author: HOYLE, Judge.

text:
    ED SMITH v. STATE.
    No. A-477.
    Opinion Filed March 21, 1911.
    (114 Pac. 278.)
    APPEAL — Review—Sufficiency of Evidence. The credibility of witnesses and 'the weight and value to be given their testimony is a question solely for the jury’s determination and, to reverse a judgment on the ground that the verdict is against the weight of the' evidence, the appellate court must find that as a matter of law the evidence is insufficient to warrant a conviction.
    (Syllabus by the Court.)

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

    Ed Smith was convicted of robbery,- and appeals.
    Affirmed.

      Claude A. Niles and W. M. Duffy, for plaintiff in error.

      Chas. West, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   HOYLE, Judge.

Plaintiff in error, Eld Smith, was convicted in the- district court of McIntosh county of the crime of robbery, and was sentenced to serve a term of ten years in tbe penitentiary. The judgment and sentence was entered on June 30, 1009. On December 9, 1909, there was filed in this court a petition in error, with case-made attached.

'The evidence as to the robbery was in substance as follows: About 9 o’clock on the evening of December 28, 1908, some one rode up to the home of C. L. Inge, in McIntosh county, not far from Cbuncil Hill, and called him to the door, saying that he was Bowington, from Checotah. Mr. Inge opened the door, and a white man and a negro stepped in with guns in their hands and ordered him to light the lamp. The white man then ordered him to deliver up his money, saying he understood that he had $1,000. Mr. Inge gave the white man his pocketboolc, which contained about $17 and a small check. The robbers then, holding their guns upon Mr. Inge, backed out of the door and rode away. Mr. Inge, his wife, their two daughters, and a son, who were present when the robbery occurred, testified that the defendant was the white man who committed the robbery. Mrs. Louisa Dobson testified that she lived about eight miles from Checotah; that in the afternoon of the day of the robbery a white man and a negro rode up to her home and asked where C. L. Inge lived, and she identified the defendant as the white man. The defendant did not testify, but offered several witnesses whose evidence tended to prove an alibi.

The petition contains several assignments of error, only a few of which have any relation to the record in the case, and these are wholly without merit. The sufficiency of the indictment is not questioned. No exceptions were taken to the instructions as given, and there were none requested on the part of the defendant. The credibility of witnesses and the weight and value to be given their testimony was a question solely for the jury’s determination, and it is sufficient to say that we think the evidence -abundantly sustains* the verdict.

The judgment is -therefore affirmed.

FURMAN, PRESIDING Judge, and ARMSTRONG, Judge, concur.


source: Caselaw Access Project

author: DOYLE, Judge.

license: Public Domain

text:
      W. S. TANNER v. STATE.
    No. A-698.
    Opinion Filed March 21, 1911.
    (144 Pac. 360.)
    APPEAL — Dismissal—Fugitive From Justice. The Criminal Court of Appeals will not consider an appeal, unless the plaintiff in error is where he can be made to respond to any judgment or order which may be rendered in the case; and where the plaintiff in error becomes a fugitive from justice, this court will on motion dismiss his appeal. '
    (Syllabus by the Court.)

      Appeal from Goal County Court; B. II. Wells, Judge.

    W. S. Tanner was convicted of having liquor in his possession for purpose of sale, and he appeals.
    Dismissed.

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

W. S. Tanner, plaintiff! in error, was tried and convicted in the county court of Coal county upon an information charging the possession of intoxicating liquor for the unlawful purpose of selling the same, and was sentenced to be imprisoned in the county jail for a term of 90 days and pay a fine of $300 and costs. The judgment and sentence was entered on February 3, 1910, from which judgment an appeal was taken by filing in this court on April 4, 1910, a petition in error, with ease-made attached.

No briefs have been filed, and the Attorney General has filed a motion to dismiss said appeal, which motion, omitting the formal parts, is as follows:

“First. Because the petition in error and case-made was filed in this court on the 4th day of April, 1910, and the clerk’s record discloses that no brief for and on behalf of the plaintiff in error had 'been filed up to and including the 16th day of March, 1911, nor had any extension of time been granted within which to file same. Therefore plaintiff in error has not complied with rule 4 of this court, and has abandoned his appeal, and the same should be dismissed for want of prosecution. Second. Because, since instituting this appeal, plaintiff in error has become a fugitive from justice upon other charges preferred against him by the state of Oklahoma, in Coal county, Oklahoma, and his whereabouts are unknown, as is disclosed by the affidavit of Jas. R. Wood, county attorney of said county, which is attached hereto and made a part of this motion, marked ‘Exhibit At Wherefore, the Attorney General says that this appeal should 'be dismissed.”

In support of said motion is the affidavit of the county attorney of Coal county, the material part of which is as follows:

“My name is Jas. R. Wood, my address is Coalgate, Oklahoma, and I am now the county attorney in and for the county of Coal, state of Oklahoma, and have been acting in that capacity continuously since the admission of the state into the Union. At the January, 1910, term of the county court of Coal county, state of Oklahoma, the above-named plaintiff in error, W. S. Tanner, was tried in said county court, and was convicted, upon a charge of having the unlawful possession of intoxicating liquors; his punishment being fixed by the jury trying the case at $300 fine and 90 daysimprisonment in the county jail. The date of the judgment was the 3d day of February, 1910, and the county court number of the case was 669. The plaintiff in error, In due time, perfected his appeal to the Criminal Court of Appeals, where the cause is now pending. At the October, 1910, term of said county court, said plaintiff in error had pending therein three other cases, in one of which he was being prosecuted upon an indictment charging him with selling whisky unlawfully, and in the other two he was being prosecuted upon informations charging him with having the unlawful possession of intoxicating liquors, and he was under bonds for his appearance at said term of said county court in each of these cases. At said October, 1910, term of said county court, a forfeiture .was taken on plaintiff in error's said appearance bonds, upon his failure to appear in accordance therewith, and suit ordered by the court to be brought thereon. On the lÚh day of December, 1910, suit was filed in said appearance bonds against the sureties thereon, since which time said sureties have been endeavoring to ascertain the whereabouts of the said W. S. Tanner, and, as affiant has been informed, have offered liberal rewards for his arrest and Teturn. Affiant states that said plaintiff in error went to Ft. Worth, Texas, in or about (.lie month of August, 1910, where, according to affiant’s best information and belief, he remained for the period of a month or two, and from which place, as affiant has been informed, said plaintiff in error went to New Mexico. Affiant states that, since said plaintiff in error left Coal county, state of Oklahoma, in or about the month of August, 1910, as aforesaid, he has not returned to the state of Oklahoma, that he is a fugitive from justice, and that his present whereabouts is unknown to the officers of Coal county. Affiant further states that there are two other cases, wherein the said W. S. Tanner is plaintiff in error, pending in the Criminal Court of Appeals of the state of Oklahoma, and in which cases he was convicted upon charges of violating the prohibitorjr liquor laws of the state.”

From the facts stated, the principles of law are the same as in the ease of Tyler v. State, 3 Okla. Cr. R. 179, 104 Pac. 919, 26 L. R. A. (N. S.) 921, wherein this court said:

“From a review of the authorities we are convinced that it is no part of our duty as an appellate court to consider or review the judgment, orders, and rulings of which he complains, while he is at large as an escaped convict. Such has been the uniform holding of the courts of last resort in other jurisdictions, and it meets our full approval. * * * The appellant, by escaping from jail, where he was being held pending a determination of his appeal to this court, has voluntarily withdrawn himself from the jurisdiction of the court. So far as he has any right to be heard under the Constitution and the statute before this court, he must be deemed to have waived it by escaping from the custody of the law. Where a person'convicted of a felony has escaped from the custody of the law, no order or judgment, if any should be made, can be enforced against him, and appellate courts will not give •their time to proceedings which, for their effectiveness, muist depend upon the consent of an escaped convict. While we find no express provision of our statute authorizing a dismissal of an appeal in a criminal case, for the reason stated in the present motion, we are of opinion that the appellant by his-own act has waived the right to have his case considered and determined. In this conclusion we are sustained by the authorities quoted, and many others.”

From the failure to file briefs, it is evident that the prosecution has been abandoned. The motion of the Attorney General to dismiss the appeal is sustained, and the cause remanded to the county court of Coal county, with direction to enforce the judgment and sentence.

FURMAN, PeesidiNG Judge, and ARMSTRONG, Judge, concur.


author: DOYLE., Judge.

text:
    JOHN JOLLY v. STATE.
    No. A-525.
    Opinion Filed March 21, 1911.
    1. INDICTMENT — Regularity of Return' — Presumptions. Where an indictment recites that it is presented by the grand jury, and it is properly signed by the county attorney, indorsed “A True Bill” by the foreman, and indorsed, “presented in open court by the foreman of the grand jury in the presence of the grand jurors, and filed in open count,” signed by the clerk and filed by the clerk, it will be presume®, in an absence of a showing to the contrary, that it was duly returned in open court, notwithstanding that no entry of the fact is made upon the minutes or journal of the court.
    2. APPEAL — Record—Indictment and Indorsements. The original indictment and its indorsements constitute a necessary part of the record, and whatever is properly shown by them is considered as shown by the record.
    3. APPEAL — Record—What Constitutes. Section 6919, Snyder’s Sts., provides that the following papers shall constitute the record of the action: “1st. The indictment and a copy of the minutes of the plea or demurrer. 2nd. A copy of the minutes >of the trial. 3rd. The charges given or refuse®, and the indorsements, if any thereon; and 4th. A copy of the judgment.”
    4. APPEAL — Authenticity vof Indictment — Time for Objections. The authenticity of an indictment should be raised .by motion to quash and set aside or by plea in abatement in the trial court. It cannot be raised for the first time on appeal.
    5. APPEAL — Record—Formulary of Oaths. It is no part of the duty of the clerk to place on record the formulary of words in which the oath to the bailiff is couche'd.
    6. APPEAL — Irregularity of Oaths — Time for Objections. Where a party desires to avail himself of the irregularity of administering the oath to the bailiff, the attention of the court should .be called to it at the time the oath is taken.

      7. APPEAL — Harmless Error. It is the duty of the appellate court to give judgment without regard to technical errors, or defects, or to exceptions which do not affect the substantial rights of plaintiff in error.
    (Syllabus by the Court.)

      Appeal from 'the District Court of Pittsburg- County; Preslie B. Colo, Judge.

    John Jolly, was convicted of conjoint robbery and sentenced to imprisonment for life, and he appeals.
    Affirmed.
    John Jolly, the plaintiff in error, was, at the October, 1908, term of the district court of Pittsburg county, jointly indicted with Bill Colbert and Claude Colbert for the crime of conjoint robbery. The caption and formal part of said indictment is as follows:
    “State of Oklahoma, Pittsburg County — ss.
    In the District Court of the Fourth Judicial District, of the State of Oklahoma held in and for Pittsburg County, in said State.
    State of Oklahoma, vs. Bill Colbert, Claud Colbert Indictment.
    “At the October term, a term of the District Court of the Fourth Judicial District of the State of Oklahoma, held in and for Pittsburg county, in the State of Oklahoma, at the city of McAlester, and begun on the 5th day of October, in the year of our Lord, 1908, the jurors of the grand jury of said county, good and lawful men, then and there returned, tried, empaneled, sworn and charged, according to law, to diligently enquire into, and true presentment make of, all public offenses against the said state of Oklahoma, committed or triable within said county, upon their said oaths, in the name and by the authority of the said State of Oklahoma, do present and find that, in said county of Pittsburg, in said State of Oklahoma, on the 12th day of January in the year of our Lord, one thousand nine hundred and eight.”
    And which indictment has the following indorsements:
    “Indictment In the District Court, of the Fourth Judicial District of the state of Oklahoma, held in and for Pittsburg county.

      “State of Oklahoma
    vs.
    “Bill Colbert, John Jolly, Claud Colbert,
    “Indictment for Robbery.
    “A true Bill.
    “Jacob A. MeRoer,
    “Foreman of the Grand Jury.
    “Presented in open court by the foreman of the grand jury in the presence of the grand jurors, and filed this 28th day of October, 1908. ■ W. B. Riley,
    “District Clerk.
    “By C. L. Heeeey, Deputy.
    “T. R. DeaN,
    “County Attorney.
    “Bail is hereby fixed at $1,500.
    “PitESLiE B. Cole,
    “District Judge.
    “Filed in open court Oct. 28, 1908.
    “W. B. Riley, Clerk of Court.
    “WITNESSES.
    Dpon arraignment, he entered a plea of not guilty and demanded a severance, which was granted.
    The facts and circumstances of the case are stated in the companion case of Bill OoTberl v. The State, 4 Okla. Or. 500, 113 Pac. 558, and it is unnecessary to repeat them here, further than to add:
    The defendant, testifying on his own behalf, denied that he participated in the robbery and professed to account for his movements during the night of January 12, 1908, by stating that after leaving Bill Colbert’s house that evening, he went to a joint where with several others, including a couple of colored women, a bottle of whiskey was drunk, and he then went with one of the women to an empty house and stayed there until late in the night; then returning to Bill Colbert's house, he met Claude Colbert and went with him to another joint and from there returned to Bill Colbert’s house and went to bed about midnight. He is, however, not corroborated by any witness. He also undertook to explain his possession of White's money by stating that he won it in a crap game that Sunday afternoon.
    Iiis cross-examination showed that he had been convicted of a crime- and had been bnt recently discharged from the penitentiary at Ft. Leavenworth.
    The judgment and sentence was entered on January 16, 1909. Defendant gave notice of an appeal, and filed a pauper’s affidavit and asked that the court order a transcript of the record to be furnished for his appeal. Whereupon it was ordered by the court that a transcript be furnished at the expense of tiie county. An appeal was perfected by filing in this court on January 3, 1910, a petition in error with case-made attached, together with proof of service of notices of appeal..

      Wiley Jones, for plaintiff in error.

      Ohas. West, Atty. Gen., and Smith G. Matson, Asst. Atty. Gen., for the State.
   DOYLE., Judge.

The assignments of error argued in the brief and orally before the court by defendant’s learned and zealous counsel relate to defects in the recitals of the record; Considered as criticisms of the mode and manner ‘of keeping the minutes of the trial they are well founded, but as presenting grounds of .error for which the judgment should be reversed, they are not well taken. This is our conclusion after a careful examination of the record:

It is assigned as error that:

“1st: There is nothing in the record to show that the necessary steps were taken, what action was had, if any, of the history of the cause, if there is any history, immediately before and up to the filing of the indictment by the clerk.”

“2nd: There is no journal entry or entry upon the minutes of the court showing that the indictment when found by the'grand jury was presented to the court as required by statutes. As to this' matter there is no record entry whatsoever.”

Under these assignments it is contended that there is nothing in the record showing when the court convened, where it convened, wbo was the presiding judge, or that the indictment was returned by the grand jury in open court; and that:

“Any statements appearing in the indictment itself not required by the statute should! 'be treated as surplusage. Such statements cannot be substituted for the record which precedes the indictment. Section 6692, Snyder’s Sts., provides that: ‘An indictment, when found by the grand jury, must be presented by their foreman, in their presence, to the court, and must be filed with the clerk, and remain in his office as a public record.’ Section 6919, Snyder’s Sts., provides that: “When judgment upon a conviction is rendered, the clerk must enter the same upon the minutes, stating briefly the offense for which the conviction has been had, and must immediately annex together and file the following papers which constitute the record of the action: 1st. The indictment and a copy of the minutes of the plea or demurrer. 2nd. A copy of the minutes of the trial. 3rd. The charges given or refused, and the indorsements if any thereon; and, 4th. A copy of the judgment.’ ”

There was no question raised by motion to set aside the indictment, or in the motions for a new trial and in arrest of judgment, that said indictment was not found, presented and filed as prescribed by law, or that the grand jury was not drawn and empaneled as provided by law. Under the provisions of our Grim-inal Code, it is not the duty of the clerk to- malee an entry upon the minutes or journal of the court of the return of an indictment. It is the clerk’s duty to note on the indictment that it was presented in open court by the foreman of the grand jury, in their presence, to the court and to file it, and when so filed the original indictment, with all its indorsements, becomes a part of the record of the case, and whatever is properly shown by the caption and the indorsements is considered as shown by the record. The indictment in its caption shows that it was in the district court of the Fourth judicial district of the state of Oklahoma, hold in and for Pittsburg county in said state; was returned and presented at the October term of the district court, convened on the 5th day of October, 1908. It is signed by the county attorney of that county and indorsed by the foreman of the grand jury as “A True Bill”. On tbe back of the indictment are these in-dorsements: “Presented in open court by the foreman of the grand jury in the presence of the grand jurors and filed this 28th day of October, 1908. W. B. Riley, Clerk of the Court.” The names of the witnesses are also indorsed thereon.

The indictment itself being a part of the record proper, on file, with the date and manner of its return, the attestation of the county attorney and the foreman of the grand jury constitutes it a necessary part of the record by the terms of the statute. The record therefore shows that this indictment was found and returned in the manner and by the means prescribed by law.

“The indictment itself being a- part of the record proper and always on file, certainly when it is authenticated as in this case by the genuine signatures and indorsements of the prosecuting attorney, foreman of the grand jury, and the circuit clerk, there can be no question in our opinion but that the pdma facie presumption is that it was lodged in that court in the manner and by the means prescribed by law.” (State v. Lord, 118 Mo. 1, 23 S. W. 764.)

See, also, Beard v. State, 57 Ind. 8; Pudgett v. State, 3 N. E. 377; State v. Weaver, 104 N. C. 758, 10 S. E. 486; McKee v. State, 82 Ala. 32; State v. Schill, 27 Iowa, 263; Cooper v. State, 59 Miss. 267; State v. Crilly, 77 Pac. 701.

In the case of John Hopkins v. State, 4 Okla. Cr. 194, 108 Pac. 420, it was said:

“When an indictment is duly returned as a true bill, properly indorsed, and with the signature of the foreman, the presumption is that it was regularly found on legal evidence ana by the requisite number of jurors. The presumption of regularity is in favor of the indictment.”

The third assignment of error is that:

“The record fails to show that the appellant was present when the jury returned its verdict, or that he was even present at all on the second and last day of the trial.”

It affirmatively appears from the record that the defendant was in charge of the sheriff during the trial; that he was present when the ease was called for trial; that the trial lasted two days; that he took the stand on his own behalf on the second day; and that he was present in court when the jury returned their verdict, at which time he was remanded back to jail to await sentence. This question is raised for the first time in the petition in error in this court. In the case of Sam Wood v. State, 4 Okla. Cr. 436, this question was passed upon, and the authorities fully reviewed in the opinion of the court delivered by Furman, Pre>-siding Judge.

The fourth assignment is that:

“The officer in whose charge the jury was placed after the cause was submitted to them was not sworn as required by the statute.”

The record recites, “the jury retired in charge of a sworn bailiff to consider their verdict, and thereafter returned into open court with the following verdict * * No objection was made to the form of the oath when the bailiff was sworn, or at any other time prior to its presentation in this court. If there was any irregularity in this respect, it should and probably would have been objected to at the time it occurred. If the form of the oath was defective, the attention of the court should have been called to it when the bailiff was sworn, so that it might have been corrected. It is no part of the duty of the clerk to place on record the form of the oath to the bailiff. It is only necessary for him to note the fact that this officer was duly sworn as required by law, and upon this recital in the minutes the presumption will be that the oath was properly administered. While the recital in the record defectively states this fact, we' believe it is sufficient.

The fifth assignment is hypercritical.

The sixth assignment is that:

“The record fails to show that upon the jury being permitted to separate that they were admonished by the court as required by statute.”

The record shows that during the trial there was one adjournment of the court. The record further recites that, “It being adjourning time, the jury were permitted to separate under the usual instructions of the court until tomorrow morning at nine a. m., January ?th, 19No objection was made or exception taken to any instruction given by the court or to the failure of the court to admonish the jury as required by statute. And no such question is presented by the motion for a new trial. The presumption must therefore be that the jury were admonished by the court, “That it is their duty not to converse among themselves or with any one else on any subject connected with the trial, or to form or express any opinion thereon, until the cause is finally submitted to them.-”

The seventh assignment is that:

“There is nothing in the record to show that the verdict oí the jury was read to the jury by- the clerk or inquiry made of them whether it was their verdict.”

No question of this kind is presented in the motion for a new trial, nor does the record show that the defendant requested that the jury be polled. The statute requires that when the jury appear, they must be asked by the court or clerk whether they have agreed upon their verdict, and if the foreman answers in the affirmative, they must, on being required, declare the same. Section 6872, Snyder’s Sts. Section 6881, Snyder’s Sts., provides that:

“When the verdict is given, and is such as the court may receive, the clerk must immediately record it in full upon the minutes, and must read it to the jury and inquire of them whether it is their verdict. If any juror disagree, the fact must be entered upon the minutes, and the jury again sent out; but if no disagreement is expressed, the verdict is complete, and the jury must be discharged from the case.”

•We think the minutes of the trial sufficiently show that the requirements of the statute wer® complied with, and a more conclusive answer on this point is that no objection was made on the part of the defendant to the proceedings had, and if there was any irregularity in this respect, it should, and probably would, have been objected to at the time it occurred. It may be observed, however, that a careless disregard of the requirements of the statute as to what the minutes of the trial should show is unpardonable. The requirements are simple and the minutes should show: the presence of the defendant when the case was called for trial, and that at each adjournment of the court the jury was properly admonished by the court as required by law; that upon the convening of the court the presence of the defendant be noted; also whether the court permitted the jury to separate or ordered the jury kept in charge of officers; that said officers were properly sworn; that when the jury is brought into court for instructions or to return their verdict, that they were so conducted into court by the officers having them in charge, and that the defendant-was present in person; that the verdict was read to the jury, and proper inquiry made.

The eighth and ninth assignments relate to the instructions. No exception is saved to the instructions given by the court and none were requested on the part of the defendant, and the questions were not raised- in the defendant’s motion for a new trial. From our -examination of the instructions given, they fairly and correctly state the law of the case.

The tenth assignment is that:

“This cause should be reversed because of a variance between the sentence and the judgment of the court, and the charge m the indictment and the verdict of the jury.”

This assignment is without merit. The jury by their verdict found the crime charged, to wit, robbery, was committed by John Jolly, conjointly with one Bill Colbert. At the time of the return of this verdict and the rendition of the judgment there was but one punishment that could be inflicted for robbery committed under such circumstances, that is, imprisonment for life.

We are of the opinion that the defendant has had a fair and impartial trial. If any errors were committed in making the record, they are technical and unimportant and not such as would justify a reversal of the conviction. The few exceptions taken to the rulings of the court upon the trial were without merit and have not been argued here. The crime committed was most heinous: an old, sick, and helpless man was brutally attacked in his own home, overpowered and robbed, bound hand and foot; a stick of wood driven down Ms throat, and in that helpless condition left to die. The verdict was warranted by the proof and the punishment fixed by the law is well deserved. The verdict and judgment has our approval.

The judgment is therefore affirmed.

FURMAN, PresidiNG Judge, and ARMSTRONG, Judge, concur.


author: FURMAN, PRESIDING -Judge.

text:
    SID STOCKTON et al. v. STATE.
    No. A-363.
    Opinion Filed April 4, 1911.
    (114 Pac. 626.)
    1. WITNESSES — Indorsement on Indictment During Trial. Under section 6691, Snyder’s Comp. Laws of Okla. 1909, it is within the discretion of a trial court to permit' the names of additional witnesses for the prosecution to be indorsed on the information or indictment after the trial has begun; and, when the record fails to show an abuse of this discretion or that the defendant suffered any injury thereby, a new trial will not be granted on this account.
    2. APPEAL — Waiver of Exceptions to Instructions. Where counsel for appellant fail to incorporate in their brief exceptions taken to the instructions of the court to the jury and fail to point out wherein such instructions are erroneous, exceptions reserved to the instructions wül be abandoned, and will not be considered or discussed by this court.
    3. EVIDENCE — Acts of Co-Conspirators. Where the evidence shows that the defendant and others were acting together in the commission of an offense, it is not error for the trial court to admit in evidence all that was said or done either by the defendant or those acting with him during' the commission of such offense.
    (Syllabus by the Court.)

      Appeal from District Court, Haskell County.; Malcolm E. Rosser, Judge.

    Sid Stockton and Ed Clark and Tom Stockton were jointly prosecuted by information charging them with the offense of assault with intent to murder. When the ease • was reached for trial, a severance was granted, and the appellant Sid Stockton was tried separately. He was found guilty by the jury of an assault with intent to murder, and his punishment was assessed at five years’ imprisonment in the penitentiary, and he appealed.
    Affirmed.

      John W. Frederick, for appellant.

      Smith, G. Matson, Asst. Atty. Gen., for the State.
   FURMAN, PRESIDING -Judge.

First. It is contended that the trial court erred in permitting the county attorney to indorse the names of additional witnesses on the information after the jury had been impaneled. Under section 6691, Snyder’s Comp. Laws of Okla. 1909, it is within the discretion of the court to permit the names of additional witnesses for the prosecution to be indorsed on the indictment or informtaion after the trial has begun. See Vance v. Territory, 3 Okla. Cr. 208, 105 Pac. 307. There is nothing in the record which indicates that the court abused its discretion in this matter, or that the defendant suffered any injury thereby.

Second. On the trial of this cause, a number of exceptions were reserved to the instructions of-the court. We have read the entire instructions given by the court to the jury and regard them as an admirable exposition of the law as applicable to the facts in this case. Counsel for appellant have not in their brief, or in oral argument before this court, attempted to point out any error in the instructions. The exceptions to the instructions have therefore been abandoned, and it is not necessary that they should bo discussed.

Third. Upon the trial of this cause, it was proven that the appellant, Sid Stockton, and Tom .Stockton and .Ed Clark, had entered into a conspiracy to start a fight with William Leflore and with any other persons who might attempt to interfere therein, and that appellant, Sid Stockton, began fighting William Le-flore, and that the defendants Tom Stockton and Ed Clark attempted to prevent other persons from interfering with and stopping said fight, and that as the result of such conduct a disturbance ensued which amounted to a riot; that the difficulty began in a blacksmith shop in the town of Keota, in Haskell County, Oída., and extended to the street and lasted several minutes, during which time the greatest confusion existed; that during this difficulty Sam Shores, the man assaulted, attempted to interfere and stop the fight, and that either the appellant or one of the other parties acting with him cut the said Sam Shores in the back of the neck with a long-bladed knife; that the cut which the said Sam Shores received was at a vital part of his anatomy, was in the neck and from behind, and that a distance of one-half inch further would necessarily have severed his jugular vein. Some of the witnesses testified positively that they saw the appellant inflict the wound on said Shores. There is other testimony in the record which indicates that the wound was inflicted on the said Shores by one of the other parties who were acting with appellant, but all of the testimony makes it plain that the parties were acting together in the commission of the offense which amounted to a riot; that Shores interfered for the purpose of preserving the peace, when a cowardly and dastardly assault was made upon him from the rear, either by the appellant or by one of the other parties acting with him. The idea of stabbing a man in the back sends a thrill of horror to the heart of every good citizen, and is almost enough to freeze the blood in his veins. It is brutal and cowardly beyond the power of language to express. There is not one word of evidence in this record which tends to justify or mitigate the assault made. It is not the fault of the appellant and of those acting with him that Sam Shores survived the difficulty.

The trial court properly treated the entire difficulty as one transaction, and did not err in admitting in evidence all that was said and done, either by the appellant or those acting with him during said difficulty. They were all acting; together in the commission of the offense, and the act of one was the act of all. The evidence overwhelmingly and conclusively establishes the guilt of the appellant and those acting with him. TJnder the evidence in this case, we are surprised that the jury did not inflict the extreme penalty of the law. Lawless men should be taught that they cannot attempt to assassinate peaceable people and put an entire community in a condition of terror and escape with nominal punishment. They should be made examples of. No man is a hero in Oklahoma because he sheds human blood. The only way that this kind of conduct can be stopped is for juries and courts to fearlessly and impartially do their duty. It is for this purpose that laws are enacted and courts are established. Men must be made to know that, if they would maintain their liberty in Oklahoma, they must respect the rights of others and obey the law. Leniency to men who do not do this is a crime against society.

The judgment of the lower court is affirmed.

ARMSTRONG and DOYLE, Judges, concur.


author: FUBMAN, Eeesiding Judge.

text:
    JOHN R. COWAN v. STATE.
    No. A-187.
    Opinion Filed April 4, 1911.
    (114 Pac. 627.)
    1. WITNESSES — Impeachment—Conviction of Former Offense. Where a defendant voluntarily takes the witness stand in his own behalf, it is entirely proper to permit the state for the purpose of affecting his credibility as a witness, to show on cross-examination that he was previously convicted of a felony, or any offense which indicates moral turpitude.
    2. WITNESSES — Cross-Examination of Accused' — Reputation for Peace. If a defendant, when upon the witness stand in his own behalf, places his reputation for peace in issue, or testifies that he had never before been charged with or convicted' of fighting or assaulting others, the state, on cross-examination, may go fully into these matters.

      •3. APPEAL — Record—Sufficiency. If a, defendant desires to bring a case here upon appeal, he must at least bring up enough of the proceedings of the lower court to enable this court to pass intelligently and safely upon the questions presented for decision.
    (Syllabus by the Court.)

      Appeal from District Court, Bryan County; D. ’A. Richardson, Judge.

    John E. Cowan was convicted of assault to do bodily harm, and appeals.
    Affirmed.

      MaPhen'en & Abbott and J. Q. A. Harrod, for appellant.

      Smith C. Matson, Asst. Atty. Gen., for the State.
   FUBMAN, Eeesiding Judge.

What purports to be the ease-made and transcript of the record in this case omits the testimony of the witnesses offered on the trial of this case, and also the instructions of the court to the jury. On page 3 of the case-made we find what purports to be a part of the cross-examination of the defendant. Over the objection of appellant, he was compelled to testify that he had previously been convicted and sentenced to the penitentiary for five years on a charge of swindling. As the defendant had voluntarily taken the witness stand, for the purpose of affecting his credibility as a witness, it was entirely proper for the state to show on cross-examination that he had previously been convicted of a felony or of any offense which indicates moral turpitude. See Slater v. United States, 1 Okla. Cr. 275, 98 Pac. 110.

The defendant also stated on cross-examination that he had pleaded guilty to fighting three or four times in his life. This evidence was received over the defendant’s objection and exception. This might or might not have been error. We are prohibited by statute from reversing a conviction upon any error or exception which did not deprive the defendant of a substantial right. The common-law doctrine of a strict construction of penal laws has no application to the laws of Oklahoma. The doctrine that error presumes injury has no place in our criminal jurisprudence. Tinder statutory provision, and upon the repeated decisions of this court, before a defendant can secure a reversal of a conviction against him he must show that on the trial of the cause he was deprived of some substantial right. In other words, in this court the burden is upon the appellant to show both error and injury. The presumption is that the rulings of the trial court are correct until the contrary appears.

We could not determine the question as to whether or not the trial court erred in forcing the defendant to testify as to the number of times on which he had pleaded guilty to fighting, unless we had all the evidence in the record before us. If, on examination in chief, appellant had placed his reputation for peace in issue, or had stated that this was the first time that he had been charged with an offense of this kind, and that he had never been convicted of fighting or assaulting others, then the ruling of the court in this matter would have been entirely proper. The duty was upon appellant to show that this had not been done before we could determine as to whether the trial court had committed error in this matter. While evidence of this character might be improper under some conditions, yet under other conditions it would be admissible and proper. To hold that the trial court erred in this particular would be to allow appeals on detached and unconnected parts of the testimony or other proceedings in the court below, which on their face might appear to be erroneous, yet, which, in the light of the entire case, would be entirely proper and harmless. We cannot allow this kind of practice to grow up in Oklahoma. An appellant must at least bring up enough of his case to enable us to pass intelligently and safely upon the questions presented for decision.

The indictment and judgment of the court are in all respects regular.

The judgment of the lower court is therefore affirmed.

ARMSTRONG and DOYLE, Judges, concur.


author: FURMAN, PRESIDING Judge.

text:
    W. R. KELLY v. GEORGE FERGUSON, County Judge.

    No. A-1032.
    Opinion Filed April 4, 1911.
    (114 Pac. 631.)
    1. JUDGES — Disqualification—Proceedings for Change. Where a defendant in a criminal case, either in the county court or district court, seeks to secure a change of judge, he must comply with section 2016, Snyder’s Comp. Laws Okla. 1909.
    2. SAME. An application for a change of judge must set forth fully the grounds — that is to say, the facts upon which the claim is made that the judge is disqualified — and this application must be filed with the clerk of the court, and- reasonable notice of the application must be given to the county attorney, so that both the judge and the county attorney may know what the application claims and the facts upon which this claim is based. After such notice, the application for a change of judge must be presented to such judge. If such judge concedes that he is disqualified, he will certify his disqualification as requested, but, if the judge does not admit his disqualification, he - will refuse to make such certificate. A petition may then be filed in this court for a writ of mandamus to require such judge to disqualify himself.
    3. SAME. Where an application for a change of judge has been presented to the trial judge, it is improper for him to hear testimony and attempt to judicially determine the question of his disqualification. iH'e either certifies his disqualification or refuses to do so upon his personal knowledge.
    4. MANDAMUS — Proceedings to Disqualify Judge — Sufficiency of Petition. When a petition for writ of mandamus is presented to this court to require a judge to disqualify himself, such petition must be confined to the grounds set up in the original application which was presented to the trial judge and of which the trial judge and the county attorney had notice.
    5. SAME — Scope of Hearing. Upon the hearing of a petition for a writ of mandamus to require a judge to disqualify himself, this court will proceed on the petition and response thereto and the original application, and will hear oral evidence or receive affidavits either in support of or in opposition to the issues raised, as the justice of the case may require.
    6. JUDGES — Disqualification., A disqualified judge should carefully abstain from taking any part in the selection of the person who is to preside in his place in the trial of a cause in which he has been disqualified.

      7. SAME — Sufficiency of Showing. For a showing’ which authorized the issuance of a writ of mandamus requiring the judge to disqualify himself, see facts stated in the opinion.
    (Syllabus by the Court.)
    Mandamus by W. R. Kelly against George W. Ferguson, Judge of the County Court of Blaine County.
    Writ granted.

      Seymour Foose, for petitioner.

      J. P. Wishard and C. F. Dyer, for respondent.
   FURMAN, PRESIDING Judge.

Petitioner, W. R. Kelly, being prosecuted in the county court of Blaine county, Okla., for the offense of criminal libel, filed with the clerk of said court an application for a change of judge, alleging in substance that respondent, Hon. George W. Ferguson, the regular judge of said county court, was so biased and prejudiced against petitioner that petitioner could not have a fair and impartial trial before said judge. In support of this general charge, a great many facts were alleged in the application upon which the claim was made that respondent was disqualified to try petitioner, and upon which respondent was requested to certify to such disqualification. Due notice was given to the county attorney of Blaine county of this application. The county attorney filed a general denial of the facts stated in the application. The matter was set down for hearing, and evidence and affidavits were introduced in support of and in opposition to the application. We do not think that this practice is contemplated by the statute. In the case of Lewis v. Russell, 4 Okla. Cr. 132, 111 Pac. 818, in a well-considered opinion by Judge Richardson, this court said:

“The act approved March 32, 1909, was intended .to regulate those matters, and the portion thereof pertinent to the present case (section 3016, Snyder’s Comp. L. Okla.) reads 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. ’ Under this section it is mcessary that the application for a change of judge be filed with the clerk'of the court below; that it set forth the grounds — that is to say, the facts upon which the claim is made that the judge is prejudiced' — and that the same be presented to such judge, reasonable notice thereof, being first given to the prosecution. If the application is in compliance with the statute, and the judge concedes that he is prejudiced, he certifies his disqualification as requested. On the other hand, if the application be in proper form, but the judge does not admit his disqualification and therefore refuses to make the certificate, a petition may be filed for a writ of mandamus to require him to do so; and the question of his disqualification will then be tried out and determined in the appellate court upon the petition, the response, and such proof as may be there offered. But the filing of an application with the clerk below in full compliance with the section above quoted is a prerequisite to the procuring of the writ. The facts upon which the claim of prejudice is made must be set out in the application, so that the judge and the other side may know what is claimed and upon what the claim is based; and it is not sufficient to set these facts out for the first time in the petition for the writ. Myers v. Bailey, 26 Okla. 133, 109 Pac. 820; Mayes v. Pitchford, 26 Okla. 132, 109 Pac. 821; Ex parte Hudson, 3 Okla. Cr. 393, 106 Pac. 540, 107 Pac. 735.”

It is evident that the statute never intended that a judge should'hear evidence and judicially pass upon the question of his own prejudice. Such a trial would be almost sure to result in an unseemly contest, just as it did in this case. As the practice touching this matter does not seem to be fully understood by the profession, we will reiterate what we said in the case of Ex parte Hudson, 3 Okla. Cr. 400, 106 Pac. 543:

“While the Constitution prohibits the trial of 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 right to pass upon his bias or prejudice than a juror would have to decide as to his qualifications, for it is a fundamental principle of jaw that no one should be permitted to be a judge when bis 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 tpie 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. Upon 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.”

When the application for a change of judge was presented to respondent in this ease, he should have acted upon it, as it was when presented to him; and, if he declined to certify to his disqualification, the petitioner should have presented a petition for a writ of mandamus to this court to require respondent to do so, and the question of his disqualification would be tried out and determined before this court upon the petition, the response, and such proof as may be here offered. The facts upon which the claim of prejudice is based must be set out in the original application, so that the judge and the county attorney may know whai is claimed and upon what such claim is based. It is not sufficient to set out these matters for the first time in the petition to this court for the writ. In other words, the petition for the writ must show that the facts upon which it is based were alleged in the original application. Upon the trial the issues involved may be supported or controverted in such manner as is competent in mandamus proceedings. We want to make it clear that the trial in cases of this kind does not take place in the lower court. It is illegal and absurd to place a judge upon trial before himself. Such a trial would manifestly be a miserable farce. No man is competent to sit in judgment upon his own conduct or when his individual integrity or feelings are involved. The fact that he assumes that he is competent to do this is conclusive evidence of the fact that he is incompetent to properly discharge this judicial duty. Where an application for a change of judge is made, and such judge recognizes that the alleged facts upon which the application is made are sufficient and true, he should so certify, and that would settle the matter so far as his connection with the case is concerned; but, if he feels that the alleged facts stated in the application are untrue or are insufficient in law, he should decline to take any action at all, and allow the matter to be determined by mandamus in the appellate tribunal. In this way only can justice be done. We are therefore of the opinion that respondent should not have attempted to hear testimony and judicially determine the question of his own prejudice. The respondent, however, opened court and placed Hon. George W. Ferguson regularly on trial before himself. Witnesses were summoned and sworn, and testimony was introduced and considered, and the court listened to argument by counsel as to the state of mind and mental condition of Hon. George W. Ferguson, and, being thus “well advised/’ rendered the following judgment in favor of the said Hon. George W. Ferguson:

“Now, on this 6th day of December, A. D. 1910, the court proceeds to hear the application of the defendant for a change of judge heretofore filed in said case. The plaintiff is present by C. F. Dyer, county attorney, and the defendant is present in person and by his attorneys, Ed Baker and Seymour Foose. And now the court after hearing and considering evidence both on behalf of the defendant in support of said application and upon behalf of the state opposing said application, and after being well advised, the court overrules said application, and holds that the application and evidence is not sufficient to disqualify the Honorable George W. Ferguson, county judge and presiding judge of said court in said ease, and the court refuses to certify that said presiding judge is disqualified to preside in, hear, try or render judgment in said case and refuses to allow the defendant a change of judge; to all of which the defendants excepts. George W. Ferguson, County Judge.”

From the affidavit of Hon. Seymour Foose, hereinafter set forth in full, it appears that the court was in doubt as to the mental condition of the Hon. George W. Ferguson, and was disposed to grant the change of judge until after he heard the evidence and argument in the trial above referred to. It is difficult for us to treat this matter seriously. It sounds more like a joke than it does like a judicial proceeding. It is the first instance that has come to our knowledge in which a judge has placed himself on trial before himself, and we truly hope that nothing of this sort will ever occur again in the state of Oklahoma. A regular ease-made containing all of the proceedings on this hearing is before us as an exhibit attached to the petition for the writ of mandamus. In the reply to the petition for mandamus respondent admitted some of the facts stated in the application for a change of judge, but denied most of them, and upon the question, of bias and prejudice the answer of respondent is as follows:

“Tour respondent specifically and emphatically denies that he is biased or prejudiced against your petitioner in any manner whatever, and submits and affirms that all of plaintiffs said petition for a writ of mandamus in this court specifically and pointedly sets out a full and complete case of bias and prejudice existing by and on behalf of the petitioner as against your respondent.”

Thus respondent asserts that, while he was himself free from bias or prejudice against petitioner, the petitioner had made out a full and complete case of bias and prejudice existing on the part of petitioner against respondent.

The papers filed before us in this case by 'petitioner and respondent cover nearly 100 pages of closely typewritten matteiv We cannot incorporate in this opinion all of the allegations and affidavits of the parties and the testimony of witnesses which are contained in the record; neither is it necessary or important that we should do so. We deem it sufficient to call attention to the affidavit of Hon. Seymour Foose, which appears in the record and which was in no manner contradicted or denied by respondent, and which is as follows:

“In the County Court of Blaine County, State of Oklahoma. Affidavit of Seymour Foose in Support of Application of Defendant for Change of Judge. The State of Oklahoma, Plaintiff, v. W. R. Kelly, Defendant. State of Oklahoma, Blaine County ss.: Seymour Foosé, being duly sworn, deposes and sáys: That he is attorney for defendant in said. case. That. on the 3d day of December, A. D. 1910, affiant, representing the state, appeared in said court before the Honorable George W. Ferguson, county judge, presiding in the matter of the hearing on the application of defendant for a change of judge, and the following occurred in substance and effect, to wit: The county judge asked the county attorney.what he had to say as to the application and the latter answered that he had nothing to say at present; that it seemed to be a personal matter between the defendant and the judge, and he would leave it to the judge to decide whether he would grant the application or overrule it. Whereupon, the county judge said he would grant the change of judge, but he wanted affiant and the county attorney to agree upon a proper person to try the case, before he granted the change; that they ought to be able to agree upon some one that would be satisfactory. Thereupon, after some conversation between the affiant and the county attorney in reference to the selection of a special judge, they failed to agree, and the affiant presented a journal entry of an order sustaining the application and disqualifying the said county' judge in the case to the county attorney and the county judge, and the former said it was all right if the judge wanted to grant the change of judge; but the latter refused to sign it, or to make the order, but said the county attorney after consulting the prosecuting witness, and the affiant after consulting the defendant, ought to be able to agree on a satisfactory judge to try the case, and that he wanted them to do this before he acted upon the application. Whereupon, affiant objected to being required to agree on a substitute for a judge as a condition to having the application sustained, and to being required to act iri the matter of agreeing under such a form of compulsion, and objected to being required to agree upon another judge before the order was made granting a change of judge, and stated that the law provided the procedure for agreement on another judge or his election in case an agreement could not be had to take place after the regular judge had been disqualified; and affiant submitted the application and demanded that it be heard, and a ruling, decision, and order made thereon at that time. This the county judge refused, and then the further proceedings were had as shown by the minutes thereof in the records of the court. Seymour Foose. Subscribed in my presence and sworn to before me this 6th day of December, A. D. 1910. Beulah Malcomb, Clerk County Court. [Seal.]”

We do not question the perfect good faith of respondent in this matter. We know from everyday personal experience and observation that all men are more or less prejudiced at times against some person or in some manner, and that as a rule they are not conscious of the existence of such prejudice. It is neither a crime nor a disgrace for a man to be prejudiced. In fact, circumstances often arise under which a man would be either more or less than human if he were not prejudiced. Prejudice is something which no man can see, and which can only be shown by words or conduct, indicating that condition of the mind or heart. We see no occasion in this record to question the honesty and good faith of respondent, but many circumstances are presented which indicate strong bias on the part of respondent against petitioner. Upon the hearing of this matter before respondent, petitioner was forced to take the witness stand, and over the constant objection and exception of his counsel, although he was the defendant in the criminal cause out of which this proceeding grew, respondent forced petitioner to submit to a rigid cross-examination, and to answer all such questions as were asked him by the county attorney. Despondent was willing to certify to his disqualification; provided petitioner would agree on some one to act as judge in the place of respondent who would be acceptable to the prosecuting witness. This alone shows that respondent should not preside at the trial of petitioner. The writer of this opinion many years ago heard a reputable citizen denouncing a judge for granting a change of venue in a case upon the ground that the defendant could not obtain a fair and impartial trial in the county where the cause was pending. He said, “Why, of course, he can get a fair trial and justice here, for every man in the county knows that he ought to have his neck broken.” This man was honest in his belief that the defendant could obtain a fair and impartial trial without a change of venue. From his standpoint a change of venue was an outrage. lie honestly thought that the defendant ought to be hung, and could not see and did not think that there was but one side to the ease, and his idea of justice was that the case should be tried by those who were acceptable to the private parties who were prosecuting the defendant, just as respondent attempted to force upon petitioner in this case. There is no provision of law authorizing a private prosecutor to have any voice in the selection of a trial judge. The county attorney does not represent the private prosecutor, but he represents the entire people of the state, and it is his duty, as it is also the duty of the judge, to be entirely impartial in the discharge of his duties and not to be controlled by any private parties or persons interested in the trial of a criminal case. Our Constitution by express provision protects the citizens of this state against private prosecutions. For a full discussion of this question, see Hartgraves v. State (decided at this term), ante, 114 Pac. 343.

A judge whose feelings against a defendant is so strong that he is not willing to vacate the bench and allow some one else to take his place until he can receive a positive assurance that the defendant will be tried by a judge who is acceptable to the prosecuting witness can hardly be said to be in an entirely impartial frame of mind. Rev. Cotton Mather, one of the best and ablest men that America ever produced, and his associates, doubtless felt that they were entirely impartial and that they were simply performing an unpleasant Christian duty when they were having women burned as witches. No one evbr questioned their honesty, but all deplore their mistaken zeal. Any attempt upon the part of a disqualified judge to influence the selection of his successor, is a violation of the spirit if not of the letter of the law, and might be ground for setting aside a verdict of conviction We have time and again announced that absolute fairness must characterize every step taken in the progress of a criminal trial in Oklahoma.

The writ of mandamus will issue as prayed for.

ARMSTRONG- and DOYLE, Judges, concur.


text:
    IRA N. EUBANKS v. STATE.
    No. A-924.
    Opinion Filed April 4, 1911.
    (114 Pac. 798.)
    1. INDICTMENT AND INFORMATION — Finding of Indictment-C.onourrenoe of Grand Jurors. Under the provisions of the Bill of Rights, section 18, and section 6687, Snyder’s Sts., an indictment cannot be found except by the concurrence of at least nine grand jurors.
    2. SAME — “When it is N,ot Found.” By the language contained in section 6738, Snyders Sts., “When it is not found," is meant when not concurred in by at least nine grand jurors.
    3. INDICTMENT AND INFORMATION — Presumptions'—Regularity of Indictment. When an indictment is duly returned as “a true bill” properly indorsed, the presumption is that it was regularly found on legal and sufficient evidence, with due deliberation, and by the concurrence of the requisite number of grand jurors; however, this presumption is not conclusive.
    4. INDICTMENT AND INFORMATION — Setting Aside — Hearing— • Competency of Grand Jurors. A grand juror is not permitted to testify how any member of the jury voted, or the opinion expressed by any of them upon any question before them, but he may be required by the court to testify in support of a motion to set aside the indictment, whether or not a vote or ballot was taken showing the concurrence of the necessary number of grand jurors to find a true bill.
    5. INDICTMENT AND INFORMATION — Finding of Indictment-Necessity for Ballot. The law requires that the concurrence of the necessary number of grand jurors be indicated by a vote or ballot, showing direct approval of each indictment, and, if a separate vote or ballot is not taken, then there can be no lawful concurrence of the necessary number of grand jurors.
    6. SAME — “Concurring” — “Concurrence?’ — Assent — Consent. The words “concurring” and “concurrence,” as used in- the constitutional provision and the statute, construed to mean “assent” or “consent,” indicated hy affirmative action on the part of the grand juror by vote or ballot, showing direct approval.
    7. SAME — Case.^ Where it appears from the evidence! offered in support of a motion to set aside the indictment that only three votes or ballots were taken by the grand jury in finding sixteen indictments, such indictments were not legally found with the concurrence of the requisite number of grand jurors, and are therefore void, and not true bills.
    8. SAME — Motion to Quash — Evidence. Where the evidence offered in support of a motion to set aside the indictment shows beyond a reasonable doubt that the indictment, apparently legal and formal, had not in fact the sanctions which the Constitution and the statutes require, it is the duty of the court to protect the defendant in his constitutional prerogatives and statutory rights by sustaining the motion to quash and set aside the indictment.
    (Syllabus by the Court.)

      Appeal from District Cou/rt, Pittsburg County; Robert M. Rainey, Judge.

    Ira N. Eubanks was convicted of forgery, and be appeals.
    Reversed and remanded, with instructions.

      W. R. Fuller, Geo. M. Porter, and Mr. Eubanlcs, for plaintiff in error.

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

Plaintiff in error, Ira N. Eubanks, was indicted, tried, and convicted of a violatipn of section 2565, Snyder’s Sts., and was sentenced to serve a term of three years in the penitentiary. The judgment and sentence was entered on June 15, 1910. An appeal was perfected by filing in this court on October 3, 1910, a petition in error with case-made attached, together with proof of service of notices of appeal.

ITpon arraignment the defendant demurred to the indictment. The demurrer .was overruled, and the defendant was then permitted to file motion to set aside and quash said indictment. Said motion is as follows:

“Motion to Set Aside and Quash Indictment. Now comes Ira N. Eubanks and moves the court to set aside and bold for naught indictment No. 674, which was filed in this court on the 29th day of November, 1909, and is entitled ‘Indictment for maldng false certificate of acknowledgment/ for the following reasons: (1) That said indictment was not found indorsed,, presented, or filed as prescribed by the statutes of the state of Oklahoma. (2) That the names of the witnesses indorsed upon said indictment are not the witnesses examined before the grand jury, and upon whose testimony said indictment was found. (3) That the indictment was not found by competent .authority, and that there was no legal or competent evidence before the grand jury that returned said indictment upon which to base the same, and that said indictment was in violation of the constitutional rights of said defendant, and contrary to the statutes of the state of Oklahoma, and without due process of law, and is void. (4) For a further reason for setting aside and quashing said indictment, the defendant herein says that the grand jury which found said indictment received incompetent, irrelevant, hearsay, and secondary testimony in order to receive any testimony which would authorize or warrant them to return said indictment into this court; and that without said illegal, incompetent, and irrelevant, hearsay, and secondary evidence, there was no testimony introduced whatever before said grand jury which proved or tended to prove the charge set out in the indictment. (5) This defendant, for a further reason for setting aside and quashing said indictment, says that there was no testimony before said grand jury that proved or tended to prove that the defendant herein was a notary public, or that he was an officer authorized to take the acknowledgment of the instrument set out in the indictment. (6) That said indictment was not found upon the testimony of the witnesses whose names are indorsed upon the back of the same; that E. J. Bonesteel was not examined before the grand jury in reference to this indictment, nor was the witness A. G. Cochran examined in reference to this indictment, nor was any statement made by either of said witnesses which showed or tended to show that said defendant was an officer authorized to take such acknowledgment as alleged in said indictment; that John 0. Toole was never before said grand jury, nor was his evidence before said grand jury in any other manner provided for by law; and that the testimony of E. E. Lee, the only other witness endorsed upon said indictment, did not prove or ' tend to prove the allegations alleged in the indictment. Where-foie defendant respectfully moves tbis honorable court to set aside and hold for naught said indictment and that he be discharged according to the statutes in such cases made and provided. Fuller & Porter, Attorneys for Defendant. Ira N. Eubanks being first sworn says.that he is the defendant named in the indictment mentioned, and that the matters and things set forth and contained in said motion are to the best of his belief true, and that this motion is made m good faith in order that justice be done, lia N. Eubanks. Subscribed and sworn'to before me this 7th day of March, 1910. W. B. Biley, District Clerk, By C. L. Heflev, Deputy Clerk.”

The defendant, on the same day, filed his application in said court praying for an order to examine witnesses in support thereof. Which application was allowed by the court, and a hearing upon the motion was had before the court and the motion to set aside and quash was overruled and exception allowed. The defendant now urges this -ruling of the court as ground for the reversal of the judgment against him.

It appears from the testimony taken in support of the motion to set aside that the grand jury voted but three times in finding sixteen indictments, returned against the defendant, and Elder and Eubanks; that they never read any of these indictments, and did not know what they charged, except as the titles indicated. The testimony is voluminous, but that they voted but three times is uncontradicted.

Lewis Henry, clerk of the grand jury, testified in part as follows: That his notes show that indictments numbered 674 to 687, inclusive, were found and entitled as follows: State of Oklahoma v. Ira N. Eubanks — False acknowledgment. State of Oklahoma v. Elder & Eubanks — Uttering of J. W. Spurt deed. Same title — Forgery of J. Wi Spurt deed. Same title — Forgei-y of mortgage. Same title — 'Uttering of mortgage. Same title— Forgery of note. Same title — Uttering of note. Same title— Forgery of Mike Miller deed. Same title — Uttering of Mike Miller deed. Same title — 'Forgery of Honoré Mullor deed. Same title — Uttering of Honoré Mullor deed. Same title — Uttering of Louisiana Eealty Company deed. Same title — False pretenses to E. E. Lee. State of Oklahoma v. Elder, Eubanks & Elder — Conspiracy. Each indorsed as, “A true bill,” November 29, 1909. He further testified as follows:

“Q. Weren’t these written down on page 122 and then just read, over, then a vote taken that the grand jury authorize the county attorney to prepare indictments in all those cases and one vote taken on the entire bunch? A. Not to my knowledge. Q. You don’t remember it that way? A. No, sir. Q. But you can’t pick out any particular indictment that there was a separate vote on.? A. No, sir. Q. So, now, you don’t know which ones you voted and which ones you didn’t? A. Three anyway, but I don’t know whether I could pick them out unless I could hear the evidence again, that I know were voted on separately, but I don’t think all of them were.”

J. W. Dobbins, foreman of the grand jury, testified:

“Q. The way I remember, the way we found these indictments, we voted on them as we found them. I don’t remember how we could vote on all of them at once. I don’t really believe we did. I don’t remember now just exactly how it was.”

C. K. Dobyns, a member of the grand jury, testified:

“Q. Were you present at all of the meetings of that grand jury ? A .Yes, sir. Q. In getting the testimony before the grand jury in reference to the Elder & Eubanks indictments I will ask you whether all of the testimony was heard in reference to all of the cases and then votes taken, or whether the testimony was taken and introduced in reference to each separate ease. A. Well, it was just this way: We would hear some of the evidence in that case, and then we would wait a day or so. Sometimes or other we could not get the witnesses, and we would lay them aside, and we did a whole lot of other work right along, and when we got done with that we would go back over each case and take it up separate, and sometimes we could not remember just how it was, the testimony, and the clerk would have to call it up and get it started in going back over it that way, and we balloted on some of the cases, we thought in order to get through with it, part of it, somebody suggested if they were guilty in one they were guilty in all, and we just lumped it in altogether in order to get through. I don’t remember just who that was, I believe it -was the foreman. I think we balloted about three times. Well, I know we didn’t ballot in all the cases. Q. There were some thirteen or fourteen indictments returned altogether against them? A. I can’t tell you how many there was. Q. How many times did you vote on the thirteen or fourteen indictments? A. Some two or three times. Some particular cases that I remember and the others, it was a case that I didn’t understand just exactly, the evidence kind of covered it, and we talked them over; but I don’t remember how many cases they got against them. There was so much of it. Q. Then, you didn’t take a separate ballot on each indictment that you returned against Elder & Eubanks? A. We never balloted over two or three times, I think about three times.”

The most favorable construction that can be placed on the testimony of these grand jurors, the only grand jurors testifying, is that only three votes were taken by the grand jury' on all of the Elder & Eubanks indictments, the case at bar being among four.teen true bills voted by one ballot. The minutes of the grand jury slrow that these sixteen indictments against Elder & Eu-banks charge five separate and distinct forgeries, seven separate and distinct utterances, one false pretense, and one of conspiracy, while another indictment charging false pretense and another charging conspiracy, of which there is no record on the minutes, were at the same time returned by the grand jury.

It is contended that, by reason of the fact that the grand jury did not vote separately on this indictment, the indictment was not found as prescribed by the statutes of this state; that by reason of the provisions of section 6738, Snyder’s Sts., the motion to set aside and quash the indictment should have been sustained by the court. Said section provides in part as follows:

“The indictment must be set aside by the court in which the defendant is arraigned, and upon his motion in either of the following cases: First. When it is not found, indorsed, presented or filed, as prescribed by the statutes of the state. * * * Second. When the names of the witnesses examined before the grand jury are not made to appear on some part of the indictment as provided by law. * * * Third. * * * *To enable the defendant to make proof of the matter set up as grounds for setting aside the indictment, the defendant may file his application before any court of record in the countj, setting out and alleging that he is indicted in the district court, naming it, and setting out a copy of his motion to set aside the indictment and alleging, all under oath, that he is acting in good faith, and praying for an order to examine witnesses in support thereof. The court shall thereupon issue subpoenas to compel any or all witnesses desired to appear before him at the time named, and shall compel the witnesses to testify fully in regard to the matter and reduce the examination to writing, and certify to the same, and it may be used to support the motion. * * All witnesses, including' grand jurors, shall be bound to answer fully, and shall not be answerable for the testimony so given in any way, except for the crime of perjury committed in giving such evidence. * * * ”

Section 6687, Snyder’s Sts., provides:

“An indictment cannot be found without the concurrence of at least nine grand jurors. When so found it must be indorsed ‘A true bill,’ and the indorsement must be signed by the foreman.”

Section 18 of the Bill of Eights provides:

“A grand jury shall be composed of twelve men, any nine of whom concurring may find an indictment or true bill.”

Wihen an indictment is duly returned as a true bill, properly indorsed, with the signature of the foreman, the presumption is that it was regularly found on legal and sufficient evidence with due deliberation, and by the concurrence of the requisite number of grand jurors; however, this presumption is not conclusive. The Legislature has seen proper to provide for what causes an indict-ment must be set aside by the court upon the motion of the defendant, if made at the proper time. And under the provisions of the Bill of Eights and section 6687, above quoted, the indictment can be found only by the concurrence of at least nine grand jurors. By the language contained in section 6738, “when it is not found,” is meant when not concurred in by at least nine grand jurors.

Under the provisions of the foregoing statute (section 6738, Snyder’s Sts.), the testimony of grand jurors may be received to show that the indictment was not legally found by the grand jury, and if -under a misapprehension of the law, or otherwise, the indictment was found without a concurrence of at least nine of the grand jurors,, it is void, and not a true bill. And the court, while recognizing the presumption of regularity which such a judicial record imports, must, under the statute, when proper proof is made in support of a motion to set aside the indictment, showing that the record has been erroneously or falsely made, whether by inadvertency or otherwise, set aside and quash an indictment so illegally, wrongfully, and fraudulently returned and presented.

It is as much the duty of the grand jury to protect the innocent as to accuse the guilty. It should shield the citizen alike from the false accusation of private malice and the passion of public clamor. It should never be used for the gratification of personal ill will or hatred, or to promote the secret plottings of power, party, or faction, to defame the name, or to disgrace those whom public or private enemies wished.to destroy. For those and many other reasons, its proceedings should be had with that deliberation and dignity that the importance of its functions require.'

As was said by Mr. Justice Tarsney, in the case of Royce v. Territory, 5 Okla. 61, 47 Pac. 1083:

“As the grand jury is an informing and accusing body, which makes its investigation and holds its deliberations in secret, and irresponsible for its official action upon matters of fact, except before the tribunal of public opinion, it is very important that its powers, duties, and methods of procedure should be well understood and should be strictly confined within the conservative and salutary limits imposed by law, which experience has shown to be necessary to subserve the public good, and to accomplish a just and impartial administration of the criminal law.”

Mr. Rice, in his work on Criminal Evidence, vol 3, p. 40, says:

“The jealousy, with which the early law guarded the secrets of the grand jury room, has largely disappeared. The sacramental character of that august body is very imperfectly recognized at the present day. The theory that the proceedings before this body are beyond the scrutiny or condemnation of court or counsel, is a foolish pretense that is very generally abandoned. Malice, corruption, and ignorance frequently combine to impress upon the proceedings of this body the tyrannical and oppressive functions of the Star Chamber and the Council of Ten. And to say, or even intimate, that, where corrupt practices exist, there is no method open for their proper disclosure, is simply to insist that our criminal law is crippled with a hideous deformity.”

The common-law rule of secrecy has no place under the provisions of our criminal procedure, which recognizes personal constitutional right as superior to every other consideration, and, whenever it becomes essential to the ends of justice to ascertain what has occurred before a grand jury, it may be shown by the testimony of the grand jurors, and particularly whether or not a vote or ballot- was taken showing the concurrence of the necessary number of grand jurors to find a true bill; the only limita^ tion being that a grand juror will not be permitted to testify how any member of the jury voted or the opinion expressed by any of them upon any question during their investigations.

In the proceedings had in this case, evidently the grand jury did not proceed with that deliberation that the law requires. The law requires that the concurrence of the necessary number of grand jurors be indicated by a vote or bállot od each indictment, and, if a separate vote or ballot is not taken, then there can be no lawful concurrence of the necessary number of grand jurors. As we understand the words “concurring” and “concurrence” as used in the constitutional provision and the statute, they mean “assent,” or “consent,” indicated by affirmative action on the part of the grand juror, by vote or ballot, showing direct approval. That was not done in this case. The testimony upon the motion to set aside shows beyond a reasonable doubt that the indictment, apparently legal and formal, had not in fact the sanctions which the Constitution and the statutes require. In such cases it is the duty of courts to protect the citizen in his constitutional prerogatives and statutory rights.

Our conclusion is that, for the reasons stated, the trial court erred in overruling the motion to set aside and quash the indictment.

Reaching this conclusion upon this question makes it unnecessary to consider the numerous other assignments of error.

The judgment of the district court of Pittsburg county is reversed, and the cause remanded, with instructions to proceed in accordance with the views herein expressed.

FURMAN, PRESIDING Judge, and ARMSTRONG, Judge, concur.