 1906, and seeing Clint and Pote Pruitt, and seeing with them a tall, slender man, weighing about 150 pounds, and also saw Miller twice after that in Ft. Worth, once after he was dead, and he testified to hearing Clint Pruitt saying on the day of the Orr picnic that -that fellow came there to kill Ben Collins, and he also testified that there was a picnic at Hewitt on one of the days that the picnic was held at Orr, and that Clint Pruitt told him that they would “get him” at one of the picnics. His exact testimony was: “Q. What did Clint say? A. He said— he told me that evening that that fellow came there to kill Ben Collins, is what he told me.” This testimony was not in the presence of the defendant.

J. A. Cummings was the next witness, and he testified that in June before the killing he bought a bunch of cattle at a sale with Henry Pruitt; that they drove the cattle to Duncan, and while on the way he told Henry Pruitt that he ought to send Pote Pruitt to New York City for the purpose of getting certain medical attention, Pote Pruitt being paralyzed in one of his legs by a bullet, which had been fired by Ben Collins; and that Henry Pruitt made the remark that. Pote would outlive the son of a bitch that shot him. “I have got a man after him that will get him. It will cost me $500; but I will gladly pay it. I have got an old Quantrell man after him.” This testimony was not in the presence of the defendant, and was introduced over the objection of the defendant.

Luke Jackson testified that he saw Jim Miller and B. B. Burrell and Henry Pruitt at the Board of Trade Saloon in Ft. _ Worth, Tex., about a month or six weeks before the killing; that he saw B. B. Burrell introduce Henry Pruitt to Jim Miller at that time, and that Jim Miller and Henry Pruitt went into the back of the saloon, and had a long talk together.

G. P. Wallace, the next witness, testified that he saw the defendant, Washmood, at Pete Pruitt’s house in October or November, 1909, and that he came into the house, and was introduced by Pote Pruitt to the defendant as a man by the name of Johnson, of the Standard Oil Company.

Robert I-Iomer, an Indian boy, testified that he carried the •defendant, A. Washmood, in a buggy to within five miles of Waurika, in Jefferson county, and that the defendant, Wash-mood, got out of the buggy, and walked to the town of Waurika.

T. N. Robnett testified to seeing Clint Pruitt and possibly Pote and Henry Pruitt at the Plewitt picnic during the month •of June, and that there was with them at that time Jim Miller, whom he knew well.

V. A. Niblack testified that he was United States jailor at .Ardmore, and identified J. B. Miller’s handwriting.

Perry Maxwell testified that he was a bank cashier, and 'identified the handwriting of J. B. Miller.

D. E. Becker testified to seeing J. B. Miller in Ardmore on the morning after the killing; that he came and registered at the ■ Gilmer Hotel; and that he saw where Miller and Washmood were registered together on August and at this hotel.

A. B. Brown testified that he was on the police force at Durant, and that a man by the name of E. P. Alford, along about the 1st of July, 1906, wrote the initials “B. C.” on a notebook, and told him that a man of that initials would be killed in fifteen days. PTe identified the notebook which was introduced in evidence.

T. W. Anderson testified that he was on the police force at Durant, and that Policeman Brown showed him a book with the initials “B. C.” on it after Ben Collins was killed. He also testified that the defendant, Washmood, and Alford were in the insurance business in Durant.

This closes the testimony for the state.

The ■ defendant, Washmood, testifying in his own behalf, said: That he was 67' years old. That he was in the insurance business, and had been for a long time prior to August 1, 1906. That he lived in the town of Durant at that time; but that he wrote some insurance in Johnston county also. That he and one E. P. Alford were partners in the insurance business, and worked together. That they wrote both life insurance and fire insur-anee, and gave the names of several parties for whom they wrote life insurance in and around Enimet, and in Johnston county, and around Madill, prior to the killing of Ben Collins. He testified that he came to Madill near the 1st of July, and on Saturday, either the 6th or 7th of July, he went to Ben Collins’ house, as testified to by the witness Tom Campbell. That he inquired the way to Ben. Collins’ house, and arrived there about noon on Saturday, either the 6th or 7th of July. That he inquired of Mrs. Collins as to the whereabouts of her husband, and found out that he was away from home. He went to the town of Emmet. That he telephoned to his partner, Mr. Alford, asking him to meet him in the town of Lynn that afternoon. That he drove to- Lynn that afternoon. That he thought he would meet Mr.- Alford. That while there he met two other parties, who drove up in a buggy. That he had never seen these parties before, and he got into a conversation with them. That they had some whisky. That he went into the store of the witness, A. P. Kirkwood, where he bought some Longhorn, and he and these parties he met there drank this together. That when he first saw these parties he thought that it was Mr. Alford, and this was the reason for getting into a conversation with them. That he left the town of Lynn that afternoon. That he thought he would stay all night at Ben Collins’ house, as his wife had told him he would be back. When he got to Ben Collins’ house, he asked about .staying all night, and Collins told him that he could stay at his uncle’s, who lived near there. That he had plenty of horse feed. Tha-t he went to the uncle’s house, stayed all night, and the next morning drove into the little town of Emmet. That during the conversation that he had with Ben Collins on the evening before Mr. Collins agreed to help him write some insurance in that vicinity, and he agreed to pay Collins for his services. This conversation occurred on Sunday morning prior to his going to Emmet. He next testified to going to Madill. and then going to his home at Durant, and after that made different trips into that section of the county in and around Emmet in connection with this insurance business. He testified that he came to the witness Marshall’s hotel on Saturday prior to the time that Ben Collins was killed. He stayed there all night. The next morning he hired a buggy and team, and went from there to see Ben Collins. He met Mr. Collins at his home, and .that he and Ben Collins had several drinks together out of a bottle, which he had. That during that conversation Mr. Collins agreed for him to write an insurance policy on his life for the sum of '$5,000, and that the premium on such policy would be $161.50, and that his part of the premium would be $80 or $90, and that Ben Collins promised to go with him to Tishomingo on the following Monday for the purpose of being examined preparatory to taking out said policy of insurance. That on Monday morning he hired a buggy and team, the same team he had driven before, and went to Mr. Collins’ house. That when he arrived there he found that Mr. Collins was gone, and that some of his children told him that Mr. Collins had killed a breachy cow, and was down in the bottoms trying to sell it, and he drove on and overtook them. He also testified that Mr. ■Collins got out of the wagon, and got into the buggy and rode with him for quite a way. When they came to the Milburn road, Collins got out of the buggy, and got back into the wagon, and that he and Mr. Collins agreed to meet the next morning in the town of Emmet. That he, Washmood, drove that evening to Tishomingo, had dinner, and from there drove to Milburn, the place from where he had started. He stayed all night in Milburn, and early next morning took the same team and went to Emmet, where he found that Mr. Collins had already been, having passed there on horseback. That he transacted certain business in that community relative to collecting insurance notes, and that he had returned to Milburn, and took the train to Tishomingo, where he' stayed all night and the next day until 3 o’clock in the afternoon. This was on Wednesday, the day of the killing. He hired a buggy and team from the livery stable in Tishomingo about 3 o’clock, and started towards Ben Collins’ house. He stopped and collected some insurance notes on the way over there. On the way over there he met Mr. Peachland, the livery stable man, as testified to by him. He arrived at Mr. Collins’ house between sundown and dark. That he went by the witness Stephens’ house, as testified to by him; but that there was no buggy near him at the time he passed there, as testified to by George Dunn.' That when he reached Mr. Collins’ house the hired man, Jasper Jones, told him that Mr. Cob-lins was not there, but had gone to Emmet. That he turned around and drove leisurely toward Emmet, passing by the witness Stephens’ house, as testified to by him, taking what is known as the West road to Emmet. He stated that on his way he met some man, and asked if it was Mr. Collins, and immediately saw it was not. That he went on towards Emmet, and just before getting to Emmet he met Ben Collins on horseback going towards his home. He testified to passing the church, about which the witnesses testified, but denied that he saw any one at the bridge, and denied that he got to the hotel near 10 or 10:30, but that it was near 9 o’clock. That Dr. Thomas had gone to bed himself. That he looked at his watch, and that it was fifteen minutes after 9 o’clock. That he got up early next morning, and went to Tishomingo, and left on the noon train for Ardmore. He also testified that the relations between him and Ben Collins had been very friendly. That he knew nothing of the assassination, and was not in any wise a party to it. That he had formerly gone to the Emmet neighborhood to write Ben Collins’ insurance, and that as soon as he learned of his assassination he knew that it was useless for him to stay there any longer, and that this was his reason for going to Ardmore, and from there to Durant, his home. He testified that while in Ardmore he had no arrangements to meet J. B. Miller, and did not at that time know either Henry, Pote, or Clint Pruitt. That he stayed all night in Ard-more, and took the first train out in the morning to Durant. After going home he was arrested on a charge in connection with’the murder of Ben Collins. After his preliminary examination in Durant he made bond, and was living in Idabel, Okla., with Capt. McGinnis, who is now one of his counsel, when he heard that some officer from Ardmore was in that country for the purpose of rearresting him. That he did not understand why this was, as he was out on bond, and he did not believe that his bondsmen would turn him up. That acting upon the advice of Capt. McGinnis he went to Ardmore about that time, having heard that his case was set for November 16th. That he was advised by Capt. McGinnis to go to see the attorneys of the Pruitts when he got to Ardmore, and take their advice. That immediately upon reaching Ardmore he went to the office of the attorneys for the Pruitts, and they informed him that in the transfer of the case from Johnston to Carter county his bond had been lost, and was on that morning, for that reason, forfeited. That they asked him if he could at that time make bond, and he told them that he did not know whether he could or not. That the lawyers advised him that, owing to the high state of feeling in that community, and on account of the lynching of J. B. Miller and B. B. Burrell at Ada, it would be dangerous for him to be placed in jail, and that, they advised him to go to see Henry Pruitt, who lived near Cornish. He testified that at first he protested against this; but on being informed of the danger of staying there he walked out to Pote Pruitt’s house near Cornish. That while there he was introduced to one of the neighbors by Pote Pruitt as being a man by the name of Johnson, of the Standard Oil Company. That this party came up to where they were talking unexpectedly, and that Mr. Pruitt introduced him by that name o.f his own accord. That he had never seen Pote Pruitt prior to coming to his place on this occasion. That he stayed there for three or four days, and that an Indian boy carried him near to Waurika one night, and that he got out of the buggy, and walked into Waurika, and took the train for San Antonio, Tex. That he was afterwards arrested in San Antonio,, and when coming to Ardmore escaped from the train. That he returned to San Antonio, and of his own accord made arrangements with a friend at Ft. Worth to accompany him to Ardmore. That he came and surrendered of his own accord, and had been in jail up to the time of this trial. .

J. W. Marshall testified in behalf of the defendant that he was a hotel keeper at Emmet and Milburn; that Mr. Wash-mood stayed at 'his hotel at both places prior to the killing of Ben Collins; that it was his understanding that the defendant was in the insurance business at that time, and that he, himself, took out'an insurance policy with the defendant; that the defendant stopped at his hotel and stayed all night on Saturday, Monday, and Monday night before the killing of Collins on Wednesday, find was there Tuesday morning; that he came there Saturday evening about 1:30 or 2:00, and had late dinner; and that he was there for supper and left Sunday morning, and was back for supper Sunday night, and stayed all night there Monday night, and left, saying that he had to go out into the country on some business.

Horace Tanner testified in behalf of the defendant that he was residing at Milburn, and remembered seeing the defendant, Washmood, at the hotel in Milburn just prior to the time Ben Collins was killed; that he remembered the night Ben Collins was killed; and that he went to the hotel late that night, and saw three parties riding through the town of Milburn between 12 and 1 o’clock on horseback, coming from the direction of' Ben Collins’ place.

IvUtie Johnson testified in behalf of the defendant to having certain insurance transactions with the defendant during the time he was in and around Emmet just prior to the killing.

N ewt. Dugger’s testimony, which was given at the preliminary examination, was read in behalf of the defendant. He testified that he was at Dr. Thomas’ hotel on the night Ben Collins was killed; that he went to church that night, and when he returned home that the defendant’s, Washmood’s, coat was hanging up; and that he went to bed about 11 o’clock.

W. L. Hilton testified in behalf of the defendant that he knew the defendant, Washmood, and had known him for several years, since 1905: that he had some property near Emmet, and was building a house down there in July, 1906; that the defendant, Washmood, was writing insurance there in the country at that time; that he saw him in July, 1906; and that he had on a brown Eedora hat, as testified to by the defendant, and that the hat exhibited as being found near the killing was not the hfit worn by the defendant, Washmood, at that time.

W. I. Cruce, an attorney of Ardmore, testified in behalf of the defendant, Washmood, and corroborated his testimony as to advising the defendant, Washmood, to go to Pruitt’s residence, in Jefferson county, when his bond had been lost.

R. C. Edland testified that he was a merchant at Lynn, and that the defendant, Washmood, came to his store on Saturday evening and also Sunday before the killing, and was there Monday and Tuesday.

This concludes the testimony, both for the state and for the defendant.

It is the contention of the state that Pote Pruitt had been shot by Ben Collins while Ben Collins was deputy United States marshal, and, as a result of this shot, one of Pote Pruitt’s limbs had become paralyzed; that for this reason Henry, Clint, and Pote Pruitt, who were brothers, had employed J. B. Miller and B. B. Burrell to assassinate Ben Collins, and that the defendant, Washmood, had also been employed by the Pruitts for the purpose of getting Ben Collins to leave his home in order give said Miller and Burrell an opportunity to assassinate him; and this is the theory upon which this case was tried; it being the contention of the state that said Ben Collins was assassinated as a result of said conspiracy between said parties.

We have reviewed the testimony of every witness who testified in this case, for the reason that after careful consideration of the whole record we have come to the conclusion that the evidence offered by the state was not sufficient to show that the defendant, A. Washmood, entered into a conspiracy to assassinate Ben Collins, and therefore that the testimony of certain witnesses to declarations and acts of others which were not in the presence of the defendant was inadmissible. It will be recalled that certain witnesses testified to being present at the picnic at Orr and Hewitt during the month of June, 1906, at which places the Pruitt boys were present and in company with a strange man, who afterwards was proven to be Jim Miller. On each of these occasions the Pruitt boys made declarations with reference to this stranger being present there for the purpose of killing Ben Collins; also declarations of Henry Pruitt to the witness J. A. Cummings in June, before the killing in August, that: “I have got a man after him that will get him. It will cost me $500; but I w’ill gladly pay it. I have got an old Quantrell man after him”' — also acts of Henry Pruitt, as related by the witness Luke Jackson, concerning the meeting of Henry Pruitt with J. B. Miller and B. B. Burrell at the Board of Trade Saloon i'n the city of Ft. Worth, Tex., about a month or six weeks before the killing. These declarations and acts were not in the presence of the defendant, and were allowed to be introduced by the state upon the theory that a conspiracy had been proven between Henry, Clint, and Pote Pruitt, and J. B. Miller, B. B. Burrell, and the defendant, A. Washmood, to murder the deceased, Ben Collins. It will not be controverted that the above statements were very damaging to the defendant, in view of the testimony of Tom Smith, sheriff of Pontotoc county, who testified to the lynching of J. B. Miller and B. B. Burrell by a mob at Ada, in an adjoining county to where the defendant was tried. But there is not a line of testimony to connect this defendant with the Pruitts prior to the Orr and Hewitt picnics, and prior to the making-of said declarations. There is no testimony to connect the defendant with the Pruitt boys in any way prior to the killing of Ben Collins, yet these damaging declarations and acts of the Pruitt boys were admitted against the defendant for the reason that a conspiracy had been proven between said parties to murder said Ben Collins. We are well aware that a conspiracy can be proven by circumstances as well as by direct and positive testimony, and it is often proven in that way. But in this case there is not only no direct and positive testimony as to the conspiracy, but the circumstances proven in this case are such that after reading them one cannot come to any other conclusion than that no conspiracy existed on the part of the defendant to take the life of the deceased. The mere fact that the defendant had been seen in the neighborhood where the deceased lived and in company with the deceased prior to the killing is not sufficient to establish a conspiracy. State v. Walker, 124 Iowa, 414, 100 N. W. 354; State v. Kennedy, 177 Mo. 98, 75 S. W. 989; Rhodes v. State, 39 Tex. Cr. R. 332, 45 S. W. 1009; Renner v. State, 43 Tex. Cr. R. 347, 65 S. W. 1102; Blain v. State, 30 Tex. App. 702, 18 S. W. 862.

A conspiracy is the combination between two or more parties to do a thing criminal or unlawful in itself, and may be proven by facts and circumstances, if sufficient, and when shown to have existed then the statements and acts of each of the conspirators made or done in pursuance of the common design may be proven against the others upon prosecution against them for the commission of the crime; but nothing said or done by them after the crime has been accomplished is admissible. And for such testimony to be admissible it must be proven, first, that a conspiracy actually existed, and the declaration made must be in pursuance of the common design. The testimony in this ca«e does not, in our opinion, prove that a conspiracy on the part of the defendant existed, and the declarations which were admitted against him were not made or done in pursuance of the common design to murder thé deceased, as the law requires.

In the case of State v. Walker, 124 Iowa, 414, 100 N. W. 354, a case with many points similar to the case at bar, it is said:

“We think there is another good reason why the declarations of Levich should have been excluded from the consideration of the jury. What Eevich said, as testified to by the witnesses, was, in substance, that he had a grudge or grievance against Finkel-stein, and. that he had hired defendant to do him an injury. This declaration was not made in furtherance of the unlawful plan; * * * it was a mere narrative of a fact, made, * * * not purporting in any way to represent the defendant. The rule, as usually stated, with reference to the admissibility of the declarations of one conspirator as against another, is that such declarations are admissible only where they are made pending the conspiracy, and in furtherance of its unlawful purpose. State v. Crofford [121 Iowa, 395], 96 N. W. 889; People v. Parker, 67 Mich. 222, 34 N. W. 720, 11 Am. St. Rep. 578; Spies v. People, 122 Ill. 1 [12 N. E. 865], 17 N. E. 898, 3 Am. St. Rep. 320, and note, 497; McKenzie v. State, 32 Tex. Cr. R. 568, 25 S. W. 426, 40 Am. St. Rep. 795; McCaskey v. Graff, 23 Pa. 321, 62 Am. Dec. 336. It is true that in many if not ah cases cited the rule as thus stated is invoked to exclude declarations made after the conspiracy had been completed or abandoned with reference to what took place while the conspiracy was in existence; but in principle the same reasons are applicable to declarations made while the conspiracy is pending, but not in furtherance of the unlawful purpose. The declarations of one conspirator are admissible against anQther on the theory that each is .acting for all — that is, on the principle of agency — and certainly an alleged conspirator is not to be charged with 'statements made by another which have no relation to the carrying out of the common design. The fact appears to be that Levich made, the declarations, to which the witnesses testified, in a spirit either of bravado, or, as one of the witnesses says, in a joking way, and his declarations were not taken seriously, nor did they apparently receive any attention until after the death of Finkelstein, when it was sought through them to connect the defendant with the crime. If these declarations were of any significance, they were much more incriminating as against Levich himself than as against the defendant. It is also to be noticed that some of the declarations to which the witnesses testified were made at a time prior to any connection or relation between Levich and defendant, so far as the other evidence in the case tends to establish it. Of course, declarations of Levich made prior to the formation of the conspiracy, and not in furtherance of any plan with which defendant was shown to have been connected, were not admissible.”

It may be contended by the state that the jury had the right to say whether, under-all the testimony in this case, a conspiracy existed, and that it was a question of fact for the jury to decide under the instructions of the court. This is answered by saying that defendant was entitled to a verdict as to his guilt free from the prejudice that might reasonably arise from the introduction of the incompetent testimony referred to above. It may have been and doubtless was true that the jury would not have found the defendant guilty beyond a reasonable doubt if the declarations and acts of the Pruitt boys had not been admitted in evidence. It was probably their declarations and acts that satisfied the minds of the jurors as to the guilt of the defendant, and from the verdict rendered in this case it must have had a strong tendency in that direction.

The defendant in this case is strongly corroborated by the state’s witnesses in many material matters in connection with this case. The testimony of the witness J. D. Stephens, to our minds, strongly corroborated the defendant’s testimony. This witness testified that the defendant passed the witness’ house in a buggy by himself on the day of the killing about sundown going toward Ben Collins’ home; that in a short while he saw the defendant - drive back past the house going toward Emmet, as testified to by the defendant. This was quite a while before 'the killing, and corroborates the testimony of the defendant.

W. J. Horton, another witness for the state, testified to seeing Jim Miller going out of the town of Emmet on the day of the killing, and that he had some canned goods in his buggy; that there was no one with him at that time; that witness passed Ben Collins on the East road to Emmet coming from Emmet, and in just a few minutes before the killing occurred; that almost immediately after passing Ben Collins on the East road he passed Jim Miller in a buggy by himself, following Ben Collins. This was just before he heard the firing of the guns at the gate. This testimony is almost conclusive that Jim Miller was the man who murdered Ben Collins, and that in all probability he was assisted by B. B. Burrell, who undoubtedly was the man that the different witnesses had seen with Jim Miller at different times just prior to the killing, and who was the party who left the scene of the killing in the buggy with Miller after the shooting occurred, as testified to by several witnesses. The testimony of this witness is almost conclusive that the defendant, Washmood, was not present and did not participate in the killing of the deceased. It may be contended that it was not necessary for him to be actually present at the time of the killing, but that he entered into a conspiracy and purposely avoided being present when the killing occurred in order to prove an alibi. However, if this argument is made, as stated, it tends to materially strengthen that part of the defendant’s testimony wherein he testified that he arrived at the town of Emmet on the night of the killing soon after 9 o’clock, and that at such time it would have been impossible for him to have been present at the killing, which occurred at 9 o’clock. Besides this, the testimony of the state’s witnesses in reference to the time that the defendant arrived at Emmet is conflicting and uncertain. Mrs. Thomas and her son, Lem, testified that he arrived there subsequent to the time that her children and Newt. Dugger -came from church. However, if he was not actually present at the time of the killing, there certainly was not any reason why he should not have arrived there at the time he stated.

After reviewing all of the testimony very carefully, we have come to the conclusion that the defendant in this case did not have that fair and impartial trial to which he was entitled under the law, and are of the opinion that this case should be reversed and remanded, and it is so ordered, and the warden of the penitentiary is ordered to deliver the defendant to the sheriff of Carter county to await the further action of the district court of Carter county.

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


source: Caselaw Access Project

author: DOYLE, J.

license: Public Domain

text:
    JOHN KIRK v. STATE.
    No. A-1624.
    Opinion Filed November 15, 1913.
    (135 Pac. 1156.)
    EVIDENCE — Accomplice Testimony — Necessity of Corroboration. Under Proc. Or. (Eev. Laws 1910^sec. 5884), providing that “a conviction cannot be had upon the testimony of an accomplice, unless he be corroborated by such other evidence -as tends to connect the defendant with the commission of the offense, and the corroboration is not sufficient if it merely shows the commission of the offense or the circumstances thereof,” there cannot be a conviction unless there is proof of substantial facts tending to connect the defendant with the commission of the offense aside from and without the aid of the accomplice testimony.

      Appeal from District Court, Washita County; James A. Tolbert, Judge.

    John Kirk was convicted of, grand larceny, and appeals.
    Reversed.

      Brett & Rice, for plaintiff in error.

      Chas. West„ Atty. Gen., for the State.
   DOYLE, J.

This appeal is prosecuted from a conviction had in the district court of Washita county, in which the defendant was found guilty of grand larceny. On the 31st day of October, 1911, in accordance with the verdict of the jury he was sentenced to be imprisoned in the state penitentiary for a term of three years.

Briefly stated, the record discloses' the following facts: E. M. Browers, a bachelor, .desired to make a trip back to Indiana. Iiis neighbor across the road was the defendant, John Kirk, and he left the key to his house with Kirk, during his absence, who had agreed to care for his stock. When he returned two of his horses were gone, and a saddle left in the house was gone. The lower sash of one of the windows was broken. He found one horse in the neighborhood, and the other at a sale barn in Hobart.

R. E. Graham testified: That he stole the horses and saddle in connection with the Howards, who were Kirk’s kinfolks. That the Howards told him that Kirk had the horses in charge and it would be all right if they would split the proceeds with Kirk. That Kirk told them there was a $65 saddle in the house. That they went to the house at night, and Pete Howard broke the window with his pistol and went into the house and handed the saddle out to Gus Howard. That he turned one of the horses loose because it was sick and sold the other for $75. The saddle was found in Gus Howard’s barn covered over with straw. There was some testimony -that Jess Howard, Gus Howard’s boy, rode a horse with' this saddle to Kirk’s place.

The defendant demurred to the evidence and moved the court to direct the jury to return a verdict of not guilty.

The only question that we deem necessary to discuss is the sufficiency of the evidence to sustain the conviction.

“A conviction cannot be had upon the testimony of an accomplice, unless he be corroborated by such other evidence as tends to connect the defendant with the commission of the offense, and the corroboration is not sufficient if it merely shows the commission of the offense or the circumstances thereof.” (Section 5884, Rev. Laws 1910.)

In Nichols v. State, ante, 133 Pac. 256, it is said that the rule of law forbidding a conviction upon the testimony of an accomplice, unless he be corroborated by such other evidence as tends to connect the defendant with the commission of the offense, is, under the statute, positive and peremptory,

“The corroborative evidence must of itself, and without the aid of the testimony of the accomplice, tend in some degree to connect the defendant with the commission of the offense; and independent evidence merely consistent with the main story is not sufficient corroboration if it requires any part of the accomplice’s testimony to make it tend to connect the defendant with the crime.”

“It need not of itself be sufficient to establish his guilt.”

“There must be some evidence, which of itself, and without aid from the accomplice’s testimony, tends to connect the defendant with the offense committed.”

“Evidence which merely shows that the testimony of the accomplice is consistent with the truth in regard to matters not essential, and unconnected with the body of the crime, is not corroboration.”

"It is not sufficient corroboration to prove that the crime was committed in the manner described by the accomplice, but his testimony must be corroborated as to the particular defendant.”

“It is not sufficient for this purpose merely to connect the defendant with the accomplice, or other person participating in the crime, but evidence, independent of the testimony of the accomplice, must tend to connect him with the crime itself, and not simply with its perpetrators.”

“But the fact of being thus associated, together with other slight circumstances, thus connecting the defendant with the transaction, may afford sufficient corroboration.”

“The corroborating evidence may be sufficient although by itself slight, but it is not sufficient if it merely tends to raise á suspicion of guilt.” (1 Enc. of Ev. pp. 104, 105, 106, and 108, and cases cited.)

The accomplice, Graham, a confessed thief, and who admitted on the witness stand that he. was a horse thief and a bank robber, that he had stolen a number of horses, and that he was then serving a term in the penitentiary for bank robbery, was the onty witness who testified to the manner and circumstances of the commission of the crime charged. His testimony is corroborated I)}' the testimony of other witnesses concerning the route he traveled in going to Hobart, where he sold one of. the stolen horses. He could have named any other man in Wash-ita county as an associate in this crime, and yet be corroborated as to this circumstance. The only corroborating fact in evidence is that Gus Howard’s boy was seen riding the stolen saddle going towards the defendant’s place. It is not shown that the defendant was at home at the time, or that he met the boy while riding this saddle. Corroboration will not be sufficient if it tends merely to raise a suspicion as to the guilt of the accused, and, where the corroborating evidence is of such a slight, uncertain, and unsatisfactory character as not to warrant a reasonable inference of guilt, the trial court should not permit the verdict to stand.

It is our opinion that the testimony of the accomplice Graham was not corroborated as the law requires, and for this reason the verdict was contrary to the law and the evidence.

Wherefore the judgment of conviction is reversed.

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


author: FURMAN, J.

text:
      Ex parte RALPH T. OWEN.
    No. A-2123.
    Opinion Filed November 15, 1913.
    (136 Pac. 137.)
    1. COUBTS — Extradition—-Habeas Corpus — Interstate—Grounds—Determination— Beview by Courts — Proceedings — “Magistrate”— Strict Construction of Statute, (a) The power which independent nations have to surrender criminals to other nations as a matter of favor or comity is not possessed by the states of the Union; and no person can be surrendered by one state to another, unless the case falls within the provisions of the Constitution and laws of the United States.
    (b) The Governor of a state, .upon whom a demand is made for the return of a fugitive from justice to a sister state, must determine for himself, in the first place, as to whether or not the demand made is in compliance with the law, and as to whether or not the person whose return is sought is in fact a fugitive from justice; but his decision is subject to review by the courts in habeas corpus proceedings, otherwise the Governor would be clothed with arbitrary and despotic power, and there could be no uniform action in such matters in all of the states of the , Union.

      (e) Under the laws of the United States, an application for a requisition, made upon the Governor of any state for the return of a fugitive from justice, must be accompanied with a copy of an indictment found or an affidavit made before a magistrate of the state seeking to secure sueh return, charging the person demanded with having committed treason, felony, or some other crime; and, unless this provision of the federal statutes is complied with, an order of the Governor for the return of such fugitive is null and void; and it is the duty of the courts in proper proceedings to so determine and order the release of the alleged fugitive from justice.
    (d) A notary public, who has no other power than to swear witnesses and take depositions in the state in which he is appointed, is not a magistrate within the meaning of the law, and an affidavit made before such notary public is not worth anything more than so much blank paper in extradition proceedings.
    (e) Extradition proceedings being based upon an act of Congress, and the federal courts having decided that sueh act must be strictly construed, and that all of its requirements must be respected, this court is without the power or authority to construe sueh act liberally, but will be compelled to follow the rule laid down by the federal court, and require that all of the provisions of the federal law relating to requisitions must be strietly observed and respected.
    2. EXTRADITION — -Arrest—Requisites of Affidavit — Right to Grant Extradition, (a) In order to be the basis,of and support requisition proceedings, where an affidavit made before a magistrate is relied upon, such affidavit must be sworn to positively as a matter of fact. It is the law, both of the United States and of the state of Oklahoma, that no warrant can- be issued for the arrest of any person unless it is supported by some fact certain, positively sworn to before a proper officer. An affidavit verified as a matter of belief by the prosecuting witness is insufficient, and a warrant issued upon such affidavit, if properly objected to, will be set aside.
    (b) Courts should not tolerate or condone disregard of law and arbitrary usurpation of power on the part of any officer. Ours is a government of law, and not of men, and before any act of any official will be sustained by the courts sueh act must be authorized by law.
    Application for writ of habeas corpus by Ralph T. Owen.
    Writ allowed, and petitioner discharged.
    Hon. Lee Cruce, Governor of the state of Oklahoma, having issued his warrant in extradition proceedings for the return of Ralph T. Owen to the state of Iowa, as a fugitive from justice, upon the ground that said party was guilty of obtaining money under false pretenses, and the said Ralph T. Owen being in custody by virtue of the warrant issued by the Governor of the state of Oklahoma on such proceedings, applied to this court for a writ of habeas corpus. Upon the hearing of this cause, all the papers which were before the Governor of Oklahoma, and upon which he acted, were admitted in evidence. All the facts involved in the determination of this cause are stated in the opinion. The case was orally argued by McAdams & Has-kell for the petitioner, and Clinton O. Bunn for the state of Iowa; and briefs were filed by respective counsel. Writ allowed, and petitioner discharged.

      Thomas Marcum, W. TI. Harrison, S. M. Rutherford, and McAdams & Haskell, for petitioner.

      Clinton 0. Bunn, for State of Iowa.
   FURMAN, J.

(after stating the facts as above). First. Section 2, art. 4, of the Constitution of the United States is as follows:

“The citizens of each state shall be entitled to all privileges and immunities of citizens in the several states.

“A person charged in any state with treason, felony, or other crime, who shall flee from justice, and be found in another state, shall on demand of the executive authority of the state from which he fled, be delivered up, to be removed to the state having jurisdiction of the crime.”

In conformity to this provision of the Constitution, Congress has enacted the following law:

“Whenever the executive authority of any state or territory demands any person as a fugitive from justice, of the executive authority of any state or territory, to which such person has fled, and produces a" copy of an indictment found or an affidavit made before a magistrate of any state or territory, charging the person demanded with having committed treason, felony, or other crime, certified as authentic by the Governor or chief magistrate of the state or territory from whence the person so charged has fled, it shall be the duty of the executive authority of the state or territory to which such person has fled, to cause him to be arrested and secured, and to cause notice of the arrest to be given to the executive authority making such demand, or to the agent of such authority appointed to receive the fugitive, and to cause the fugitive to be delivered to such agent when he shall appear. If no such agent appears within six months from the time of the arrest, the prisoner may be discharged. All costs or expenses incurred in the apprehending, securing, and transmitting such fugitive to the state or territory making such demand shall be paid by such state or territory.” (See act of February 12, 1793, c. 7 [1 St. at L. 302].)

The proceeding in this case being authorized by the Constitution and laws of the United States, we are bound in the determination of the questions presented by the decisions of the federal courts.

Chief Justice Taney, delivering the opinion of the court in Kentucky v. Dennison, Governor of Ohio, 24 How. 104, 16 L. Ed. 717, said:

“The Constitution having established the right on one part and the obligation on the other, it became necessary to provide by law the mode of carrying it into execution. The Governor of the state could not, upon a charge made before him, demand the fugitive; for, according to the principles upon which all of our institutions are founded, the executive department can act only in subordination to the judicial department, where rights of person or propert)- are concerned, and its duty in those cases consists only in aiding to support the judicial process and enforcing its authority, when its interposition for that purpose becomes necessary, and is called for by the judicial department. The executive authority of the state, therefore, was not authorized by this article to make the demand unless the party was charged in the regular course of judicial proceedings. And it was equally necessary that the executive authority of the state upon which the demand was made, when called on to render his aid; should be satisfied by competent proof that the party was so charged. This proceeding, when duly authenticated, is his authority for arresting the offender.”

The Supreme Court of Florida, in Ex parte Powell, 20 Fla. 807, at page 810, in the body of the opinion, after quoting from the Dennison case, supra, said:

“It is very clearly stated by Chief Justice Taney, in the opinion referred to, that the affidavit required by the act of Congress must be made in the due course of judicial proceedings, and that the executive authority of the state in such cases can be interposed .only in- the aid of the courts in the due administration of justice. The act of Congress requires that the affidavit be ‘made before a magistrate’ of the demanding state, ‘charging the person demanded’ with having committed a crime, which affidavit shall be authenticated by the certificate of the Governor of that state. In every similar case reported, so far as we have been able to examine the decisions of other states, the affidavit presented to the Governor was made before a judicial officer in the course of a criminal prosecution. As Judge Taney remarks, ‘The Governor of a state could not, upon a charge made before him, demand the fugitive.’ An affidavit made before a notary, or other ministerial officer or person having no judicial authority, would not authorize the Governor to make the demand. It is well known that in every state persons who are not ‘magistrates’ are empowered to certify the acknowledgment of deeds and to administer oaths, and so it cannot be presumed that because an oath is taken the person certifying it is a judicial officer, and that it is-taken in the course of the administration of justice in a criminal prosecution. The act of Congress is explicit, that the' ‘charge’ must be made * * * by the executive authority in aid of the judicial authority in administering laws for the punishment of crime.”

In People ex rel. Corkran v. Hyatt, 172 N. Y. 176, 64 N. E. 825, 60 L. R. A. 774, 92 Am. St. Rep. 706, the Supreme Court of that state said:

“The power which independent nations have to surrender criminals to other nations as a matter of favor or comity is not possessed by the states of the Union, and no person can be surrendered by one state to another unless the case falls within the provisions of the United States Constitution.”

In Cook v. Hart, 146 U. S. 193, 13 Sup. Ct. 43, 36 L. Ed. 939, the Supreme Court of the United States said:

“We have no doubt that the Governor upon whom the demand is made, must determine for himself, in the first instance, at least, whether the party charged is in fact a fugitive from justice, * * * but whether his decision thereon be final is a question properly to be determined by the courts of that state.”'

In Roberts v. Reilly, 116 U. S. 80, 6 Sup. Ct. 291, 29 L. Ed. 544, the Supreme Court of the United States said:

“ ‘A person charged in any state with treason, felony, or other crime, who shall flee from justice and be found in another state, shall, on demand of the executive authority of the state from which he fled, be delivered up to be removed to the state having jurisdiction of the crime.’ Article 4, sec. 2, c. 2. There is no express grant to Congress of legislative power to execute this provision, and it is not, in its nature, self-executing; but a contemporary construction, contained in the act of 1793 fl St. at L. 302), ever since continued in force, and now embodied in sections 5278 and 5279 of the Revised Statutes, has established the validity of its legislation on the subject. ‘This duty of providing by law,’ said Chief Justice Taney, delivering the opinion of the court in Kentucky v. Dennison, 24 How. 66, 104 [16 L. Ed. 717], ‘the regulations necessary to carry this compact into execution, from the nature of the duty and the object in view, was manifestly devolved upon Congress; for, if it was left to the states, each state might require different proof to authenticate the judicial proceeding upon which the demand was founded; and as the duty of the Governor of the state, where the fugitive was found, is in such cases, merely ministerial, without the right to exercise either executive or judicial discretion, he could not lawfully issue a warrant to árrest an individual without a law of the state or of Congress to authorize it.’ ”

Article 6 of the Constitution of the United States is as follows :

“This Constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the Constitution or laws of any state to the contrary notwithstanding.”

Our oaths of office require that we shall support, obey, and defend the Constitution of the United States, and this constitutional provision makes the laws of the United States, made in pursuance thereof, the supreme law of the land. We, therefore, are absolutely bound by the principles announced in the decisions above quoted, and have no discretion in the matter whatever.

In Ex parte Hart, 63 Fed. 249, 11 C. C. A. 165, 28 L. R. A. 801, the United States Circuit Court of Appeals for the Fourth Circuit said:

“The provisions referred to will be strictly construed, and all the requirements of the statute must be respected. * * * If they (the states) wish to rely upon the provisions of the Constitution and laws of the United States relating to fugitives from justice, they must strictly observe and respect the conditions of the same.”

This proceeding being based upon a federal statute, we are not at liberty to follow the rule of construction which we apply to our own statutes, because the common-law doctrine of a strict construction of penal statutes is adhered to by the Supreme Court. of the United States, and, under this rule, no person can be deprived of a single right or punished for any offense unless the act complained of, and the proceedings thereon, come strictly within the letter as" well as the spirit of the law. In this case it affirmatively appears that the affidavit relied upon was made before a notary public and not made before a magistrate as required by the United States statute. The verification of the affidavit is as follows:

“State of Iowa, Palo Alto County, ss.: I, H. G. E. Oelfke, being first duly sworn depose and say that I am the person who signed the above and foregoing information and that the statements therein contained are true as I verily believe.

“H. G. E. OelpkE.

“Subscribed in my presence and sworn to before me by the said H. G. E. Oelfke this 27th day of October, 1913.

“A. J. Burt, Notary Public. [Seal.]”

It is true that, upon the hearing of this cause, counsel for the state of Iowa attempted to offer in evidence a certificate from the justice of the peace in Iowa to the effect that, after these proceedings had been instituted, the information had been sworn to before him by the complaining witness; but, upon the objection being made that this would substantially amount to a confession that the papers acted upon by the Governors of Iowa and Oklahoma were insufficient, and that this court had no right to permit amendments to be made to papers which had already been acted upon by the Governors of' Iowa and of Oklahoma, the offer was withdrawn and the cause was submitted upon the papers as they were acted upon by the Governors of the two states. In these papers the following statement appears:

“N. B. This application must be accompanied by a duly attested copy of an indictment, or of a certified copy of an information made before a magistrate (a notary public is not a magistrate within the meaning of the statutes) in and for the county in which the offense is alleged to have been committed; and such information must be supported by an affidavit of some person having knowledge, setting forth the details of the commission of the crime.”

From this it appears that the attention of the Governor of l'owa, and also of the Governor of Oklahoma, was directly called to the fact that an affidavit made before a notary public would not authorize the issuance of a requisition, but that the affidavit must be made before a magistrate, and that, in Iowa, a notary public does not possess the powers of a magistrate. This notice conclusively shows that the papers in this case were either acted upon without being read, or that the requisition was knowingly applied for, and arbitrarily issued in open defiance of and contempt for law. The same is also-true of the action of the Governor of Oklahoma in honoring the requisition. The powers of Governors are great, but they are not above the law, and have no right to substitute their individual views for the law in a single instance. A Governor should set an example of obedience to law, 'otherwise how can he expect that the people will respect and obey the law. The statutes of the state of Iowa were offered in evidence, and from them it appears that a notary public has-no judicial power except to swear witnesses and take depositions, which powers are given him by the law merchant.

Therefore, under the authorities heretofore quoted, we have-no discretion, but must hold that the affidavit in the case does not comply with the statute, and is not worth any more than so much blank paper. However, it may be said that a magistrate issued a warrant for the apprehension of petitioner. The answer to this is that, according to the express terms of the United States-statute, a requisition is based alone upon the making of an affidavit before a "magistrate, and not upon the issuance of a warrant by a magistrate.

Second. The affidavit in this case is not positively sworn to, but is only verified as a matter of belief by the prosecuting witness.

The fourth amendment to the Constitution of the United States is as follows:

“The right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, hut upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”

Section 30 of the Bill of Rights of Oklahoma is as follows:

“The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches or seizures shall not be violated; and no warrant shall issue but upon probable cause supported by oath or affirmation, describing as particularly as may be the place to be searched, and the person or thing to be seized.”

The question as to the verification of an accusation which will authorize the issuance of a warrant was first passed upon by the Supreme Court of the United States in the case of Ex parte Burford, 3 Cranch, 448, 2 L. Ed. 495. Chief Justice Marshall then said that a warrant of commitment was illegal and void unless supported by oath upon some good cause certain. The affidavit in this case amounts to no more than an expression of opinion by the prosecuting witness. If a person can be deprived of his liberty simply because some one is willing to swear that he believes that such person is guilty of crime, then, as was well said by Chief Justice Marshall in the Burford case:

“If the charge against h'im'was malicious, or grounded on perjury, whom could he sue for malicious prosecution? or whom could he indict for perjury?”

—and he concludes:

“The judges of this court were unanimously of the opinion that the warrant of commitment was illegal for want of stating some good cause certain, supported by oath.”

In the Matter of the Rules of the Court, 3 Woods, 502, Fed. Cas. No. 12,126, Justice Bradley, of the Supreme Court of the United States, said that when, in an affidavit made, a person swears that he has good reason to believe, and does believe, that a certain person, naming him, has committed an offense against the law, describing it, such affidavit does not meet the requirements of article 4 of the amendments to the Constitution of 'the United States. This question has been repeatedly passed upon by the courts of this state to the same effect. See Miller v. U. S., 8 Okla. 315, 57 Pac. 836; Mulkins v. U. S., 10 Okla. 288, 61 Pac. 925; Salter v. State, 2 Okla. Cr. 464, 102 Pac. 719, 139 Am. St. Rep. 935; De Graff v. State, 2 Okla. Cr. 519, 103 Pac. 538. In view of these authorities, we believe that the affidavit presented in this case, even if made before a magistrate, would not be sufficient, because it is based upon the belief of the- affiant. The laws of this state do not allow the issuance of a warrant of arrest based upon an affidavit founded upon the belief of the party who makes it. Some fact certain must be sworn to positively, sufficient to cause the magistrate to believe that the offense has been committed, and that accused is probably guilty, It is true that petitioner is not a citizen of Oklahoma. Section 2, art 4, of the Constitution of the United States, provides that the citizens of each state shall be entitled to all the privileges and immunities of citizens in the several states. Under this provision we must extend to petitioner, although he is only a friendless stranger among us, all the rights, privileges, and immunities that could be claimed by any citizen of this state.

We must therefore hold that the warrant of arrest in this case was unauthorized, if for no other reason, upon the ground that the affidavit relied upon was sworn to as a matter of belief, and not as a matter of fact.

Mexico may tolerate and condone acts of assassination, disregard of law, and arbitrary usurpations of power on the part of its executive; but the courts in the United States will never follow this example, unless controlled by partisan appointees. Ours is a government of law, and not of men, and before the act of any official will be sustained by the courts, as long as they are honest, independent, and fearless, such act must be authorized by law.

We therefore have no option-except to order that the writ of habeas corpus be allowed, and the relator be discharged.

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