text:
    COLLINS TILLERY v. STATE.
    No. A-3821.
    Opinion Filed April 21, 1923.
    (214 Pac. 198.)
    (Syllabus.)
    1. Trial — Placing Part of Jury in One Room and Part in Another with Different Bailiffs not Failure to Keep Jury Together. Where, after the law and the evidence were finally submitted to the jury, and the jury placed in charge of two bailiffs, who were admonished to keep the jury together, the bailiffs took the jury to a hotel for the purpose of procuring lodging for the night, and seven of the jurors were placed in one room in charge of one of the bailiffs, and five in another room in charge of the other bailiff, this constitutes no substantial deviation from the court’s order.
    2. Appeal and Error — Conviction not Set Aside Where Some Substantial Evidence to Support Verdict. When the sufficiency of . the evidence is challenged, and the evidence as a whole does not satisfactorily or conclusively convince the appellate court of the guilt of the accused, theS verdict will not be set aside on the ground of insufficiency of the evidence where, as in this casé, there is some substantial evidence tending to support the verdict. The weight of the testimony and the credibility of the witnesses is for the jury.
    Appeal from District Court, Oklahoma County; Edward D. Oldfield, Judge.
    Collins Tillery was convicted of murder and he appeals.
    Affirmed.
    C. E. Corbett, H. C. Hawkins, W. H. Twine, G. W. Carry, and E. T. Barbour, for plaintiff in error.
    The Attorney General and E. L. Fulton, Asst. Atty. Gen., for the State.
   BESSEY, J.

Collins Tillery, plaintiff in error, here designated the defendant, was by information filed in the district court of Oklahoma' county on December 10, 1919, charged with the murder of J. M. Williams. At the trial, by a verdict of a jury on January 23, 1920, defendant was found guilty of murder, and his punishment fixed at) hard labor for life in the state penitentiary. From the judgment on this verdict he appeals.

The assignments of error may be condensed into two:

First. That after final submission of the law and the evidence to the jury the jurors separated, contrary to the admonition of the court.

Second. That the evidence is insufficient to sustain the verdict.

The record shows that after the case was finally submitted to the jury and the bailiffs admonished to keep the jury together they took lodging in the Lawrence Hotel, where seven of the jurors were placed in one room in charge of one of the bailiffs, and the other five in another room in charge of the other bailiff. This was no substantial deviation from the court’s order, and afforded no opportunity to corrupt or influence the jury. This procedure was therefore without prejudice to the accused.

The assignment of error seriously urged by the defendant is that the evidence is insufficient to support the verdict rendered. The positive and circumstantial evidence is complex, consisting of a great number of facts, circumstances, and incidents, and making it impracticable to recite a concise, lucid analysis of all the facts and circumstances shown in evidence.

The defendant was a negro, a plasterer by trade. It is practically undisputed that he had two homes, one with a mistress in servants’ quarters in the northwestern part of the city, and the other with his mother in the negro section of the city, about three blocks from where the homicide took place. The killing occurred on an east-bound Fourth Street car in Oklahoma City, at about 11 o’clock in the morning of September 30, 1919, and the murdered man was the conductor in charge of the street car. There was evidence showing that during the forenoon of that day the defendant had been at five different places in various parts of the eastern portion of town. At 8 o’clock, or a little later, he was at a blacksmith shop where he made a plasterer’s dauber. At about 9 or 9:30 he was at Union Headquarters, at 329 East First street, where he kept some of his working clothes and tools. Defendant claims that immediately after that he went to his home at 916 East Second street, and that from there he went about two blocks, where he talked to some workmen who were repairing a house. In this he was corroborated by one of the workmen, who claimed to have talked with him there at a little before 11 o’clock, as nearly as he could recall the time. At a few minutes before 12 he was at Ninth and Laird streets, where he helped a man put a cap on a chimney. This time was definitely fixed by the workman there, as well as by the owner of the house, who .fixed the time positively by the blowing of the noon whistle.

The testimony on the part of the state tended strongly to show that defendant was on a Fourth Street car going west, and that he had a quarrel with the deceased conductor at the intersection of Fourth street and Harrison avenue at 9:58 o ’clock over the matter of a transfer, and that he immediately thereafter boarded a Fair Grounds car going east. This time was definitely fixed by the car schedules and street railway records. About 11 o’clock, or shortly thereafter, he was again on a Fourth Street car going east, and that at Fourth and Phillips streets he, or some other negro (being variously 'described by different witnesses), shot and killed the conductor in charge of the car. This time was also definitely fixed by the motorman of the car as being between 11:13 and 11:18.

The defendant was positively shown to have been at work at Ninth and Laird, where he had gone to work as a plasterer by previous agreement with the owner of the property, at a few minutes before] 12 as above stated. If the person seen at these various places was the defendant, his clothing had been changed in part, or else the witnesses were mistaken about his appearance and the clothing he wore. The negro who had the difficulty with the conductor at Fourth and Harrison was described by two witnesses as being coatless and wearing a cap. Three witnesses agreed that the man who did the shooting was wearing a dark suit, including a coat, and a dark hat. It may have been possible, though it would seem improbable, for the defendant after the difficulty at Fourth and Harrison, to have gone east on a Fair Grounds car at 10 o’clock, go to his home and change clothes, and then go back and be a passenger again on the east-bound Fourth Street ear at 11 o’clock, or a few minutes after, getting on the car several blocks west of the corner where the conductor was assaulted and killed.

The defendant denied being at Fourth and Harrison streets that morning, as well as denying the murder. If the defendant was the negro who had the difficulty with the conductor at Fourth and Harrison — and we think the evidence so shows, there being testimony so identifying him by persons who had previously known him and were personally acquainted with him — and if it was also he who did the shooting at Fourth and Phillips a few minutes after 11, it was necessary for the defendant, within one hour and a few minutes over, to have ridden out to the vicinity of Ninth and Laird', where he was preparing to plaster a house, from there walk to his home on East Second, change clothes, return to Fourth street, several blocks from his home, and somewhere on Fourth street before the car reached Phillips board this eastbound Fourth street ear on which the conductor was killed as he (the defendant) got off the car at Fourth and Phillips. This deduction is necessary because the man who did; the killing was not dressed like the man who had the quarrel with the conductor at Fourth and Harrison, and because defendant was k shown to have been at Ninth and Laird before he returned to go to work there at about noon. If it was the same person, by tracing his movements as shown by a plat of the city in evidence, it appears that he must have made a change of clothing, walked 12 to 15 blocks, and ridden 18 or 20 blocks, all within a period of a few minutes over one hour next before the shooting.

A shoe salesman testified that the negro who had the difficulty with the conductor at 10 o’clock at Fourth and Harrison wore a dark-colored cap, salt and pepper trousers, khaki shirt, and wore no coat. A shoe repair man, whose shop was within 50 or 60 feet from where the difficulty took place, described the negro’s clothing practically the same as did the salesman. The motorman on the car testified that the negro who had the difficulty with the conductor at this corner was dressed differently from the one who did the shooting at Fourth and Phillips. Two other witnesses identified the defendant as the man who had the trouble at Fourth and Harrison without describing his clothing.

The appearance of the negro who did the shooting at Fourth and Phillips and the clothing worn by him were differently described by different witnesses. One witness stated that the man who did the shooting wore no coat, and that he wore a light shirt. The motorman testified that the negro who did the killing had on blue coat and trousers and a brown hat; that he was positive of that, as he stood and looked him over from head to foot for about a minute after the shooting. Another witness said he wore a hat and a dark suit, and still another said that the man who. did the shooting wore a dark coat and vest, dark trousers, and a brown hat, but was not certain about the color of his shirt. From the testimony it is apparent that, if the man who did the shooting was the same man who had the difficulty with the conductor at Fourth and Harrison, he had in the meantime changed his clothes. The motorman so testified and others corroborated him. To our mind the testimony is sufficient to identify the defendant as being the negro who had the trouble with the conductor at Fourth and Harrison, but it is not so clear that he was the negro who did the killing at Fourth and Phillips.

The testimony is positive that, if the negro who' did the killing was the defendant, within 30 minutes from the time he was last seen after the killing he was at Ninth and Laird streets, in working clothes, and at work, and that from the place where he was last seen after the killing to Ninth and Laird is a distance of nine blocks. The psychology of the situation would indicate that one who had committed a homicide would not ordinarily calmly and deliberately go to work in the vicinity of the commission of the homicide immediately thereafter, and more particularly would this be true where the accused is a negro. ¥e are inclined to think it would be characteristic of the negro, under such circumstances, to seek safety in flight.

After the homicide many suspected negroes were brought into the police station for investigation and identification. The defendant was not arrested until eight days after the homicide. When he was arrested he was taken by the officers to his home in the negro section. His mother was absent and the door locked. By means of a key taken from the defendant’s person the door was unlocked and entrance made and the house searched. The officers asked the defendant if he had a gun. He said that he had, but had not used it for some time and had given it to his mother; that they might find it in the trunk or in the dresser. The defendant produced another key and unlocked the trunk. Nothing was found in the trunk nor in the dresser, but in a suit case the officers found a quantity of 32-ealiber cartridges. Later a 32-caliber Colt’s pistol was found in the inside vest pocketj of a vest hanging on the wall in the kitchen, with a magazine full of cartridges. An empty cartridge or shell, corresponding to the cartridges found in the pistol and suit case, was found in the vestibule of the car where the conductor was killed.

The defendant took the stand and described his movements from place to place during the forenoon of the day of the tragedy. He made no incriminating admissions on the witness, stand or to the officers during the investigation. He denied that he was at Fourth and Harrison streets that morning, and denied any participation in or any knowledge of the homicide.

This recital of the facts is, we think, a fair resume of the outstanding incidents surrounding this tragedy, as disclosed by the record. In computing distances and tracing the movements of the accused, as shown by his own evidence and that of the state, the court has carefully inspected the map or plat of the places, streets, and blocks mentioned in the testimony. There was evidence indicating that the defendant, as well as many other negroes, for some days after the tragedy were afraid that they would be suspected of this homicide, and rode from place to place in the negro section and other parts of the city in taxicabs to avoid using the street cars. There was also evidence that the accused, when he was in a jocular manner accused of being the negro who committed this homicide, protested that his accusers should quit talking that way; that the statements made might be taken seriously and cause him trouble.

It appears further that none of the witnesses brought into the police station' for the purpose of identifying the defendant after his arrest would positively identify him as the man who did the shooting.

All of the evidence has been most carefully scrutinized, and the question now presents itself to the court whether or not the testimony as a whole is sufficient to support the verdict.

If the writer of this opinion had been a member of the jury in the trial court, the verdict would probably have been otherwise, but, reviewing the evidence ás a court, we cannot say that there was no substantial evidence pointing to the guilt of the accused. If this murder was deliberately planned by the accused, he could have committed the act and still have been at the different places, as shown by the evidence, at the times shown. These rapid changes in clothing and his presence at so many different places may have been purposely arranged to establish an alibi. The motives and the deductions drawn from these and other facts were questions for the jury. There may be some question as to whether the right negro was convicted. This man may be a victim of circumstances. This is a case where the accused may properly move for executive clemency to such an extent as this record and subsequent disclosures may justify.

Since there is no such absence of evidence of defendant’s guilt as would warrant this court in setting aside the verdict, the judgment of the trial court must be and is affirmed.

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


source: Caselaw Access Project

author: MATSON, P. J.

license: Public Domain

text:
    WILL LASTER v. STATE.
    No. A-3946.
    Opinion Filed April 21, 1923.
    (214 Pac. 136.)
    (Syllabus.!
    Homicide — Evidence Sufficient to Sustain Conviction of Manslaughter in First Degree — Instructions Approved. Record examined, and held, evidence sufficient to sustain conviction, instructions fully cover law of the case, and that defendant was accorded á fair and impartial trial.
    Appeal from District Court, Caddo ■ County; Will Linn, Judge.
    Will Laster was convicted of manslaughter in the first degree, and he appeals.
    Affirmed.
    Morgan & Osmond, for plaintiff in error.
    George F. Short, Atty. Gen., and N. W. Gore, Asst. Atty. Gen., for the State.
   MATSON, P. J.

This is an appeal from a judgment of conviction against the plaintiff in error, Will Laster, hereinafter referred to as defendant, rendered in the district court of Caddo county on the 17th day of September, 1920, wherein the defendant was found guilty of manslaughter in the first degree for the killing of one Willie Williams on the 20th day of March, 1920, and sentenced to serve a term of 18 years’ imprisonment in the state penitentiary.

The killing occurred in the town of Bridgeport just before dark on the evening of the 20th of March, 1920. The defendant and deceased were both negroes, and lived in, adjoining blocks in that town. The undisputed evidence is that there had been no previous trouble between the defendant and the' deceased, but according to the state’s evidence defendant was mad at another negro named Lewis who happened to be in company with the deceased at the time of the killing. The cause of the enmity of the defendant against Lewis was that Lewis had previously killed a dog belonging to the defendant. Defendant was armed with a Winchester rifle which he had borrowed a short time before the killing, claiming at the time he borrowed the rifle that a negro from Watonga had robbed him of $500, and that the negro was going to leave town that night, and that he (defendant) intended to catch him at the depot and take the money away from him. After the defendant had; accused Lewis of killing his dog, and had shot ait Lewis once, the deceased interceded and begged the defendant not to kill Lewis that he was not doing anything to defendant, whereupon the defendant turned upon the deceased and commenced shooting at him. The deceased was shot three times, and later died of the wounds inflicted. After the defendant had fired two or three shots at the deceased the deceased drew his pistol and shot and wounded the defendant in the shoulder. The defendant did not testify in his own behalf.

The defense interposed was that of insanity. There is considerable evidence in the record that defendant was subject to attacks of epilepsy both prior to and subsequent to the commission of the crime. There is evidence also that epilepsy, when continued for a long period of time, sometimes results in mental derangement, but that it more often results in death. There is practically no evidence in the record in this case that defendant was insane within the meaning of the statutes of this state at the time of the commission of the offense.

The trial judge was very liberal in his instructions to the jury. The jurors were instructed that, if they believed the defendant was insane at the time of the commission of the crime, or if they had a reasonable doubt thereof, they should acquit. Furthermore the jurors were also instructed that, if they had a reasonable doubt of the defendant’s sanity at tbe time of tbe trial, they should acquit. These instructions were more favorable to the defendant than the evidence warranted. The jurors were also instructed on the law of self-defense, and the defendant given the benefit of that defense upon the theory, we presume, that there was some evidence introduced by the state which tended to show that the defendant may have been justified in hilling the deceased. The evidence on this issue was indeed very slight. An examination of the entire record discloses that the evidence was amply sufficient to support the verdict and judgment, that the instructions fully covered the law of the ease in a manner more favorable to the defendant than the evidence warranted, and that defendant was accorded a fair and impartial trial. Finding no error in the record, judgment is affirmed.

DOYLE and BESSEY, JJ., concur.


author: BESSEY, J.

text:
    L. N. CODY v. STATE.
    No. A-3925.
    Opinion Filed April 23, 1923.
    (214 Pac. 201.)
    (Syllabus.)
    1. Homicide — Exclusion of Testimony of Deceased Husband’s Abuse of His Wife not Erroneous. Where a third person is charged with the murder of a husband under the circumstances here, i.t was not error for the court to exclude proffered testimony of domestic abuse on the part of the deceased husband towards his wife.
    2. Witnesses — Impeachme.nt by Testimony Given at Preliminary or Other Trial. Where a witness is sought to, be impeached by showing that the testimony given by* him at the final trial is in conflict with that given at the preliminary or some other trial, the attention of the) witness must be called to' the particular facts concerning which a discrepancy is sought to be shown. Under such circumstances it is not error for the court to refuse to permit the introduction of the entire testimony of the witness given at thte preliminary trial.

      3. Homicide! — Good Character of Deceased to Rebut Evidence of Quarrelsome Disposition. It is permissible for the State to offer evidence lof the good character of the deceased where evidence that he was of a turbulent or quarrelsome disposition is offered in support of defendant’s claim of justification.
    Appeal from District Court, Blaine County; Thos. A. Edwards, Judge.
    L. N. Cody was convicted of murder, and he appeals.
    Affirmed.
    Seymour Foose and R. C. Brown, for plaintiff in error.
    Geo. F. Short, Atty. Gen., and N. W. Gore, Asst. Atty. Gen., for the State.
   BESSEY, J.

L. N. Cody, plaintiff in error, here referred to as the defendant, was by information filed in the district court of Blaine county on May 26, 1920, charged with the murder of D. D. Scott. At the trial, September 12, 1920, by a verdict of the jury, the defendant was found guilty as charged, and his punishment fixed at imprisonment in the state penitentiary for life. From the judgment on this verdict he has appealed to this court.

The record in this ease is voluminous, containing 887 pages. The facts immediately surrounding the tragedy are simple, and may be summarized briefly. On the 3d day of May, 1920, the defendant was traveling alone on a public highway in a Ford ear, when he observed the deceased, D. D. Scott, in company with his wife, traveling in a Ford coupe, approaching from the opposite direction. Defendant drove to the side of the road, stopped his car, and got out in the road, throwing up his hand as a signal to the deceased to stop. The deceased, in obedience to the signal, stopped, and the defendant approached the deceased, who had remained in his ear, and said to the deceased that he understood that deceased had told that defendant had been writing letters to Mrs. Scott. The deceased replied, in substance, that he had1 made such a statement, and that he eould prove that it was true. Defendant then said to the deceased, “You are a d-liar.” The deceased replied, “I can lick you right now;” to which defendant retorted, “Get out and do it.” Deceased then got out of his car, and defendant shot and killed him. The deceased was unarmed. Defendant claimed that he fired the fatal shots in his apparent necessary self-defense.

The defendant,,'in his petition in error, has set out 2.7 assignments of error. In defendant’s brief in support of his petition in error but three of these assignments are seriously urged; the others, therefore, are waived, and may be assumed to be without merit.

Inez Scott, the wife of the deceased, appeared as a witness for both the state and the defendant. It was developed from her testimony that her domestic life in some particulars was turbulent;- that her husband had objected to her corresponding with the defendant and others, and that the deceased suspected that she had been guilty, of improper relations with the defendant. On cross-examination of this witness the court refused to permit the defendant to show the following, proffer of which was made, in the absence of the jury, and the exclusion of which defendant claims was error:

“We offer to prove that the witness and her husband, the deceased, had serious domestic trouble prior to her beginning work at the store at Hydro, prior to her actual acquaintance with the defendant, and between that time and the marriage of the witness to the deceased, and that such - trouble led to their separation, or to the witness’ leaving him once entirely, and at another time preparing to leave him, and personally removing her goods — partially removing her goods, clothing; such trouble consisting partly of the following facts: That in April, 1919, the witness left the deceased and went to Edmond, and remained there for a period of two or three weeks, without his knowing her whereabouts, and that she left on account of his choking her and beating her head against the barn post, in which was a nail 'that wounded the back of her head, then pushed her away and she fell down; that he after-wards found her, and induced her to return to him; that a little earlier in the same spring, 1919, he .had struck her in the face and knocked her back on a little stand table, upon which she fell and hurt her side, and which disabled her for about two weeks; that in the fall of 1919. he struck her and knocked her down among the sheep, horses, and cows in the barn lot while she was carrying corn to feed them; that he choked her once before that; that 'he wasi in the habit of cursing her, slandering her, and making insulting remarks to her, and false insinuations; that this commenced soon after her marriage, and continued up to the time of her first employment in the Farmers ’ Union Store, and that he would insist on her getting out and earning some money, and when she would go and try to get a position or contract for. a position he would then interfere, and change his mind, and tell her she couldn’t take that position, one. occasion being her employment for a school at Hydro, in 1918, and he told the school board she could not teach there; she then went to Gotebo and signed a contract to teach there, and had to give that up; that while on the farm she worked in the field and among the stock, handling the mules and live' stock, tending them generally, picking cotton, and doing such work as that; that, furthermore, we want to prove that her husband was what is commonly called insanely jealous of her, and constantly suspicious, and kept her at home most of the time, and would hardly let her go to town or any place that she desired to go without either going with her or sending somebody with her.”

From the testimony of this witness and from other evidence adduced it appears that the defendant knew that the deceased and his wife had had some differences, and knew that the deceased suspected him of being implicated in some of the affairs that brought about these disputes. However, it would be foreign to the issuesl in this case to introduce testimony relating to quarrels and differences between tbe deceased and Ms wife in wMch tbe defendant' had no interest, or in which he was not in any way implicated. Any quarrels and bickerings between the deceased and his wife before the defendant knew the wife of the deceased would be wholly immaterial. We hold, therefore, that this assignment of error is without merit.

It is next urged that the court erred in refusing the defendant’s request to introduce the whole of the evidence given by the witness George B. Pope at the preliminary examination, for the purpose of impeaching his testimony given at the trial. The trial court refused this request upon the ground that before any part of the testimony taken at the preliminary examination would be admissible the attention of the witness must have first been called to the particular matter upon which he was sought to be impeached. The reasons given by the trial court were correct; where a witness is sought to be impeached by showing that the testimony given at the final trial is in conflict with that given at the preliminary or some other trial, the attention of the witness must be called to the particular facts concerning which a discrepancy is sought to be shown.

Finally, the defendant complains because the court permitted the state on rebuttal to show by several witnesses that the reputation of the deceased as being a peaceable law-abiding citizen was good, and claims that this testimony was incompetent and prejudicial. The defendant by his own testimony introduced evidence tending to show that the deceased was sullen and quarrelsome, and that when in such moods he was in the habit of whittling or playing with an open knife in Ms hand. To,that extent the good character and peaceableness of the deceased was attacked by the defendant. It was therefore competent for the state to show, if it could, that the deceased was a peaceable, law-abiding citizen. Evidence of the good character of the deceased is permissible where evidence that he was of a turbulent or quarrelsome disposition is' offered in support of defendant’s claim of justification. State v. Truskett, 85 Kan. 804, 118 Pac. 1048; 13 R. C. L. 917, and cases cited.

Finding nol prejudicial error in this record, the judgment of the trial court should be affirmed; and it is so ordered.

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


text:
    JESSE L. HINMAN v. STATE.
    No. A-3889.
    Opinion Filed April 23, 1923.
    (214 Pac. 197.)
    Appeal from District Court, Coal County; J. H. Line-baugh, Judge.
    Jesse L. Hinman was convicted of seduction and he appeals.
    Appeal dismissed.
    C. M. Threadgill, for plaintiff in error.
    The Attorney General and N. W. Gore, Asst. Atty. Gen., for the State.
   BESSEY, J.

Jesse L. Hinman, plaintiff in error, was by information filed in the district court of Coal county on August 24, 1920, charged with the seduction of an unmarried female of previous chaste character. At the trial, by a verdict of the jury, the plaintiff in error was found guilty as charged, and on September 15, 1920, the court rendered judgment on the verdict, fixing the punishment of plaintiff in error at confinement in the state penitentiary for a term of two years. From this judgment plaintiff in error has attempted to take an appeal to this court.

The Attorney General has filed a motion to dismiss the appeal for the reason that no notice of appeal was served upon the county attorney, as required by law, and no summons in error was issued and served upon the Attorney General of the state of Oklahoma, as required, and no waiver of such summons was had.

An examination of the record discloses that the motion of the Attorney General is well taken. The record shows that a notice of appeal was served upon the court clerk of Coal county, but that no notice of appeal was served upon the county attorney. A paper purporting to be an appearance and waiver of issuance of summons in error is acknowledged by the county attorney, but no summons in error was issued or served upon the Attorney General, and no waiver of summons and service by the Attorney General appears. The county attorney is not a legal representative of the state in this court, and is without authority tol waive issuance of summons in error.

The requisite steps necessary to lodge an appeal in this court, so as to give the court jurisdiction to consider and determine the merits of the appeal, are exhaustively discussed and analyzed in Burgess v. State, 18 Okla. Cr. 574, 197 Pac. 173. For the reasons stated in that opinion and the cases there cited, it appears that this court is without jurisdiction to entertain this appeal on its merits, and that the only jurisdiction possessed by this court under the state of this record is to dismiss the appeal.

The appeal is accordingly dismissed.

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


text:
    JOE GOLDEN v. STATE.
    No. A-3963.
    Opinion Filed April 28, 1923.
    (214 Pac. 946.)
    (Syllabus.)
    1. Evidence — Trial—Testimony of Witness Taken at Preliminary Trial Without Showing Diligence to Produce Him Inadmissible— Right to Confront Witnesses. Where the showing, and the only showing, made by the state as a condition precedent to the introduction of the testimony of a witness taken at the examining trial, was that the subpoena issued for the witness was indorsed, “riot found,” and where there was no showing that the witness was dead or beyond the reach of the court’s process, or that he was sick and unable, to be present at the / trial, and no proper diligence was shown to procure his attendance, the admission of the testimony of such witnesd taken at the preliminary trial, over the objection of the accused, was error.
    a. If such witness can be produced at the final trial, the defendant has a right to be confronted by the witness.
    2. Trial — Remarks of County Attorney Calculated to Inflame Jurors Against Defendant Because of His Race Improper. It is improper for a county attorney, in his argumfent to a jury, to. go outside the record and misquote the Scriptures in a manner calculated to inflame and prejudice the minds of the jurors against a defendant because hte is a Jew.
    a. The verdict! of a jury should be predicated upon the evidence produced at the trial, free from racial or religious prejudices, in so far as the courts are able to accord such trial.
    Appeal from District Court, Payne County; Arthur R. Swank, Judge.
    Joe Golden was convicted of grand larceny, and he appeals.
    Reversed and remanded.
    J. M. Springer and E. G. Wilson, for plaintiff in error.
    The Attorney General and N. W. Gore, Asst. Atty. Gen., for the State.
   BESSEY, J.

Joe Golden, plaintiff in error, hereafter referred to as the defendant, was by information filed in the district court of Payne county on January 2, 1920, charged, together with other codefendants, with the larceny of a large quantity of oil well pipe or easing. At the trial, on October 13, 1920, the jury rendered a verdict finding the defendant guilty and fixing his punishment at a term of five years in the penitentiary. From a judgment on the verdict he appeals.

The facts shown! in evidence leading up to the commission of the alleged offensej and attending its consummation have been stated in sufficient detail in a companion case just decided by this court, Filler v. State, 23 Okla. Cr.—, 214 Pac. 568.

In this case the Attorney General has confessed error for three reason, to wit: .

First. Because a transcript of the testimony of the witness J. B. Turner taken at the preliminary hearing was improperly received as evidence.

Second. Improper and prejudicial remarks made by the county attorney in the course of' his argument to the jury.

Third. The reception of alleged hearsay, self-serving declarations ofl the witness Turner made to the sheriff and others, advising them that the theft was about to be committed, and that preparations were then in progress to commit it.

The reason last given by the Attorney General was decided adversely to his contention in the Filler Case, supra, in which the reasons for so holding are fully discussed and need not be repeated here.

The showing, and the only showing, made by the state as a condition precedent to the introduction of the testimony of Turner taken at the examining trial was that this case was set for trial on the 11th day of October, 1920; that on the 4th day of October the county attorney caused the clerk to issue a subpoena for the witness’ J. B. Turner; that on the following day, October 5th, said subpoena was by the sheriff returned, with the indorsement, “Not found.” There was no showing that Turner was dead or beyond the reach of court process, or that he was sick and unable to be present at the trial; and no proper diligence was shown to procure his attendance.

The rule admitting a transcript of the evidence of an absent witness as his deposition on final trial grows out of circumstanced of necessity, and such transcript or deposition should be excluded in all cases where the witness can be procured in person. One of the reasons for this is that the accused may desire to cross-examine the witness further, and the! jury, if it be possible, should have the opportunity to observe the witness and his demeanor on the witness stand. This> question wasi treated at length in, the case of Davis v. State, 20 Okla. Cr. 203, 201 Pac. 1001, in which the limitations of the rule, were discussed and stated, supported by authorities there cited and in harmony with statements made herein. It frequently happens that the cross-examination of a witness at á preliminary trial is more or less perfunctory, and that by the time the cause comes on for final trial the defendant is better able, by reason of more time and research, to conduct a thorough cross-examination. If the witness can be produced at the final! trial, it is therefore the right of the defendant to have him present. A reasonable, diligent effort to produce the witness, made in good faith, should be shown. For further observations and authorities, see Davis v. State, supra.

The claim is made that there was misconduct on the part of the county attorney in his argument to the jury. The county attorney, assuming probably from the appearance of the defendant that he belonged to the Hebrew race, in his argument to the jury said:

“We all) know the way of Jews- dealings in business and having their business dealings. * * * These are God’s chosen people, who the Bible says shall, gather into their arms all the wealth of the world. ’ ’

The remark so made and others were objected to by the defendant at the time they were made, the objections were by 'the court overruled, and exceptions allowed the defendant.

The spirit of our law is opposed to any discrimination against an accused because of his race, religion, wealth, or social station, and we think it was highly improper for the county attorney to go outside the record and misquote the Scriptures in a manner calculated to inflame and prejudice the minds of the jurors against this defendant because he was a Jew, if indeed he did belong to the Jewish race. It should make no difference whether an accused is a Jew, an Englishman, a Frenchman, or a' native American citizen. The verdict of a jury should be predicated upon the testimony produced at the trial, free from racial and religious prejudices, in so far as the courts are able to accord such trial.

If from the whole record it appeared that this was the only error which occurred at the trial, we might assume that this error was not necessarily prejudicial; but, considering this error along with others mentioned appearing in the record, we think the confession of error by the Attorney General should be sustained, and the cause reversed and remanded; and it is so ordered.

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


author: PER CURIAM.

text:
    JOE GIBBS v. STATE.
    No. A-4162.
    Opinion Filed April 28, 1923.
    (214 Pac. 745.)
    (Syllabus.)
    Appeal and Enror — New Trial Granted Where Accused Unable, to Secure Transcript of Evidence at Trial. Where a convicted defendant, without laches or fault on his part, loses the benefit of his exceptions as reserved! in a case-made, because the official court reporter absconded immediately after the trial, by reason whereof the plaintiff in error was unable to procure a transcript of the evidence with exceptions taken during the trial, a new trial Will be granted.
    Appeal from District- Court, Rogers County; C. W. Mason, Judge.
    Joe Gibbs was convicted of criminal contempt of court, and he appeals.
    Reversed and remanded.
    Jennings, Hall & Battenfield, for plaintiff in error.
    George F. Short, Atty. Gen., for) the State.
   PER CURIAM.

Plaintiff in error, Joe Gibbs, was convicted in the district court of Rogers county of criminal contempt of court, and on September 14, 1921, was sentenced to be confined ip the county jail for 60 days and to pay a fine of $500 and costs. To reverse the judgment, an appeal was taken by filing in this, court, on January 10, 1922, a petition in error, with duly certified transcript of the record. In addition to various errors alleged to have occurred during the trial, counsel for plaintiff in error asks that the judgment be reversed and a new trial rendered, because the plaintiff in error has been deprived of his constitutional right to have his trial reviewed in this court upon a case-made, by reason of the fact that the official court reporter, who transcribed the testimony of the witnesses, did immediately after the trial of this case absent himself from the state of Oklahoma, and has failed and refused to furnish the plaintiff in error! with a transcript of the evidence in the case, although plaintiff in error deposited, at the direction of the district judge, money to pay the expense of the same in a bank at Claremore, Okla., after getting into communication with the official court reporter, and that the files in the ease and shorthand notes of the evidence were forwarded to said official reporter and never returned to the court clerk, that shortly thereafter the counsel for plaintiff in error attempted to again get into communication with said official reporter at the place where he last heard from him, but all efforts to again locate said official reporter have failed, and that the whereabouts of said official reporter are unknown to counsel for plaintiff in error, and that the plaintiff in error was in no way responsible for the said official reporter leaving the state, and that the inability of plaintiff in error to procure a transcript of the evidence in order to present to this court a properly certified case-made was not through any fault of his.

It appears, from the record before us, that, in order for plaintiff in error to properly present the questions raised by this appeal, á transcript of the evidence and a duly certified case-made are necessary therefor. It also appears that the failure of plaintiff in error to procure this transcript of the evidence has been without any fault or laches on his part; that plaintiff in error made every possible effort to procure such transcript of the evidence with due diligence on his part; furthermore that there is no reasonable probability that he will ever be able to procure a transcript of the evidence in this case, this by reason of the fact that the court reporter summarily left the state immediately after- the trial of the case, and that his whereabouts are at this time unknown.

Under the provisions of the statute, an appeal may be taken, either by certified transcript of the record proper, or by case-made as by law provided. An appeal by transcript does not bring np for review questions that arose upon exceptions taken to the rulings oí the court upon the admission and exclusion of evidence. In order to' present questions arising during the course of the trial proper, the plaintiff in error is entitled to have before this court a duly certified case-made. That plaintiff in error has been deprived of his right without fault on his part to have his ease reviewed on the errors assigned in this court, we think is apparent from the undisputed facts above stated. The Attorney General haá confessed error on this ground, and asks that the cause be remanded for a new trial, in order that the plaintiff in error may not be denied any of his statutory rights.

The confession of error of the Attorney General is sustained, and the judgment of conviction is reversed, and the cause remanded to the district court of Rogers county, with instructions to grant the plaintiff in error a new trial.


text:
    J. A. WEBB v. STATE.
    No. A-4174.
    Opinion Filed April 28, 1923.
    (214 Pac. 744.)
    Appeal from County Court, Canadian .County; W. A. Mau-rer, Judge.
    J. A. Webb was convicted of the crime of manufacturing intoxicating liquors, and appeals.
    Appeal dismissed.
    J. N. Roberson, for plaintiff in error.
    George F„ Short, Atty. Gen., and N. W. Gore, Asst. Atty. Gen., for the State.
   MATSON, P. J.

Plaintiff in error, J. A. Webb, was convicted in the county eourt of Canadian county of the offense of manufacturing intoxicating liquors, and his punishment fixed at imprisonment in the county jail for a period of 30 days and to pay a fine of $100 and costs of the action. Judgment was-rendered on the 20th day of August, 1921. Plaintiff in error has attempted to appeal to this court by filing in this court, on the. 16th day of January, 1922, a petition in error with ease-made attached.

The Attorney General has filed a motion to dismiss the appeal on the ground that the same was- not lodged in this court within 120 days after the rendition of the judgment appealed from'. This being an attempted appeal from judgment rendered against the defendant for conviction of a misdemean- or, the longest period of time within which the appeal could have been lodged in this court after the rendition of the judgment wasi 120 days. Section 2808, Compiled Statutes 1921; Eaton v. State, 7 Okla. Cr. 48, 121 Pac. 1089.

The appeal was not lodged in this court until 149 days after rendition of the judgment. It is apparent, therefore, that this court has never acquired jurisdiction of the appeal, and that the motion of the Attorney General to dismiss the appeal is well taken and must be sustained.

Appeal dismissed.

DOYLE and BESSEY, JJ., concur.


text:
    J. O. CAMPBELL v. STATE.
    No. A-3916.
    Opinion Filed April 28, 1923.
    (214 Pac. 738.)
    (Syllabus.)
    1. Appeal and Errdr — Conviction not Disturbed foir Conflicting Evidence. Conflicting issues of fact are for thte sole determination of the jury. The conviction will not be disturbed on appeal because of sharp conflicts in the evidence, if the evidence adduced reasonably tends to support the verdict and judgment.

      2. Perjury — No Defense, that County Clerk Did, not Require Accused to Subscribe to Alleged False- Affidavit Before Delivelry of Marriage License. In a prosecution for perjury for falsely swearing to the age of the girl in order to obtain a; marriage license, the failure of the clerk to require the affiant to subscribe to the affidavit before the marriage license was delivered was an irregularity which formed no defense to the prosecution. The material inquiries were: Was the proceeding one in which an oath may by law be administered? Did the party take an oath to testify, declare, depose, or certify truly before any competent tribunal, officer, ,or person? Did such person willfully and contrary to such oath state a material matter which he knew to be false?-
    3. Appeal and Error — Witnesses—Examination of Witnesses Largely Discretionary — Necessity for Prejudicial Error in Permitting Leading Questions... The scope and the manner of the examination of witnesses are matters that necessarily must be left largely tot the di'scretioln of the trial court. ' Where leading questions are permitted to be asked a witness, thtere must appear to have been an abuse of discretion by the trial court, resulting to the prejudice of thie defendant.
    4. Instruction Approved. Instructions examined and considered in relation to the issues presented, and held to fairly and fully cover the law of. the case in a manner favorable to the defendant.
    5. Requested Instructions Properly Refused. Fot reaso,ns holding requested instruction^ properly refused see body of opinion.
    Appeal from District Court, C'addo County; Will Linn, Judge.
    J. 0. Campbell was convicted of perjury, and he appeals.
    Affirmed.
    Statement of the Record.
    This- is an appeal from a judgment rendered in a cause filed in the district court of Caddo- county, Okla., wherein the plaintiff in error was found guilty of the crime of perjury, in having sworn falsely to the age of a girl for the purpose of obtaining a marriage license, and upon conviction the plaintiff in error was sentenced to be confined in the penitentiary for a period of 9 months.

      The charging part of the information is in the following words:•
    “Now, at the February, 1920, term of the district court at and within said county and state, and' within the jurisdiction of said court, one J. 0. Campbell, then and there being, did then and there commit the crime of perjury by then and there, intentionally, unlawfully,■ willfully, and feloniously, un)der oath then and there legally administered to him by Guy R. Gillette, being then and there authorized by law as court clerk to administer said' oath, make the following voluntary and false statement, declaration, and affidavit in writing signed by him, in the following words, to wit:
    “ ‘Application for Marriage License.
    “ ‘State of Oklahoma, Caddo County. County Court. I, J. O'. Campbell, the undersigned, hereby apply for marriage license to be issued to Mr. J. 0. Campbell, aged 49 years, whose residence is Oklahoma City, state of Oklahoma, and Miss Flora Francis, age 18 years, whose residence is Mountain View, state of Oklahoma, and for the purpose of procuring the same do solemnly swear that I have personal knowledge of the facts herein stated; that the names, ages, and places of residence of said parties are truly and correctly set out above; that neither of said parties are disqualified or incapable under the law of entering into the marriage relation, nor are they related to each other within the degrees prohibited by law; that I am 49 years of age and reside at Oklahoma City, 505 N. Lindsay Ave., county of Oklahoma, state of Oklahoma.
    “J. 0. Campbell, Applicant.
    “ ‘Subscribed and sworn to before me this 8th day of December, 1919.
    “ ‘[Seal.] Guy R.. Gillette, Court Clerk.’
    “And whereas in fact and in truth the said Flora Francis was not eighteen years of age, and there were legal objections to the marriage, the said Flora Francis being then only thirteen years of age, and that the said Flora Francis was disqualified and incapable under the law of entering into the marriage relation and the said J. 0. Campbell, knew the said statements so made in said affidavit to obtain said marriage license as aforesaid to be false and wholly false at the time he so made said statements and said facts being then and there material to the issuance of marriage license.”
    To this information the plaintiff in error filed his demurrer, which was byt the court overruled, whereupon he entered his plea of not guilty and proceeded to the trial of this cause, and during said trial noted numerous objections to the introduction of testimony, which were by the court overruled, and to which the plaintiff in error saved exceptions. At the conclusion of the testimony for the state, and after the state had rested, the plaintiff in error demurred to the evidence and moved the eouirt to instruct the jury to: return a verdict in favor of the defendant, which motion was by the court overruled, which ruling was excepted to, and, at the conclusion of the testimony, and after both sides had announced their case closed, the plaintiff in error) again moved the court to instruct the jury to return a verdict in favor of the defendant, which motion was by the court overruled, to which ruling exception was taken, and thereupon plaintiff in error moved the court to instruct the jury as follows, to wit:
    ‘‘Defendant’s Bequested Instruction No. 1 — The court instructs the jury to return a verdict of not guilty and in favor of the defendant. No. 2. — 'The court instructs the jury that, unless the state proves beyond a reasonable doubt that the affidavit made.by the defendant was false and was corruptly made by the defendant, with a knowledge on the part of the defendant of its falsity, their verdict should be not guilty.”
    The giving of the said instructions so requested was by the court denied, to which ruling of the court the plaintiff in error noted his exception, and thereupon the court instructed the jury in 13 separate and distinct instructions to the giving of all of which, save and except 12 and 13, the plaintiff in error saved an exception.
    That upon the giving of these instructions, the cause was argued to the jury and the county attorney used the following language in his argument, and to the use of such language the plaintiff in error objected and noted his exception. The language follows:
    “By Mr. Bristow: Perjury will lead innocent women and girls into houses of ill fame. I say again that the effect of perjury is to destroy your institutions; it is to destroy your home; it can destroy your life; and it can prostitute the morals of your Women. That is what I say the effect of perjury is.”
    The jury, at the conclusion of the argument, retired to its room and returned a verdict finding the defendant guilty and fixing his punishment at confinement in the state penitentiary for a period of 9 months, and thereafter in due time the plaintiff in error filed his motion for a new trial, and thereafter the court overruled the same, to which ruling the plaintiff in error excepted, and after certain extensions duly and legally granted the plaintiff in error to prepare and serve his case-made, the said ease-made was duly and regularly signed and settled and filed in this court within the statutory period, and is now regularly before this court for consideration.
    The Evidence.
    In many particulars there is no conflict between the state’s evidence and that on behalf of the defendant. According to the testimony of¡ the state’s witnesses, 'the defendant, his niece, and his sister-in-law, Mrs. Francis Campbell, and John McTee appeared at the courthouse in the cityt of Ana-darko, the county seat ,of Caddo county, on the morning of the 8th day) of December, 1919'. They had driven from the town of Mountain View, Okla., in a service car operated by McTee. They brought with them Flora Francis, the girl whom the defendant intended to marry. Upon arrival at the courthouse the defendant, J. 0. Campbell, went into the office of the court clerk for the purpose of procuring the marriage license, leaving the other parties either in the hall of the courthouse or in another office. Defendant first made application to Miss Curry, the deputy court clerk, who filled out the blanks and then called in Mr. Gillette, the court clerk. Mr. Gillette told the defendant that he had received word that the girl was not of marriageable age and refused to issue the license, and, according to his testimony, advised Campbell that the best thing for him to do was to> get the parent’s consent to the girl’s marriage; that Campbell went out and came back again and asked Gillette whether it would affect the girl if he said she ' was 18 years old, and Gillette says that he then told Campbell that it would affect everybody if he signed the affidavit, and that Campbell seemed to- be uncertain about it, and Gillette then left him and came out of that office and went into another of his offices, which was upstairs. Gillette testified that later the defendant came in and said he was ready to swear the girl was 18 years of age, and Gillette testified that he then swore Campbell to the affidavit which appears in the information, but overlooked having Campbell sign such affidavit; that he then delivered the marriage license to Campbell and, soon discovering his oversight, he went out on the street and found Campbell and had him sign the affidavit to which he had already been sworn. The testimony on; the part of the state further shows that Flora Francis, the girl named in the marriage license, was at that time 13 years of age; that she had, previous to the issuance of the marriage license, told Campbell she was only 13 years of age.
    The evidence on the part of the defense is, in substance, that Campbell and the Francis girl agreed to get married; that ■the Francis girl was living with her father and step-mother, near the town of Mountain View, Okla.; that the girl was dissatisfied with having to do all the work around the house, and had told Campbell of that fact, and that Campbell proposed that they get married, to which proposal the girl agreed, but that when Campbell suggested they speak to her’ father about it the girl demurred, stating that her father would not consent to, her marriage, and that she wanted to get a home of her own, and that if she told her father about it he would not let her leave the house or let her go any place; that the girl told him she was 18 in March, 1919, and that he had no other information as, to her age; that when she'went to Anadarko to get married defendant inquired for the clerk’s office and was directed to. it; when he went in he saw a lady in there; that Flora Francis did not go in with him; that he asked for a marriage license; that the young lady1 clerk got out a book, asked his name and her name and the ages, and wrote them all down, and then went and called the clerk, Mr. Gillette, and Gillette directly came in and asked for their ages, and defendant told him the girl’s age was 18 because the girl had told him she was 18 and she looked to be that age, and then Gillette told defendant that a phone message had been received that the girl was not of age; that defendant then asked him who it was, and Gillette said he did not know, and defendant then turned and went out into the hall where the rest of the party were, and defendant told them there was. nothing doing, that a phone message had come that Flora was not of age, and thereupon they, went back into the office where the lady was, and she gave them the applications, and they took them upstairs to the office where Mr. Gillette was; that Flora Francis went with him; whereupon the defendant testifies that ’ the following occurred:
    “Q. Did the girl come up with you? A. She came up with me; yes, sir. We went up there and told them we wanted the license, and he wanted to know if I would swear that, and 1 told Mm I would; she said she was 18, and I would swear to it. Q. Where was the girl? A. Standing right there by my side. Q. And what did he say to the girl? A. He said, ‘How old are you, Flora?’ She said,‘I was 18 last March.’ Q. Was anything more said to you about an oath, or taking an oath than that? A. No, sir. Q. Repeat what he said now, so I can get it right, when he asked you her age? A. He didn’t ask me nothing about it. Q. Didn’t you say a while agu he asked you how old she was? A. Yes. Q. And what was it he said? A. He asked me how old she was, and she said, ‘I was eighteen last March.’ Q. And what did he say to you about swearing to it? A. H,e wanted to know if I would swear to it, and I said I would, because she is 18. Q. And did he swear you? A. No, sir. Q. Is that all that was said about swearing? A. Yes, sir. Q. And what did he do then? A. He issued the license. Q. Now then, when was the first time you ever saw the affidavit that you see today? A. Down there — down the street a block and a half, something like that. Q. Did you have your marriage license then? A. Had it in my pocket» Q. How did you come to see that at that time? A. Which, that affidavit you are talking about? Q. Yes; that he had this morning? Jim, that is your signature (handing paper to witness) ? A. Yes, sir; that is it. Q. Where did you sign that paper? A. Down the street at the hardware. Q. How did you come to sign it? A. We went right down the street there, and we was down there looking up the stairway. We thought there was a stairway there, and we thought there was a justice of peace, and we was standing there thinking of going up, and this fellow Gillette came up, and he motioned to us, and he said, ‘Wait a minute,’ and he had a paper for me to sign. We waited and he came up, and we. stepped inside and borrowed a pen and ink from this hardware man and signed this paper. Q. Now, did Mr. Gillette read the paper to you? A. No, sir; he did not. Q. Has Mr. Gillette ever read that paper to you? A. No, sir; he did not. Q. Did he ever swear you to anything? A. No, sir; he did not. Q. Didn’t swear you when you signed the paper? A. Did not.”
    Thereafter Gillette directed them across the street to the office of the justice of the peace, where they were married, and immediately after the marriage ceremony was pronounced and before the marriage certificate was signed and witnessed, defendant was arrested on this charge, and on cross-examination defendant testified in part as follows:
    “Q. And then what did he first say about the girl’s age to you? A. He asked how old she was. Q. What did you tell him? A. I told him she was 18; she said she was. Q. What is that? A. I told him she was 18, for she said she was. Q. You told him that in the first place, the first time? A. She said she was 18. Q. I am asking you if you told him that in the first place? A. Sure. Q. Because she said she was 18? A. Yes, sir. Q. And then he told you about the phone talk? Did Gillette tell you about it? A. Yes, sir; he said one had come in — only did mention it. Q. Then what made you go back out? A. I went out to tell them there was a phone call came in and said she was not of age. Q. You went back out and didn’t try to get the license any further? A. Not until I had went back. Q. He did tell you you would have to swear to the girl’s age? A. Sure. Q. You! went outside before you would swear to the girl’s age? A. Sure. Q, You went outside before you would swear to it? A. Not until I went back. Q. After he told you the first time you were in there, after- he told you you would have to swear to this girl’s age, you went outside,' and didn’t swear to it? A. didn’t then; no, sir. Q. You didn’t then? A. No, sir. Q. And why did you go outside without doing it? A. I just went outside to see the rest of them. Q. You went outside because you were afraid to sign it, and swear to it? A. No, sir. Q. And went outside to consult with these other parties to get a little courage from them? Á. I didn’t need any courage. Q. Then you went outside and talked to the girl, and she said she was 18? A. Yes. Q. You didn’t have any more information on the subject of her age? A. She said she was 18. Q. She told you she was 18 before? A. Yes, sir; that is all. Q. It didn’t make it any stronger because she said it the second time? A. No, sir. Q. In the first place—
    “Mr. Ruth: Let him answer the question.
    “The Court: All right.

      “The Witness: No; it didn’t make it stronger.
    “Mr. Bristow: Q. Well, why was it you didn’t sign! it in the first place, swear to it in the first place? A. I would just not do it. Q. The truth is that you knew she s was not 18? A. No, sir; I did not.
    “Mr. Bristow: That is all.
    “Mr. Ruth: Atad you never swore to it? A. I never did.
    “Mr. Bristow: I want to ask you if you didn’t stand in there, before Guy Gillette, and hold up your hand like this (indicating) and swear to the contents of that statement; if you didn’t hold your hand up that way? A. I positively did not.”
    Oharles H. Ruth, for plaintiff in error.
    The Attorney General and B. L. Fulton, Asst. Atty. Gen., for the State.
   MATSON, P. J.

(after stating the facts as above). From the foregoing statement of the evidence in this case it appears that there are only two disputed issues, the first being whether or not Gillette, the court clerk, swore the defendant, to the affidavit, a copy of which is set out in the information, prior to the issuance of the marriage license; second, did the defendant have knowledge that the girl was, under 18 years of age at the time the marriage license was applied for. On these two issues the evidence is in direct conflict. On all other questions of fact, while there are some slight discrepancies in matters of detail, there is no material conflict.

In submitting the law of the ease to the jury, the court gave, among others, the following instructions:

“Instruction No. 5: The court instructs the jury that the statute provides that any person who, having taken an oath that, he will testify, declare, depose, or certify truly before any competent tribunal, officer, or person in any of the eases in which such an oath may be by law administered, willfully and contrary to such oath, states- any material matter which he knows to be false, is guilty of perjury. The statute also provides, gentlemen, that an unqualified statement of that which one does not know to be true, is equivalent to a statement of that which one knows to be false. The term ‘oath’ as used in law includes- an affirmation, and every other mode of attesting to the truth of that which is stated, which is authorized by law. You are further instructed that under the statute-it is no defense to a prosecution for perjury that the oath was administered or taken in an irregular manner. Neither is it a defense to a prosecution for perjury that the accused did not know the materiality of the false statements made by him, if any, or that it did not in fact affect the proceedings in or for which it was made. It is sufficient that it was material and\ might have been used to' affect such proceedings. The statute also provides, gentlemen, that any one guilty of perjury shall be¡ punished by confinement in the state penitentiary for any period, not to exceed five years.
“Instruction No. 6: The court instructs the jury that, if you find and believe from the ‘evidence in this case beyond a reasonable doubt, that within the county of Caddo and the state of Oklahoma, and on or about the 8th day of December, 1919, the defendant, J. 0. Campbell, did intentionally, unlawfully, willfully, and feloniously, under oath, then and there legally administered to him by Guy R. Gillette, court clerk of Caddo county, Okla., make certain false statements and declarations and affidavit in order to procure a marriage license for himself and one Flora Francis, that she, the said Flora Francis-, was of the age of 18 years, and whereas in fact and in truth the said Flora Francis was not 18 years, of age, and that the said statements so made in said affidavit to obtain said marriage license were known to the said Campbell to be false at the time, so made, then in that event the defendant would be guilty as charged, and you should so- find; and should you find the defendant guilty as charged in the information you must assess his punishment at confinement in the state penitentiary for any period not to exceed five years. You are further instructed, gentlemen of the jury, that an unqualified statement of a matter which the defendant did not know to be true is equivalent to a statement of that which the defendant knew to be false, if such statement be made, or was made, willfully, and was intended that it should be received as a statement of what was true in fact.
"Instruction No. 7: The court further instructs the jury that, before you; can convict the defendant, you must believe beyond a reasonable doubt each and all of the necessary elements necessary to constitute the offense charged, which are as follows, to wit: First, that the offense occurred on or about the 8th of December, 1919; second, that.it occurred in Caddo county, Okla.; third, that Guy R. Gillette was the court clerk at said time of Caddo county, Okla.; fourth, that he administered an oathj to the defendant prior to the issuance of the license; fifth, that the defendant willfully stated under oath that Flora Francis was 18 years of age; sixth, that the defendant knew( at said time that she was under the age of 18, or willfully made an unqualified statement without knowing it to be true; seventh, that Flora Francis was at said time under the age of 18 years; eighth, and that the statement made with reference to the age of Flora Francis was material to the issuance of a marriage license.
"Instruction No. 8: You are instructed, gentlemen of the jury, that, as a matter of law, Guy R. Gillette was the court' clerk of Caddo county, Okla., on the 8th day of December, 1919, and that he was authorized under the law to administer an oath to the defendant prior to the issuance of the license, and the statement as to whether or not Flora Francis was of the age of 18 years on said date was material.
"Instruction No. 9: You are instructed, gentlemen of. the jury, that, should you find and believe from the evidence, or entertain a reasonable doubt from the evidence, that the defendant merely stated to Guy R. Gillette, court clerk, that no oath administered to him by Guy R. Gillette, court clerk, with reference to the age of the said Flora Francis, you should Flora Francis was of the age of 18 years, and that there was resolve such doubt in favor of the defendant, and acquit him.
“Instruction No. 10: The court further instructs- the jury that, if you find and believe from the evidence in this case, or entertain a reasonable doubt from the evidence, that the defendant merely stated the age of Flora Francis to be that of 18 years, and upon said'statement the clerk issued and delivered the license to the defendant, he would not be guilty, and you should so find, although you may further find and believe from the evidence that the said Flora Francis- was under the age of 18 years, and that the defendant J. 0. Campbell afterwards signed an affidavit and swore to said facts.
“Instruction No. 11: The court further instructs the jury that, although you may find and believe from the evidence that the defendant signed the application for a marriage license in a certain hardware store in the city of Anadarko, after the license had been delivered to him, still if you further find and believe from the evidence, beyond a reasonable doubt, that prior to: the time the license was issued and delivered to him by the clerk that he willfully stated under oath that she was of the age of 18 years, he would be guilty as charged, and you should so find.”

Considerable stress is placed upon the failure of the state to prove the material allegation of the information that Gillette, the court clerk, administered an oath to* the defendant prior to the issuance of' the marriage license. Upon this issue Gillette swore that he administered the oath. His deputy, while not so positive as to the administering of the oath, stated that Gillette asked the defendant if he would be willing to swear that the girl, Flora Francis, was 18 years of age, and also warned the defendant of the consequences if he made a false oath about the girl’s age. The deputy remembers that the defendant said that he would be willing to swear to that fact. The defendant also admits that he said he would bé willing to swear to that fact. The deputy did not issue the marriage license, and it is not clear from the record whether she was- present during all the time the defendant was applying for and up until the time the license was issued. The testimony of Flora Francis upon this question is somewhat contradictory, and her statements apparently cannot be reconciled. The defendant himself swore that Gillette did not administer an oath to him prior to the issuance of a marriage license. The testimony of the deputy court clerk and of the girl, Flora Francis, if discarded, leaves a clear conflict between the testimony of Gillette, the court clerk, and that of the defendant as to the administration of the oath to the defendant prior to| the issuance of the marriage license. The jury determined this issue in favor of the state, evidently preferring to believe Gillette instead of thei defendant. If Gillette was to b'e believed, then the fact that the signature of the defendant was obtained on the affidavit after the marriage license had been issued was immaterial. As section 7492, Compiled Statutes 1921, requires the clerk, upon application for a marriage license, to take the oath of a person legally competent to make one and having a personal knowledge of the facts, and section 1628, Id., defining perjury, is as follows:

"Any person who, having taken an oath that he will testify, declare, depose or certify truly before any competent tribunal, officer, or person, in any of the cases in which such an oath may by law be administered, willfully and contrary to such oath, states any material matter which he knows to be false, is guilty of perjury.”

The omission, therefore, to have the defendant sign the affidavit or application at the very time the oath was administered, would be an irregularity which would form no defense to the prosecution. The material inquiries are: Was the proceeding such a one ip' which an oath may by law bel administered, did the party take an oath to testify, declare, depose, or certify truly before any competent tribunal, officer, or person, and did such person willfully and contrary to such oath state a material matter which he knew to be false?

The conflict between the testimony on behalf of the state and that of the defendant as to the administration of' the bath prior to the issuance of the marriage license was solely for the jury’s determination. Remillard v. State, 10 Okla. Cr. 438, 133 Pac. 1132, 137 Pac. 370; Jones v. State, 10 Okla. Cr. 450, 137 Pac. 740.

It is also contended that the trial court erred in permitting leading questions to be propounded by the county attorney to the witness Flora Francis. This witness was a girl about 14 years of age at the time of testifying, and the record discloses that on her redirect examination the court permitted the county attorney to ask her a number of leading questions on matters elicited in her cross-examination, and the trial court overruled objections to the questions, and stated that he was “permitting the questions to be asked, for the reason that the witness appeared to be willing to answer ‘Yes’ to all questions, and leading questions were allowed in order that the jury might have the benefit of her willingness to answer ‘Yes’ to all questions.”

The limitation and extent of examination of witnesses must rest largely in the discretion of the trial court. It appears from the record here that the court permitted leading questions to bje asked this witness, more for the purpose of discrediting her testimony, than for the purpose of prejudicing the rights of the defendant.

Ah. examination of this record convinces the writer of this opinion that the defendant was not in this instance prejudiced by the form and the extent of the redirect examination of this witness. Under such circumstances, and in view of the tender age of the witness, we find no abuse of discretion by the trial court, in overruling the objections to the questions on the ground complained of, such as to require a reversal of the judgment.

It is also contended that certain portions of the trial court’s instructions were erroneous. In this connection it is first contended that the giving of that portion of the fifth instruction as follows: “You are further instructed that under the statute it is no defense to a prosecution for a perjury that the oath was administered or taken in an irregular manner,” was harmful and reversible error, because it permitted the jury to find that, even had the court clerk administered no oath prior to the issuance of the marriage license, but had simply asked the question, as three witnesses testified he did: “Would you be willing to swear she is eighteen?” that such amounted to the administration of an oath in an irregular manner.

We are not impressed with the force or soundness of this contention when the instructions are considered as a whole, for by instruction No. 9 the jury is told that, if they should find or entertain a reasonable doubt from the evidence that the defendant merely stated to Guy R. Gillette, court clerk, that Flora Francis was of the age of 18 years, and there was no oath administered to him by Gillette, court clerk, with reference to the age of said Flora Francis, you should resolve such doubt in favor of the defendant and acquit him.

By instruction No. 10 the jury is told that, if the defendant merely stated the age of Flora Francis to be that of 18 and upon said statement the court clerk issued and delivered the license to the defendant, he would not be guilty, and you should so find, although you may further find and believe from the evidence that the said Flora Francis was under the age of 18 years, and that the defendant, J. 0. Campbell, af-terwards signed an affidavit and swore to said facts. In instruction No. 7 the jury is told in unmistakable language that they must find, among other things, beyond a reasonable doubt, “that Guy R. Gillette was court clerk of Caddo county, and that he administered an oath to the defendant prior to the issuance of the license.”

Defendant requested no instruction asking the court to define what would be meant by the term “administering an oath.” The ordinary adult has a pretty clear conception of the meaning of that term, and, in the absence of any request for a more specific definition of its meaning, and in view of the matter contained in the instructions given, heretofore quoted, we are of the opinion that the jury was not misled by that portion of' instruction No. 5 above quoted and complained of.

Complaint is also made of instruction No. 11. Practically the same objection is urged against this instruction as is urged against that portion of instruction 'No. 5 heretofore referred to. We believe the instructions as a whole sufficiently covered the law of the ease and were as favorable in stating affirmatively the defense interposed as the evidence warranted.

Further, it is contended that the court erred in refusing to give the defendant’s requested instructions Nos. 1 and 2. Instruction No. 1 was a request to advise the jury to return a verdict of not guilty. While the evidence in this case is particularly in conflict on some of the material elements of the offense, there is evidence on the part of the state, which, if believed, authorized the jury to find the defendant guilty. It is not error, therefore, to refuse to give such requested peremptory instruction. An examination of the record discloses that the law contained in special requested instruction No. 2 was substantially covered in the court’s general charge.

This appeal presents a conviction based! upon evidence clearly ini conflict upon two of the elements of the offense necessary to convict. These apparent contradictions were, as heretofore stated, for the jury’s reconciliation, if that could be done; if the jury could not reconcile the testimony, then it became the province of the jury to determine whom to believe and whom to disbelieve on these important issues. This is a ease the jury could have decided either way. It is not the province of this court to disturb verdicts based upon conflicting testimony, where there is evidence which, if believed, authorized the conviction. It is not our province to weigh the evidence, pass upon; its conflicts or upon the credibility of the witnesses.

Undoubtedly, upon the information at hand, it would have conformed more consistently with the propriety of the duties of the clerk to have refused to issue the marriage license. To that extent perhaps the officer is open to criticism. On the other hand, the defendant displayed, after being warned, an unusual amount of determination to procure this license. The fact that the clerk is open to criticism is not sufficient reason for disturbing the judgment. The defendant’s theory in our opinion was fairly, and fully stated to the jury in the court’s general charge, and, while some inaccuracies and incomplete statements of the law occur in separate paragraphs of the charge, these matters were cured in other portions of the charge, when considered as a whole, is not misleading, contradictory, or incomplete.

For reasons stated, the judgment is affirmed.

DOYLE and BESSEY, JJ., concur.


author: DOYLE, J.

text:
    DEWEY RICKETTS v. STATE.
    No. A-3825.
    Opinion Filed April 28, 1923.
    (215 Pac. 212.)
    (Syllabus.)
    1. Larceny — Evidence Sufficient to Sustain Conviction for Grand Larce.ny* In a prosecution for grand larceny, evidence held to support a conviction.

      2. Evidence — Forcibly Taking Shoes from Accused under Arrest to Compare with Footprints not Compelling Evidence Against Himself. Fdrcibly taking shoes from a defendant under arrest for purposes of comparison of footprints does not violate his constitutional right not to be compelled to give evidence against himself.
    3. Same — Evidence not Inadmissible as Unreasonable Search and Seizure. The constitutional provision against unreasonable searches and seizures does not prevent the introduction of evidence of aj comparison of footprints! with shoes forcibly taken from one accused of crime.
    Appeal from District Court, Comanche County; Cham Jones, Judge.
    Dewey Ricketts was convicted of grand larceny, and he appeals.
    Affirmed.
    J. F. Thomas, for plaintiff in error.
    George F. Short, Atty. Gen., and N. W. Gore, Asst. Atty. Gen., for the State.
   DOYLE, J.

Plaintiff in error, Dewey Ricketts, was convicted' of larceny, and, in accordance with the verdict, was sentenced to imprisonment in the penitentiary for one year. From the judgment in the case he prosecutes this appeal. The errors assigned and relied on for a reversal of the judgment are based on rulings of the'court in the admission of testimony for the state against defendant’s objections.

It appears from the record that plaintiff in error and two others were jointly charged in the information with the theft of seven automobile' casings of the value of $150; that the same were stolen from the place of business of Otto Hess, in the town of Indiahoma; that the defendants were seen the evening before in the city of Lawton in an automobile, which the evidence shows was driven from Lawton to Indiahoma and back to Lawton that night. Foot tracks were found near the place where the theft was committed. Plaintiff in error, then under arrest, and in the custody of the sheriff, was compelled to take off the shoes worn by him, the shoes were taken to the place where the theft was committed, and fitted into the tracks there found.

J. D. Poole, deputy sheriff, testified:

“The tracks were plain, and I turned a box over on the tracks and told them not to move the box. I told defendant, Dewey Ricketts, to take his shoes off, and he refused to do so. I think he took them off when the sheriff asked him to take them off. I took the shoes, and compared them with the tracks. One heel made a more distinct track than the other, and this shoe fitted it exactly*. The same tracks were made at the garage. I also found tracks in the smooth place north of Hess’s garage that were identical.”

Carl Proenberger, sheriff, testified:

“I told defendant, Dewey Ricketts, that I wanted his shoes to compare with the tracks oút there; that we would have to take the shoes or he could go along, either one. He was under arrest and we were in my office at the time.”

The defendant objected to all this evidence, “because it shows that defendant was forced, while under arrest, to furnish evidence against himself in violation of his rights under the federal and state Constitutions, which provide that no person shall be compelled to furnish evidence against himself.” Objection overruled, and exceptions allowed.

The defense interposed was an alibi.

Defendant as a witness in his own behalf testified:

“I was arrested about 3 o’clock in the afternoon. About 10 minutes later they wanted my shoes; said they wanted to go to Indiahoma. I refused. Then the sheriff said I would have to take them off. I took them off because it was two against one. I had just traded for the shoes the day before in Oklahoma City. If they fitted those tracks I know nothing about how it happened.”

It is contended that the court erred in admitting the testimony of the witnesses as to the result of fitting the defendant’s shoes with the tracks found near the place where the theft was committed, in that the action of the sheriff in compelling the defendant to take off his shoes was in violation of the constitutional provision that “no person shall be compelled to give evidence which will tend to incriminate him” (Const. art. 2, § 21), and also of the constitutional provision that “the right of the people to be secure in their persons, houses, papers, and effects! against unreasonable searches or seizures shall not be violated” (Const. art. 2, § 30)—citing State v. Sirmay, 40 Utah, 525, 122 Pac. 748, and Davis v. State, 131 Ala. 10, 31 South. 569.

In the Sirmay Case it is held:

“While an accused cannot be compelled to give evidence against himself by submitting to a comparison of his foot with prints found at the place of the commission of a crime, if at the solicitation of a sheriff, he voluntarily places his foot in the tracks left by the criminal or surrenders his shoes to the sheriff for such comparison, he cannot object to testimony as to the comparison.”

In the Davis Case it is held:

“Evidence that defendant declined to consent to the taking away of the shoes which he was wearing for the, purpose of comparing them with tracks' supposed to have been made by him is inadmissible under the constitutional guaranty of immunity from being compelled! to incriminate himself.”

After careful investigation we have reached the conclusion that the evidence in question was properly admitted. The history, of the constitutional provision referred to clearly demonstrates that it was not intended to reach a case like this. Story’s Constitutional Limitations, § 1788.

The constitutional provision guarantees no greater privilege than that all persons, whether parties or extraneous witnesses, shall be free from compulsion by legal process, to give self-incriminating testimony. The principal purpose of the provision was to prohibit compulsory examination of prisoners before trial or upon trial, for the purpose of extorting unwilling confessions or declarations implicating them in crime. It could reach further only in exceptional and peculiar cases coming within the purpose and spirit of the inhibition.

In People v. Van Warmer, 175 N. Y. 188, 67 N. E. 299, the Court of Appeals of New York held that:

“Const, art. 1, § 6, providing that no one can be compelled to be a witness against himself in a criminal prosecution, is not violated, where the shoes of defendants on trial for murder were taken from them, and placed in the footmarks leading to the house of deceased, made in newly fallen snow on the night of the murder, by¡ the admission of evidence of the fact on the trial.”

In Magee v. State, 92 Miss. 865, 46 South. 529, the defendant was charged with assault with intent to kill and murder, and was compelled to put his foot) in the track found near the place where the crime was alleged to have been committed, ,for the purpose of identifying him. The Supreme Court of Mississippi held that this evidence was not objectionable as compelling him to be a witness against himself in violation of the! Fifth Amendment to the federal Constitution, and as compelling him to give evidence against himself in violation of the provision of the Constitution of Mississippi, providing that “a defendant shall not be compelled to give evidence against himself.” In the opinion it is said:

“There has been great confusion in some courts.on this subject; but we do not see how itl is possible, logically, to sustain an objection to compelling the defendant simply to put his foot in a track for the purpose of identification on the ground that he was privileged by the constitutional provisions referred to against being compelled to testify or to give evidence against himself. He is not, in such cases, giving evidence. He is not testifying as a witness. He is not delivering any testimonial utterance. ’ ’

In State v. Graham, 74 N. C. 646, 21 Am. Rep. 493, the defendant was charged with larceny. Footprints were discovered at the scene of the crime, and leading to and from it to a fence in the direction of the defendant’s house. The officer who made the arrest compelled the prisoner to put his foot in the tracks, thus demonstrating an exact correspondence. This was proved upon the trial, over defendant’s objection. On review the court held the evidence admissible on the theory that, though the act of the officer was an invasion of defendant’s right, yet it did not affect the resemblance, the only fact which had weight as evidence. In the opinion the court said:

“The object of all evidence is to elicit the truth. Confes-' sions which are not voluntary, but arc made either under th ■ fear of punishment if they are not made, or in the hope of escaping punishment if they are made, are not received as evidence, because experience shows that they are liable to be influenced by those motives, and cannot be relied on as guides to the truth. But this objection will not apply to evidence of the sort before us. No fears or hopes of the prisoner could procure the resemblance of his track to that found in the cornfield. This resemblance was a fact calculated to aid the jury and fit for their consideration. Evidence of this sort called by the civilians ‘real evidence,’ is always admissible and is of greater or less value according to the circumstances. ’ ’

Prof. Wigmore says:

“Looking back at tbe history of the privilege (ante, § 2250) and the spirit of the struggle by which its establishment came about, the object of the protection seems plain. It is the employment of legal process to extract from the person’s own lips an admission of his guilt, which will thus take the place of other evidence. Such was the process of the ecclesiastical court, as opposed through two centuries — the inquisitorial method of putting the accused upon his oath, in order to supply the lack of the required two witnesses. Such was the complaint of Lilburn and his fellow objectors, that he ought to be convicted by other evidence, and not by] his own forced confession upon’ oath. Such, too, is the inference from the policy of the privilege as a defensible institution (ante, § 2251); that is to say, it exists mainly in order to stimulate the prosecution to a full and fair search for evidence procurable by their own exertions, and to deter them from a lazy and pernicious reliance upon the accused’s confessions. Such, finally, is the practical requirement that follows from the necessity of recognizing other unquestioned methods of procuring evidence; for if the privilege extended beyond these limits, and protected an accused otherwise than in his strictly testi-nominal status — if, in other words, it created inviolability not only for his physical control of his ovni vocal utterances, but also for his physical' control in whatever form exercised, then it would be possible for a guilty person to shut himself up in his house, with all the tools and indicia of his crime, and defy the authority of the law to employ in evidence anything that might be obtained by forcibly overthrowing his possession and compelling the surrender of the evidential articles — a clear reduetio ad absurdum. In other words, it is not merely compulsion that is the kernel of the privilege, in history and in the constitutional definitions, but testimonial compulsion. The one idea is as essential as the other. The general principle, therefore, in regard to the form of the protected disclosure, may be said to be this: The privilege protects a person from any disclosure sought by legal process against him as a witness.” Section 2263, p. 3123, Wigmore on Ev.
“Bodily Exhibition. If an accused person were to refuse to be removed from the jail to,’the courtroom for trial, claiming that he was privileged not to expose his features to the witnesses for identification, it is not difficult to conceive the •judicial reception which would be given! to such a claim. ■And yet no less a claim is the logical consequence of the argument that has been frequently offered and occasionally sanctioned in applying the privilege to proof to the bodily features of the accused. The limit of the privilege is a plain one. From the general principle (ante, § 2263) it results that an inspection of the bodily features by the tribunal or by witnesses cannot violate the privilege, because it does not call upon the accused as a witness, i. e., upon his testimonial responsibility. That he may in such cases be required sometimes to exercise muscular action — as when he is required to take off his shoes or roll up his sleeve — is immaterial, unless •all bodily action were synonymous with testimonial utter'ance; for, as already observed (ante, § 2263), not compulsion alone is the competent idea of the privilege, but' testimonial compulsion. What is obtained from the accused by such action is not testimony about his body, but his body, itself. Unless some attempt is¡ made to secure a communication, written or oral, upon which reliance is to be ^placed as- involving his consciousness of the facts and the operations of his mind in expressing it, the demand made upon him is noti ai testimonial one. Both principle and practical good sense forbid any large interpretation of the privilege in this application; and healthy judicial opinion has frequently pointed this out .with force. ’ ’ Section 2265, p. 3828, Wigmore on Ev.

In Morris v. State, 124 Ala. 44, 27 South. 336, it is held that it was competent for the state to show that the shoes taken from the defendant’s house, and belonging to him, were compared with tracks found near the scene of the crime, and were the same in¡ length and breadth.

The case of Myers v. State, 97 Ga. 76, 25 S. E. 252, is directly in point. The officer in charge of the prisoner ordered the prisoner’s shoes to- be taken from him for the purpose of comparing them with tracks found near the place where the body of the murdered man was discovered. The trial court excluded the evidence of the officer as to the result of the comparison, but failed to admonish the jury not to consider it. On review it was held that the omission to admonish was not prejudicial because, the evidence was competent and should have been admitted; and the court remarked that —

“It was the duty of the officer to have taken from the possession of the defendant any article which he might have had that would throw any light upon the circumstances of his guilt or innocence, and preserve it for use at the trial.”

In the case of State v. Fuller, 34 Mont. 12, 85 Pac. 369, 8 L. R. A. (N. S.) 762, 9 Ann. Cas. 648, it is held that forcibly taking shoes from an accused person for the purpose of comparison with footprints does not violate his constitutional right not to be compelled to give evidence against himself, and that the constitutional provision against unreasonable searches and seizures does not prevent the introduction of evidence of a comparison of footprints with shoes forcibly taken from one accused of crime.

We are of opinion that the rule stated is supported by better reasons as well as by the weight of authority. Upon a consideration of the whole case we are/ satisfied that the substantial rights of the defendant have not been prejudiced by reason of any error of law appearing in the record. The judgment of the trial court is accordingly affirmed.

MATSON, P. J., and BESSEY, J., concur.


text:
    FRED KAUTZ v. STATE.
    No. A-4186.
    Opinion Filed April 28, 1923.
    (214 Pac. 737.)
    (Syllabus.)
    Trial — Prejudicial Error in Permitting County Attorney to Read to Jury Order oí Court Wherein Liquor Was Found Intoxicating. In a prosecution for the unlawful possession of alleged intoxicating liquor, to wit, 35 gallons, of wine, seized and taken from the possession of the defendant under a search' warrant, the court, against defendant’s objections, permitted the county attorney to read to the¡ jury the finding and order of the court in a proceeding wherein said alleged intoxicating liquor was found to be intoxicating, and ordered the same to be confiscated and destroyed. Held prejudicial error. -
    Appeal from County Court, Payne County; Raymond H. Moore, Judge.
    Fred Kautz was convicted of violation of the prohibitory liquor law, and he appeals.
    Reversed.
    John P. Hickam, for plaintiff in error.
    George F,’Short, Atty. Gen., and N. W. Gore, Asst. Atty. Gen., for the State.
   DOYLE, J.

Plaintiff in error, Fred Kautz, was, 'tried and convicted on a charge that he did have in hisi possession certain intoxicating liquor, to wit, about 35 gallons of fermented wine, containing more than one-half of 1 per cent, of alcohol, measured by volume, with the unlawful intent then and there to sell the same. The jury failed to agree upon the punishment. December 10, 1921, the court rendered judgment sentencing the defendant to be confined for 30 days in the county jail, and to pay a fine of $300 and the cost. To reverse the judgment the defendant appeals.

It appears that defendant, Fred Kautz, was a farmer, living in Elm Grove township, Payne county, and that he had lived there on his homestead for 33 years; that on the date alleged Ross Carson, deputy sheriff, John F. Vaughan, county attorney of Payne 'county, and one L. J. Tusing went to the home of said defendant, about 2 o ’clock in the morning, and searched the house of said defendant, and carried therefrom a barrel and some kegs and the; contents thereof, which the evidence for the state tended to show was wine. The evidence of the defendant tended to prove that the contents of the vessels was grape juice.

The Attorney General has filed a confession of error, which we adopt as the opinion of the court. It is as follows:

“Confession of Error.
“That there was error committed by the trial court in this cause cannot be denied in that the county attorney took the witness stand in behalf of the state and identified and offered in evidence plaintiff’s Exhibit K, and plaintiff’s Exhibit L. Objection was- made to the introduction of the plaintiff’s Exhibit L (page 133 of the case-made), and exceptions allowed. Plaintiff’s Exhibit L is found on pages 233 and 234 of the case-made, and is the judgment of the court confiscating the liquor seized under the search warrant, and contains the following language of the court, to wit: ‘And that such forfeited property and things, other than of value and adapted to a lawful' use, to wit, two one-gallon jugs, four 15-gal-lon kegs, and one 45-gallon barrel, ¡all containing wine, should, after the same is no' longer needed for evidence, be turned over to the board of county commissioners by said sheriff of said county,’ etc. We are confronted with this condition of things: Plaintiff in error’s property is searched under a search warrant; certain articles were seized and taken into custody by the sheriff; a hearing was had thereon by the county court, and! in rendering his judgment the court held positively that the containers mentioned contained wine. It is a matter of judicial knowledge that wine is an intoxicating liquor, and to permit the state to introduce this judgment of the court as evidence for the consideration of the jury in trying a man charged with having had possession of intoxicating liquor, it amounted to the court saying to the jury: ‘ Gentlemen, I have examined the facts in this case and have determined that the liquor found in the possession of the defendant was intoxicating liquor.’ It can be truthfully said, and most especially can it be said of the trial judge in this case, that judges exercise a1 peculiar and strong influence over the citizenship of their county with regard to the truthfulness of statements made by them. They must be good men, truthful and honest, or else they will not be elevated to the position occupied by judges, and to permit a trial court to say in advance to a jury trying one of the citizens of its county, that they had determined the facts, and thereupon decided the matter, detailing what that decision was, amounts to a miscarriage of justice not contemplated by our laws, and one Which should not be tolerated.”

Fort the errors indicated, the judgment of the trial court is reversed.

MATSON, P. J., and BESSEY, J., concur.