author: DOYLE,, P. J.

text:
    S. H. SIMPSON v. STATE.
    No. A-3302.
    Opinion Filed November 18, 1919.
    (186 Pac. 116.)
    1. APPEAL AND ERROR — Reservation of Objections — Arraignment and Pleas. A conviction in a felony case will not be reversed by reason of the fact that the record fails to show that the defendant was ever arraigned or waived arraignment, or that he pleaded to the information, where the record shows that the information was read by the county attorney to the jury, in the presence of the defendant and -his counsel, and the jury informed by the county attorney that the defendant had entered a plea of not guilty thereto, and that the defendant proceeded to trial without objection. Held, further, that where the question is raised for the first time on motion for new trial, the defendant is bound by the verdict of the jury and will not be heard to say that he never pleaded to the information.
    2. INDICTMENT AND INFORMATION — Objections—Time for Making. Objections to an indictment or information based upon the absence of any essential preliminary proceeding should be made by proper motion or plea, before entering a plea of not guilty.

      3. SAME — Maimer of Raising Objection. 'Objections to tlie sufficiency of an indictment or information should be taken by a demurrer thereto, as provided by Code of Criminal Procedure (section 5791, Rev. Laws 1010). Our Code further provides: “When the objections mentioned in section 5791 appear upon the face of the indictment or'information, they can only be taken by demurrer, except that the objection to the jurisdiction of the court over the subject of the indictment or information, or that the facts stated do not constitute, a public offense, may be taken at the trial, under the plea of not guilty, and in arrest of judgment.” Section 5799, Rc.v. Laws 1910. Under this provision, if it appears that the facts stated do not constitute a public offense, an objection to the introduction of evidence on that ground is sufficient to raise the question.

      4. APPEAL AND ERROR — Reservation of Exceptions — Defects in Information — Waiver. Where a defendant fails to file a motion to set aside an information which was not signed by the county attorney at the. time it was filed, and fails to interpose a demurrer thereto, and without objection goes to trial thereon, he waives all right to afterwards object to the information upon this ground, and cannot be heard upon appeal to complain that the information was not signed by the county attorney as directed by law.
    5. HOMICIDE — Assault with Intent — Sufficiency of Verdict. On the trial of an information for shooting at another with a pistol, with intent to kill, the issue of shooting at another without intent to kill, but with intent to do bodily harm, was submitted to tlie jury. The verdict was: “We 'the jury, * * * do upon our oaths find the defendant, S. H. Simpson, guilty of assault with intent to do bodily harm, as charged in the information herein, and fix his punishment at confinement in the state0 penitentiary for a period of four years.” Held, that the verdict is sufficiently definite and certain as to the offense, of which the defendant was convicted.
    6. EVIDENCE — Res Gestae — Prior Difficulty with, Codefendant. In a prosecution for assault with intent to kill, declarations as to what was done and said by the complaining witness and a co-defendant at an interview some hours before 'the shooting held admissible as part of the res gestae.
    Appeal from District Court, Carter County; W. F. Freeman, Judge.

    S. H. Simpson was convicted of assault with a dangerous weapon with intent to do bodily harm, and he appeals.
    Affirmed.

      Sigler & Howard, for plaintiff in error.

      S. P. Freeling, Atty. Gen., and W. C. Hall, Asst. Atty. Gen., for the State.
   DOYLE,, P. J.

The information in this case charged that — •

In Carter county, on or about the 3d day of July, 1917, “S. H. Simpson and L. R. Simpson, did then' and there unlawfully, willfully, and feloniously shoot at one U. H. Dowling, with certain firearms, to wit, pistols, then and there loaded with gunpowder and leaden bullets, said pistols being then and there deadly weapons and held in the hands of them, the said S. H. Simpson and L. R. ¡Simpson, with the unlawful and felonious intent and purpose on the part of them, the said S. H. ¡Simpson and L. R. Simpson, thereby to kill him the said U. H. Dowling, contrary to,” etc.

Upon this information the plaintiff in error, S. H. Simpson, alone was tried and convicted of an assault with intent to do bodily harm, and his punishment fixed at imprisonment in the penitentiary for the term of four years. From the judgment rendered on the verdict, he appeals.

It is first contended that the record fails to show that the plaintiff in error was ever arraigned or waived arraignment, or that he pleaded to. the information. The record shows that when the case was called for trial, both parties announced ready for trial; that after the jury was impaneled, the information was read by the county attorney, who then stated to the jury that the defendant had entered a plea of not guilty. Then he made the opening statement of the case. Then Mr. Howard, counsel for the defendant, made his statement of the case, and the county attorney made a reply statement.

Under the provisions of the Code of Criminal Procedure, a defendant has the right to plead to the indictment or information. He may, in answer to the arraignment, either move the court to set aside the indictment or information, or may demur or plead thereto. In exercising this privilege the defendant is required to act in good faith. He cannot sit quietly by and say nothing about his failure to plead until after the verdict, and then complain. The necessity of a formal plea to an indictment or information is not a constitutional requirement, 'and, while it was a part of the procedure at common law, in this state it is statutory, and it is now well settled that a statutory right may be waived even in capital cases. If the defendant had not been arraigned and asked to plead, it was his duty to claim the right to plead before announcing ready for trial, which the record here shows that he did not do.' The jury had been informed in his presence that he had pleaded not guilty, and, after the state had introduced its evidence and rested, he introduced his evidence and made his defense, the same as though his plea had actually been entered.

In the trial he saved his exceptions to the rulings of the court on other questions and claimed all of his legal rights. He had as fair and impartial trial as he could have had if the plea of not guilty had actually been entered. The issue of his guilt or innocence was tried, and he, without objection, participated in that trial, and is bound by its results.

It is also contended that the information did not state facts sufficient to constitute an offense, and that it- was not signed by the county attorney until just before the trial started.

It does not appear from the record when the county attorney signed the information, and the first objection to the sufficiency of the information was made during the examination of the complaining witness, at which time the defendant objected to the introduction of testimony “for the reason that said information is not sufficient to charge an offense.”

Objections to an indictment or information based upon the absence of any essential preliminary proceeding should be made by proper motion or plea, and objections to the sufficiency of the same should be taken by a demurrer thereto as provided by Code of Criminal Procedure (section 5791, Rev. Laws 1910). An objection to an indict-, ment or information on the ground that the facts stated do not constitute a public offense may be taken at the trial, under a plea of not guilty, and in arrest of judgment. Section 5799, Rev. Laws. Under this provision, if it appears that the facts stated do not constitute a public offense, an objection to the introduction of evidence on that ground is sufficient to raise the question. However, where the objection to an' information for a defect of form apparent on the face thereof is raised for the first time by objection to the introduction of evidence, it comes too late, and the objection should be overruled if the facts stated constitute a public offense.

One of the grounds of the motion for a new trial is:

“Because said information was nothing more than a blank piece of. paper filed in said cause prior to the signing of the same by the county attorney and this defendant was not called upon to raise any objection and could not raise any objection thereto until same had been officially signed by the county attorney, which was not done until after the trial had commenced and without the knowledge and consent of this defendant and that he had no opportunity to object to the signing of the same or to 'reserve any exception thereto.”

It appears that upon the hearing of the motion for a new trial it was agreed:

“That the information was not signed by the county attorney until five or six minutes before the case was called for trial.”

The record also shows that no specific objection was made to the information, on the ground that it was not signed by the county attorney before it was filed, until after verdict.

Where a defendant fails to file a motion to set aside an information which was not signed by the county attorney at the time it was filed, and fails to interpose a demurrer thereto, and without objection goes to trial thereon, he waives all right to afterwards object to the information upon this ground, and cannot be heard upon appeal to complain that the information was not signed by the county attorney as directed by-law. See Brown v. State, 9 Okla. Cr. 383, 132 Pac. 359.

, In our opinion the information is sufficient to charge the offense of shooting at another with intent to kill; also, the included offense of shooting at another without intent to kill.

The remaining assignments require a brief statement of the testimony in the case:

It appears that the complaining witness lived about two miles north of Woodford, in, a one-room log house that was on land owned by L. R. Simpson, the son of this defendant. The complaining witness was cultivating a crop on the shares and had lived in this house for about a year.

The complaining witness testified:

That on the day of the shooting he was cutting wood in Joines’ pasture, nearly two miles from the house, and on that afternoon L. R. Simpson came to where he was working and told him there would be a man over at the place that evening to dispossess him and told him to get out of the house. That witness said to Simpson, “Have you got any papers to put me out?” and Simpson said:

“No, and I ain’t going to. If you don’t get out when he reports to you this evening, I am going to smoke you out.”

■Shortly after sundown that evening L. R. Simpson and the defendant, S. H. Simpson, came out of the brush about 40 yards from the house, when he saw them, and they were coming toward the house, and both of them had six-shooters; that when they were about 30 yards from the house, he went into the house and got his Winchester; that his wife and five children, running from four to 17 years of age, were in the house at the time; that he stood in the south door. The defendants stopped, and witness said, “You have come to smoke me out?” and L. R. Simpson fired a shot, and the bullet hit the top of the safe. Then witness fired a shot, and defendant, S. H. Simpson, fired the third shot, and continued to fire until his gun was empty. That his son Elzie came out of the house and fired one shot after the Simpsons had fired several shots.

Mrs. Alice Dowling, wife of the complaining witness, testified that the defendant, S. H. Simpson, was at their place that afternoon and took away a partnership goat that belonged to him and her; that the first shot that was fired that evéning passed her shoulder and hit the top of a safe about a foot from where she was standing.

Elzie Dowling testified: That his age was IT years, and. that afternoon he went with L. R. Simpson to Jodnes’ pasture; Simpson on horseback and he- afoot. That his father was cutting cordwood there, and Simpson told his father that he saw the kids in the house and that he had to get out of the house or he would smoke him out. That he said that several times, and' when his father got up Simpson went for his gun. That evening he saw the Simpsons coming up the bank of the creek, and when they were about 30 yards from the house he went m with his father and took a gun and stood behind his father. That L. R. Simpson fired the first shot, and the bullet struck the safe.. Then his father fred a shot. Then the defendant, S. H. Simpson, commenced shooting, and fired five shots. That his gun was a single-barrel muzzle-loading shotgun, and he fired one shot.

Bertha Munsenhouser testified that she was at Mr. Dowling’s house a little before sundown; all of the Dowling family were thére, and Mr. Dowling said that he had been assaulted with a gun by Le Roy Simpson that afternoon in Joines’ pasture; that the next day Mr. Simpson, the defendant, came to the cotton field where she was working with her father, and said that he was down there- on the creek near Dowling’s house and heard Mr. Dowling tell her that he had a gun drawed on him that afternoon.

William Munsenhouser testified that this defendant came to his field the next day, about a quarter of a mile from the Dowling house, and said to witness’ daughter that he heard Dowling tell her that he had a six-shooter drawed on him, and the defendant also said that he was not prepared for him last night, if he had been he would have killed him; that he was prepared for him now.

The defendant, S. H. Simpson, as a witness in his. own behalf testified: That his son, L. R.. Simpson, owned the place occupied by the complaining witness, who had been there about a year. That in the afternoon before the shooting he went over to settle up his affairs with Mrs. Dowl-ing. That he was to give her 50 cents for keeping a goat, and he told her he would be there that evening to pay the 50 cents. That he took the cotton hoes from the field near the house and went to the house and got some files. That he started over that evening to pay the 50 cents to Mrs. Dowling, and just before the shooting he and his son were walking along towards the house looking at the crop and Mr. Dowling rushed out of the house with a gun in his hand, and witness said: “Hold up, Mr. Dowling, don’t shoot. I do pot want any trouble here.” That Mr. Dowl-ing threw the gun down and fired. That witness’ son then fired two shots, and then witness fired two shots; that Dowling’s boy fired the shotgun after witness had started to run. That he did not know of any trouble between Mr. Dowling and his son that afternoon in Joines’ pasture. That the caliber of his pistol was a 38, and that of his .son was a 32.

On cross-examination, he was asked if in the presence of her father the next day he told Miss Munsenbouser that he heard Dowling tell her that there had been a gun play made on him -that day. His answer was, “I had that conversation with her.”

Several exceptions were taken during the course of the trial to the admission of evidence bearing upon the issues in the case, but we are of the opinion that none of them were well taken; the main contention being that the testimony as to what was said and done by L. R. Simpson and the complaining witness at Joines’ pasture was incompetent and inadmissible for any purpose, as being the declarations of a codefendant in the absence of the defendant.

In our opinion on the undisputed facts in evidence these declarations are clearly connected with the offense '■barged in such a manner as to constitute a part of the res gestae, and were therefore competent and properly admitted.

Several assignments are based on exceptions to the instructions given and the refusal to give requested instructions.

An examination of the instructions given to the jury discloses they fully cover the law of the case and were as favorable to the defendant as he had- the right to demand.

Finally, it is insisted that the verdict returned was not sufficient to support a conviction for a felony.

The verdict was as follows r

“We, the jury drawn, impaneled, and sworn in the above-entitled cause, do upon our oaths find the defendant, S. H. Simpson, guilty of assault with intent to do bodily harm as charged in the information herein, and fix his punishment at confinement in the state penitentiary for a period of four years.”

While the verdict in the case is technically informal, it is sufficiently definite and certain as to the offense of which the defendant' was convicted, and it is in fact a verdict of guilty of assault by shooting with a pistol without intent to kill, but with intent to do bodily harm, and we are satisfied that the informality is not sufficient to in any way affect the substantial rights of the defendant. He was present and his counsel was there when the verdict was received, and no objection was made. The record also shows that no question was raised as to the sufficiency of the verdict to support a conviction for a felony in the motion for a new trial.

Having considered every question presented by the errors assigned, we are of the opinion that the defendant has no just cause of complaint, that he received a fair and impartial trial, and that the verdict of the jury is, upon the testimony, a just one.

The judgment of the district court of Carter county is therefore affirmed.

ARMSTRONG and MATSON, JJ., concur.


source: Caselaw Access Project

author: ARMSTRONG, J.

license: Public Domain

text:
    MRS. M. FRANCIS v. STATE.
    No. A-3290.
    Opinion Filed November 25, 1919.
    (185 Pac. 126.)
    1. EVIDENCE — Confessions'—Establishment of Corpus Delicti The corpus delicti cannot be established alone by the uncorroborated extrajudicial confession of the accused.
    2. DISORDERLY HOUSE — Evidence—General Reputation. A legal conviction for keeping a toawdyhouse cannot be had upon evidence alone that the house in question has the general reputation where lewd and lascivious persons of both sexes congregate for the purpose of unlawful sexual intercourse.
    3. SAME — Evidence of Character of Inmate. That a girl is seen, in a place having the general reputation of being a bawdyhouse, wearing a thin, low-necked, short dress, is not alone sufficient evidence that such wearer is a lewd person.

      Appeal from Superior Court, Creek County; Gaylord R. Wilcox, Judge.

      Mrs. M. Francis was convicted of keeping a bawdy-house, and she appeals.
    Reversed and remanded, with instructions to grant a new trial.

      R. K. Robertson, for plaintiff in error.

      S. P. Freeling, Atty. Gen., and W. C. Hall, Asst. Atty. Gen., for the State.
   ARMSTRONG, J.

The plaintiff in error, Mrs. M. Francis, hereinafter called defendant, was charged with keeping a feawdyhouse, found guilty, and her punishment fixed at a fine of $500. To reverse the judgment rendered, she prosecutes this appeal.

Several errors are assigned and argued in defendant’s brief; but, from the view we entertain of the case, redeem it necessary to review only the error assigned, “That the court erred in overruling the demurrer to the evidence,” a motion, in effect, requesting a directed verdict for the defendant.

The evidence shows conclusively that the general repu- . tation of the house in question in the community was that it was a bawdyhouse, and that the house was run by the defendant.

T. A. Wilson testified that he had a telephone conversation with the defendant; that he had talked to her once ■before; that he called the defendant’s telephone number; that he was answered by one who said she was Mrs. Francis; that he could not swear that he knew her voice;that he was in the mercantile business and did not think she was often in his store; that he did not know that she called up the store over the ’phone. Thereupon the witness was requested to relate the telephone conversation that he had with the defendant, to which the defendant objected. The court overruled the objection, and the de~ fendant excepted. The witness then testified that in said ’phone conversation he asked the defendant if his boy was there; that she told him “he was not, that the girl he had stayed with was not there then; that if the boy came in there again she would see him and talk to him along the lines witness had talked to her.”

John S. Woof ter testified that he was sheriff of Creek county; that he knew the defendant and her place of business; that on or about the 12th day of March, 1917, he was there, and the defendant also; that there had been a complaint about the defendant running a bawdyhouse; that he went there to, and did, notify her that she must stop it,- and she said she would; that at the time, besides the defendant, there were some girls there; that he thought he saw one or two men; that he never saw any dancing; that, the girls did not have on any too much clothing; they just had on scanty house attire, just loose garments; that he did not know the girls; that he did not know their general refutation as to being girls who frequented and stayed around houses of prostitution and bawdyhouses; that he did not know their general reputation.

Q. C. Whitehead testified that he was a deputy sheriff; that he had seen the defendant and knew where her place of business was; that he was at the place about March. 12, 1917; that the defendant, two or three men, and some four or five women were there at the time; that he did not know the general reputation of any of them; that he did not see any of them in rooms; tliat L. E. Thompson was with him at said time; that he knocked on the door of a room in said house, and a woman opened it; that the room was dark, and that was the only time he found in said house a man and woman together; that he did' not remember whether or not anything was said by them about being husband and wife; that the girls were thinly' dressed; that in passing between him and the light he could see their figures.

L. E. Thompson testified that he was a deputy sheriff; that he had seen the defendant a time or two and knew .where her place of business was; that he was there about the 12th of March, 1917, an,d prior thereto; that the defendant was there when he was; that in one room a man was lying on the bed, he thought, and a lady sitting on the bed with a kimona on; that he was present when the sheriff and defendant had a conversation in said house, but did not remember the substance of it.

■ . Upon the conclusion of the evidence the defendant demurred thereto. The court overruled the demurrer, and the defendant excepted.

The defendant testified that, at the time she was charged with keeping a bawdyhouse, she kept a rooming 'house; that ladies, both single and married, and sometimes only men, roomed there; that the man and woman who were in the room, the door of which the officer required to be opened, were man and wife whose names were Hayden, and who roomed at her house two or three weeks :after they were seen by the officers at night in the room together; that her said rooming house was upstairs, and "her husband ran a cafe downstairs, and that she did not run a house of prostitution, or permit persons to congregate there for the purpose of having unlawful sexual intercourse; that she had never had a conversation over the telephone with T. A. Wilson, the witness for the state, of any character; that at the time Sheriff Woof ter and his deputies raided her house two women were there, oné of whom was a nurse from Henryetta, who had been taking care of a sick woman, and Mr. and Mrs. Hayden were also there; that she had never had a conversation with said sheriff in which he notified her to, and in which she promised to, stop running a bawdyhouse; that she did have a conversation with him in which he told her that he had been told that the house was run “irregular,” and that it had the reputation of being a bawdyhouse, and that she was supposed to be running a place of that kind, and that, if she was, she could not run it, and she replied she was not running that kind of a house; that at the time, she was arrested she and her husband were living together in said house; that she knew the witness Wilson’s son; and that so far as she knew he did not stay with a girl in her said house.

The defendant timely made a motion for a new trial upon the ground," among other grounds, “that the verdict of the jury is not sustained by sufficient evidence.” The court overruled the motion, and the defendant excepted.

The general reputation of the house kept by the defendant is established beyond a reasonable doubt as being a house of ill fame; but there is no evidence tending to show that persons of both sexes who resorted to the house were persons of lewd and lascivious character, or that the inmates of said house were of other than chaste character, or that any immoral acts were committed in said house with the knowledge of the defendant. Hence the evidence is insufficient to sustain the conviction, unless the apparel worn by the girls seen in said house, and the statements alleged to have been made by the defendant to Wilson and to the sheriff, coupled with the general reputation of the house as a bawdyhouse, make out a case.

In a prosecution for keeping a bawdyhouse, undenied legal evidence that the house in question has the general reputation of being a bawdyhouse is not sufficient alone to sustain a conviction for keeping a bawdyhouse. Mrs. B. Putman v. State, 9 Okla. Gr. 535, 132 Pac. 916, 46 L. R. A. (N. S.) 593.

“The offense defined by the statute is not keeping a house Which is reputed to be a ‘bawdyhouse,’ but keeping one which is so in fact.” Patterson v. State, 9 Okla. Cr. 564, 132 Pac. 693.

The fact that girls were seen in said house wearing at night thin, low-necked short dresses certainly is not, in this age in which such apparel is commonly worn in the highest circles of society, equivalent to a “scarlet letter,” stamping its wearers as persons of lewd and lascivious characters.

If it be conceded that the statements made by the defendant over the telephone, in response to the inquiry of Wilson as to the whereabouts of his son, “that his son was not there,, that the girl he stayed with was not there,” were properly admitted in evidence, which we do not hold, said statements were, at the most, only extrajudicial confessions tending to show her guilt. The alleged statement made to the sheriff, when notified by him that she must stop keeping a bawdyhouse, “that she would,” is only another extrajudicial confession of defendant’s guilt. And these confessions alone are not sufficient to establish the corpus delicti of the offense charged.

“The corpus delicti cannot be established alone by the confessions of the accused.” Frazier v. United States, 2 Okla. Cr. 657, 103 Pac. 373.

It follows that the character of dress of girls seen in said house and the said extrajudicial confessions, when coupled "with, the reputation of the house as being a bawdy-house, do not furnish evidence sufficient to warrant the conviction of the defendant of the offense charged.

Treating the demurrer to the evidence. as a request for a directed verdict of acquittal, which is the uniform practice of this court, we are of the opinion that the court committed reversible error in not directing the jury, to acquit the defendant. We are also of the opinion that the court also • committed reversible error in overruling the motion for a new trial.

The judgment of the trial court is reversed, and the case remanded, with instructions to the trial court to grant the defendant a new trial.

DOYLE, P. J., and MATSON, J., concur.


author: DOYLE, P. J.

text:
    MORRIS MULDROW v. STATE.
    No. A-3300
    Opinion Filed Nov. 29, 1919.
    (185 Pac. 332.)
    1. INDICTMENT AND INFORMATION — Preliminary Examination as Condition Precedent to Information. Under the provision of section 17, art. 2, of the state Constitution, which declares, “Xo person shall be prosecuted for a felony by information without having had a preliminary examination before an examining magistrate, or having waived such preliminary examination,” the precedent fact that a preliminary examination has been had, or waived, constitutes the jurisdictional basis for a prosecution for a felony by information.
    2. SAME. Under the constitutional provision, section 17, art. 2, and provisions of article 5 of the Code of Criminal Procedure (Rev. Laws 1910, seas. 5609-5692), it is the fact that there was a preliminary examination, or a waiver thereof, and a judicial determination thereon by the examining magistrate that the offense charged in the complaint, or that a felony other than that charged, as shown by the examination has been committed, and that there is sufficient cause to believe the defendant guilty thereof, that authorizes the county attorney to file an information for the offense charged in the complaint when examination has been waived, or for the offense shown by the evidence on the examination, for which the defendant was held to answer.
    3. PRELIMINARY EXAMINATION — -Waiver of Right to Preliminary Examination. Where the defendant waives the right to a preliminary examination, he also'waives the right to question any irregularities that may have occurred in the proceedings, and where the magistrate holds the defendant to answer oil a complaint which names, but does not state any of the essentials of, the offense intended to be charged, and such magistrate files a transcript of the proceeding in the district court, such court has jurisdiction until a motion to set aside or quash the information is sustained, and, if the defendant upon arraignment pleads to the merits and enters on the trial, he waives the right to a preliminary examination, or, if one was held, any irregularities therein.
    4. INDICTMENT AND INFORMATION — Information for Offense not Named in Complaint. Where the offense named or charged in the preliminary complaint may be punished by death, and the defendant waives a preliminary examination, and no testimony is taken by the state, the county' attorney has no authority to file an information against him for another offense.
    5. SAME — Rape. A preliminary examination for rape includes ail degrees of rape, and would include the lesser offenses which are necessarily as a matter of law included. However, where the defendant waives his right to a preliminary examination on a complaint for rape, and no testimony is taken by the state, the magistrate is only authorized to hold and commit the defendant without bail, and the county attorney has no authority to file an information against him for another offense.
    6. SAME — Preliminary Examination — Authority to File Information for Included Offense. Where the offense named in the complaint was rape, and 'the magistrate failed to indorse his order on the complaint, and the order entered on his docket does not state or indicate the offense for which the defendant was held to answer, but admits the defendant to bail, such order is void and insufficient to authorize the county attorney to file an information for the offense named in the complaint, and, the State not having introduced any testimony, it was insufficient to authorize the filing of an information for any included offense.

      Appeal from District Court, Coal County; J. H. Linebaugh, Judge.

      Morris Muldrow was convicted of an assault 'with intent to rape, and he appeals.
    Reversed and remanded, with directions to sustain a motion to quash the information.

      Wilhelm & Holland, for plaintiff in error.

      S. P. Frééling, Atty. Gen., and ¡W. C. Hall, Asst. Atty. Gen., for the State.
   DOYLE, P. J.

The plaintiff in error was convicted of . an assault with intent to rape, and his punishment assessed at three years’ imprisonment in the penitentiary. He has appealed from the judgment rendered upon such conviction.

The information in substance charges that Morris Muldrow did, in Coal county, on or about the 16th day of August, 1917, commit the crime of assault with intent to rape in the manner and form as follows, to wit, did willfully, unlawfully, and feloniously make an assault upon one Beulah Brown, a female person under the age of 16 years, to wit, of .the age of 14 years, with the felonious intent then and there on the part of him to unlawfully have sexual intercourse with her, the said Beulah Brown not •being the wife of him, the said Morris Muldrow.

The first assignment of error is that the court erred in overruling the defendant’s motion to quash the information. Before pleading to the information, the defendant filed a motion to quash for the reasons in substance as follows: That there had been no complaint or examination before the committing magistrate for such offense; that the complaint charges that he did commit the offense of rape, and does not charge an assault with intent to commit rape; that he did not have a preliminary examination before a magistrate for such offense, nor did he waive the same.

The original complaint as filed with the court clerk is as follows:

“State of Oklahoma, County of Coal — ss:

“D. T. Brown, being by me first duly sworn, deposes and says that one Morris Muldrow on the 16th day of August, 1917, in said county of Coal, state of Oklahoma, did unlawfully, willfully, and maliciously commit the offense of rape upon the person of Beulah Brown, contrary to the form of the statute in such case made and provided and against the peace and dignity of the state»

“[Signed] D. T. Brown.

“Subscribed and sworn to before me this 16th day of August, 1917. R. B. Davidson, Justice of the Peace, Coal-gate District.”

Attached to the complaint is a duly certified transcript of the proceeding, showing the following order:

“August 21, 1917, comes the defendant Morris Muld-row by his attorneys, Wilhelm & Holland, and in open court waives preliminary hearing, and I order the defendant held to the district court of Coal county at its next regular term in Coal .county and place his bond at twenty-five hundred dollars. R. B. Davidson, Justice of the Peace, Coalgate District.”

The constitutional provision guaranteeing the accused the benefit of a preliminary examination, which constitutes an express limitation in this state on the power to prosecute by information for felonies, is as follows:

“No person shall be prosecuted for a felony by information without having had a preliminary examination before an examining magistrate, or having waived such preliminary examination.” Bill of Rights, sec. 17.

The pertinent provisions of the Code of Criminal Procedure (Rev. Laws 1910) are as follows:

“Sec. 5667. When the defendant is brought before a magistrate upon an arrest, either with or without a warrant, on a charge of having committed a public offense, the magistrate must immediately inform him of the charge against' him, and of his right to the aid of counsel in every stage of the proceedings, and also of his right to waive an examination, before any further proceedings are had.”

“Sec. 5680. If, however, it appear from the examination that any public offense has been committed, and that there is sufficient cause to believe the defendant guilty thereof, the magistrate must in like manner indorse on the complaint an order signed by him to the following effect:

“It appearing to me that the offense named in the within complaint mentioned (or any other offense, according to the fact, stating generally the nature thereof), has been committed, and that there is sufficient cause to believe the within named A. B. guilty thereof, I order that he be held to answer the same.

Sec. 5681. If the offense be not bailable, the following words or words to the same effect, must be added to the indorsement:

“And that he is hereby committed to the sheriff of

“Sec. 5692. When a magistrate has discharged a defendant, or has held him to answer,, he must return immediately to the clerk of the district court of the county, the warrant, if any, the complaint, the depositions, if any have been taken, of all the witnesses examined before him, the statement of the defendant, if he have made one, and all undertakings of bail or for the appearance of witnesses, taken by him, together with a certified record of the proceedings as they appear on his docket.”

Under the constitutional provision, the precedent. fact that a preliminary examination has been had or waived constitutes the jurisdictional basis for a prosecution for a felony by information. It is the fact that there was a preliminary examination, or a waiver thereof, and a judicial determination thereon by an examining magistrate that the particular offense charged has been committed, or that a felony other than that charged, as shown by the testimony upon the examination has been committed, and stating generally the nature thereof, and that there is sufficient cause to believe the defendant guilty thereof, that authorizes the county attorney to file an information in the district court charging the offense named in the preliminary complaint, when examination has been waived, or charging the offense according to the facts in evidence on the examination for which the defendant was held to answer.

The determination of the examining magistrate would seem to be no less important and jurisdictional than the action of the grand jury in finding an indictment. Williams v. State, 6 Okla. Cr. 373, 118 Pac. 1006.

In our judgment the preliminary complaint in this case was insufficient to charge an offense. It merely charges that the defendant “did unlawfully, willfully, and maliciously commit the offense of rape upon the person of Beulah Brown,” but it does not state a single fact from which said conclusion is founded. It it well settled that it is not necessary that all the details and technical allegations required in an information should be set forth in the complaint before the magistrate, and that all that can be required is that there shall be a statement containing the substantial facts of the offense intended to be charged. This is necessary in order that the defendant !be informed of the nature and cause of the offense charged against him.

The transcript shows that the defendant waived his right to a proffered preliminary examination for the offense named in the complaint, which if held would have given the defendant a reasonable notice of the nature of the offense intended to be charged against him. We are of opinion that, where the defendant waives the right to a preliminary examination, h¿' also waives the right to question any irregularities that may have occurred in the proceedings, and where the magistrate holds the defendant to answer on a complaint which names, but does not state, any of the essentials of the offense intended to be charged, and such magistrate files a transcript of the proceeding in the district court, such court has .jurisdiction until a motion to set aside or to quash the information is sustained, and, if the defendant upon arraignment pleads to the merits and enters on the trial, he . waives the right to a preliminary examination, or if one was held, he waives the right to any irregularity in the proceeding. A preliminary examination on the charge of rape necessarily includes all degrees of rape, and would include the lesser offenses which are necessarily as a matter of law included within a proper complaint charging rape. However, where the preliminary complaint charges a capital offense and the defendant waives the right to a preliminary examination and no testimony is taken by the state, the magistrate can only order that the defendant be held and committed without bail for the offense named and charged in the complaint. Rape in the first degree may be punished by death (section 2418, Rev. Laws), and bail, in a case where the punishment may be death, can be allowed and taken only “by the Criminal Court of Appeals or a district or superior court or by a justice or judge thereof” (section 6104, Rev. Laws).

It follows that where the offense named in the complaint is rape and the defendant waives his right to a preliminary examination, and no testimony is taken by the state, the magistrate is only authorized to hold and commit the defendant without bail, and it becomes the duty of the county attorney to file an information charging the defendant with such offense.

The transcript shows that the only order made and entered on the magistrate’s docket was as follows:

“I order the defendant, held to the district court of Coal county and place his bond at twenty-five hundred dollars.”

This order was not indorsed on the complaint.

. The failure of a magistrate to indorse his findings and order on the complaint is not jurisdictional where a proper order has been made and entered upon the docket which the law requires the magistrate to keep, and the same is shown by the transcript filed with the court clerk. Williams v. State, 6 Okla. Cr. 373, 118 Pac. 1006.

The order entered by the magistrate on his docket does not state or indicate the offense for which the defendant was held to answer, and, if it was intended to hold the defendant for the offense named in the complaint, the magistrate was not authorized to admit the defendant to bail, and, under the procedure in preliminary examina tions as shown by the sections quoted, the order of the magistrate was meaningless and void, and therefore insufficient to authorize the county attorney to file the information for the offense named in. the complaint, and, the state not having introduced any testimony, it was insufficient to authorize the county attorney to file an information for any includecTsffense.

For the reasons stated, the judgment is reversed, and remanded, with direction to sustain the motion to quash the information.

ARMSTRONG and MATSON, JJ., concur.


text:
    JAMES MEIGGS v. STATE.
    No. A-3195.
    Opinion Filed December 6, 1919.
    (185 Pac. 450.)
    1. APPEAL AND ERROR — Reserving Exceptions. — Evidence. Admission of evidence which is not objected and excepted to will not be reviewed on appeal by this court iinless it constitutes fundamental error.
    2. TRIAL — Instructions—Curing Error in Another Instruction. AVhere an error occurs in an instruction, 'the mistake may be cured by other instructions given.
    3. APPEAL AND ERROR — Harmless Error. A judgment will not be reversed by this court unless, upon an examination of the entire record, it appears that a miscarriage of justice- has resulted, or a substantial violation of a constitutional or statutory right of the accused has occurred.

      Appeal from District Court, Muskogee County; R. P. de Graffenreid, Judge.

    James Meiggs was convicted of murder and he appeals.
    Affirmed.

      P. A. Gavin and W. E. Disney, for plaintiff in error..

      S. P. Freeling, Atty. Gen., and R. McMillan and W. C.. Hall, Asst. Attys. Gen., for the State.
   ARMSTRONG, J.

The plaintiff in error, James' Meiggs, hereinafter called the defendant, was convicted of murder, and in accordance with the verdict of the jury was sentenced to imprisonment in the penitentiary for life. To reverse the judgment, this appeal is prosecuted.

This is a companion case to that of Henry Welch, 16 Okla. Cr. 513, 185 Pac. 119, recently affirmed by this court. The plaintiff in error, James Meiggs, Louis Berge, and Henry Welch were jointly charged with the murder of W. L. Smoot. A severance was demanded and granted. The plaintiff in error was convicted as a principal upon the theory that he aided and abetted in the commission of the homicide. As the material evidence in each of said cases is practically the same, and as a full statement of the evidence appears in the Welch Case, we deem it unnecessary to recite the evidence except in so far as it tends to show whether or not this defendant was an accomplice of Welch in the commission of said homicide.

The undisputed facts are that about half past 12 o?clock a. m., March 4, 1917, the defendant, Welch, and Berge went together to the colored waiting room in the depot of the Iron Mountain Railway at Ft. Gibson, and there found one Hymer and his wife; Hymer being a night employe of said depot. The defendant searched Mr. Hy-mer, but did not take anything from his person; Hymer having announced that he had no money. While the defendant was searching Hymer, Berge ordered Mrs. Hy-mer to hold up her hands and not make any noise. Hymer and his wife then left the depot, and went to the room of the deceased, who was also employed at said depot, and informed him of what had happened at the depot. The deceased armed himself with a Winchester shotgun and accompanied Hymer and his wife to the depot. Wheil Hymer and his wife left the depot, they were followed by the defendant, Welch, and Berge. The evidence shows that, when the defendant searched Hymer, he commanded him to deliver to him what he had upon his person, and that Welch stood within a few feet of Hymer while de-. fendant was searching him. Shortly after deceased, Hy-mer, and his wife reached the depot, the defendant, together with Welch and Berge, came to said depot. The evidence is in conflict as to what occurred after all of said parties reached the depot just prior to the homicide.

The evidence on the part of the state is that the defendant, Welch, and Berge entered the colored waiting room of the Iron Mountain Depot at Ft. Gibson, and that the deceased asked the defendant if he was the fellow causing the trouble; that he either laid down or dropped his gun, and he and the defendant then engaged in a fight; that Welch, without saying anything to deceased, joined in the fight to aid the defendant, and drew his pistol and shot deceased; that, while the fight was in progress, Hy-mer endeavored to help deceased by throwing cinders at his assailants, and when Welch fired the fatal shot' Hymer fled.

Henry Welch, as a witness for the defendant, testified, that he was marshal of Ft. Gibson on the night of the homicide, that he had in territorial days been convicted of' the murder of Smoot. Witness testified that, after he killed Smoot, he denied that he knew who killed him; that, during the difficulty in the colored waiting room he had not announced that he was marshal or that he was an. officer; that the first time he went to the depot on the night of the killing he was in search of a negro alleged by the defendant to have struck defendant, and whom the-defendant did not know; that the second time he went to-the depot that night he was endeavoring to find Hymer and the woman who had been with him, neither of whom he knew at the time, to ascertain who they were and what business they had out so late at night; that, so far as he knew, neither he, Berge, nor the defendant had entered into any agreement to, or intended to, commit robbery that night; that when the defendant was searching Hymer, he discovered that he was a white man and told defendant to let him alone and pulled defendant away from Hymer; that on his second coming to the depot that night he heard a noise in the colored waiting room, and upon entering it was confronted by a man with a long gun who said he would kill him; that he did not recognize the man who afterwards turned out to be Smoot, whom he had known some five or six years; that he twice ordered the man to drop the gun, which he did not do, and, thinking that the man intended to shoot him, drew his pistol and fired one shot; that immediately thereafter, and without ascertaining the result of said shot, he quickly left the depot and ran after Hymer, who had run from the depot; that the defendant did not' have any knowledge that he (witness) intended to shoot iSmoot, or have any connection with the killing of Smoot.

The defendant testified that he was “pretty full” the night Smoot was killed; that prior to the shooting he went to Garland’s Drug Store, met Welch, and informed him that he had been struck by a negro; that Berge, Welch, and defendant then went to the place where defendant had been struck by the negro, found it closed, and proceeded to the Iron Mountain Depot, looked in the window, and saw in the colored waiting room the bulk of a man; that he went into the room and began searching the man, thinking he was a negro; that Welch came up and said, “Let him' alone, he is a white man,” and pulled him away; that the man and the woman who was with him then left the depot and went uptown, and Berge, Welch, and defendant followed them, but losi sight of them and returned to the depot, Welch in front and defendant following; defendant heard a noise in the colored waiting room and started in; just as he got inside of the door, some one hit him, and he did riot remember for half a minute what happened; that when he recovered from the lick, and just as he started toward the east doo*, he heard Welch say two or three times, “Put down that gun,” and some - one said, “I will kill you”; about that time a shot was fired, and the next thing he remembered the man, whom he has since ascertained was Hymer, ran out of the depot and up the street followed by Welch, who hollered to him to stop; that he discovered that he had lost his hat, and went back to find it, and was present when, immediately thereafter, the body of Smoot was found; that he had known Smoot for several years; that they were good friends, and when he went to the depot the second time he was looking for the man he had searched and the woman with him; that Welch was sober, and he (defendant) was drunk; that he remembered some things that happened that night and some he did not remember; that he had never had his hands on the shotgun and had never seen anybody with it.

Upon further direct examination, Hymer testified that, after he saw Welch and defendant fighting Smoot just before the shooting, he did not hear any one say, “Drop that gun,” or hear any one say, “I will kill you,” and that, just before the shot was fired, he was probably ten feet away from Welch and the defendant and did not see any one with a gun.

.The errors assigned and argued in defendant’s brief are:

“(1) The court erred in permitting the state to impeach witness Welch on a collateral matter.

“(2) The court erred in giving the seventh and eighth instructions.

“(3) The evidence is insufficient.”

Counsel earnestly insisted that the court committed error in permitting the impeachment of witness Welch on a collateral matter over the objection and exception of the defendant and to his substantial prejudice.

We have carefully examined the record as to the evidence complained of, and find that the same was admitted without objection by the defendant and its admission not excepted to, and therefore, even if its admission was error, such error was not fundamental, and will not be reviewed by this court on appeal.

It is urged that the court committed reversible error in giving instructions numbered 7 and 8. On careful examination of those instructions, we find that, considered together, they fairly state the rule of law applicable and,' although not above criticism, contain no prejudicial error sufficient to warrant a reversal of the judgment.

Counsel argued objections to the said instructions 7 and 8. However, no new questions were presented, and a lengthy discussion of the assignments would serve no good purpose. We would not be warranted in reversing the judgment rendered by the trial court unless the record clearly disclosed — which it does not — that a miscarriage of justice had probably resulted, or that the accused had been deprived of some substantial statutory or constitutional right by the giving of said instructions. Section 6005, Rev. Laws, 1910.

It is next insisted that the verdict of the jury is not supported by any evidence, and that therefore a reversal should follow. We are unable to agree with this contention. The proof was sufficient to warrant the jury in con- . ..cnng that the defendant was acting in concert with his codefendant, Welch, and that' the homicide grew out of the attempted execution upon the part of the: accused and his codefendant of the joint purpose to commit a felony by robbing the Iron Mountain station, and that, while in the attempted execution of this purpose, the decoaseu, Smoot, was killed 'by them.

A careful reading of the record cannot but leave an unbiased mind with an abiding conviction that the verdict of the jury was righteous and in all things lawful. Under the laws of this jurisdiction, the jury are the c-' judges of all questions of fact, and when there is any evidence reasonably tending to ■ support their finding, and their finding is approved by the trial court, a reversal cannot be had on the ground that the verdict is contrary to the evidence. Section 5873, Ttev. Laws 1910.

The jury are not compelled to believe the testimony of any witness, whether the witness is contradicted or not. This and all propositions arising out of the evidence introduced before them are to be determined exclusively by them under proper rules of law laid down by the trial court. In the exercise of their broad discretion, the jury are entitled to disregard any evidence on either side which in their judgment is unworthy of belief and to reach any conclusion which reasonably or legitimately can be drawn from the proof, and their finding under such circumstances will not be disturbed on appeal. This doctrine has too often been laid down by this court to be misunderstood or to require citations of authority.

After a careful consideration of the entire record, we find no errors sufficient to warrant a reversal of the judgment of the trial court. It is therefore affirmed.

DOYLE, P. J., and MATSON, J., concur.


text:
    ALBERT D. WEAVER v. STATE.
    No. A-2711.
    Opinion Filed December 6, 1919.
    (185 Pac. 447.)
    1. RAPE — Statutory Rape — Intent—Overt Act. To sustain a conviction of attempt to have carnal knowledge of a female under the age of 16 years, there must not only be the intent, but some overt act in furtherance of such intent must be shown. 1
    2. RAPE — Insufficiency of Evidence. The evidence in this case carefully examined, and held insufficient to support the verdict of guilty as found and returned by the jury.

      Appeal from District Court, Woodward County; James B. Cullison, Judge.

    Albert D. Weaver was convicted of an attempt to have sexual intercourse with a female under the age of 16 years, and appeals.
    Reversed, with instructions to dismiss the case and discharge defendant.

      W. A. Briggs, for plaintiff in error.

      S. P. Freeling, Atty. Gen., and R. McMillan, AssN Atty. Gen., for the State.
   ARMSTRONG, J.

The plaintiff in error, Albert D. Weaver, hereinafter referred to as defendant, was informed against for the offense of an attempt to have sexual intercourse with Vinnie Hand, a female under the age of 16 years, convicted and sentenced to confinement in the county jail for one year and a day. To reverse the judgment rendered, the defendant prosecutes this appeal.

The evidence for the state tends to show that Vinnie Hand, a female under the age of 16 years, retired to bed and went to sleep, and that during the night she was awakened by the lady of the house coming to her room, with a lighted lantern, and a man dressed only in his underclothes was in 'bed with her; that said man, so far as Vinnie Hand knew, had not kissed, hugged, or in any manner come in contact with her body, or even spoken to her; that the lantern carried by the lady of the house gave sufficient light to plainly see who the man in the bed with Vinnie Hand was; that the said lady of the house left the room, and was followed by the man who had been in the bed with Vinnie Hand, without said man making any explanation of his presence in said room and bed; that the defendant was, on the night the attempt was alleged, at the house in which Vinnie Hand’s room was, and retired to bed about 1 o’clock and took breakfast at the said house next morning, and both Vinnie Hand and the lady of the house positively identified the defendant as the man who was in the bed with Vinnie Hand.

Upon conclusion of the evidence the defendant moved the court to instruct the jury to return a verdict of not guilty, which the court refused to do, and the defendant excepted.

On the part of the defense the evidence tended to show that at the time alleged defendant was at his home nearby.

Several witnesses testified that Miss Vinnie Hand had stated to them that there was- a man in her room that night, but she did not know' it was A. D. Weaver, but that, she had to swear it was, or they would send her to the reform school.

Several witnesses testified that they, with A. D. • Weaver, were threshing at the place where Vinnie Hand was staying, and A. D. Weaver did not wear underclothes while working with this threshing crew.

There are several errors assigned, but under the view we take of the case we deem it unnecssary to consider any of the said errors complained of, other than that of the court in refusing to direct a verdict for the defendant.

“To constitute, an attempt to rape, there must be something more than a mere preparation; there must be some overt act, with the intent to commit the crime, coupled with an actual or apparent present ability to complete the crime. Mere indecent advances, solicitations, or importunities do not amount to an attempt.” 33 Cyc. 1431, d — citing many authorities.

In Endson v. State, 49 Tex. Cr. R. 24, 90 S. W. 177, it is held:

“To constitute an assault with intent to rape a girl under 15 years of age, there must be a taking hold of her for the purpose of sexual intercourse with her.”

In Carter v. State, 44 Tex. Cr. R. 312, 70 S. W. 971, it is held:

“To constitute an assault with intent to rape a girl under 15, there must be a taking hold of the girl in such manner as to indicate the specific intent to have carnal knowledge of her, and the mere fact that an accused may have produced in the' girl’s mind a sense of shame or other disagreeable emotion or constraint is not sufficient.”

In Garrison v. People, 6 Neb. 274, it is held:

“To constitute an assault with intent to commit a rape there must have been an intent to commit a rape, and that intent must have been manifested by an assault for that purpose upon the person intended to be ravished. Both of those ingredients are necessary to constitute the offense.”

In State v. Charley Lung, 21 Nev. 210, 28 Pac. 235, 37 Am. St. Rep. 505, it is held:

“An act to constitute an attempt must go further than mere preparation. It must be a direct; movement towards the commission of the offense after the preparation is made, and must be adequate to its commission.”

In State v. Harney, 101 Mo. 470, 14 S. W. 657, it is held:

“That the mere verbal solicitation of a female child , under the age of consent to permit sexual intercourse was not an attempt to commit rape, as the evil purpose, so long as it exists in contemplation only, is not within these provisions of the law.”

In State v. Siseling, 186 Mo. 521, 85 S. W. 872, it is held:

“On a prosecution for an assault with intent to commit rape on a female under 14 years of age, an intent evidenced by persuasion or inducement is not enough, but some physical force is requisite.”

In the body of the opinion it is said.:

“The mere harboring of an attempt to commit rape, and nothing more, does not constitute the crime. The essence and gist of the offense is the unlawful assault, with the intent to commit it. State v. Rider, 90 Mo. 54, 1 S. W. 825. The fact that the prosecutrix is under the age of consent and is incapable of consenting to carnal knowledge does not dispense with the necessity of charging and proving one of the essential elements of the offense. * * * As applicable to the cases of the character now being considered, there must be some physical force put in motion — not that the prosecutrix, who is incapable of consenting, must resist such force, or object to it; but there must be such force in making the assault, together with other circumstances in the case, as will demonstrate the purpose and intent of the party charged to have carnal knowledge of the female under the age of consent. State v. Crooms [40 Tex. Cr. R. 672] 51 S. W. 924; 53 S. W. 882. * * * An analysis of ail the authorities upon this subject leads irresistibly to the conclusion that there must be an assault; that is, there must be some physical force put in motion toward the female, even though such force be with her consent. In other words, the assault must.be of that character indicative of the intent to commit the offense of unlawful carnal knowledge of a female incapable of consenting to the consummation of the act.”

In Proctor v. State, 15 Okla. Cr. 338, 176 Pac. 771, it is held:

“A guilty intention, unconnected with an overt act or outward manifestation, cannot be made the subject of punishment under the law.

“An act and a guilty intent must combine to constitute a crime, and must generally concur in point of time.”

In Proctor v. State, supra, the following excerpts from Howell v. Stewart, 54 Mo. 400, are stamped with approval :

“To constitute a crime there must be some omission or commission. An intent to commit a crime is not indictable; and, although the intent is, in general, of the very essense of the crime. * * * ■

“Human laws and human agencies have not yet arrived at such a degree of perfection as to be able, without some overt act done, to discern and to determine by what intent or purpose the human heart is actuated-.”

The action of the defendant in connection with the prosecutrix as shown by the evidence in this case constituted a great wrong, and deserves the highest condemnation, but in this, as in all other cases, we can only apply the established rules of law.

“The defendant, to be guilty of an intent to have sexual intercourse with a female under 16 years of age, must not only entertain the intent, but he must demonstrate such intent by some overt act,” and such overt act is not shown by the evidence in this case; the uncontra-dicted evidence of the prosecutrix being “that so far as she knew the defendant had not kissed, hugged, or in any manner come in contact with her body, or spoken to her.”

It follows that the evidence is insufficient to support the verdict rendered, and the court committed reversible error in refusing to direct a verdict for the defendant.

The judgment of the trial court is reversed, with instructions to dismiss the case and discharge the defendant.

DOYLE, P. J., and MATSON, J., concur.


text:
    JOHN GRISSON v. STATE.
    No. A-3058.
    Opinion Filed December 10, 1919.
    (185 Pac. 452.)
    1. JURY — Challenge to Panel — Bias of Summoning Officer. When a panel -of jurors is formed, or in part formed, from jurors summoned on an open venire by an officer who is biased and prejudiced against the defendant, to such extent as would be good ground of challenge to a juror, the overruling of a challenge of the panel on the ground of such bias and prejudice of the summoning officer against the defendant is reversible error.
    2. APPEAL AND ERROR — Necessity of Challenge for Bias of Summoning Officer. That the sheriff or other officer who summoned upon an open venire a panel or a part of a panel of jurors is biased or prejudiced against a defendant is made, by section 5848, Rev. Daws 1910, a special ground of challenge, but in order to have such question reviewed by this court a defendant must interpose a challenge to such panel and, failing so to do, such ground of objection to the jury is waived.

      Appeal from District Courts Jackson County; Frank Mathews, Judge.

    John Grisson was convicted of burglary, and he appeals.
    Affirmed.

      Dabney & Morrill, for plaintiff in error.

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

The plaintiff in error, John Gris-son, hereinafter designated as defendant, was informed against for burglary, found guilty, and sentenced to imprisonment in the penitentiary at McAlester for a term of two years. To reverse the judgment rendered on the verdict, he prosecutes this appeal.

As no question is raised as to the sufficiency of the evidence to sustain the conviction of the defendant of burglary as charged in the information, and the sole error complained of in defendant’s brief being “that the court, over the objection of the defendant, permitted the sheriff to select the jury to try the accused,” after the' defendant had exhausted all but one of his peremptory challenges, it is unnecessary to recite the evidence.

The information in this case was verified by J. C. Ford, the sheriff of Jackson county, and his name appears thereon as a witness for the state. The jurors in attendance on the court becoming exhausted, an open venire for four persons was issued by the court, directed to the said J. C. Ford as sheriff of said county, and was executed and returned by “J. C. Ford, sheriff, by H. T. Geoffin, Dept.,” and a like open venire was subsequently issued for three persons, which was executed and returned by said deputy sheriff, each of said open venires being for jurors to serve in the trial of this case. The defendant filed the following verified motion, omitting caption and verification:

“Comes now the defendant above named, and objects to service of an open venire of and for jurors herein, by the sheriff of the county of Jackson in the state of Oklahoma, to wit, J. C. Ford and any of his deputies for the following reasons:

“First. Because the said J. C. Ford is, as appears of record herein, the complaining witness whose name is subscribed to the information as complaining witness, and who heretofore verified the information herein as appears from the said information.

“Second. Because the said J. C. Ford is an interested person in the result of this action, and is biased and prejudiced against the defendant.

“Third. For the reason that the acting deputies of the said J. C. Ford, sheriff of the county of Jackson -and state of Oklahoma, are witnesses for the state in this case, and are also biased and prejudiced against the defendant, as this defendant’s attorneys believe.”

Thereupon said J. C. Ford was called as witness by the court, and testified:

“That he did not know anything about the facts in this case; that he was not a witness in this case; that he had no bias or prejudice in securing jurors; that he did not have any bias or prejudice in any way or any kind against the defendant; that he swore to the information in the usual way; that he swore to it 'by information of other parties.”

The court overruled the motion, and the defendant excepted.

The action of the court in issuing an open venire to the sheriff of Jackson county over the objection of the defendant for jurors in this case constitutes “the sole error complained of by the plaintiff in error.” Notwithstanding the alleged error relied upon alone to work a reversal did not require, for a proper review thereof, an examination of the entire record, we have carefully read said record and duly considered the same, and are convinced that the defendant, unless the one error complained of was reversible error, had a fair and legal trial by an impartial jury, and that the evidence — especially when it is remembered that the defendant did not testify in his own defense or offer any defense than that of an alibi predicated upon the testimony alone of his wife — establishes his guilt as charged beyond a reasonable doubt. We do not think, upon reasons hereinafter given and authorities cited, that 'overruling the motion to prevent the sheriff from serving the said open venires ■ constituted reversible error, and the correctness of this holding is strongly fortified by the evidence, hereinbefore set out, “that he was not a witness in the case, had no personal knowledge of the facts thereof, and that he had no bias or prejudice for or against the defendant in any way,” and that the open venires were served, not by the sheriff, but one of his deputies.

This court must not be understood as in the slightest indicating a departure from its often announced rule that “trial by jury means much more than a trial by 12 men. It not only means that the 12 men must possess the qualifications prescribed by law, but it also means that they must have been selected and summoned by impartial and disinterested officers.” Harjo v. United States, 1 Okla. Cr. 590, 98 Pac. 1021, 20 L. R. A. (N. S.) 1013.

When any doubt exists as to the person proposed to be appointed to serve an open venire being an impartial and disinterested officer, such doubt should be resolved against his appointment.

The only authority cited by the defendant in support of his alleged error is Harjo v. United States, supra, which authority, when the facts of same are considered, does not support his contention, the material difference being that in said case the court declined to permit the defendant to show by evidence the bias and prejudice of the sheriff appointed to execute said open venires, while in the instant case the sheriff was examined and testified, denying any bias or prejudice as set up in defendant’s said motion. Hence the said case of Harjo v. State, supra, is not in conflict with the views herein-expressed.

In Koontz v. State, 10 Okla. Cr. 553, 139 Pac. 842, Ann. Gas. 1916A, 689, it is held:

“Under the provisions of section 5848, Rev. Laws 1910, when a panel is formed, or in part formed, from jurors whose names are not drawn from the jury box, a challenge may be taken to the panel, on account of any bias of the officer who. summoned them, which would be good ground of challenge to a juror.”

In said case the regular panel drawn frolm the jury box was exhausted, and the court ordered the sheriff to summon talesmen, to -which the defendant objected and filed a verified motion, setting up that the sheriff was biased and prejudiced against him, and an improper person to summon said talesmen, which motion the court overruled. Up to this point the facts stated and procedure had are identical with those of the instant case. But thereafter the procedure differed materially in that and in this case, the court refusing to permit the defendant in that case to examine the sheriff as to said alleged bias and prejudice, while in this case the sheriff was examined and testified to which defendant offered no contradicting evidence, that he was entirely free from bias or prejudice in summoning jurors, or of any bias or prejudice against the defendant. Hence there is no conflict in the instant case with the rule announced in Koontz v. State, supra.

In Koontz v. State, Judge Doyle says:

“Plaintiff in error’s affidavit as to the bias and prejudice of the sheriff who summoned the open venire was not controverted, and it appears from the record that the name of R. L. Trammell [sheriff who summoned the open venire] was indorsed on the original and amended information, and that he- testified on the trial as a witness for the state. The challenge was disallowed. We think the court erred in overruling the motion to disqualify the sheriff, in refusing to permit the sheriff to be sworn and examined in support of' the motion and challenge to the panel, and in disallowing the challenge to the panel the court erred. Section 5848 (Rev. Laws 1910), Procedure Criminal, provides: ‘When the panel is formed from persons whose names are not drawn as jurors, a challenge may be taken to the panel on account of any bias of the officer who summoned them, which would be good ground of .challenge to a juror. Such challenge must be made in the same form, and determined in the same manner as if made to a juror.’

“The language of the. statute is so plain that no room is left for interpretation. It authorizes a challenge to the panel-, on account of the bias of the officer who summons a jury on an open or special venire, upon what would be good ground of a challenge to a juror for bias. If, then, a challenge for cause would have been sustained against a person called as a juror because he -was a material witness for the state, a challenge would also lie upon the same ground to a panel summoned by -him. If he would not be qualified as a juror because of actual or implied bias, as defined by sections 5858 and 5859, Rev. Laws 1910, be would also be disqualified for the same reason to summon a jury, in whole or in part-, whose names are not drawn as jurors from the jury box.”

The objection that the sheriff or other officer who summoned -the open venire of petit jurors is biased against the defendant having been made a specific ground of challenge to the panel by section 5848, Revised Laws, and the defendant having failed to interpose a challenge to the jury panel on this ground, he thereby waived the presentation of such question in this court on appeal.

In addition, however, dt may be stated in this case that the record does not show that the sheriff or any of his deputies were biased against the defendant or against his cause of defense to such an extent as to disqualify him to serve an open venire of petit jurors.

The court is of the opinion, therefore, that the contentions of defendant’s counsel are without merit, and that no error is presented in the record such as should result in a reversal of the judgment.

It appearing from the record that a fair and impartial trial was afforded the defendant, the judgment is affirmed.

DOYLE, P. J., and MATSON, J., concur.


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    FRANK SIBENALER v. STATE.
    No. A-3261.
    Opinion Filed December 10, 1919.
    (185 Pac. 448.)
    1. INTOXICATING LIQUORS — Maintaining Nuisance — Evidence of Reputation. In a prosecution for maintaining a nuisance by keeping a bouse in which intoxicating liquors are kept for sale, to which persons resort and congregate for the purpose of drinking the same, the general reputation in tbe community of such house as being a “bootlegging joint” may legally be given in evidence.
    2. APPEAL AND ERROR — Necessity of Pointing Out Error — Instruction. When the entire instructions given by the court to the jury are complained of, such instructions will not be reviewed by this court, unless the alleged errors in said instructions are specifically pointed out.
    3. APPEAL AND ERROR — Harmless Error — Admission of Irrelevant Evidence. There being sufficient legal evidence 'to reasonably support a verdict, the admission of other irrelevant or illegal evidence will not work a reversal, unless after an examination of the entire record it appears that the admission of such irrelevant or illegal evidence has probably resulted in a miscarriage of justice, or constitutes a substantial violation of a constitutional or statutory right.
    4. INTOXICATING LIQUORS — Maintaining Nuisance — Sufficiency of Evidence. The record in this ease carefully considered, and found that the verdict of the jury is sufficiently supported by evidence reasonably showing the guilt of the defendant, and that no reversible eiuor was committed in the trial of the case.

      Appeal from County Court, Oklahoma County; W. H. Zwick, Judge.

    Frank Sibenaler was. convicted of maintaining a public nuisance, and he appeals.
    Affirmed.

      Twyford & Smith, for plaintiff in error.

      S. P. Freeling, Atty. Gen., and W. C. Hall, Asst. A tty. Gen., for the State. -
   ARMSTRONG, J.

The plaintiff in error, Frank Sib-enaler, hereinafter called defendant, was informed against jointly with his wife and daughter for maintaining a public nuisance, convicted, and his punishment fixed at imprisonment in the jail of Oklahoma county for a term of 30 days, and tp pay a fine of $50. To reverse the judgment rendered on the verdict he prosecutes this appeal.

We deem it unnecessary, especially in view of the fact that the defendant did not offer any evidence in his defense, to recite the evidence further than to say that there was evidence tending to show that for several years the defendant had resided in the house described in the information; that said house had the reputation in the community of being a notorious “bootlegging joint” maintained by him; also that beer and whisky were ' pt in said house; that persons resorted to and conp gated- there during the week and on Sundays for the p- pose of drinking intoxicating liquors, and engaged i , boisterous and profane language; and that persons were seen to leave said house in an intoxicated condition.

The contention of defendant that the act under which this prosecution is brought is unconstitutional has been settled by the Supreme Court of this state adversely to such contention in Gragg et al. v. State, 73 Oklahoma, 175 Pac. 201. In that case it was held:

“That part of section 14, art. 3, c. 69, Session Laws 1907-08, as amended by section 13, c. 70, Session Laws 1911, which provides that, * * * is not in violation of any provision of the Constitution of this state.”

In the body of the opinion in the case supra it is said:

“In Brunson et al. v. State, 8 Okla. Cr. 665, 129 Pac. 1110, the constitutionality of the law under review is upheld, -and this holding finds support in the case of Nichols v. State, 8 Okla. Cr. 55, 129 Pac. 673 (and the authorities there cited).

The attack upon the sufficiency of the information is without merit, as the information contains an averment of every element of the offense charged, and sufficiently informed the defendant of the offense he was called upon to' meet.

The court did not err in admitting evidence of the reputation of the house in the ■ community as being that of a “bootlegging joint.” Ostendorf v. State, 8 Okla. Cr. 369, 128 Pac. 143.

The defendant complains that the court committed reversible error in admitting hearsay and illegal evidence. With this' complaint we are not in accord, for, after a reading of the entire evidence, we are unable to find that the admission of such evidence has resulted in á miscarriage of justice; neither does it appear upon an examination of the entire record that the defendant was thereby deprived of some constitutional or statutory right: Section 6005, Rev. Laws 1910.

“Where the legal evidence in a case conclusively shows that a defendant is guilty, and where the jury could not rationally arrive at any other conclusion, ordinarily errors committed by the trial court in the introduction or rejection of evidence will become immaterial, and will not constitute grounds.for reversal.” Woody v. State, 10 Okla. Cr. 322, 136 Pac. 430, 49 L. R. A. (N. S.) 479.

The defendant assigns as error the instructions given the jury, but does not point out the alleged errors therein, nor argue the same in his brief; therefore this assignment of error will not be reviewed.

“When instructions are conplained of counsel for appellant should point out the specific errors' complained of.” Johnson v. State, 1 Okla. Cr. 321, 97 Pac. 1059, 18 Ann. Gas. 300.

We have carefully considered the evidence, and ai*e of the opinion that the evidence is sufficient to reasonably support the verdict rendered, in the light of the fact that the defendant did not offer any evidence in his defense.

The court did not err in overruling the motion for a new trial.

The judgment of the trial court is affirmed.

DOYLE, P. J., and MATSON, J., concur.


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    DICK COLEMAN v. STATE.
    No. A-3271.
    Opinion Filed December 13, 1919.
    1. HOMICIDE — Assault with Intent to Kill. — Included Offense'— Verdict. On an information under Penal Code (section 2336, Bey. Laws 1910) for assault and battery by means of a deadly weapon with intent to kill, where 'the instructions of the court submitted the included offense of assault with a dangerous weapon with intent to do .bodily harm as defined, first clause, section 2344, Rev. Laws 1910, the verdict was, “guilty of an assault to do great bodily harm as charged in the information.” Held, that the verdict was responsive and sufficiently definite and certain as to the offense of which defendant was convicted, and was, in fact, a verdict of “guilty of assault with a dangerous weapon with intent to do bodily harm.”
    2. TRIAL — Verdict—Uncertainty. A verdict will not be held void for uncertainty if its meaning can be determined by reference to the record proper.
    3. SAME — Time to Object to Verdict. A verdict, although defective in form, which expresses the intention and purpose of the jury to find defendant guilty of assault with a dangerous weapon with intent to do 'bodily harm, should have been objected to when returned, which would hare called the attention of court to its ■defective form, and .given opportunity for its correction.

      Appeal from District Court, Jefferson County:; Cham Jones, Judge.

    Dick Coleman was convicted of an assault, with a dangerous, weapon with intent to do bodily harm, and appeals.
    Affirmed.

      Bridges & Vertrees, for plaintiff in error.

      S. P. Freeling, Atty. Gen., and W. C. Hall, Asst. Atty. Gen., for the State.
   DOYLE, P. J.

The information in this case charges:

“That Dick Coleman, did in Jefferson county and in the state of Oklahoma, on or about the 16th day of July, A. D. 1916, and anterior to the presentment hereof commit the crime of assault with intent to kill in the manner and form as follows, to wit:

“That the said Dick Coleman, then and there being, did, intentionally, wrongfully and feloniously, commit an assault and battery upon one Britton Duke, with a certain •dangerous and deadly weapon, to wit: a hammer, which he, the said Dick Coleman, then and there held in his hands, and with which said hammer he, the said Dick Coleman, did strike, beat and wound the head and body of the said Britton Duke, with such force as was likely to cause death, and with the intent of him the said Dick Coleman, to injure and kill the said Britton Duke, contrary to,” etc.

It appears that the defendant had land adjoining the ranch of W. S. Davis, and a tenant thereon named Lee Smith; a part of his farm was a pasture enclosed by a wire fence. On the morning of the difficulty four or five of Davis’ hands drove a large herd of cattle by the defendant’s pasture to a dipping vat. Some rof the cattle broke into this pasture, tearing the fence down in several places. After the cattle had passed, the defendant and his tenant, Lee Smith, began to repair the fence. Britton Duke, an employe of Davis, assisted in -driving the cattle and rode back looking for a bull that had strayed away. He stopped in front of Smith’s house and engaged in a friendly conversation with 'Smith, and Smith asked him to get down off his horse and assist in repairing the fence. ,

The prosecuting witness testified:

“I told Smith there was no use for me to get down to help; I could not do anything; I didn’t have anythingt to do it with; but I would come back after dinner. I got down to girt my saddle and I told him if the fence had been any account the cattle would not have gone through; that we did all we could to keep theta out, but we could not help what they had done. The defendant started towards me and said, T will fix you,’ and came around in front of my horse and struck at me like he was going to throw the hammer. I failed to get on the horse and I started away and the defendant hit me with the hammer. The next I recollect they were pouring water on me.”

It appears that a week later Britton Duke was taken to a hospital at Ft. Worth. Dr. Harris and Dr. Derr testified that they found a scalp wound on the top of his head and one a little back and above the right ear. An examination of the wounds disclosed that one was a large fracture with fragments pressed in on the brain, and had the appearance of having been made by a glancing lick of a hammer or some blunt instrument. The other was a round depression in the skull, and a round piece of the bone a little larger than a half dollar was driven into the brain, and had the appearance of having been made by a stroke with a hammer or round blunt instrument. They removed the piece of the skull and Duke remained unconscious for six or seven days.

The evidence upon the part of the defense was as follows:

Lee Smith testified that—

“Britton Duke rode back on his horse and stopped and I walked out to where he was and we were talking, and I asked him to help put the fence back, and Duke said: ‘I have not been to dinner. Why don’t you make the damn landlord fix the fence?’ And Coleman raised up and said, ‘You boys should not go over (my fence and laugh about it,’ and started to walk towards Duke, and this boy said, ‘Throw your hammer down, God-damn you,’ and pulled out of his pocket a little old two-by-four knife, open, and Coleman said, T will throw it at you,’ and this boy made a step like he was going towards Coleman and Coleman threw the hammer and this boy fell to the ground. I said, ‘Dick, that is enough,’ and I started to the house and got some water and 'brought it back and Coleman washed his face. A neighbor, Mr. Shad, drove up in a hack and Colelman asked him if he would carry the boy to the ranch.”

The defendant, Dick Coleman, testified:

“I was fixing the fence. I got the hammer from Lee Smith. I heard the conversation between Britton Duke and Lee Smith; they were talking about the weather and Lee asked him if he would help fix the fence, and this boy says, ‘Why don’t you make that landlord fix the fence?’ They were not over ten or twelve feet from the fence. Lee asked him again would he help fix the fence, and he said, T have not been to dinner.’ I turned around and came, back where they were talking and I says, ‘You boys tore this fence down several times; you all ought to quit it; if it was me tearing Davis’ fence down he would make me trouble’; and he said, ‘We don’t particularly give a damn about the fence,’ and he stepped towards me with his knife and said, ‘God-damn you, throw that hammer down,’ and I threw the hammer at him; it hit him on the side of the head and he fell — all doubled up in a knot. I sent Lee to the house after water; I held him in my lap while Lee was gone and. when he came back we washed his head and loaded him into the hack and he fell once or twice in the hack.”

The instructions given by the court submitted the issue of “assault and battery upon another by means of any deadly weapon, or by such other means or force as is ■likely to produce death,” as defined by the second clause of section 2336, Rev. Laws 1910; also the included offense of assault upon the person of another with any sharp and dangerous weapon with intent to do bodily harm, as defined by the first clause of section 2344, Rev. Laws 1910. The essential elements of each of these offenses were clearly stated and the doctrine of self-defense clearly defined.

The following instruction was also given:

“No.. 9. You are instructed, gentlemen of the jury, that, if after a full and fair consideration of all the facts and circumstances in evidence you fail to find the defendant guilty of the charge as laid in the 'information, you should then consider the facts and circumstances in evidence to determine whether or not he is guilty, of the offense of an assault with a dangerous weapon with intent to do bodily harm, and should you find beyond a reasonable doubt that he is guilty of this lesser offense, • you should return a verdict of guilty and assess his punishment under the instructions herein given.

“You are further instructed that if upon consideration of all the evidence in-this case, you are in doubt as to which of the two degrees of crime herein stated' the defendant is guilty of, but entertain no doubt of his guilt, you should in such case give him the benefit of the doubt and find him guilty of the lower degree.”

The jury returned the following verdict:

“We, the jury empaneled, sworn and charged in the above entitled cause, do upon our oaths find the defendant guilty of an assault to do great bodily harm as charged in the information herein, and leave his punishment to the court.”

To this verdict no objection was made when the same was returned by the jury, and the sufficiency of the same was not challenged in the motion for a new trial, and no motion in arrest of judgment was filed.

September 18, 1917, the court rendered judgment on the verdict and sentenced the defendant to serve a term of one year in the penitentiary at Granite.

The sufficiency of the verdict to sustain the judgment is raised for the first time in this court. It is now urged that the verdict is not responsive, and is too indefinite and uncertain to sustain the judgment rendered.

By section 5926, Rev. Laws 1910, it is provided:

“If the jury render a verdict not in form, the court may, with proper instructions as to the law, direct them to reconsider it, and it cannot be recorded until it be rendered in some form from which it can be clearly understood what is the intent of the jury.”

By section 5927 it is, agnong other things, provided:

“ * * * But no judgment of conviction can be given unless the jury expressly find against the defendant, upon the issue.”

The verdict is not in proper form, but when considered in connection with the charge in the information and the instructions given by the court, it is sufficiently definite and certain as to the offense of which the defendant was convicted, and is in fact a verdict of guilty of assault with a dangerous weapon with intent to do bodily harm.

It is well settled that a verdict will not be held void . for uncertainty if its meaning can be determined by reference to the record proper. Bowlegs v. State, 9 Okla. Cr. 69, 130 Pac. 824; Walker v. State, 11 Okla. Cr. 339, 127 Pac. 896.

Says Mr. Bishop: '

“The language of the verdict, — being that of ‘lay people/ need not follow the strict rules of pleading, or be otherwise technical. Whatever conveys the idea to the common understanding will suffice and all fair intend-ments will be made to support it.” 1 Bish. New Cr. Proc. (4th Ed.), sec. 1005.

While the verdict is defective, its language expresses the intention and purpose of the jury to find the defendant guilty of assault with a dangerous weapon with intent to do “bodily harm as charged in the information herein,” and the defendant should have objected to. the verdict when returned, which would have called the attention of the court to its defective form and given opportunity for its correction, and, having failed to do this, the defendant waived the defects in the form of the verdict.

After a careful consideration of the record in this case, we are fully convinced that the defendant had a fair trial. The judgment of the lower court is therefore affirmed.

ARMSTRONG and MATSON, JJ., concur.