author: FURMAN, Presiding Judge. PEE CUEIAM.

text:
    Lee Stewart v. Territory.
    No. 2205,
    Okla T.
    Opinion Filed February 20, 1909.
    (100 Pac. 47.)
    1. ASSAULT WITH INTENT TO KILL — Deadly Weapon — Indictment — Sufficiency. Where an indictment charges that an assault and battery was committed with a deadly weapon, it is not necessary to^ go further, and allege in the indictment that the means or force used was likely to produce death.
    2. INSTRUCTIONS — Assuming- Facts. When a fact is proven by . the testimony of both the prosecution and the defense, and there is no conflict in the evidence with reference to it, the court in the instructions may treat it as an admitted fact in the case.
    3. SAME — Estoppel of Party Complaining. When an instruction is applicable to the testimony of the defendant, he cannot be heard to complain that it assumes as true statements which were made by him while on the witness stand.
    4. ASSAULT WITH INTENT TO KILL — Deadly Weapon — Evidence — Sufficiency. For facts supporting a verdict of guilty of an assault with a deadly weapon, see opinion.
    (Syllabus by the Court.)

      Appeal from District Court, Kingfisher Countyj John H. Bur-ford, Judge.

    Lee Stewart was convicted of an assault and battery with a deadly' weapon, and he ajipeals.
    Affirmed.

      The defendant was found guilty of an assault and battery with a deadly weapon, and his punishment was assessed at six months’ confinement in the penitentiary. He prosecuted an appeal, and the case is regularly before us.

      N off singer é Hineh, for appellant.

      E. Q. Spilman, Asst. Atty. Gen., for the Territory.
   FURMAN, Presiding Judge.

First. The defendant assails the sufficiency of the indictment upon the ground that it did not allege that the assault committed by the defendant with the pistol was in a manner likely to produce death. The charging part of the indictment is as follows:

“That Lee Stewart, late of the county aforesaid, on the fourteenth day of May, in the year of our Lord one thousand nine hundred and five, in the county of Kingfisher, and territory of Oklahoma, aforesaid, with force and arms, in and upon one Fred L". Cordis, in the peace of the territory of Oklahoma then and there being, wilfully, feloniously, and from a deliberate and premeditated design to effect the death of the said Fred L. Cordis, did make an assault, and the said Lee Stewart, then and there, wilfully, unlawfully, feloniously, and from a deliberate and premeditated design to effect the death of the said Fred L. Cordis, did strike at, towards, against, and upon the head of the said Fred L. Cordis, with a certain deadly weapon, to wit, a pistol, commonly called a revolver, then and there had in the hand of the skid Lee Stewart, and the 'said) Lee Stewart, with the plistol, commonly called revolver aforesaid, by the stroke aforesaid, him, the said Lee Stewart, there and then feloniously, wilfully, and with a deliberate and premeditated design to effect the death of the said Fred L. Cordis, did cut, and wound, giving unto him, the said Fred L. Cordis, then and there, with the pistol, commonly called a revolver, aforesaid, by the cutting and wounding aforesaid, by the said Lee Stewart, in and upon the head of the said Fred L. ■■Cordis, one wound of the length of two inches of the breadth of one inch and of the depth of one-half of one inch. Contrary to the form of the statute in such ease made and provided, and against the peace and dignity of the territory of Oklahoma.”

This indictment was drawn under Wilson’s Rev. & Ann. St. 1903, § £206, which is as follows:

“(2'206) No. 287. Every person who intentionally and wrongfully shoots, shoots a.t, or attempts'to shoot'at another, with any kind of fire-arms, air-gun, or other means whatever, with intent to kill any person, or who commits any assault and battery .upon another by means of any deadly weapon, or by such other means or force as is likely to produce death or in resisting the execution of any legal pfoeess, is punishable by imprisonment in the Territorial prison not exceeding ten years.”

If the assault had been alleged to have been made by any other means or force than with a deadly weapon, then it would have been necessary to have made the further allegation that such an assault was likely to produce death to have brought the act within the statute. But, when an assault is alleged to have been-made with a deadly weapon, it is not necessary to go further under this statute, and allege that it was likely to produce death. We therefore find that there was no error in the' action of the trial court 'in sustaining the indictment.

Second. Defendant complains of the following instruction given by the court to the jury:

“A deadly weapon is any instrument, which, when used upon a human being in the manner' the evidence shows the pistol was used in this case, is reasonably likely to produce a wound or wounds from which death may reasonably be expected to result.55

The objection is that the instruction assumes .material facts of which there is no evidence. If the record sustained this contention, or if there was a conflict in the evidence upon this question, the objection would be well founded. ' It is true that there is a conflict in the evidence as to how the difficulty began, but there is no conflict in the evidence as to the manner in which the pistol was used or as to the effect of such use. The complainant testified as follows:

“He [defendant] came in there where I was, and'got me by the arm and said T want to see you out doors,5 and then I went to the middle of this room, and there was a large crowd in there, and, when I got in there about the middle, I said, ‘I don't wiant to go out there, and, if you have anything to say to me, sa.y it in here,5 and he did not say anything, but reached in here and pulled out a gun and hit me over the head, and as quick as he pulled his gun I tried to get away, but he knocked me down — I guess he knocked me down, I don’t know really — but I know I was down on the floor after he hit me and I tried to get away.”

The defendant testified as to the usé of the gun as follows:

“Q. You hit him with the gun? A. Yes. Q. He was standing up? A. Yes ' Q. ' Did you knock him down? A. I don’t know whether I. hit him hard enough to knock him down, but he fell down. Q. He'fell down the same time you hit him? A. About that time.”

The physician who attended on the complainant testified that he had three or four bad wounds upon his head, which penetrated to the bone, winch were evidently made with a blunt instrument. The instruction given as to the manner of the use of the pistol was responsive to the testimony of the defendant as well as to the testimony of the prosecution. In view of the testimony of the defendant himself, the court was authorized to treat it as an admitted fact that the defendant had knocked the complainant down by a blow upon the head with the pistol. Counsel for the defense complain of the instruction given upon the ground that it assumed that the pistol was a deadly weapon as a matter of law, and that it took from the jury the right to determine this matter as a question of fact. The instruction complained of is not susceptible of this construction. After charging upon the manner of the use of the pistol, which was an admitted fact, the court further instructed the jury that such manner of use must have been likely to produce a wound or wounds from which death might reasonably be expected to result. This was the test submitted to the jury as to whether the pistol was a deadly weapon. The determination of this question was left to the jury without suggestion from the court. We think that the instruction given is not as. full and clear as it should have been, but, in view of the facts of this case, we do not feel that we would be authorized in disturbing the verdict on account of this instruction.

Third. The counsel for the defendant complain of the -following instruction given to the jury:

“An assault and battery is not unlawful when committed by a person in resisting or in attempting to prevent an offense upon his person, provided he uses no more force than is reasonably necessary to protect himself. And in this case, if at the time Stewart struck ’Cordis, it was apparent to Stewart from some hostile act or demonstration of Cordis that Cordis was about to commit an assault upon his person, and he in good faith believed, and had good grounds to believe, that Cordis was in the act of doing him some bodily harm, and that it was necessary for his own safety from injury to strike Cordis,-then uncler such circumstances, the striking of Cordis by Stewart would be justifiable on the grounds of self-defense. But if Stewart struck Cordis in self-defense, and yet if, after Cordis had quit the fight and showed a purpose to abandon the fight, Stewart continued to beat, wound, and bruise Cordis with the pistol, then such excessive use of violence would constitute an unlawful assault and battery, and, if the gun or pistol with which he struck Cordis'was when used to club or strike a person with a weapon which was when used in .such manner likely to produce wounds from which death might reasonably be expected to result, then such offense would be assault and battery with- a deadly weapon. Excepted to by the defendant and exception allowed. •Jno. H. Burford, Judge.”

The only part of this instruction of which defendant’s counsel complain is the following: “But, if Stewart struck Cordis in self-defense, and yet, if, after Cordis had quit the fight and showed a purpose to abandon the fight, Stewart continued to beat,” etc.. The objection to this instruction is that it assumes that Cordis had quit the fight. This is an undisputed fact in the case. ■ The defendant himself testified that he struck Cordis at least one blow after Cordis was down, and when the defendant was in no possible, danger from him. A number of other witnesses, who are un: contradicted, testified that the defendant struck Cordis a number of blows over the head with the pistol when Cordis was on his hands and knees, crawling away from the defendant. To our minds the record discloses a most aggravated case against the defendant. The evidence shows that on the night of the 14th of May, 1905, a dance was given at the residence of George Miller, in Kingfisher county; that the complainant, Cordis, had been requested by Mrs. Miller to act as floor manager; that the defendant and some others came to the dance after 12 o’clock at night; that the defendant had been drinking, and came armed with a pistol A dispute arose between the defendant and Cordis, the merits of which are immaterial. In addition to the testimony of Cordis, hereinbefore quoted, he further testified that after the defendant had knocked him down he tried to get away from the defendant by crawling off on his hands and knees, and that while lie was doing this the defendant followed him up and continued to beat him on the'head with the pistol. He also testified that it was a large pistol with which defendant struck him.

L. G. Roles testified as follows:

“A. The first I seen was Cordis was down and on his hands and knees, and Lee Stewart standing over him, or kind of in front of him, hitting him over the head with a six shooter. Q. Where was he hitting him? A. On the back of' the head. Q. How many times did you see him hit him? A. I think five or six times. Q. What was Cordis doing? A. Was not doing anything but crawling across the floor. Q. Trying to get away? A. Yes; seems to me he got out of the room where I first seen him hit him, and crawled to the other room.”

Mrs. George Miller testified:

“Q. Did you see the light that occurred between Lee Stewart and Cordis? A. I did not see any fight, but I seen him hitting him. on top of the head with a gun. Q. Who? A. Mr. Stewart was hillfing Mr. -Cordis with a gun on top of the head. Q. Where was you.? A. I was in the east room. Q. Mr. -Cordis in that room? A. Mr. Cordis and Stewart was in the west room. Q. Did they'come in that room? A. He crawled in on his hands and knees, and- I seen Mr'. Stewart hitting him with a gun on top of the head as he crawled in on his knees and hands. Q. Was Stewart standing up? A. Yes. Q. Did you see Mr. Cordis after this was over? A. Yes. Q. What was his condition? A. He was all covered with blood, and I got clean cloths for him to wrap his head in, and they tool? him to a doctor.”

Bd Martin testified as follows:

“Q. State what you seen? A. The first I seen Cordis" was on the floor, crawling on his hands and knees, and Stewart was beating him oyer the head with a gun. Q. How many times did you see Stewart hit him ? A. Could not say how many times, several times. Q. Did yon see Mr. Cordis after the beating? A. I seen him right away after the beating; yes. Q. State to the jury the condition he was in A. Well, I don’t know what condition he was in, only I seen, the blood. Q. He was bleeding, was lie? A. Yes. Q. How much? A. Oh, I could not say. Q: Was it running down his clothes? A. Yes. Q. More than one place? - A. I could not say I just 'seen blood running down. Q. What was the attitude of Cordis when you first seen the fight, what attitude was Cordis in? A. He was trying to get away, and was crawling on his bands and knees. Trying to get into the other room. Q. Was he at any time during the time you seen him trying to strike back at Mr. Stewart? A. I did not see him until after he was on the floor. Q. He was on his hands and knees, crawling away? A. YeS. Q. What was Mr. Stewart doing? A Following him up hitting him over the head with a gun.”

Joe Best testified as follows:

“A. I" seen Stewart hitting Cordis. Q. Hitting him with what? A. A gun. Q. What condition was the parties in when you seen them ? A. Mr. Cordis was on the floor on his hands and knees, and'Mr. Stewart-was hitting him over the head. Q". How many times did Mr. Stewart hit him over the head ? A. Two or three times. Q. What was Cordis trying to do? A. He was trying to crawl away. Q. What was Stewart doing? A. He seemed to be following him up. Q. What was he doing when he was following him up? A. Hitting him. Q. Following him up and hitting him? A. Yes, sir Q. What kind of a revolver did Stewart have? A. T could not say. I did mot have the gun in my-hands.- Q. You did not have hold of the gun? A. No, sir. Q. You seen it was a revolver? A. Yes, sir.”

The most of the testimony of the defendant related to the merits of the quarrel between defendant and Cordis which we regard as immaterial to the merits of this case. Omitting irrelevant matters, the defendant testified that he wanted to talk to Cordis about the difference between them, and that he requested him to go out of the house. Defendant then testified, as follows:

“A. He just started right to the door, and he stopped and I took him by the arm and I said, Home on out, I want to talk to you/ and lie said, ‘By God, J. will not go no place with you/ and then he took a smash at and tried- to knock me down, and I-guess he would have if I, had not broke the lock. Q. State what you did. A. That started the fight. Q. Tell the jury wliat you did. A. Well, we'went to fighting, and I got the best of it; that is all there is to it. Q. Did you .have a gun with you ? A. Yes, sir. Q. Did you use a gun on him? A. Yes, sir. Q. How many times did you strike him with it? A. I don’t think I hit him but once or twice, but I had to do that to keep him from whipping me. That is all there was to it.”

On cross-examination the defendant further testified:

“Q. Did you follow Mr. Cordis into the kitchen, according to these witnesses? A. Yes, sir. Q. Followed him into the kitchen ? A. I let him go out, was not bothering him any. Q. You walked in with him? A. I walked behind him. Q. Did you help him up? A. No, sir. Q. Did }rou hit him to keep him down? A. I may have bit him once after he was down.”

In the light of the other testimony in the record and in view of this admission from the defendant, he is in no condition to complain of the instruction given. When Cordis declined to go out of the house with the defendant, he had no right to seize Cor-dis by the arm and attempt to force Cordis to go with him. This was an assault and justified Cordis in using force to prevent being compelled to leave the house, where he had a right to be. The defendant was without the shadow of a right to draw his pistol and strike Cordis on the head with it, and knock him down as though he were a brute. According to defendant’s own testimony, he is guilty of the offense charged. The defense in this case has been purely technical from beginning to end. It reflects great credit upon the ability of the counsel who conducted it, but it is without substantial merit. By the express terms of our statute, we are prohibited from reversing a conviction’ upon any technicality or exception which does not afEect the substantial rights of the defendant. The verdict rendered is the only verdict that could be arrived at upon the defendant’s own testimony by an impartial and intelligent jury. The people of this state have the right to assemble in a peaceable manner for social enjoyment or for other proper purposes. They should be protected by the courts in the quiet and undisturbed exercise of this right. The man who goes to such a meeting under the influence of intoxicating liquor, armed with a pistol, and who for a fancied or a real grievance, converts the meeting from one of pleasure into a scene of violence of bloodshed and of terror should be severely punished. The sooner such men learn that this kind of conduct will not be tolerated for a- single moment in Oklahoma, the better it will be for them and for the peace and well-being of society. The defendant has cause to congratulate himself upon tjie extreme leniency of the judge in assessing his- punishment at only six months’ confinement in the penitentiary. The blow which defendant struck on the head of Cordis was with such force that Cordis was not only knocked to the floor, but was unable to stand up, and was compelled to crawl upon his hands and knees, like a brute, m his efforts to escape. During this time defendant was pursuing him and repeating the blows, which penetrated to the skull. Tt is almost a miracle that Cordis was not killed. If this had happened, the defendant would doubtless now be under a sentence for murder, which we would have affirmed upon the record before us.

Denied June 23, 1909.

(102 Pac. 649.)

1. APPEAL — IRiehearing. On motion for rehearing, this court will not consider questions which were waived on the original submission of the cause.

2.- SAME — Waiver of Errors — Allegations too General. Where the brief of appellant simply complains of rulings of the trial court as being erroneous, but does not support this general statement with argument and the citation of authority when possible, this court is not required to examine the record in search of prejudicial errors, but will' treat such general allegations as a waiver of the alleged errors.

The judgment of the lower court is affirmed.

BAKED and DOYLE, Judges, concur.

On Motion eor Bei-iearing.

3. . WORDS AND PH RASES — “Brief.” A “brief” is a written presentation of the question involved in a forensic controversy, and of the matters of fact and of law which demand investigation.

(Syllabus by the Court.!

W. M. Hindi, for appellant.

Charles L. Moore, Asst. Atty. Gen., for the Territory.

PEE CUEIAM.

The motion for a rehearing in this case is based upon alleged irregularities in the manner in which the grand jury was drawn, which presented the indictment. This matter was not presented in the original brief, except in the most general terms. No attempt was made to point out any irregularities. No argument was made, and no authorities were cited or discussed. This court has repeatedly declared that it is the duty of counsel, in presenting their cases upon appeal, to place their fingers upon the place that hurts, and clearly point out the special error complained of, and show that it was prejudicial to their clients. Unless this is done, the alleged errors will be treated as waived. Our views upon this question are ably presented by Mr. Justice Eunn in Ferguson et al. v. Union National Bank, 23 Okla. —, 99 Pac. 641.

Speaking of the brief filed in that case by the appellant, Justice Dunn says:

“This document, omitting the caption and signature, is less than a page in length, and is merely a recitation and statement of the things which counsel contends took place in the court below, followed by a statement that the court erred in ruling on certain of these matters, in addition stating that the presiding judge before whom the case was tried was not the judge of the district, and had no jurisdiction to try the cause. No authorities are cited in support of any of the propositions stated; neither is any argument presented to sustain them, nor any effort whatever made, other than the simple statement mentioned, to show that error was committed. This is not such a brief as is contemplated should be filed in a ease by counsel in support of a petition in error in this court; and, while we would probably not dismiss the petition in error on such a brief of our own motion, yet when the question is squarely raised and presented, as it is in this case, by a motion on the part of the defendant in error to dismiss the petition in error for want of a sufficient brief, we cannot ignore the rights of such movant by failing to consider its motion, or, if found to be well taken, deny it, especially where no motion is made to supplement the purported brief filed.
“The Supreme Court of the territory of Oklahoma in the case of Penny v. Fellner, 6 Okla. 386, 50 Pac. 123, had this to sajr with reference to the requirements expected of a party filing’ a brief in this court: ‘This court will not examine the record filed herein in search of prejudicial errors which are not clearly pointed out and insisted upon in the brief of the complaining party, but all such errors (if any) will be considered as. waived.’ The standard authority on procedure in appellate courts, entitled ‘Appellate Procedure,’ by Elliott, at section 438, defines a brief, as understood under our system, as follows: ‘A brief is a written presentation of the questions involved in -a forensic controversy, and of the matters of fact and of law which demand investigation. • The primary object is'to convey information to the court, and this cannot be done without clearly stating the manner in which the controverted points arise, the facts which constitute the ground-work of the legal dispute, and the governing propositions of- law. A subsidiary object is to convince the court where the law and justice of the case lie. In every well-prepared brief will be found a concise and clear statement of the manner in which the questions arise, a succinct and methodical statement of the facts, and a perspicuous array of arguments and authorities.’ Its requirements aré set out in sections 444 and 445, as follows: ‘It is essential that all points be made in the brief, and properly made; if not so made they are waived. '* * * It is not enough to assert in general terms that a rulin'g of the trial court is wrong; a fair effort must be made to prove that it is wrong or the point will not be considered as having been made. Counsel cannot make a point in an appellate tribunal by a naked general assertion, for such an assertion will not be heeded. * * * But, in order to secure so much as notice of the point stated they must support it by a fair effort, adducing arguments and, it they can. citing authorities. A bare designation of a ruling as erroneous, without discussion, is not sufficient to entitle counsel to successfully insist that he has made a point. * * * Where a ruling is asserted to be erroneous the party making the assertion must overcome the presumption that it was correct, and this he cannot, do otherwise than by specifying the particular error which invalidates the ruling., This rule is required for the assistance and enlightenment of the court. Common fairness to opposing counsel likewise demands it, for they have a right to know just what particular point they are to meet. It is also required, by the analogous cases which declare that objections wherever presented must be specific/
“From the' foregoing it will be readily seen that the so-called brief filed in this case in no particular meets the requirements, and the motion of the' defendant in error to dismiss the petition in error is accordingly sustained.”

Ordinarily errors waived in the original submission of a cause cannot be reviewed upon a motion for rehearing. No reasons are given why this should be done in the case at bar.

The motion for a rehearing is therefore denied.


source: Caselaw Access Project

author: ■ FURMAN, Presiding Judge.

license: Public Domain

text:
    C. B. Herrick v. Territory.
    No. 2159,
    Okla. T.
    Opinion Filed February 20, 1909.
    (99 Pac. 1096.)
    1. ■ RAIP'E — Attempt to Commit — Indictment. An indictment for an attempt to rape must allege that the attempt was made with intent to rape.
    2. SAME — Evidence—Sufficiency. For facts which do not support a conviction for an attempted rape see opinion.
    (■Syllabus by the Court.)

      Appeal from District Court, Logan County; John TI. Burford, Judge.

    C. B. Herrick *was convicted of an attempt to commit rape, and he appeals.
    Reversed and remanded, with directions.

      On the 4th clay of December, 1906, C. E. Herrick (hereinafter called defendant) was indicted in the district court of Logan county for an attempt to commit rape. Upon the trial of said cause defendant was found guilty by the jury, and sentenced by the court to two years’ confinement in the penitentiary. An appeal was taken, and the case is regularly before this court for review.

      Lawrence & Huston and Devereux & Hildreth, for appellant.

      Charles L. Moore, Asst. Atty. Gen., for the Territory.
   ■ FURMAN, Presiding Judge.

First. The defendant assails the indictment because it does not allege an intent to commit rape. The charging part of the indictment is as follows:

“* * * That' one C. E. Herrick, on the 20th day of August, in the year one thousand nine hundred six, in the said county of Logan, territory of Oklahoma, and then and there being, did then and there unlawfully, wilfully and feloniously attempt to accomplish the act of sexual intercourse with one Jenny Berry Ditter, she, the said Jenny Berry Ditter, then and there being a female of the age of eleven (11) years, of the opposite sex from and not the wife of him,' the said C. E. Herrick, and which said attempt on the -part of him, the said C. E. Herrick, was then and there made by him, the said C. E. Herrick, forcibly placing her the said Jenny Berry Ditter on the bed of him the said C. E. Herrick and he, the said C. E. Herrick, placing himself on top of her, the said Jenny Berry Ditter, and by him, the said C. E. Herrick, then and there endeavoring to make penetration in the person .of her, the said Jenny Berry Ditter, with the private of him, the said C. E. Herrick, and which said attempt to accomplish the act of sexual intercourse with her, the said Jenny Berry Ditter, on the part of him the said C. E. Herrick, then and there failed, contrary to the statute in such case made and provided, and against the peace and dignity of the territory of Oklahoma.”

The Attorney General, on behalf of the state, filed the following confession of error as to the insufficiency of the indictment :

“Conies now the Attorney General, and informs the court that he is of opinion that the indictment herein is fatally defective, in tliat it fails to allege that the overt acts charged against the accused, laid as an attempted rape, were by him committed; with the intent to commit the crime of rape. Should the court concur in this view of the law, it is hereby confessed for and upon behalf of the state, as defendant in error, that the judgment of the trial court should be reversed, and the cause remanded with proper instructions. Chas. West, Attorney General. Chas. L. Moore, Asst. Atty. Gen.”

It is the opinion of the court that the indictment is fatally defective in failing to charge that the alleged attempt was made with intent to commit rape. It is true that this intent may be inferred from the facts stated in the indictment; but the strictest rule of pleading is required in indictments. They must be certain to a certain intent in every particular. Nothing must be left to intendment, inference, or argument. Evéry element of the offense must be charged in clear, direct, and affirmative language, and every presumption of innocence must be negatived in the same manner. These principles are elementary, and it is not necessary to cite authority to sustain them.

Second. The defendant contends that the verdict of the jury is not supported by the evidence. While it is true that this court looks with detestation and horror upon the crime with which this defendant is charged, yet we cannot allow our prejudices or sympathies to interfere with, or in the least degree influence, our action in the discharge of our duty. The graver and more infamous the crime charged, the more careful juries and courts should be to act with caution and deliberation, and to require legal-evidence of the charges made. Sympathy and sentiment are all right in their places, but they cannot constitute a legal basis for a verdict in a court of law. In such trials there is no substitute for evidence. In this case the entire evidence for the prosecution is far from satisfactory, so far as the charge before the court is concerned. Dr. A. L. Blesh, a witness introduced by the prosecution, testified as follows:

“Q. Did you make an examination, a physical examination of the Ditter girl about that time. A. Yes, sir. Q. That is this lit-tie girl here? A. Yes, sir; that is Jennie Berry. Q. You may state the nature of your examination, and what your object .was. A. I examined her to see whether there Avas any marks of violence upon her person or upon her sexual organs', and after a very careful examination I could find none whatever. Q. You could find no evidence of penetration? A. No evidence of penetration or violence of any sort.”

Cross-examination by Mr. Huston:

“Q. Was there any enlargement or'soreness? A. Absolutely none. She was a perfectly normal child of her age. Q. No eAÚ-dence of any friction or handling of the parts? A. None whatever. Q. Was there any evidence of any attempts having ever been made by any 6ne to enter her parts? A. There was posi-tivety no attempt made that involved any degree of force at all, because there was no mark upon the person of the child, which AA'ould necessarily have been there had penetration been attempted by an adult man. Q. Well, Doctor, take a child of that age, are those parts very tender and susceptible of being bruised or made sore by any handling or effort to make a penetration? A. Yes, sir; they are very susceptible to it, and, if there is any force used at all, if the examination is recent at' all, it will be in evidence. Q. When did you make this examination, Doctor? A. I made this examination to the best of my recollection, I think, the day before I examined the little girl’s drawers. Q. You think the day before you examined the drawers? A. That is my recollection of it. It might have been the same day, but I think it was the day before. Q. When did you make the examination with reference to when it Avas claimed by the girl or her mother that the act had occurred? A. I think very shortly after, within possibly 24 or 48 hours. I know it was very recent. Q. Probably the next day, do you think? A.' Probably so. I wouldn’t want to be positive upon that point, but I know it wasn’t long.”

This witness was introduced by, and his testimony constitutes a part of the evidence for, the prosecution. From this evidence it is clear that no attempt was made by the defendant to penetrate the private parts of the complainant.

That the defendant may have been guilty of an assault upon the complainant of a most indecent character may be true, but it matters not how reprehensible his conduct' may have been this court cannot allow a judgment of an attempted rape, to stand against him in the absence of evidence to that effect. If such had been his purpose in this case, nothing intervened to stop him or to prevent his carrying such a design into effect. Take this, in connection with the condition of the private parts of the complainant, as testified to by the physician who examined her at the request of the county attorney, and to our minds there is an utter want of evidence of such an intention to support the charge of attempted rape. We do not desire to be understood as holding that the private parts of the complainant must show injury or penetration in order to constitute an attempt to rape. When the evidence clearly shows such an intention, coupled with an attempt to carry the intention into execution, and if, .for any reason, the defendant is prevented from accomplishing his purpose, then the offense is complete. But there must have been an intention to have carnal intercourse with a female before an attempt to rape can be committed. It is one thing to take indecent liberties with a female. It is entirely another and different thing to attempt to rape her. The strongest view for the prosecution in this case shows indecent familiarities of a reprehensible and infamous character, which cannot be too severely condemned and punished, but this constitutes another and a different offense from that for which defendant was convicted.

For the reasons above given, the case is reversed and remanded, with directions to sustain the objections to the indictment.

BAKER and DOYLE, Judges, concur.


author: DOYLE, Judge.

text:
    Adolpho Arispi v. Territory.
    No. 2188,
    Okla. T.
    Opinion Filed February 22, 1909.
    (99 Pac. 1099.)
    1. APPEAL — Procedure to Perfect. An appeal in a criminal case is perfected by the filing of a petition in error in the office of the clerk of the Criminal Court of Appeals, together with ease-made, or duly authenticated transcript of the judgment and proceedings, attached thereto, together with the notices served upon the clerk of the district court and the prosecuting attorney, or duly authenticated copies in lieu thereof, with proof of the service.
    2. SAME — Notices Necessary. An appeal, when taken by the defendant, is perfected by the service of a notice upon the clerk of the court where the judgment was entered, stating that the appellant appeals from the judgment, and by the service of a similar notice upon the prosecuting attorney. These notices are the prerequisite steps to conferring upon the appellate court the jurisdiction to hear and determine the appeal. •
    3. SAME. An appeal to the 'Criminal Court of Appeals may be taken -by the defendant, as a matter of right, from any judgment against him, but the manner of taking and perfecting such appeal is a proper matter for legislative control, and the appeal must be taken in the manner prescribed by law; and, where the record before this court fails to show notice and proof of service', as required by law, the case wall be dismissed.
    (¡Syllabus by t'he Court.)

      Error from, District Court, Caddo County.

    Adolpho Arispi was convicted of forgery, and brings error..
    Dismissed.

      Chas. West, Atty. Gen., and E. Q. Spilman, Asst. Atty. Gen., for the Territory.
   DOYLE, Judge.

The plaintiff in error, Adolpho Arispi, was prosecuted by indictment, and was tried and convicted of the criminal offense of uttering and passing a forged instrument. At the April, 1907, term of the district court of Caddo county, Okla. T., the jury returned a verdict of guilty, a motion for a new trial was overruled, and on May 8, 1907, the court sentenced the defendant to confinement in the territorial prison for the term of two years at hard labor, and adjudged that he pay the costs of prosecution, to all of which exceptions were allowed. Thereupon the court advised the defendant of his right to an appeal, and fixed bail in the sum of $800, and fixed the time of filing the case-made in the Supreme Court to be within 120 days from the date of judgment. On September 6, 1907, there was filed in the Supreme Court of the territory of Oklahoma his petition in error, together with a statement of the pleadings, orders, and judgment in said case, without a transcript of the evidence taken upon the trial. To this was attached a.defective certificate of the trial judge. Upon the organization of the state the case was duty transferred to the Supreme Court of Oklahoma, and was there pending when this court was created. It was then duty transferred, as by law provided, by the Supreme Court to this court.

There is nothing in the record before this court showing notice to the county clerk of Caddo county, and notice to the county attorney of said county, that the defendant appeals from the judgment 'rendered. Section 5610, Wilson’s Eev. & Ann. St. 1903, provides as follows.:

“An appeal is taken by the service of a notice upon the clerk of the court where the judgment was entered, stating that the appellant appeals from the judgment. If taken by the defendant, a similar notice must be served upon the prosecuting attorney. If taken by the territory, a similar notice must be served upon the defendant, if he can be found in the county; if not, then by posting úp a notice three weeks in the office of the clerk of the district court.”

An appeal may be taken, as a matter of right, by the defendant from any judgment against him, under the provisions of our Criminal Code; but the matter of perfecting an appeal is a matter of statutory regulation. It must be taken in the manner prescribed by law. Sections 5606-5621, art. 16; c. 68 (Procedure — ■ Criminal) Wilson’s Eev. & Ann. St. 1903, prescribes specific and definite rules of practice for taking appeals in criminal cases. So far as appears by tbe record in this case, there has been a failure to comply with these statutory provisions. In order to give this court jurisdiction, notice, as required by the foregoing provision, must be served upon the clerk of the court and the prosecuting attorney. The proof of service and the notices, or a waiver ol the same, should be filed with the record in the appellate court, or, in lieu thereof, there should be filed duly authenticated copies. There is no case in this court upon the record before us, which confers jurisdiction to review the errors set forth in the petition in error.

In the case of Bailey et al v. Territory of Oklahoma, 9 Okla. 461, 60 Pac. 117, Chief Justice Burford, expressing the opinion of the court, in part says:

“'The notice to the clerk of the trial court and to the county-attorney are the prerequisite steps to conferring on this court the jurisdiction to hear and determine the particular cause.”

The Attorney General having filed motion to dismiss the appeal for the reasons hereinbefore stated, we are of opinion that the motion to dismiss the appeal should be sustained.

For the reasons stated, the purported appeal is dismissed at the cost of plaintiff in error.

FUEMAN, Presiding Judge, and BAKEB, Judge, concur.


author: FURMAN, Presiding Judge,

text:
    Ray Reeves v. Territory.
    No. 77.
    Opinion Filed February 23, 1909.
    (99 Pac. 1021.)
    INSTRUCTIONS — Reasonable Doubt. It is error for the court to instruct the jury: “A doubt to justify an acquittal must be a reasonable one — a doubt for which you can give 'a reason — and it must arise from a careful and candid investigation and consideration of all the evidence in the case, or for want of evidence; unless the 'doubt does so arise, it will not be sufficient in law to authorize a verdict of not guilty.”
    (Syllabus by the Court.)

      Appeal from Greer County.

    Ray Reeves was convicted of the rape of a female under the age of 16 years, and appealed to the Supreme Court, whence the cause was transferred to the Criminal Court of Appeals.
    Reversed and a new trial granted.
    .On the 21st day of August, 1907, Ray Reeves (hereinafter called defendant) was indicted by the grand jury of Greer county, charged with the offense of rape upon a female under the age of 16 years, on the 12th of October, 1906. January 2'0, 1908, defendant was placed on trial, and was found guilty. A motion for a new trial was filed and overruled. The court sentenced the defendant to five years’ imprisonment. Defendant brought the case by appeal to the Supreme Court of the.state. Upon .the creation of the Criminal Court of Appeals the case was transferred to this court, as the statute directs.

      B. F. Van <Dyhe, 8. B. Garrett, and J. L. Carpenter, for appellant.

      W. C. Beeves, Asst. Atty. Gen., for the State.
   FURMAN, Presiding Judge,

(after stating the facts as above). Upon the trial of this cause the court instructed the jury •as follows:

“A doubt to justify an acquittal must be a reasonable one- — ■ a doubt for which you can give a reason — and it must arise from a careful and candid' investigation and consideration of all the evidence in the ease, or for want of evidence; and, unless-the doubt does so arise, it will not be sufficient in law to authorize a verdict of' not guilty.”

This instruction has been passed upon by the Supreme Court of the state, in the case of Abbott v. Territory, 20 Okla. 119, 1 Okla. Cr. 1, 94 Pac. 179, 16 L. R. A. (N. S.) 260, and also by this court in the case of Price v. Territory, 1 Okla. Cr. 358, 98 Pac. 447, and in each of these eases it was held to be, error. As this matter was elaborately discussed in the cases above cited, we shall not go over the ground again, further than to say that these eases present our fixed conclusions as to the views therein expressed, and may be considered as decisive of this question.

Another case is pending before us, involving the same questions of law, as are involved in this case, with the exception of the instruction above complained of. As all of these questions of law must be decided in the companion case, it is unnecessary to go over the same questions here.

For error in the instruction- given, the judgment of the lower court is reversed^ and a new trial is granted.

BAKER and DOYLE, Judges, concur.


text:
    Ed. Bartelle et al. v. United States.
    No. 828,
    Ind. T.
    Opinion Filed February 23, 1908.
    (100 Pac. 45).
    FORNICATION — Prejudice and Suspicion — Evidence — insufficiency. When it appears from the record that a verdict is based upon suspicion and prejudice, this court will grant a new trial. For such a case, see opinion.
    (Syllabus by the Court.)

      Appeal from United States Court for the Western District of Indian Territory; Wm. H. II. Clayton, Judge.

    Ed Bartelle and Bertha MeCoy-Bartelle were convicted of 'fornication, and they appeal.
    Reversed with directions.
    On the 2nd day of October, 1906, the grand jury of the United States court, sitting at Wilburton, returned an indictment for fornication against Ed Bartelle and Bertha McCoy-Bartelle, who will hereinafter be called defendants. Being placed upon trial, the defendants were found guilty by the jury, and were sentenced to six months’ imprisonment, each, in the United States jail at Fort Smith, Arkansas. Defendants prosecuted an appeal, and the ease is regularly before this court for review.

      Ilarley & Lewis, for appellants.

      E. G. Spilman, Asst. Atty. Gen., for the United States.
   FURMAN, Presiding Judge,

(after stating the facts - as above.) In this case the defendants did not deny that they were living together as husband and wife. On the contrary, they admitted that such was the case, and proved that they had been regularfy married. The prosecution did not deny this fact, but prosecuted the case upon the ground that Bertha McCoy-Bartelle had negro blood in her veins, and that therefore the marriage was void and presented no defense to the charge of fornication. The case turned upon this question alone.

The first witness was J. W. Larrison. He testified as follows:

“Q. Do you know where Bertha McCoy had lived during the time you have known her? A. .Yes, sir.. Q. Do you know who her associates have been during’that time — whether white people or negro people? A. Well, I have seen b.oth kinds at the house-Q. Do you know whether or not she has associated herself with colored people in South McAlester since you have known her? A. Yes, there has been colored people there around her house, in the same yard. Q. Do you know whether or not colored people have lived in the same house with her? A. I could not say. * * * Q. Well, now as to her appearance. Have you ever seen her when you had an opportunity to observe her color, and her hair and her eyes, etc.? A. No, sir, I couldn’t say that I have. Q. You have never seen her hair? A. No, sir. Q. What is the color of her skin? A. I would call it mulatto. Q’. Has she brown skin? Just describe her appearance. A. Well, if I was going to describe her, I would call her a light-colored mulatto.”

A number of other witnesses were offered for the prosecution, to support the issue that Bertha McCoy-Bartelle had negro blood in her veins, but the above is by far the strongest testimony upon this issue offered in behalf of the prosecution.

The defendants proved that they were legally married, and were living together as husband and wife during the time of the alleged fornication. We shall quote and adopt the following portion of the brief of the Attorney General in this case:

“The verdict of the jury did not have a scintilla "of reliable evidence to support it. The proof in the case consisted of unscientific opinions of ignorant men who worked for a livelihood in and around the territorial courts. The positive statement of Ed Bartelle that he is a French Creole, a native of Martinique, that his mother was a French woman, stands as the only evidence in the case as to his race and blood. It is uncontradicted. The statement of Bertha McCoy-Bartelle that she is a French Creole and Indian-Mississippi Choctaw is the only evidence as to her blood and race. She is uncontradieted. This is not a case for reversal, it is a miscarriage of justice and should be dismissed offhand.”

' It is true that the defendants are poor and humble people, but they are entitled to the protection of the law. This court will never allow a verdict to stand based upon such, alleged evidence as is presented in this record. We shall not dismiss the case, but it is reversed with directions to grant a new trial, and the county attorney of Pittsburg county is directed to dismiss the case unless he can secure evidence to support the indictment.

BAKER and DOYLE, Judges,' concur.


text:
    James H. Fuller v. Territory.
    No. 2161,
    Okla. T.
    Opinion Filed February 23, 1909.
    (99 Pac. 1098.)
    1. FALSE PRETENSES — Indictment — Sufficiency. For sufficient indictment for obtaining money under false pretenses, see opinion.
    2. VENUE — Evidence. Venue need not be proven beyond a reasonable doubt, and may be proven by circumstantial evidence.
    3. APPEAL — Review—Questions of Fact. When there is testimony in the record sustaining the verdict of the jury, this court will ■ not reverse a conviction, although there is also evidence in the record which if believed by the jury would have required an acquittal.
    (Syllabus by the Court.)

      Appeal from District Cowl, Logan Countyj John II. Burford, Jiidge.

    James H. Puller was convicted of obtaining money by false pretenses, and he appeals..
    Affirmed.-
    On the 5th day of November, 1906, James H. Puller (hereinafter called defendant) was indicted in the district court of Logan county for the offense of obtaining money under false pretenses. Being found guilty by the- jury, and sentenced by the court to imprisonment in the penitentiary for the period of one year, the defendant prosecuted this appeal. .

      T. S. Jones and F. M. Cow gill, for plaintiff in error.—
    On sufficiency of indictment: Holt v. Territory, 4 Olda. 76; Com. v. Boynton, 12 Cush. 499; State v. Daniels. 58 N. W. 891; Com. v. Dean, 110 Mass. 64; People v. Enoch, 13 Wend. 159; Moline v. State, 93 N. W. 228; People v. Brown, 38 N. W. 916; Campbell v. State, 154 Ind. 309; State, v. Philbrich, 31 Me. 401; State v. Miller, 153 Ind. 229; May v. State, 13 S. W. 787; State v. Lathrop, 15 Vt. 2'79; Moulie v. State, 20 So. 554; State v. Blizzard, 17 Atl. 270.

      W. O. Cromwell, Atty. Gen., and Thos. B. Clift, for the Territory.—
    On sufficiency of indictment: Perkins v. Territory, 10 Olda. 506; State v. Knowlton, (Wash.) 39 Pac. 966; People v. Skidmore, 123 Cal. 267; Britt v. State, 9 Humph. (Tenn.) 42; 2 Wharton’s Grim. Law, §§ 2139-2160.
   FURMAN, Presiding Judge,

(after stating the facts as above). First. The defendant assails the sufficiency of the indictment, the charging part of which is as follows:

“ * * * That one James H. Fuller on the 18th of .September, in the year of our Lord, one thousand nine hundred and five, in the said county of Logan, territory of Oklahoma, and then and there being, did then and there unlawfully, designedly, fraudulently and feloniously obtain from one F. L. Williams the sum of three hundred dollars ($300), in good and lawful money of the United States, by then and there falsely, designedly, fraudulently and feloniously representing to him the said F. L. Williams that he the said John H. Fuller was then and there the owner of one team of black mules, six (6) years old; one team of mares, seven and eight years old; ten cows and six two-year old steers, on which said above set out mules, mares, cows, and' steers, he the said James H. Fuller then and there gave to the said F. L. Williams a chattel mortgage to secure the payment of the said three hundred dollars ($300.00), so, as aforesaid, obtained from him the said F. L. Williams by him the said James H. Fuller, when in truth and in fact he the said James H. Fuller was not the owner of the above described team of black mules, the said team of mares, the said ten cows or the said six two-year old steers, as lie, the said James II. Fuller, then and there well knew; that he the said F. L. Williams, relying on the representations o£ him, the said James EL Fuller, that he was the owner of the above described property, and believing said representations to be true, was induced to and did loan to him the said James EL Fuller, the said sum of three hundred dollars ($300.00), as aforesaid, and did take the said security on the above described property, as aforesaid, for the payment of said three hundred dollars, which said representations on the part of him, the said James II. Fuller, were then and there made with the intent to cheat, wrong and defraud the said F. L. Williams out of the said sum of three hundred dollars ($300.00), as aforesaid; contrary to the statute in such case made and provided and against the peace and dignity of the territory of Oklahoma.”

In the case of Taylor v. Territory, ante, p. 1, 99 Pac. 628, it was held that the indictment was fatally defective because it failed to allege that the false pretenses set forth were relied upon by the complainant, -or that he was thereby induced to 'make the loan when so made. This defect is fully cured in the indictment now before us. It is alleged in direct language that the complainant did rely upon the false representations made by the defendant, and, believing said representations to be true, was induced to and did loan to defendant the amount of money stated in the indictment. The indictment alleges every element necessary, to constitute the crime under our statute. As stated in the Taylor Case, these elements are:

“First, a false representation as to an existing fact; second, a reliance on that representation as true; third, it must be the moving cause which induced the owner to part with bis property.”

The indictment is not open to the objections urged against it, and there was no errdr in the ruling of the trial court.

Second. Defendant contends that venue was not proven in this case. Venue may be proven by circumstantial evidence, and it is not necessary to prove it beyond a reasonable doubt. The complainant testified that he lived and had an abstract and loan office in Guthrie, and that the money was obtained from him about the 18th of September, 1905. Defendant at the time stated to complainant that the animals were on the farm of defendant, eight or ten miles west of Guthrie. We have repeatedly announced that courts in this state take judicial notice of the boundary .lines of counties. The defendant testified that at the time of this transaction he was living in Logan county, west of Guthrie. He admitted getting money from complainant. This evidence is suffix cient to sustain the venue of the case.

Third. It is contended that the evidence does not sustain the verdict. The testimony for the territory made a case against the defendant. The testimony for the defense, if true, should have resulted in an acquittal. The witnesses were all before the jury, who were in a much 'better position to settle the question of1 credibility than this court is. In view of the evidence in the record, we cannot disturb the verdict of the jury upon the ground that it is not supported by the evidence.

The judgment of the lower court is therefore in all things affirmed.

BAKER and DOYLE, Judges, concur.


author: DOYLE, Judge,

text:
    C. N. Shires v. State.
    No. 256.
    Opinion Filed February 24, 1909.
    (99 Pac. 1100.)
    1. EVIDENCE — Confessions—Independent Proof of Corpus Delictii In a criminal case, a conviction cannot be had on the extrajudicial confessions of the defendant, without evidence aliunde of .the corpus delicti, but direct and positive proof of that fact is not indispensable.
    2. TRIAL — Province of Judge and Jury — Sufficiency of Evidence. The sufficiency of the evidence to show the commission of the crime and the guilt of the defendant is not a question for the discretion of the court upon a demurrer to the evidence. If there is any evidence to show these facts it is a question of fact for the jury to decide.

      3. SAME. The conclusiveness of the facts and circumstances as v shown by the evidence in corroboration of the voluntary confessions of the denfendant is not for the court to determine. The court is only concerned in seeing that improper evidence does not go to the jury, and that they are properly instructed on the law of the case.
    4. SAME — Advising Jury to Acquit. When the evidence is closed, if the court deems it insufficient to warrant a conviction, it may advise a jury to acquit the defendant.
    5. CRIMINAL LAW — Definition of Offenses — Common Law. The definition of an act made an offense by statute, but not defined by it, may be ascertained by reference to common law.
    6. TRIAL — Reopening Case — Discretion of Court. When the prosecution rests, and then immediately requests that the case be reopened for the purpose of introducing additional testimony, the granting of the request is a matter wholly in the discretion of the court, and error cannot be predicated thereon.
    (Syllabus by the Court.)

      'Error from District Court, Custer County; James B. Tolbert, Judge.

    C. N. Shires was convicted of stealing mules, and he brought error to the Supreme Court, whence the cause is transferred to the Criminal Court of Appeals.
    Affirmed.
    • C. N. Shires, plaintiff in error (hereinafter designated as defendant), was indicted at the October term, 1908, of the district court in and for Custer county, Oírla. T. The charging part of the indictment reads as follows:
    “That C. N. Shires, late of the county aforesaid on the 17th day of Juty, in the year of our Lord one thousand nine hundred and six, in the county of Custer, territory of Oklahoma aforesaid, did unlawfully, willfully, and feloniousty, by stealth and fraud, steal, take and carry away from and out of the possession of one John F. Reagan, without the consent of him, the said John F. Reagan, one black horse mule, and one brown horse mule, both branded fC’ on left jaw, and of the total value of four hundred dollars ($400.00), the same being then and there the personal property of him, the said John F. Reagan, with the felonious intent then and there to permanently deprive him, the said John F. Reagan, of said property and possession thereof, and with the felonious intent then and there to convert the same to the permanent use and benefit of himself, the said 'C. N. Shires, contrary to the form of the statute in such case made and provided; and against the peace and dignity of the territory oE Oklahoma.”
    Defendant was duly arraigned, and on October 5, 1906, entered a plea of not guilty. At the March, 1908, term of the district court of Custer county, Oída., a trial was had, and on March 19, 1908, the jury returned a verdict of guilty. On the 23d day of March, 1908, having overruled the motion for a new trial, the court sentenced defendant to confinement in the state prison for a term of five years. On June 1, 1908, defendant perfected his appeal by filing in the Supreme Court of the state of Oklahoma his petition in error and case-made, which' appeal was -there pending when this court was created. It was then duly transferred, as by law provided, by the Supreme Court to the Criminal Court of Appeals, and is now before this court for review on the sole question that the verdict is not supported by sufficient evidence and is contrary to law..
    The testimony adduced on the trial shows that defendant was arrested July -21, 1906, at .Frederick, Okla., four days after the date of the theft, as alleged in the indictment. At that time he was going under the assumed name of Giles, and was offering the mules in question for sale at public auction. Four witnesses testified on the part of the prosecution.
    The testimony of the witness, II. L. Carter, is in part as follows :
    “Q. State to the jury, if you can, what he was doing at that time. A. Do you want me to state how I first met him, and what called my attention to him? Q. Yes, sir; you may do that. A. Well, they were selling a span of mules there at Frederick at public auction, and at that time I was buying and selling— By Counsel for Defendant: Objection to anything he was doing. A. Well, I went and looked at those mules to bid on them, and 1 inquired who the owner was from the man that was auctioning them off, and he looked around some little bit before he pointed him out to me. * * * The auctioneer pointed this man out here as llie man that owned the mules; and I went to him, and-inquired about the mules before I bid on.them, and talked to him a little bit, and from his answers ! decided that the mules were stolen. * * * I asked him about the mules being sound;-and asked him where the mules were from. He told me he got them across the river south in Texas; and I asked him where the mules was raised. He told me they were raised in ITilL county,' Tex. I asked him who raised them there, that I was born and 'raised there, and I asked him who raised, them there; and his answer was that that was what the man told me, ‘a little town across the river/ And I asked him what- town, and he could not give me the name of the town. And f asked him then where he lived, and he told me in Wilbarger county. I asked him if he was acquainted at Yernon and he said he was; and 1 asked him if there was any one there he could give as reference in regard to the title of these mules. He at first said he could, and I left him and sent a party to the justice of the peace to.get me a John Doe warrant for this man, and went and notified the man that I had the highest bid on the mules — 1 think it was $260 or $270. * * * After the mules were knocked off while I was waiting for this warrant, I talked to F. Carter, the present sheriff of Tillman county. He carried the mules up to the wagon yard. They were hitched to a wagon. And I summoned F. Carter to go with me up there and arrest this man, and 1 went to him in the wagon yard after they had taken the mules out of the harness, and this defend^ ant had given me at the time, ! believe, the name of Giles. I am not sure about the name he first gave me. but ! think it was Giles. I went to him and arrested him, and told him that I was an officer and from the investigation that the title to the mules did not look right, and, if he knew parties there at Yernon, that he could call up. that I was well acquainted at Yernon, acquainted with the sheriff and most of the citizens there) and he could go and call up any one that he knew, and have them talk to me over the telephone so that 1 could satisfy myself he could go ahead with the mules, otherwise I was going to place him under arrest. He told me at first he would do this, but never could decide on any one or tell me any name of any party to call up there, and did not go. We placed him under arrest and on searching him found a little memorandum book that he had and found— (Objection.) By the Court: State what you found on him. A. Found papers showing— By the Court: Sustained as to what they contained. * * * A. I told the defendant I was satisfied the name he had given me was not bis right name, and to save me further trouble, as we were 50 miles from the county seat, and had no jail at our town, to save himself trouble and me, that if he would tell me where these mules belonged — in this connection I had warned him I was an officer — and if he wanted to tell me the straight tale about the case, the evidence could be used for or against him in case he was tried, and he went ahead and told me that his name ivas C. N. Shires and that he had stolen these mules from a camp. 1 do not know whether there was two or three wagons — camp near Clinton, Oklahoma; and I went with him to a phone office and called the sheriff of Custer county to find out if these mules were stolen, and we got a phone message some time two or three or four hours afterwards from Davis that these mules — (Objected to by counsel for defendant. By the court sustained.) A. Well, I held the mules and held Shires until Davis and his deputy came down after him and the mules. I turned Shires and the mules over to Davis, and he paid me the reward that he had offered.”
    He further testified they were brown or black mules, were both branded “C” on the jaw, and were of the value of from $325 to $375.
    The witness F. C. Carter testifies as to the description of the mules; that he was present when the admissions were made by defendant to the witness H. L. Carter; that said admissions were made voluntarily by defendant; that at present witness is sheriff of Tillman county, but at that time he was not an officer.
    The witness Barney Davis testified, in part, as follows: That at that time he was sheriff of Custer county. That he arrested the defendant July, 1906, at Frederick, about 100 miles south of Clinton. That he was acquainted with John F. Beagan, the owner of the mules, and saw him in possession of the mules during the months of June and July, 1906, at Clinton, in Custer county, Okla. That one was a brown and one a black mule, both branded “C” on the left jaw. That John F. Beagan drove the anules, called them his mules, and had offered to trade or sell them. That at that time Beagan was running with a harvester and threshing outfit. That, while bringing defendant and the mules back to Clinton by wagon road, defendant voluntarily made the statements without any promise lield out. or inducements of any kind, that he got the mules east of Clinton on the bottom. That he went east on the section line from where he got the mules and a mile north and a mile back west, and then through Arapaho by the Methodist Church, then east to Weatherford, then south from Weatherford. Defendant said that somebody was camped there on the bottom on the road that had a team of horses and the mules, and they 'turned the horses loose and took the mules. Witness learned the next morning after they were stolen that the mules were gone. It was shown by the cross-examination of this witness that the defendant escaped from the Custer county jail in October ; that witness re-arrested him at Quanah, Tex., and returned him to the Custer county jail. ■ ' .

      J. W. Copely testified in part as follows: That he was the deputy sheriff of Custer county, and went with Sheriff Davis to Frederick to get defendant and the team of mules reported to be stolen from his county.
    “Q. State what you did with the mules and Shires. A. On the night of the 23d, I believe it was, we turned the mules over to Mr. Reagan at Clinton in the Taylor, wagon yard there. We was on the road home with Shires and the mules. We brought Shires home and put him in jail here at Arapaho. Q. Did Shires make any statements to you or in your presence with reference to the mules? A. Yes, sir. Q. [ will ask you, Mr. Copely, if you informed this defendant that you were an officer, if he knew you were an officer at the time ? A. I do not know that he heard any more than I was with the sheriff and we had charge of him. Q. Did you make an offer or inducement to him to make statements regarding these mules. A. No, sir. Q. Did you make any threats or hold out any fears as to what would be the result if he did not tell about them? A. No, sir. Q. Mr. Copely, were all the statements made to you by this defendant made by him voluntarily? A. Yes, sir. Q. You may state to the jury what, if anything, he said to you about where he got these mules, or anything about them. A. He said he got these mules down here by Clinton, and that he brought them through Arapaho in the — and, if I remember right, that he come through by the church house to keep out of the main part of town, and that he got into Weatherford the next morning after be stole the mules in the night, and he 'had left the wagon somewhere in town, and anyway the statement tti me was that he took these mules into an old wagon yard that was not used by anybody, and put them where no one would see them; that on in the day some time he hooked them on to his wagon and drove out, and he told me in the day some time he went through the little town of Eoosevelt down here; that the reason he come through Arapaho there was. a show in Clinton, and he thought the show was coming here, and would put his mule tracks out so they could not be trailed by an officer. Q. I will ask you to state what, if anything, this defendant said at Frederick in reference to what his name was. A. If I remember right, I believe it was Giles that he said his name was at first, and later on he said his name was Shires. * * * By the Court: Who is this man Eeagan that you turned these mules over to? A. The man who owned the mules. Q. What was his initials? A. ‘R. Fd I believe it was, I was not acquainted with him. * * * Q. 1 believe .you said he claimed he stole them in Custer county? A. Yes, sir.”
    Defendant demurred to the evidence submitted by the prosecution. The demurrer was overruled, and exception allowed. There were no witnesses sworn or testimony offered on the part oE the defendant.

      J. C. Caldwell and Geo. T. Webster, for plaintiff in error.—
    On question of necessary proof of ownership and non-consent to taking: Underhill on Crim. Ev., p. 354, et seq; State v. Tyler, 15 Kan. 420; State v. Storts, (Mo.) 39 S. W. 483; Garda v. State, £'6 Tex. 209; Slate v. Osborn, 2'8 Iowa,.9; State v. Morey, 2 Wis. 494; Wilson v. State, 45 Tex. 76; Ciarle v. State, 29 Tex. App. 737.

      Chas. West, Atty. Gen., and E. Q: Spilman, Asst. Attv..Gen., for the State.
   DOYLE, Judge,

(after stating the facts as above). The first assignment of the petition is that the court erred in overruling the demurrer of defendant to the evidence offered by the state, and it is urged by counsel for defendant that the evidence is wholly insufficient to support the verdict. In the argument of this proposition it is claimed by defendant that there was no competent evidence offered that John F. Reagan was the owner of the mules, and that there was no evidence offered that the mules were taken without John F. Reagan’s consent, except the admissions as made by defendant.

If we except a few English cases, the authorities are uniform in maintaining the principle that a conviction should not be had on extrajudicial confessions of the defendant unsupported by corroborating facts and circumstances. Proof aliunde of the corpus delicti is required. -While great caution, founded on experience in the administration of the criminal law, should be observed, that a person charged may not be punished for an alleged crime not actually committed, direct and positive, evidence of the corpus delicti is not indispensable. Like any other fact, the subject of judicial investigation, it may be proved by circumstantial evidence. George v. U. S., 1 Okla. Cr. 307, 97 Pac. 1052; Winslow v. State, 76 Ala. 42; McClain on Crim. Law, § 612; 1 Bishop’s Crim. Proc. § 1057; 3 Greenl. on Ev. § 30.

In George v. United States, supra, this court said:

“In many and perhaps most cases, to support a conviction, direct proof that the property was feloniously taken from tire person named in the indictment as the owner is necessary. Yet it is not essential in all cases that there should be any direct evidence upon this point. The application of the rule must always depend upon the facts, of the case. Appellate courts should carefully consider and g.uard against so constructing the law that a proper rule of evidence would be perverted into a means of escape from the merited punishment of an offender.”

Under the provisions of our Criminal Code domestic animals as named in the act of 1895 (chapter 20, p. 104, art. 1, § 1, Sess. Laws Olda. 1895) are the subject of larceny if taken under such circumstances as would constitute grand larceny at common law, and the indictment or information need not allege the taking to be against the will of the owner and nonconsent is not necessary to be averred. It is therefore not necessary to prove. Consent' of the owner would be simply a matter of defense.; the maximum penalty being' 10 years. However, under the language of this act, the intent to deprive the owner thereof and to convert the same to his (the taker’s) own use must be alleged and proved. Hughes v. Territory, 8 Okla. 28, 56 Pac. 708; Sullivan v. Territory of Okla., 8 Okla. 499, 58 Pac. 650. A reference to the in-, dictment will show that in this case, although the charge is alone the stealing of animals, it appears the prosecuting attorney in drawing the indictment included allegations of nonconsent to the taking, and that they were taken “with the felonious intent to deprive the owner thereof, and to convert the same to his (the taker’s) own use.” The crime of larceny under the general statute of 1893 is defined as follows (section 2465, Wilson’s Kev. & Ann. St. 1903) : “Larceny is the taking of personal property accompanied by fraud or stealth, and with the intent to deprive another thereof” — the maximum penalty being five years. Thus it will be seen that the Legislature in defining the offense has modified the meaning of the word “larceny” as used at common law; so that the taking of personal property accompanied by fraud or stealth, and with intent to deprive another thereof, is larceny, regardless of whether or not it was taken for the purpose of depriving the owner thereof, or for the purpose of converting it to the use of the taker. The charge contained in the indictment in this case is somewhat redundant. It appears that the pleader intended to charge the offense of larceny under the Act of 1895, but the court properly held that the offense as charged was a violation of the general statute.' Under any view of the case, we are of opinion that the court properly overruled the demurrer to the evidence. The facts and circumstances proved! sufficiently "corroborate the voluntary confessions of the defendant to make sufficiency of the proof a question for the jury alone. The proper practice under our procedure where there is .any evidence that the crime has been committed, and that it has been committed by the accused, and by none other, is to move the court to direct a verdict on the ground that the evidence is .insufficient to warrant a conviction.

Under the 'provisions of section 5509 (Wilson’s Rev. & Ann. St. 1903), in any event, the sufficiency of the evidence is a question for the jury, and not for the court. In this case we believe the evidence is sufficient to sustain the verdict. The facts and circumstances proved show that the larceny charged was committed, and that John F. Reagan was the owner of the stolen mules. At that time he was near Clinton with a threshing outfit, and the stolen mules were returned to him by the sheriff in the presence of the defendant. It is argued that the testimony of the witness Copely shows that the mules were delivered to R. F. Reagan, and that this is a fatal variance. This objection is not well taken Under the provisions of our Criminal Code the question of ownership in cases of larceny is of much less importance than it was under the common law. Section' 5362 (Wilson’s Rev. & Ann. St. 1903) provides as follows:

“When an offense involves the commission of an attempt to commit a private injury, and is described with sufficient certainty in other respects to identfy the act, an erroneous allegation as to the person injured,' or intended to be injured is not material.”

Martin v. Territory of Okla., 4 Okla. 105, 43 Pac. 1067; Hurst v. Territory of Okla., 16 Okla. 600, 86 Pac. 280. The record shows that three days after the theft the defendant was found in the possession of the mules 100 miles from where they were stolen, and was then trying to sell them. _ The reward was paid, and the mules returned to the owner, at Clinton, in defendant’s presence. He makes several voluntary confessions describing Avhere he took the mules from, and how he concealed the stolen property to avoid detection, and how he traveled in going to the place where he was apprehended. Under such circumstances Prof. Greenleaf says:

“It is generally agreed that deliberate confessions of guilt are among the most effectual proofs of the law.” (1 G-reenl. on Ev. par. 215.)

We believe that the evidence is far from insufficient. It is ample to show ownership, nonconsent, felonious taking, and. intent, value, and venue, and supports each allegation of the indictment — this in addition to the voluntary confessions of the defendant. Therefore we have no hesitancy in saying that the facts and circumstances thus shown prove the commission of the crime, and carry conviction of the defendant’s guilt.

The instructions given by the court are eommendably complete, and fully, fairly, and correctly state the law on every feature of the case. No other instructions were requested, and no objection was made to the instructions as given. Objection is made, and it is assigned as error, that the state, having rested its case on the evidence, immediately requested that the case be reopened for the purpose of permitting the state to introduce additional testimon}'- as to the ownership of the mules. The court granted this request, and the testimony was offered over the objection of the defendant. This was a matter wholly in the discretion of the trial court, and error cannot be predicated thereon. Having carefully examine’d the entire record, we find no prejudicial error therein. Upon this record a fair and impartial trial was had, and no mistake was made in convicting the defendant.

The judgment of the district court of Ouster county is hereby affirmed, and the court below is directed to proceed; without delay, to carise the judgment and sentence to be carried into execution.

FURMAN, PRESIDING Judge, and BAKER, Judge, concur


author: FURMAN, .Presiding Judge,

text:
      Ex parte M. J. Wade.
    No. A-98.
    Opinion Filed March 3, 1909.
    (100 Pac. 35.)
    1. JURISDICTION — Misdemeanors—Transfer of Causes.. The act of the (Legislature of 1907-08 (Sess. Laws 1907-08, p. 210, c. .16), empowering grand juries to investigate, and return indictments for misdemeanors, and directing the judge of the district court in which such indictments are returned to order them transferred to such inferior courts as may have jurisdiction to try the offenses charged therein, is not in conflict with any provision of our Constitution, and such indictments may be found by the grand juries and transferred to the ■ courts having jurisdiction thereof as directed hi the statute.
    2. SAME — Scope of District Court’s Power. When a grand jury returns into a district” court an indictment for a misdemeanor, the district court is without jjower 'to issue a warrant for the arre'st of the defendant upon such indictment. The power of the district court is limited to making an order directing the transfer of such case to the court having jurisdiction thereof. The warrant of arrest must be issued by the court to which the case is transferred.
    3. WORDS AND PHRASES — “Jurisdiction.” “Jurisdiction,” when applied to courts, is defined to be the power to hear and determine a cause.
    (Syllabus by the Court.)
    Original petition lor habeas corpus by M. J. Wade.
    Writ denied.
    On the 20th of February, 1909, M. J. Wade (hereinafter called defendant) filed in this court the following petition for a writ of habeas corpus-.

    “Your petitioner, ,M. J. Wade, a resident and citizen of Wagoner county, Okla., respectfully represents to this honorable court: That sbe is restrained of her liberty and is unlawfully imprisoned in the county jail of Wagoner county, Okla., by Luther Opry, sheriff of Wagoner county, Okla. That the cause of her restraint, according to the best knowledge and belief of your petitioner, is as follows: That on, to wit, January 11, 1909, the district court of Wagoner county, Third judicial district of Oklahoma, selected a grand jury of 12 men, who were then and there impaneled and sworn to hear, investigate, and determine such matters as might come before them. That on, to wit, January 20, 1909, said grand jury returned into open court in said district court, among other indictments, 19 indictments against your petitioner charging her with the sale of intoxicating liquors at various times within the county and state aforesaid, said indictments being numbered: 138, 139, 140, 141, 142, 143, 144, 145, 146, 147, 148 , 149, 150 , 151, 152. 153, 154, 155, 156. That thereupon said district court ordered that a warrant issue for said M. J. Wade upon each of said indictments, which warrants wrere then and there issued bv A. L. Snyder, clerk of said district court as directed and ordered by said district court, by reason of which warrants thus issued by the clerk of the district court as aforesaid, your petitioner has been arrested and has been and is now confined in the jail of Wagoner county, Okla., by the said sheriff. That on January 20, 1909, said district court of Wagoner county made and entered in said cases and each of them the following order, to wit: 'State of Oklahoma v. M. J. Wade. TJpon motion of the county attorney this case is ordered transferred to the county court of Wagoner county. Okla. Papers transferred.’ That under and by virtue of said order off the district court made and entered as aforesaid, each and every one of the indictments found and returned by the grand jury as aforesaid and numbered 138 and 156, inclusive, and all the papers and proceedings therein, were transferred to the county court of Wagoner county, Okla., and filed therein on February 6, 1909, and numbered upon the criminal docket of said county court 211, 212, 213, 214, 215, 216, 217, 218, 219, 220, 221, 222, 223, 224, 225 , 226,2'27 , 228, 229. That the transcripts in all of said cases are identical, except as to number, and your petitioner hereto áttaches a certified copy of the transcript in case numbered on the criminal docket of the county court of Wagoner county 211, marked petitioner’s 'Exhibit A.’, and asks that the same may be taken and considered as a part of this petition.
    ''Your petitioner respectfully shows to the court and here charges that said restraint is illegal and unauthorized in law for the reasons following, to wit: First. The Constitution of the state of Oklahoma, in section 18, article 2’, limits the power of the grand jury to investigating and returning indictments for all characters and grades of crimes, but does not empower it to return indictments in misdemeanor cases of selling and furnishing intoxicating liquors. Second. Said district court is entirely without jurisdiction to receive said indictments, to order said warrants to be issued for the arrest of your petitioner, to issue said warrants, or to make said order transferring the prosecution from the district court to the county court for the reason that the Constitution of the state of Oklahoma in section 12', article 7 thereof (Bunn’s Ed. § 183), expressly provides: ‘The county court shall have jurisdiction concurrent with justices of the peace in misdemeanor cases, and exclusive jurisdiction in all misdemeanor cases of which justices of the peace have not jurisdiction.’ And said Constitution further provides in section 10, article 7 (Bunn’s Ed. § 180), that: ‘The district court shall have original jurisdiction in all cases, civil and criminal, except where exclusive jurisdiction is by this Constitution, or by law, conferred on some other court.’ And therefore your petitioner charges that said indictments are illegal, that said warrants are void, that your petitioner is wrongfully and unlawfully imprisoned- and restrained of her liberty in violation of the Constitution of the state of Oklahoma. A certified copy of said warrant is hereto attached, marked petitioner’s ‘Exhibit B,’ and made a part hereof. Wherefore your petitioner prays this honorable court to grant her a writ of habeas corpus and that she be discharged without delay from said unlawful imprisonment.”
    The petition for the writ of habeas corpus is properly supported by accompanying affidavits and exhibits.

      Robert F. Blair, for petitioner.

      Fred 8. Caldwell, for the State.
    No briefs reached the reporter.
   FURMAN, .Presiding Judge,

(after stating the facts as above). First. Counsel for the defendant calls in question the constitutionality of the act of the Legislature of 1907-08, which empowers and authorizes the grand juries to investigate all felonies and misdemeanors committed in their respective jurisdictions, and which directs the judge of the district court to transfer misdemeanor indictments, so presented, to the court having jurisdiction to try the offenses named therein, which is as follows:

“Section 1. The grand jury of each conntv in the state is hereby'- empowered and authorizéd to investigate all felonies and misdemeanors committed in their respective jurisdictions; and upon the filing of an indictment in the district court or any indictment returned since November 16, 1907, and prior to the passage of this act, which charges an offense over which such court has no jurisdiction, the judge of such court shall immediately, or as soon as convenient, make an order transferring the same to such inferior court as may have jurisdiction to try the offense therein charged, stating in such order the cause transferred, and to what court transferred.
“See. 2. It shall be the duty of the clerk of the district court without delay, to deliver the indictment in all cases transferred together with all the papers relating to each case, to the proper court or justice of the peace, as directed in the order of transfer; and he shall accompany each ease with a certified copy of all the proceedings taken «therein in the district court, and also with a bill of the costs that have accrued therein in the district court, and the said costs shall be collected in the court in which said cause is tried, in the same manner as other costs are collected in criminal cases.
“Sec. 3. All cases transferred from the district court shall be entered upon the docket of the court to which they are transferred, and all process thereon shall be issued, and the defendant tried in the same manner as if the cause had originated in the court to which they have been transferred.” (Sess. Laws 1907-08, pp. 210, 211, c. 16.)

If the portions of the Constitution which are quoted in the petition for the writ of habeas corpus constituted all that the Constitution contains rvith reference to this matter, then beyond question counsel for the defendant would be correct in his contention; but the portions of the Constitution cited and relied upon by counsel must be considered in 'connection with sections 26 and 27 of the Bill of Bights (Bunn’s Ed.), which are as follows:

“Sec. 26. No person shall be prosecuted criminally in courts of record for felony or misdemeanor otherwise than by presentment or indictment or by information. No person shall be prosecuted for a felony by information without having had a preliminary examination before an examining magistrate, or having waived sueli preliminary examination. Prosecutions may be instituted in courts not of record upon a duly verified complaint.
“Sec. 27. A grand jury shall be composed of twelve men, any nine of which concurring may find an indictment or true bill. A grand jurjr shall be convened upon the order of a judge of a court having the power to try and determine felonies, 'upon his own .motion; or such grand jury shall be ordered by such judge upon the filing of a petition therefor signed by one hundred resident taxpayers of the county; when so assembled such grand jury shall have power to investigate and return indictments for all character and grades of crime, and such other powers as the Legislature may prescribe: Provided, that the Legislature may make the calling of a grand jury compulsory/’

The general rules to be applied in the construction of a provision of a state Constitution are well expressed on page 730, vol. 8 of Cyc., as follows:

“(B) To be ascertained from whole instrument: The whole instrument is to be examined with a view to ascertaining the meaning of each and every part. The presumption and legal intendment is that each and every clause in a written Constitution has been inserted for some useful purpose, and therefore the instrument must be construed as a whole in order that its intent and general purposes may be ascertained; and as a necessary result of this rule it follows that wherever it is possible to do so each provision must be construed so that it shall harmonize with all others, without destroying the meaning of any of such provisions, to the end that the intent of the framers may be ascertained and carried out and effect given to the instrument as a whole.”

It will be observed that the provisions of the Constitution relied upon by counsel for the defendant are taken from that part which prescribes the powers of the various departments of state, while the provisions relating to the grand jury and its powers are contained in the Bill of Rights. Touching this matter, the Supreme Court of Alabama, in the case of In re Dosey, said:

“The Declaration of Rights is the governing and controlling part'of the Constitution, and all of its general powers are to be expounded and their operation extended or restrained with reference to it.” (7 Port. [Ala.] 293.)

Even if there was a conflict between the provisions of the Bill of Rights and the general provisions of the Constitution, we would construe the general provisions in the light of the declarations contained in the Bill of Rights; but, as we understand it, there is no such conflict. It is true that county courts are given exclusive jurisdiction in all misdemeanor cases of which justices of the peace have no jurisdiction. The assumed conflict rests upon the meaning of the word “jurisdiction.”

“Jurisdiction. The power and authority constitutionally conferred upon (or constitutionally recognized as existing in) a court of judge to pronounce the sentence of the law, or to award the remedies provided by law, upon a state of facts, proved or admitted, referred to the tribunals for decision, and in favor of or against persons (or a res) who present themselves, or who are brought, before the court in some manner sanctioned by law as proper and sufficient. 1 Black, Judgm. § 215.
“Jurisdiction is a power constitutionally conferred upon a judge or magistrate to take cognizance of the determined causes according to law, and to carry his sentence into execution. Worcester v. Georgia, 6 Pet. 591, 8 L. Ed. 483; In re Ferguson, 9 Johns. (N. Y.) 239; Johnson v. Jones, 2 Neb. 135.
“The authority of a court as distinguished from the other departments; judicial power considered with reference to its scope and extent, as respects the questions and persons subject to it; power given by law to hear and decide controversies. Abbott.
“Jurisdiction is the power to hear and determine the subject-matter in controversy between parties to the suit; to adjudicate or exercise any judicial power over them. Rhode Island v. Massachusetts, 12 Pet. 657, 9 L. Ed. 1233.
“Jurisdiction is the power to hear and determine a cause; the authority by which judicial officers take cognizance of and decide causes. City of Brownsville v. Basse, 43 Tex. 440.”

Black’s Law Dictionary, p. 663.

“Jurisdiction (Lat. jus, law, dicere., to say.) The authority by which judicial officers take cognizance of and decide causes. Power to hear and determine a cause. Parker v. Wallace, 3 Ohio, 494; Worcester v. Georgia, 6 Pet. 591, 8 L. Ed. 483. The right of a judge to pronounce a sentence of the law, on a case or issue before him, acquired through due process of law. It includes power to enforce the execution of what is decreed. In re Ferguson, 9 Johns. (N. Y.) 239; Hopkins v. Commonwealth, 3 Metc. (Mass.) 460; Commonwealth v. Curtis, Thacher, Cr. Cas. (Mass.) 202.” (Bouvier’s Law Dictionary, vol. 2, p. 26.)
“The term ‘jurisdiction/ when confined to the judicial department of the government, means the legal authority to administer justice. Holmes v. Campbell, 12 Minn. 221, 227 (Gil. 141, 146.)” (Words & Phrases Judicially Defined, vol. 4, p. 3877.)
“Chief Justice Shaw said: ‘To have jurisdiction is to have power to inquire into the facts and apply the law.' Robertson v. State, 109 Ind. 79, 10 N. E. 582, 643; citing Hopkins v. Commonwealth, 44 Mass. (3 Metc.) 460.” (Words & Phrases Judicially Defined, vol. 4, p. 3877.)
“Jurisdiction is the power to decide. Yates v. Lansing, 9 Johns. (N. Y.) 395, 413, 6 Am. Dec. 290.” (Words & Phrases Judicially Defined, vol. 4, p. 3877.)
“Jurisdiction, when applied to courts, is defined to be the power to hear and determine a cause. Wightman v. Karsner, 20 Ala. 446, 451; Pullman Palace Car Co. v. Harrison, 122 Ala. 149, 25 South. 694, 697, 82 Am. St. Rep. 68; In re Greenough St., 169 Pa. 210, 32 Atl. 427, 428; State v. Wakefield, 60 Vt. 618, 15 Atl. 181, 183; Bassick Min. Co. v. Schoolfield, 10 Colo. 46, 14 Pac. 65, 67; Whipple v. Stevenson, 25 Colo. 447, 55 Pac. 188, 190; People v. McKane, 78 Hun, 154, 28 N. Y. Supp. 981, 982; People v. Murray Hill Bank, 10 App. Div. 328, 41 N. Y. Supp. 804, 805; Chicago Title & Trust Company v. Brown, 183 Ill. 42, 55 N. E. 632, 633, 47 L. R. A. 798; People v. Talmadge, 194 Ill. 67, 61 N. E. 1049, 1050; Ginn v. Rogers, 9 Ill. (4 Gilman) 131, 134; Peak v. People, 71 Ill. 278, 279; Fleischman v. Walker, 91 Ill. 318, 321; Montour v. Purdy, 11 Minn. 384, 404 (Gil. 278, 297), 83 Am. Dec. 88; Fitzpatrick v. Simmons Bros. Mfg. Co., 86 Minn. 140, 90 N. W. 378, 380; State v, Matter, 78 Minn. 377, 81 N. W. 9, 10; Cason v. Harrison, 35 N. E. 268, 270, 135 Ind. 330; Spencer v. Spencer, 31 Ind. App. 321, 99 Am. St. Rep. 260, 67 N. E. 1018, 1921; State v. Osborn, 155 Ind. 385. 58 N. E. 491, 493; State v. Sheriff of Middlesex, 15 N. J. Law, (3 J. S. Green) 68, 85; Parker v. Lynch, 7 Okla. 631, 56 Pac. 1082, 1088; North Bloomfield Gravel Min. Co. v. Keyser, 58 Cal. 315, 326; In re Taylor, 7 S. D. 382, 64 N. W. 253, 257, 45 L. R. A. 136, 58 Am. St. Rep. 843; Sigmond v. Bebber, 104 Iowa, 431, 73 N. W. 1027, 1028; Jones v. Brown, 6 N. W. 140, 54 Iowa, 74, 79, 37 Am. Rep. 185; Freem. Judgm. § 118; Oliver v. Riley, 92 Iowa, 23, 60 N. W. 180, 181; Trammell v. Town of Russellville, 34 Ark. 105, 110, 36 Am. Rep. 1; Stevenson v. Christie, 64 Ark. 72, 42 S. W. 418, 419; Smiley v. Sampson, 1 Neb. 56, 69.” (Words & Phrases Judicially Defined, vol. 4, p. 3877.)
“Jurisdiction. (2) Power to hear and determine a cause. Power to hear and determine the subject-matter in controversy between parties to a suit, to adjudicate or exercise any judicial power over them.” (Anderson’s Dictionary of Law, p. 580.)
“Jurisdiction. (1) Exclusive — Concurrent. Jurisdiction is the potver of a court or judge to entertain an action, petition or other proceeding. When a proceeding in respect to a certain subject-matter can only be brought in one court, that court is said to have exclusive jurisdiction; AA'hen it can be brought in any one of several courts, they are said to have concurrent jurisdiction.” (Papalje & LaAvrence Law Dictionary, vol. 1, p. 702.)
“Jurisdiction. An authority to judge, administer justice; power to act judicially; poAver or right to pronounce judgment.” (Kinney’s Law Dictionary and Glossary, p. 411.)
“Jurisdiction. (Lat. jus, law, dicere, to say.) The authority by which judicial officers take cognizance of and decide cases; power to hear and determine a cause. Parker v. Wallace, 3 Ohio, 494; Worcester v. Georgia, 6 Pet. 591, 8 L. Ed. 483. And it has been considered that it is essential to justice that the court should not only have power to hear and determine the case generally, but that, in the course of the hearing, and in the particular judgment rendered, it keep Avithin its poAver. Windsor v. McVeigh, 93 U. S. 282, 23 L. Ed. 914.” (Cyclopedic Lsav Dictionary, p. 513.)
“Exclusive jurisdiction is that Avhich gives to one tribunal sole power to try the cause.” (Bouvier’s Law Dictionary, vol 2', p. 26.)

The act of 1907-08 does not attempt to confer power upon district courts to hear and determine misdemeanor cases, or to exercise any right or duty Avith reference to them Avhich requires the least discretion, or which in any manner passes upon any rights of a defendant in such cases. Neither does it take from, or in any manner interfere with, the exclusive right of county courts to try and determine such cases. It only imposes the duty upon the judge of the district court in Avhich indictments have been returned by grand juries for misdemeanors to transfer such indictments to the court having jurisdiction of the offenses charged. This duty does not involve the exercise of the least discretion. It is purely ministerial and is not an exercise of jurisdiction over the cases. The district court is simply the agency of the law in transferring misdemeanor cases to the courts in which they can be legally “heard and determined.” So there is no' jurisdictional conflict between the different sections of the Constitution touching this matter. But counsel say:

“The Constitution limits the power of the grand jury to investigating and returning indictments for all character and grades of crimes, but does not empower it to return indictments in misdemeanor cases of selling and furnishing intoxicating liquors.”

Counsel, in argument, relied upon Ex parte Cain, 20 Okla. 125, I Okla. Cr. 7, 93 Pac. 976, decided by Chief Justice Williams, as sustaining his position that a misdemeanor was not a crime. An examination of this case will not sustain this contention. Chief Justice Williams says:

“An offense shall never be made felony by.the construction of any doubtful and ambiguous words of a statute; and therefore, if it be prohibited under ‘pain of forfeiting all that a man has/ or of ‘forfeiting body and goods/ it shall amount to no more than a high misdemeanor. * * * The word ‘misdemeanor/ in its usual acceptation, is applied to all those crimes and offenses for which the law has not provided a particular name; and they may be punished according to the degree of the offense, by fine or imprisonment or both. ‘A misdemeanor is, in truth, any crime less than a felony; and the word is generally used in contradistinction to felony, misdemeanors comprehending all indictable offenses which do not amount to felony/' 1 Bussell on Crimes (9th Ed.) c. 4, p. 78. The selling of intoxicating liquors at common law was not a felony, not even a crime. So, when it is made a crime, and the statute does not expressly state as to whether it is a felony or misdemeanor, the presumption is that it is a misdemeanor/’

But, if there was any doubt upon this subject, it is settled by sections 1925, 1926, and 1927, Wilson’s Bev. & Ann. St. 1903, which are as follows:

“(1925) §4. Crimes are divided into: First, felonies; second, misdemeanors.
“(1926) § 5. A felony is a.crime which is, or may be, punishable with death, or by imprisonment in the territorial prison.
“(1927) § 6. Every other crime is a misdemeanor/'

We think that the language of the Bill of Bights, giving the grand juries the power to investigate and return indictments for all character and grade of crime, authorizes indictments for misdemeanors as well as felonies; but, if there was any doubt upon this question, it is removed by the statement that grand juries shall have such other powers as the Legislature may prescribe. We do not find the least conflict in the various sections of the Constitution upon the matter of the power of grand juries to return indictments for misdemeanors into district courts, and the duty of district courts to transfer such indictments to the courts having jurisdiction of the offenses charged. We therefore hold that the act of 1907-08 is not repugnant to the Constitution.

Second. The act of 1907-08 instructs the judge of the district court in which indictments are returned, for misdemeanors to make an order transferring such indictments to the courts having jurisdiction of the offenses charged, but it does not authorize the issuance of a warrant by order of the district judge for the arrest of the defendant upon such an indictment. On the contrary, section 3 of the act provides as follows:

“Sec. 3. All cases transferred from the district court shall be entered on the docket of the court to which they are transferred, and all process thereon shall be issued, and the defendant tried in the same manner as if the cause had originated in the court to which they have been transferred." ,

This clearly contemplates that the warrant of arrest shall issue from the court having jurisdiction of the offense charged, after the case has been received from the district court. We are therefore of the opinion that the district court of Wagoner county was without jurisdiction to issue the warrant upon which defendant was arrested and is now imprisoned. The warrants should be issued out of the county court of Wagoner county, which has ex-elusive jurisdiction of the offenses charged, and we direct that this now be done.

The writ of habeas cor ¡ms is denied.

BAKER and DOYLE, Judges, concur.