text:
    GUY CARGILL v. STATE.
    No. A-3874.
    Opinion Filed April 23, 1923.
    Rehearing Denied Dec. 4, 1923.
    (220 Pac. 64.)
    (Syllabus.)
    1. Witnesses — Test of Competency — 7 Year Old Prosecuting Witness .Competent to Testify in Rape Case. Section 589, Comp. St. 1921, provides that children under 10 years of age who appear incapable of receiving just impressions of the facts concerning which they are examined, or of relating them truly, shall be incompetent to testify. It follows, therefore, that intelligence, and not age, is the vital criterion. In this case we think the witness was qualified. Whether a witness under the age of 10 years is competent is largely within the discretion of the trial court.

      i. Statutory Provisions. Neither husband nor wife shall in any , case be a witness against the other except in a criminal prosecution for a crime committed one against the other. Section 2699. Comp. St. 1921.
    3. Witnesses — Wife not Competent Against Husband in Rape Prosecution. A woman is not a competent witness against her husband in a prosecution against him for rape or assault to commit rape upon a third person, under a statute permitting her to testify in a prosecution for a crime committed by the husband against the wife.
    4. Constitutional Law — Statute as to Competency of Husband or Wife to Testify not Construed so as to Amount to Judicial Legislation. To enlarge the scope of the statutory rule permitting the husband or wife to testify against the other, where the offense charged is an offense against the innocent spouse, so as to include every offense remotely or indirectly vexing, humiliating, or distressing the innocent spouse, would be to state the rule too broadly and would amount to judicial legislation. Such a construction would throw the doors wide open for the introduction of evidence by one against the other in any and every case affecting their domestic affairs. In other words, such a construction of the exception to the rule would in a large measure abrogate the rule itself.
    5. Cases Overruled. The rule of evidence based on section 2699, Comp. St. 1921, as announced in Hunter v. State, 10 Okla. Cr. 119, 134 Pac. 1134, L. R. A. 1915A, 564, Ann. Cas. 1916A, 612, so far as it is in conflict with the holdings here announced is overruled.

      Appeal from District Court, Oklahoma County; Geo. "W. Clark, Judge.
    Guy Cargill was convicted of rape in the first degree, and he appeals.
    Reversed and remanded.
    Pruiett, Sniggs, Patterson & Morris, for plaintiff in error.
    Geo. P. Short, Atty. Gen., and N. W. Gore, Asst; Atty. Gen., for the State.
   BESSEY, J.

Guy Cargill, plaintiff in error, here referred to as the defendant, was on September 14, 1920, in the district court of Oklahoma county, convicted of rape in the first degree, and his punishment was fixed at life imprisonment in. the state penitentiary. The defendant’s cause is now here on appeal, and he seeks to have the judgment of the trial court reversed: First, on account of the reception of alleged incompetent testimony; second, because of erroneous instructions given; third, because of improper conduct of the county attorney in his argument to the jury.

The testimony on the part of the state is of a revolting nature and will not be stated in detail. Briefly, it was shown that defendant went to the woods near his home with his stepdaughter, a child of the age of seven years, to cut some stakes or poles to mend a hog pen, and that while there he ravished the child. The testimony of the abused girl and of her mother, the wife of the defendant, and of a physician, showed that the girl after the assault was in a badly lacerated condition, indicating sexual abuse.

The defendant claimed that the girl fell on one of the poles he had cut and so sustained the injuries shown.

Defendant claims that the child, by reason of her age and want of intelligence, was incapable of giving competent testimony. This objection was urged in the court below, and after an examination to test her qualifications the trial court found that she was a competent witness. The test made, as it appears in the record, indicates that it was fairly made, and the answers given by this child witness show that she possessed more than the average intelligence of persons of her age. The answers given by her, both in the examination in chief and on cross-examination, indicate a good memory of the incidents related by her, that her impressions were justly stated, and that she understood that she would suffer punishment if she testified falsely. It sometimes happens that the testimony of children is more convincing than that of older persons.

Section 589, Compiled Statutes 1921, provides:

“Children under ten years of age who appear incapable of receiving just impressions of the facts respecting which they are examined, or of relating them truly,” shall be incompetent to testify.

It therefore follows that intelligence, and not age, is the vital criterion. Under this rule we think this witness was qualified. Walker v. State, 12 Okla. Cr. 179, 153 Pac. 209. Whether a witness under the age of 10 years is competent to testify is largely within the discretion of the trial court. Darneal v. State, 14 Okla. Cr. 540, 174 Pac. 290, 1 A. L. R. 638.

Susan Cargill, the mother of the abused child, was a material witness, possibly the most damaging witness against the defendant, her husband. Her testimony related to facts not a part of the res gestae and to precedent and subsequent communications with her accused husband. Section 2699, Comp. Stat. 1921,. provides:

“Neither husband nor wife shall in any case be a witness against the other except in a criminal prosecution for a crime committed' one against the other,” etc.

In construing statutes similar to the one quoted above, the appellate courts of the different states have arrived at conclusions not in perfect harmony. It has been held in a minority of cases that a sexual offense by one spouse with or against a third person is an offense against the innocent spouse as well as against the state, and that the aggrieved spouse may testify against the other. See notes and annotations, Commonwealth v. Allen, 16 A. L. R. 490 (191 Ky. 624, 231 S. W. 41). We think, however, that the rule as above stated and as announced in the annotations in the Allen Case is too comprehensive and is not fully supported by the cases there cited:

The reasons given by law text-writers and courts why neither a husband nor wife shall in any case be a witness against the other except in a criminal prosecution for a crime committed by one against the other have been stated thus: First, identity of interests; second, the consequent danger of perjury; third, the policy of the law which deems it necessary to guard the security and confidences of private life even at the risk of an occasional failure of justice, and which rejects such evidence because its admission would lead to domestic disunion and unhappiness; and, fourth, because, where a want of domestic tranquility exists, there is danger of punishing one spouse through the hostile testimony of the other.

Since we are construing a statute, we are not so much concerned with the reasons underlying the policy of this rule of evidence as we are in a correct construction of the statute as we find it. In the ease of Heacock v. State, 4 Okla. Cr. 606, 112 Pac. 949, it was held that adultery committed by the husband is a personal injury against the wife. This was based largely on the provisions of our statute (section 1852, Comp. Stat. 1921) providing that a prosecution for adultery must be commenced and carried on by the aggrieved spouse. Thus by statutory enactment adultery is made a crime against the innocent spouse.

The case of Hunter v. State, 10 Okla. Cr. 119, 134 Pac. 1134, L. R. A. 1915A, 564, Ann. Cas. 1916A, 612, was a case where the accused husband was charged and tried with having failed to furnish his child with necessary food and clothing. In this case it was held that the wife of the accused was a competent witness against him, indirectly holding that a violation by the husband of the provisions of section 1855, Comp. Stat. 1921, was a crime against the wife. This statute provides that any parent who willfully omits without lawful excuse to perform any duty imposed upon him by law to furnish necessary food, clothing, shelter, or medical attendance for his child is guilty of a misdemeanor.

In 1915 our Legislature enacted a statute, sections 1856a and 1857, Comp. Stat. 1921, providing for a penalty for wife or child abandonment. This 1915 statute defined a husband’s duties to his wife and' children, being in some respects analogous to the earlier statute construed by Judge Furman in Hunter v. State, but provided further that in such a case the wife should be a competent witness against the husband. It is fair to assume that if it was necessary to provide specifically by statute that the wife could testify in a case of child abandonment that the preceding section, the one construed in the Hunter Case defining the analogous offense, would require a like modification to permit the wife to testify against the husband. The omission of this statutory provision from section 1855 might be taken as an indication that the exception should not apply to child abandonment, but that it would apply to criminal neglect of children.

In West v. State, 13 Okla. Cr. 312, 164 Pac. 327, L. R. A. 1917E, 1129, it was held that, in a prosecution against a husband for willful and corrupt perjury in making a false affidavit to obtain a divorce from his wife, the wife is a competent witness for the state. Under such circumstances the wife’s rights and interests as such are directly attacked. Through perjury the husband perpetrated a fraud upon the wife, directly affecting and dissolving the marital relation, against her will. This, it would seem, comes clearly within the purview of the statutory exception permitting the wife to testify.

We have seen that adultery is a crime against the marital state by virtue of the statute, and that perjury committed for the purpose of wrongfully breaking up the marriage relation is a crime against the aggrieved spouse, constituting a direct attack upon the conjugal relation. Upon reason and authority bigamy has been held to be a crime against the innocent party, being also a direct interference with the marital rights of the innocent spouse. Schell v. People, 65 Colo. 116, 173 Pac. 1141, L. R. A. 1918F, 954; State v. Hughes, 58 Iowa, 165, 11 N. W. 706; U. S. v. Cutler, 5 Utah, 608, 19 Pac. 145.

There is good reason for holding that bigamy is a direct crime against marital rights. The practice of bigamy is a continuing relation, wholly incompatible with lawful conjugal relations as contemplated by modern society. Ordinarily the reasons applicable to a case of bigamy do not apply to cases of abortion, rape, incest, sodomy, etc. However, there are cases holding that these offenses are crimes against the innocent spouse, coming within the exception, though the weight of authority seems to be the other way. These degrading crimes are usually committed by sexual degenerates of loose morals and with loose marriage ties. In addition to the other reasons usually urged, the abrogation of the rule in these cases might operate as a fraud against the one accused, even though entirely innocent. An innocent spouse might be charged with the commission of one of these offenses by the other as the easiest way to terminate the marriage relation. By the weight of authority these are crimes against society and common decency, rather than against the marriage state.

In Commonwealth v. Allen, 191 Ky. 624, 231 S. W. 41, 16 A. L. R. 484, it was held that a woman might testify against her husband in a prosecution against him for causing her to miscarry by the forcible use of instruments upon her person, against her will. This, of course, amounted to a direct assault against the wife, and would plainly come within the purview of the exception in our statute as being a crime against the wife. In this case there was personal violence against the wife, the act being done by force and coercion. The rule would have been different if the act had been done at the request of the wife, or if perpetrated upon a third person. Hostetter v. Green, 159 Ky. 611, 167 S. W. 919, L. R. A. 1915C, 870; Commonwealth v. Davis, 169 Ky. 650, 184 S. W. 1121; annotations, 16 A. L. R. 490.

A woman is not a competent witness against her husband in a prosecution against him for rape or assault to commit rape upon a third person, under a statute permitting her to testify in a prosecution for a crime committed by the husband against the wife. The practice of bigamy is a direct interference with and suspension of marital rights of the innocent spouse, but rape does not necessarily so operate. Iowa v. Wilcox, 185 Iowa, 90, 169 N. W. 646, 4 A. L. R. 1066 (rape on stepdaughter); Brock v. State, 44 Tex. Cr. R. 335, 71 S. W. 20, 60 L. R. A. 465, 100 Am. St. Rep. 859. The same may be said of incest, a revolting crime, but not one necessarily incompatible with the continuance of the marriage relation. State v. Burt, 17 S. D. 7, 94 N. W. 409, 62 L. R. A. 172, 106 Am. St. Rep. 759; Compton v. State, 13 Tex. App. 271, 44 Am. Rep. 703; People v. Westbrook, 94 Mich. 629, 54 N. W. 486 (incest with stepdaughter).

We have found no adjudicated case applying this rule of evidence to cases of sodomy, but assume that the rule governing in cases of rape and incest would apply.

The rules of evidence affecting husband and wife, as applied to different sexual crimes, have been reviewed for the purpose only of elucidating these rules properly applicable to rape committed on a stepdaughter, as in this ease.

The test at common law was whether the offense amounted to a physical assault upon the innocent spouse.' As has been seen, under remedial statutes making the exception to the rule apply to crimes committed one against the other, our state and most other states have enlarged the scope of the exception so as to make it apply, where there is no actual force, to direct infringements upon the marital rights of the other spouse.

To enlarge the scope of the exception to include every offense remotely or indirectly vexing, humiliating, or distressing the innocent spouse would be to make it too broad, and would amount to judicial legislation, throwing the doors wide open for the introduction of evidence by one against the other in any and every case affecting their domestic affairs. In other words, such a construction of the exception to the rule would in a large measure abrogate the rule itself.

As illustrating how reluctant the courts are to depart from the common-law rule, in the ease of Bassett v. United States, 137 U. S. 496, 11 Sup. Ct. 165, 34 L. Ed. 762, Mr. Justice Brewer, in construing a statute similar to ours in a Utah case wherein the accused was indicted for polygamy, said :

“We do not doubt the power of the Legislature to change this ancient and well-supported rule; but an intention to make such a change should not lightly be imputed. It cannot be assumed that it is indifferent to sacred things, or that it means to lower the holy relations of husband and wife to the material plane of simple contract. So, before any departure from the rule affirmed through the ages of the common law — a rule having its solid foundation in the best interests of society — can be adjudged, the language declaring the legislative will should be so clear as to prevent doubt as to its intent and limit. * * * The clause in the Civil Code is negative, and declares that the exception of the incompetency of wife or husband as a witness against the other does not apply to a criminal action or proceeding for a crime committed by one against the other. Is polygamy such a crime against the wife? That it is no wrong upon her person is conceded; and the common-law exception to the silence upon the lips of husband and wife was only broken, as we have noticed, in cases of assault of one upon the other. That it is humiliation and outrage to her is evident. If that is the test, what limit is imposed? Is the wife not humiliated, is not her respect and love for her husband outraged1 and betrayed, when he forgets his integrity as a man and violates any human or divine enactment? Is she less sensitive, is she less humiliated, when he commits murder, or robbery, or forgery, than when he commits polygamy or adultery? A true wife feels keenly any wrong of her husband, and her loyalty and reverence are wounded and humiliated by such conduct. But the question presented by this statute is not how much she feels or suffers, but whether the crime is one against her.”

For the reasons stated, we are constrained to take the middle ground. The rule that the injury must amount to a physical wrong upon the person is too narrow; and the rule that any offense remotely or indirectly affecting domestic harmony comes within the exception is too broad. The better rule is that, when an offense directly attacks or directly and vitally impairs the conjugal relation, it comes within the exception to the statute that one shall not be a witness against the other except in a criminal prosecution for a crime committed one against the other. In this sense the commission of rape by a husband upon a third person is not a crime against the wife within the meaning of our statute. And. the rule announced by Judge Furman in the “Hunter Case, supra, is too comprehensive. In that opinion Judge Furman criticizes the reasons and conclusions reached by Mr. Justice Brewer and the United States Supreme Court in the Bas-sett Case and adopts the reasons and conclusions of Prof. Wigmore in his admirable and profound treatise on Evidence, § 2228 et seq. The inadequacy of the reasons for the rule and its exceptions, as stated by Wigmore, may be sound, but we are called to look beyond these reasons. We are here called upon, not to determine the wisdom of the law, but to determine what the law is. If the law is unwise, the Legislature can easily modify it. So far as possible, we are bound to follow the law as declared by the highest courts of the land, rather than that of text-writers, however eminent. The rule of evidence announced in the Hunter Case is therefore reversed, so far as in conflict with the rule announced herein.

Whether or not the defendant is guilty,- we hold in this ease that the wife was incompetent to testify against her husband, and since her testimony related to important facts in issue, as well as to communications made to her by her husband, the case must be reversed and remanded; and it is so ordered.

The warden of the penitentiary of McAlester, upon proper demand at the penitentiary, will deliver the defendant to the sheriff of Oklahoma county, who will hold him in custody until otherwise ordered according to law.

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


source: Caselaw Access Project

author: DOYLE, J.

license: Public Domain

text:
    GEORGE STAMPER v. STATE.
    No. A-4007.
    Opinion Filed June 16, 1923.
    Rehearing Denied Dec. 4, 1923.
    (220 Pac. 67.)
    (Syllabus.)
    1. Indictment and Information — Objection to be Made Before Pleading to Merits. Objections to an indictment or information based upon the absence of any essential preliminary proceeding should be made by proper motion or plea before pleading to the merits.
    2. Same — Presumption that Accused Charged with Felony Has Had or Waived Preliminary Examination. When an information is filed charging a defendant with the commission of a felony, the law presumes that the defendant has had a preliminary examination, or has waived the same, and the information need not allege that fact. If the defendant contends that no preliminary examination has been had or waived, and he desires to raise the question, he must do so by a motion to set aside or to quash the information by plea in abatement before pleading to the merits.
    3. Indictment and Information — Verification not Indispensable to Information Charging Felony. The verification of an information charging a felony is no part of the information itself, and is not an indispensable requisite.
    4. Homicide — Evidence Sustaining Conviction of Shooting Another with Intent to Kill. In a prosecution for shooting another with intent to kill, evidence held sufficient to support the verdict and judgment of conviction.

      Appeal from District Court, Pottawatomie County; Hal Johnson, Judge.
    George Stamper was convicted of shooting another with intent to kill, and he appeals.
    Affirmed.
    Goode & Dierker, for plaintiff in error.
    George F. Short, Atty. Gen., and N. W. Gore, Asst. Atty. Gen., for the state.
   DOYLE, J.

This appeal is from a judgment of conviction rendered on the verdict of a jury finding George Stamper guilty of shooting one Ralph Turner with intent to kill, and assessing his punishment at imprisonment in the penitentiary for the term of one year and one day.

It is assigned as error that the court erred in assuming jurisdiction to try the defendant on the information, because the record of the examining magistrate shows that defendant was denied a preliminary hearing before an examining magistrate having jurisdiction of the complaint upon which the information is based, in that said defendant filed his affidavit for a change of venue before said' cause was heard before the examining magistrate, and the same was unlawfully denied, and that the information is wholly insufficient to constitute a valid information, because it is not verified by the oath of the prosecuting attorney, or some other person as by law required.

It is not claimed by the defendant that a complaint was not filed against him before an examining magistrate charging him with the identical offense with which he was charged in the information, or that a preliminary examination was not held.

The record shows that the only objection made to the information was the filing of a demurrer thereto, and it does not show that any exception was taken to the judgment of the court overruling it.

The record or transcript of the proceedings had on the preliminary examination was not offered in evidence.

Our Code provides:

“When the objections mentioned in section 5791 (2608) appear upon the face of the indictment or information, they can only be taken by demurrer, except that the objection to the jurisdiction of the court over the subject of the indictment or information, or that the facts stated do not constitute a public offense, may be taken at the trial, under the plea of not guilty, and in arrest of judgment.” (Comp. Stats. 1921, § 2616.)

The record shows that no objection to the jurisdiction of the court was taken by objection at the trial, and that no motion in arrest of judgment was filed in the case.

By numerous decisions of this court it is held that objections to an indictment or information based upon the absence of any essential preliminary proceeding should be made by proper motion or plea before pleading to the merits, and when a defendant relies upon the want of a preliminary examination the proper practice is to raise the question by a motion to set aside or to quash the information, or by plea in abatement before pleading to the merits. The state can then take issue on the motion or plea, and the fact can be determined by the proof, and the burden of proof is on the defendant. Robbins v. State, 12 Okla. Cr. 294, 155 Pac. 491; Stone v. State, 12 Okla. Cr. 313, 155 Pac. 701; Roebuck et al. v. State, 14 Okla. Cr. 241, 170 Pac. 277.

Upon the record before us, counsel for appellant have not properly raised the question of jurisdiction. Only prejudicial errors raised by exceptions reserved require a new trial, and it is only when we are satisfied that the verdict was contrary to law or to the evidence, or that injustice has been done, that we are permitted to reverse a conviction, whether or not an exception has been taken in the trial court. And where a defendant upon arraignment pleads to the merits and enters on the trial he waives the right to a preliminary examination, or, if one was held, he waives the right to any irregularity in the proceeding. Muldrow v. State, 16 Okla. Cr. 549, 185 Pac. 332.

The record further shows that no objection was made or question raised during the trial upon the ground that the information was not verified.

Under our Code—

“No indictment or information is insufficient, nor can the trial, judgment, or other proceedings thereon be affected, by reason of a defect or imperfection in the matter of form which does not tend to the prejudice of the substantial rights of the defendant upon the merits.” Comp. Stats. 1921, § 2564.

The uniform holding of this court is that:

“The verification is not a part of an information charging a felony, and is therefore not an indispensable requisite. The object of such verification is not, as in misdemeanors, for a showing of probable cause supported by oath or affirmation, to authorize the arrest of the accused, and it is not for the purpose of evidence, which is to be weighed and passed upon, but only, as we believe, to secure good faith and as a matter of good form in pleading.” Henson v. State, 5 Okla. Cr. 201, 114 Pac. 630; Hughes v. State, 7 Okla. Cr. 117, 122 Pac. 554; Brown v. State, 9 Okla. Cr. 383, 132 Pac. 359.

Upon careful examination, we discover no error in the record. The case appears to have been fairly tried, and the verdict appears to have been fully justified by the evidence. The judgment of the district court of Pottawatomie county is accordingly affirmed.

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


author: BESSEY, J.

text:
    HARRISON DYER v. STATE.
    No. A-4249.
    Opinion Filed October 27, 1923.
    Rehearing Denied Dec. 4, 1923.
    (220 Pac. 69.)
    (Syllabus.)
    Appeal and Error — -Harmless Error — Evidence. Where a defendant admits facts that exclude every theory of innocence, amounting to a confession of guilt, incompetent evidence introduced by the state will be deemed harmless.
    Appeal from County Court, Bryan County; John Fin-ney, Judge.
    Harrison Dyer was convicted of the illegal transportation of intoxicating liquor, and he appeals.
    Affirmed.
    Warren B. Phillips, for plaintiff in error.
    The Attorney General and N. W. Gore, Asst. Atty. Gen., for the state.
   BESSEY, J.

On January 13, 1922, by a verdict of a jury, the plaintiff in error, Harrison Dyer, was found guilty of the illegal transportation of intoxicating liquor, and his punishment fixed at a fine of $150 and confinement in the county jail for a period of 30 days. From the judgment on this verdict he appeals.

The major part of the evidence produced by the state was evidence procured by means of an illegal search and seizure. Following the decision in Gore v. State, 24 Okla. 394, 218 Pac. 545, the admission of this evidence was error.

Notwithstanding this improper testimony, the accused took the stand and admitted his guilt, and the jury could come to no other rational conclusion. The accused testified that he, in company with Pete Smith, drove from his farm to Durant; that in passing through the Caney bottoms he for the first time noticed two bottles of liquor in their dinner bucket, which upon examination they found to be whisky. They drank some of it and proceeded on into Durant, where they were arrested. Defendant stated that he did not know who made them a present of this liquor and that after its discovery he intended to take it to his home for his own use. Quoting from the record:

“Q. Where did you put your dinner bucket when you got through eating dinner? A. Left it in the car.
“Q. This whisky was in the dinner bucket? A. Yes, sir.
“Q. You say somebody came there and put the whisky in it? A. I guess they did.
“Q. You put it in there? A. No, sir.
“Q. Did Pete put it in there? A. I couldn’t say; I think not.
“Q. You first saw it at Caney bottom in the car? A. Yes, sir.
“Q. You say you took a drink of it? A. Yes, sir; we both did.
“Q. After you knew it was in there you brought it to Durant? A. Yes, sir.
“Q. You admit transporting it? A. It was in my car, and I come on with it, and we drank some of it.
“Q. You knew it was a violation of the law to transport whisky, didn’t you? A. I thought if a man had it he ought to have a right to drink it.
“Q. You told Jim Keirsey and George Baxter the whis-ky was yours, and you just had it for your own use, didn’t you? A. I think I told them that we just had it to drink. That’s what I think I said.”

The purpose for which liquor is being transported is immaterial. McGill v. State, 16 Okla. Cr. 657, 185 Pac. 530; Watkins v. State, 13 Okla. Cr. 507, 165 Pac. 621.

Under the admissions quoted and others appearing in the record, it appears conclusively that the accused was guilty as charged.

The judgment of the trial ■ court is affirmed.

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


text:
    A. L. KIRBY v. STATE.
    No. A-3948.
    Opinion Filed June 16, 1923.
    Rehearing Denied Dec. 4, 1923.
    (220 Pac. 74.)
    (Syllabus.)
    1. Appeal and Error — Discretion of Court — Order Granting or Rei-fusing Change of Venue. The granting or ref using of a change of venue is in the discretion of the trial court, and this court will not reverse the judgment, unless it clearly appears that there has been an abuse of such discretion.
    2. Evidence — Character Evidence as to Trait involved in Charge Always Admissible — Evidence of Bad Character in Rebuttal of Good Character. A defendant’s general good character or reputation as to the trait involved in the charge against him is always admissible in his favor to evidence the improbability of his doing the act charged, and where a defendant offers testimony to show his previous good character the state may in rebuttal offer evidence of his bad character.
    3. Witnesses — Defendant as Witness in Own Behalf — Credibility at Issue. When a defendant elects to testify in his own behalf, he occupies a double position. As a defendant his character cannot be attacked by the state; as a witness he puts his credibility at issue like any other witness.

      4. Witnesses — When Evidence as to Reputation for Truth and Veracity not Warranted. In a criminal trial the mere fact that a witness’ testimony is contradicted by adverse testimony does not warrant the introduction of evidence as to his reputation for truth and veracity.
    5. Witnesses — Defendant Testifying in His Own Behalf — Evidence Sustaining Reputation for Truth and Veracity Inadmissible, When. In a criminal trial where the defendant testifies as a witness in his own behalf and is not' impeached, and his credibility is not attacked, except by contradiction of his testimony by other witnesses, evidence sustaining his reputation for truth and veracity is not admissible.
    Appeal from District Court, Delaware County; A. C. Brewster, Judge.
    A. L. Kirby was convicted of manslaughter in first degree, and he appeals.
    Affirmed.
    Hunt & Beauchamp, and J. Wythe Walker, for plaintiff in error.
    George F. Short, Atty. Gen., and N. W. Gore, Asst. Atty. Gen., for the State.
   DOYLE, J.

In the information in this case,, filed in the district court of Delaware county, A. L. Kirby was charged with the crime of murder, alleged to have been committed in said county on or about the 26th day of September, 1920, by killing one Boone Crawley, by shooting him with a pistol. Upon his trial the jury found him guilty of manslaughter in the first degree and fixed the punishment at imprisonment in the penitentiary for the term of 10 years. From the judgment rendered in pursuance of the verdict he appeals. The defense was justifiable homicide.

The evidence shows that Crawley and Kirby were neighbors and lived about one-half mile apart on the same road; that there was a dispute existing between them relative to the right to open and use a certain section line as a road that Kirby had planted a crop on; that four months before the killing in connection with this dispute, Crawley and Kirby had engaged in a difficulty, and Crawley struck Kirby with a wagon spoke; that in the afternoon of the day of the homicide, Crawley had hauled a load of cane to a mill near by and returning drove through the gate into his place, and was fastening the gate when Kirby rode up on a horse and' shot him with a pistol, firing five or six times. One bullet entered just to the right of the backbone at the twelfth rib and came out at the junction of the third rib with the breastbone at a point higher up than where it entered. Another bullet entered just above the left hip in what doctors call Petit’s triangle, and came out about an inch and a half to the right and an inch below the navel; this wound ranged down. From the effects of these wounds he died at 11 o’clock the next morning.

The only witnesses to the transaction were the parties concerned and Crawley’s wife. She testified:

“My husband hauled a load of cane to the mill on Wol-ford’s place. About 4 o’clock I was sitting in the house and saw my husband' driving in a walk towards the gate. A little later I heard two or three shots. I went to the door and saw Mr. Kirby sitting on his horse, with a smoking pistol in his hand. He was near the north end of the gate and his horse was facing south. The team and wagon wére inside the gate. My husband called to me to bring him a gun. I walked across the room to get the pistol, and I heard two or three more shots fired. As I went out the door, Mr. Kirby turned his horse and rode north towards his home. I went to my husband and found him lying as one dead'. I called to him. He could not answer me. My children were over in the field. I started after them, and stopped and called to them, but I could not make them hear me. Then I called to my neighbors and went back to my husband. He was lying about 15 steps inside the gate. The gate was made of pine planks and opened out to the road. It fastened with wire, and was about 200 yards from the house. The team ran away.”

It appears that one bullet passed through the second board from the top of the gate. It entered from the outside and ranged down. The preponderance of testimony tends to show that two shots were fired in quick succession, then a pause followed by three or four shots. Crawley’s dying declarations were to the effect that Kirby shot him; that he was inside the gate, fastening it at the bottom, when Kirby shot him in the back.

As a witness in his own behalf, Kirby testified:

“I had been to Row, and came back by a sale. I saw Crawley ahead of me in a wagon and slowed up because I didn’t want to pass him. He stopped and opened the gate and took his horses by the,bits and led them in. Then he shut it back and stood with his back to the gate and watched me as I was coming. He said, ‘How are you, sir?’ I pulled my horse out to the side of the road, and he says: ‘Go to hell, you son of a bitch! You made me pay a fine, I am going to hammer your damn brains out. ’ And he stooped down and grabbed a rock and threw it at me. I dodged it. He stooped down again and grabbed a rock that seemed to be tight in the ground, and I shot at him. I think there was four loads in the pistol, but there possibly might have been five. I fired the shots to protect my life or my body from serious ~lnjuries. About four months before I had trouble with him, and he hit me with a wagon spoke on the side of the face. He was fined for it by justice of the peace at Jay. A few days before he hit me with the club, I met him tragedy to view the same.
In accordance with a stipulation of the parties, the court directed and the jury were conducted to the scene of the in the wood pasture. He had an open knife in his hand and asked me if I had seen any hogs. I told him no, and I kept out of his way.”

The first assignment is: “Error of the court in refusing to grant a change of venue.”

When the ease was called for trial, appellant filed his duly verified petition in proper form for a change of venue, which was supported by the affidavits of niné citizens of the county. The state contested the application and called ten witnesses, and after hearing the proof and argument, pro and eon, the court overruled the application.

It has been repeatedly decided by this court that the granting of a change of venue is, under the statute (Comp. Stats. 1921, § 2628), discretionary with the trial court, and unless it clearly appears that there is abuse of such discretion, this court will not reverse the judgment for the failure of the trial court to grant a change of venue. Warren v. State, 24 Okla. Cr. 6, 215 Pac. 635, and cases therein collated.

There is nothing in the record to indicate that the court acted arbitrarily, and it appears that there was no difficulty in securing a fair and impartial jury. Considering the verdict rendered by the jury, there can be no doubt of the fact that the court did not abuse its discretion in refusing to grant a change of venue.

All other assignments of error are based upon exceptions taken to rulings of the court excluding evidence offered by the defendant.

The defendant offered to show by seven different witnesses that each of them knew “the general reputation of the defendant in the community in which he lived for truth and veracity, and that defendant’s general reputation for truth'and veracity in that community was ' good. ’ ’ To this evidence the state objected; the court sustained the objection; the defendant duly excepted. Upon this subject the court gave the following instruction:

“You. are instructed that the general reputation of the defendant in the community in which he lives for truth and veracity is presumed under the law to be good.”

It is argued that the only direct evidence controverting the dying declaration was the testimony of the defendant; hence it became very material to the defendant to show his good reputation for truth and veracity, and that he was entitled to something more than a mere presumption, that he was entitled to make proof of the fact that his reputation was good. In support of this contention counsel cite two eases. Friel v. State, 6 Okla. Cr. 532, 119 Pac. 1124; Smith v. State, 20 Okla. Cr. 362, 202 Pac. 1046.

In the Friel Case it is held that—

“Where the testimony of a witness is contradicted in the trial of a cause, it is competent, for the purpose of supporting his testimony, to introduce evidence as to the general reputation of the witness for truth and veracity.”

In the Smith Case it is said: .

“The testimony of the defendant was directly in conflict with the testimony of the witnesses for the state, and, where the veracity of a witness is in any manner called in question, his reputation for veracity may be sustained by proof of his general reputation for truth and veracity.”

A defendant’s general good character is always admissible in his favor to evidence the improbability of his doing the act charged. After the defendant has attempted to show his good character in his own aid, the state may in rebuttal offer as evidence his bad character. When a defendant elects to testify in his own behalf, he occupies a double position. As a defendant, his character cannot be attacked by the state; as a witness, it can be. The law is that a defendant taking the stand as a witness may, as a witness, be impeached precisely like any other witness.

• The question as to when and under what conditions a witness may be corroborated by evidence of good character for truth and veracity is one upon which there is a wide divergence of judicial opinion, and we think it would be useless to attempt to' reconcile the many judicial decisions upon this question. However, there are a few general principles which pervade all the adjudicated cases, and these have been carefully stated and learnedly considered by eminent text-writers on evidence:

Prof. Wigmore says:

"The accused may at any time offer his own good moral character, for the trait in question, as evidence that he did not commit the crime. But he may not as witness offer his good character until it has been attempted to be impeached by the prosecution.” Wigmore, Ev. § 891.

And in section 1104 the same author says:

"Good character for veracity is as relevant to indicate the probability of truth telling as bad character for veracity is to indicate the probability of the contrary. But there is no reason why time should be spent in proving that which ' may be assumed to exist. Every witness may be assumed to be of normal moral character for veracity, just as he is assumed to be of sanity. Good character, therefore, in his support is excluded until his character is brought in question and it becomes worth while to deny that his character is bad.
"It has been said, to be sure, by a few courts that where, without actually introducing testimony, the opponent has effectively insinuated the witness’ impeachment, his good character is then proper in rebuttal. But this extension is exceptional and perhaps strained. Moreover, the exception when an accused in a criminal case takes the stand is apparent only; for it is as an accused that he may offer his good character in chief, .and that character must concern the trait, involved in the charge; and thus since only his character for veracity can affect him as a witness, his evidence of character at that state will not usually be the same as that which he could later offer in his own support as witness.
“The question thus always arises, under this general rule: When is the witness’ character brought into question by the opponent, so as to open the way to evidence of good character in denial? This must depend on the nature of the opponent’s impeaching evidence. It may be a direct assault on the witness’ character, in which case no doubt exists. But it may be evidence of a doubtful or ambiguous import, — for example, of bias, of a prior self-contradiction, of an error of fact, and so on through the whole series of kinds of discrediting evidence. It is obvious that the theory of each of these kinds of evidence must be considered before it can be said whether it affects the witness’ character.”

As to whether such evidence is receivable to strengthen the testimony of a witness merely because he has been contradicted by an adverse witness, the same author, in section 1109, says:

“The mixed arguments of logic and policy for rejecting it are seen in the following passages: * * *
“1884, Walker, J., in Tedens v. Schumers, 112 Ill. 263, 266: ‘If the practice sanctioned the calling of witnesses to prove general character whenever a witness is contradicted, it would render trials interminable. The greater portion of the time of courts would be liable to be engaged in the attack and support of the characters of witnesses. If permitted, each of the contradicting witnesses would have the. same right; and not only so, but all of the supporting witnesses on each side contradicting each other would be entitled to the same privilege. It is thus seen that the rule must be limited to cases where witnesses are called to impeach the general character of a witness; otherwise, instead of reaching truth by the verdict, it would tend to stifle it under a large number of side issues calculated to obscure and not to elucidate them.’
“1884, Holmes, J., in Gertz v. Fitchburg R. Co., 137 Mass. 77, 78: ‘The purpose and only direct effect of the (impeaching) evidence are to show that the witness is not to be believed in this instance. Bnt the reason why he is not to be believed is left untouched. That may be found in forgetfulness on the part of the witness, or in his having been deceived, or in any other possible cause. The disbelief sought to be produced is perfectly consistent with an admission of his general character for truth, as well as for the other virtues; and until the character of a witness is assailed, it cannot be fortified by evidence.’
“No court favoring admission seems to have attempted a reasoned justification of its policy; and the great majority of jurisdictions agree in excluding such evidence.”

Prof. Greenleaf, in volume 3, § 469 (15th Ed.), of his work, says:

“Where evidence of contradictory statements by a witness, or of other particular facts, as, for example, that he has been committed to the house of correction, is afforded by way of impeaching his veracity, his general character for truth being thus in some sort put in issue, it has been deemed reasonable to admit general evidence that he is a man of strict integrity and scrupulous regard for truth. But evidence that he has on other occasions made statements similar to what he has testified in the cause is not admissible unless where a design to misrepresent is charged upon the witness in consequence of his relating to the party or to the cause, in which case it seems it may be proper to show that he made a similar statement before the relation existed. So, if the character of a deceased attesting witness to a deed or will is impeached on the ground of fraud, evidence of his general good character is admissible. But mere contradiction among witnesses examined in court supplies no ground for admitting general evidence as to character.”

Underhill says:

“The direct impeachment of a witness by any of the means which have been above explained creates an issue respecting his general character for truthfulness. Evidence to support this and to show that he is a person in whose testimony the jury may have confidence is, therefore, relevant. But evidence of reputation is not relevant merely because there is a contradiction between adverse witnesses, or because the credibility of a witness is shaken on cross-examination, though its admission in such cases may not be reversible error. A distinction has sometimes been made by which it has been held that general evidence of the character of the witness for truthfulness is not relevant if he was impeached merely by showing that he had made contradictory statements. This distinction is repudiated by a majority of the decisions which support the proposition that general evidence of the character of the witness as a truthful person is always admissible whenever any attempt, though it may have been unsuccessful, has been made to impeach it, as for example, where another witness is asked what is his character for truth and replies it is good.” Underhill on Evidence, § 352.

And in section 243, in his work on Criminal Evidence, the same author says:

“It has been held that a party should not be permitted to prove that his witness was a man whose reputation for veracity was good, where the impeachment consisted wholly of evidence that the witness had made contradictory statements out of court. But the majority of the eases repudiate this distinction. It is now held almost universally that evidence to show that the reputation of the witness for veracity is good may be introduced whenever the evidence of the witness has been impeached in any way, whether by his contradictory declarations or by a direct attack upon his character.
“But evidence that a witness enjoys a reputation for truthfulness is not receivable to strengthen his testimony merely because he has been contradicted by an adverse witness, or because he has been shaken or confused on cross-examination. ’ ’

In Bradner on Evidence, § 16, it is said:

“Testimony to support the character of a witness cannot be given in evidence unless the credibility of the witness is impeached.”

Jones says:

“It has sometimes been held that, where proof has been offered of the inconsistent or contradictory statements of a witness, his credit may be sustained by proof of his good reputation for truth and veracity'; that since the object of the attack is to impeach the Avitness, the mode of' such attack is immaterial, and the same reason exists for sustaining the witness as where witnesses are called to testify to his bad reputation. But it is the better view, and one sustained by the weight óf authority, that in such cases the witness cannot be fortified by evidence of good character. Although the contradiction in his statements may tend to show that he ought not to be believed in the particular case, this does not necessarily touch his general good character for truth or integrity, since the inconsistency may be the result of mistakes or forgetfulness. On the same principle, and perhaps for stronger reasons, it is no ground for the introduction of evidence to sustain the character of a witness that other witnesses have contradicted him by testifying a different state of facts, and this remains true although the contradiction is of such a character as to incidentally impute immorality or crime.” Jones on Ev. vol. 3, § 871.

Judge Elliott, in his work on Evidence (volume 2, § 995), says:

“When the reputation of a witness for truth has been impeached, the party calling a Avitness has a right to call other witnesses to prove that his reputation is good. Good character, it has been held, may be shown where the witness has been impeached by proof of conviction of crime. But this principle is not always applied, at least where there is no real attack by way of impeachment. If the witness has been impeached by proof that he made contradictory and inconsistent statements out of court, some of the cases allow his good character to be shown in corroboration, while others refuse to admit such testimony. However, to render testimony of good character competent and admissible in support of the witness, an attack must necessarily have been made on his character.”

In the well-considered case of First National Bank of Bartlesville v. Blakeman, 19 Okla. 106, 91 Pac. 868, 12 L. R. A. (N. S.) 864, the question is discussed with convincing ability. Chief Justice Burford in the opinion said:

“The weight of modern authority seems to classify the eases in which evidence of general reputation in support of a witness is admissible practically as follows: First, where there has been a direct attack upon the character of the witness by offering evidence tending to show that his general reputation for truth and veracity is bad. This rule is universal and unquestioned. Second, where the witness has been impeached by evidence of particular acts of criminal or moral misconduct, either on cross-examination or by record of conviction. While this rule is not universally adopted by the American courts, it is supported by the following cases: Lewis v. State, 35 Ala. 386; People v. Ah Fat, 48 Cal. 61; People v. Amanacus, 50 Cal. 233; State v. Fruge, 44 La. Ann. 165; Vernon v. Tucker, 30 Md. 456; Russell v. Coffin, 8 Pick. (Mass.) 143; Gertz v. Fitchburg R. Co., 137 Mass. 77; People v. Rector, 19 Wend. (N. Y.) 569; Carter v. People, 2 Hill (N. Y.) 317; People v. Gay, 7 N. Y. 378; Stacy v. Graham, 14 N. Y. 492; Webb v. State, 29 Ohio St. 358; Wick v. Baldwin, 51 Ohio St. 51; Warfield v. Ry. Co., 104 Tenn. 74; Smith v. Tate (Tex.) 50 S. W. 363; Lutterell v. State (Tex.) 51 S. W. 930; Paine v. Tilden, 20 Vt. 554; George v. Pilcher, 28 Gratt. (Va.) 299; Reynolds v. R. R. Co., 92 Va. 400; Clarke v. State (Ga.) 43 S. E. 853; Clark v. Bond, 29 Ind. 555; Warfield v. L. & N. Ry. (Tenn.) 55 S. W. 304. Third, impeachment by evidence of corruption on the part of the witness in connection with the case in which he appears. Fourth, impeachment by evidence of contradictory or inconsistent statements admitted on cross-examination or shown by the testimony of other witnesses. Upon this last rule the authorities are in irreconcilable conflict, and are about equally divided, but the better reason seems to favor the right to corroborate the witness, whose evidence is in this manner discredited, by allowing proof of his general reputation for truth and veracity. Hodge v. Gooden, 13 Ala. 718; Holly v. State, 105 Ala. 100; Mercer v. State, 40 Fla. 216; McEwen v. Springfield, 64 Ga. 159; Clark v. State, 117 Ga. 254; Paxton v. Dye, 26 Ind. 394; Clem v. State, 31 Ind. 418; Board v. O’Conner, 137 Ind. 622; State v. Boyd, 38 La. Ann. 374; Davis v. State, 38 Md. 15; People v. Rector, 19 Wend. (N. Y.) 583; Isler v. Demy, 71 N. C. 14; Burrell v. State, 18 Tex. 713; Street v. Sherman, 21 Vt. 23; Stevenson v. Gunning, 74 Vt. 601; State v. Stoley, 45 W. Va. 198.
“There are other particular cases in which, in the exercise of a wise discretion, the trial court may properly allow evidence of general reputation of a witness in support of such witness, but there must be some special or particular element introduced into the case by the adverse party by which such witness is impeached or discredited. But the foregoing rules embrace the general classes of cases in which such practice is allowable.”

In the note to this ease the editor states:

“The authorities are nearly unanimous in holding that the mere fact that a witness’ testimony is contradicted by opposing testimony does not warrant the introduction oí evidence as to his reputation for truth and veracity.”

The following cases sustain this rule: Funderberg v. State, 100 Ala. 36, 14 South. 877; Turner v. State, 124 Ala. 59, 27 South. 272; Bell v. State, 124 Ala. 94, 27 South. 414; People v. Bush, 65 Cal. 129, 3 Pac. 590; State v. Ward, 49 Conn. 429; Bell v. State, 100 Ga. 78, 27 S. E. 669; Presser v. State, 77 Ind. 274; Morrison v. State, 37 Tex. Cr. R. 604, 40 S. W. 591; Rutherford v. State (Tex. Cr. App.) 67 S. W. 100; State v. Louie Hing, 77 Or. 462, 151 Pac. 706.

Our investigation leads us to conclude that where a defendant in a criminal action elects to testify as a witness in his own behalf, and where his credibility is not attacked, except by contradiction of his testimony, evidence sustaining his reputation for truth and veracity is not admissible. In so far as the cases of Friel v. State, supra, and Smith v. State, supra, and the case of Gilbert v. State, 8 Okla. Cr. 329, 127 Pac. 889, conflict with this rule, they are overruled.

In the present case the defendant became a witness in his own behalf, and, to support his testimony, offered to prove by witnesses that he was a man of good character for truth and veracity. The fact that his testimony conflicted with that of witnesses for the state gave him no right to introduce evidence of his good character for truth and veracity, and the court did not err in rejecting the same. If the defendant desired to avail himself of good character, to be considered by the jury in connection with the other evidence in determining the question of his guilt or innocence, he should have offered evidence of his good character as a peaceable and law-abiding citizen.

We have examined the other assignments and find no error in any of the rulings assailed by them, and find none of them having sufficient merit to warrant any further discussion.

Finally, after a careful consideration of the whole case, we are forced to conclude that under the evidence the defendant might well have been convicted of murder. As to the self-defense theory, the physical facts conclusively show that the testimony of the defendant is wholly incredible. We think the jury were exceedingly lenient in fixing both the degree of the crime and the punishment. As shown by the record, the defendant had a fair and impartial trial under the laws of the state.

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

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


text:
    J. RAMBO v. STATE.
    No. A-4561.
    Opinion Filed June 21, 1923.
    Rehearing Denied Dec. 4, 1923.
    (220 Pac. 79.)
    (Syllabus.)
    1. Appeal and Error — Dismissal Where Procedure on Appeal Does not Fellow Statute. Procedure Criminal, Comp. St. 1921, § 2808, provides: “In misdemeanor cases the appeal must be taken within sixty days after the judgment is rendered: Provided, however, that the trial court or judge may, for good cause shown, extend the time in which such appeal may be taken not exceeding sixty days.” Held, in such cases the appeal is taken by filing in this court a petition in error with case-made attached, or transcript of the record, together with proof of service of notices of appeal as required by the statute, and when this is not done, this court does not acquire jurisdiction of the appeal, and such appeal will be dismissed.
    2. Same-Record to Shew Extension of Statutory Time for Appeal of Misdemeanor Case. Procedure Criminal, Comp. St. 1921, 5 2808, provides: “In misdemeanor cases the appeal must be taken within sixty days after the judgment is rendered: Provided, however, that the trial court or judge may, for good cause shown, extend the time in which such appeal may be taken not exceeding sixty days.” Held, where, for good cause shown, the statutory time is extended the record must affirmatively show such extension.
    Appeal from County Court, Cleveland County; George Allen, Judge.
    J. Rambo was convicted of a violation of tbe prohibitory liquor law, and he appeals.
    Appeal dismissed.
    H. J. Mackey, for plaintiff in error.'
    George F. Short, Atty Gen., and Leon S. Hirsh, Sp. Asst. Atty. Gen., for the State.
   DOYLE, J.

Plaintiff in error, J. Rambo, was convicted on a charge that he did have possession of 250 pints of Choctaw beer, containing more than one-half of one per cent, alcohol, with intent to violate the prohibitory liquor laws, and his punishment was fixed at a fine of $500 and confinement in the county jail for a period of 6 months. On October 10, 1922, the court rendered judgment and sentence in accordance with the verdict. From the judgment the defendant attempted to take an appeal by filing in this court on February 3, 1923, a petition in error with ease-made.

On June 2, 1923, the Attorney General filed a motion to dismiss the appeal herein for the reason:

“That no notice of appeal was served in this ease as required by law, in that the record shows that such notice of appeal was only served upon the court clerk, and that no such notice was served upon the county attorney as required by law, nor was there any summons in error issued.”

—and the further reason that the petition in error, with case-made, was not filed in this court within 60 days from the rendition of the judgment.

Counsel for appellant has filed a response to the motion stating that the record contains the proof of service on the county attorney of the notice of appeal.

Our Code provides:

“An appeal is taken by the service of a notice upon the clerk of the court where the judgment was rendered, stating that appellant appeals from the judgment. If taken by the defendant, a similar notice must be served upon the prosecuting attorney.” Section 2809, Comp. Stats. 1921.

It will be observed that the statute requires not only the service of a notice upon the prosecuting attorney, but also upon the clerk of the court where the judgment is rendered. That was not done in this case.

The uniform holding of this court is that notices of appeal, and the proof thereof given and made within the time prescribed for perfecting an appeal, are jurisdictional. Crawford v. State, 4 Okla. Cr. 4, 109 Pac. 1114; Bandy v. State, 5 Okla. Cr. 397, 114 Pac. 341; Means v. State, 10 Okla. Cr. 581, 139 Pac. 1155.

It follows that this ground of the motion to dismiss is well taken.

The appeal was not lodged in this court within sixty days after the rendition of the judgment.

Our Code provides:

“In misdemeanor cases the appeal must be taken within sixty days after the judgment is rendered: Provided, however, that the trial court or judge may, for good cause shown, extend the time in which such appeal may be taken not exceeding sixty days.” Section 808, Comp. Stats. 1921.

It has been repeatedly decided by this court that the record must show a proper order made by the trial court or judge thereof, extending the statutory time in which the appeal may be taken; otherwise the appeal will be dismissed, because this court is without jurisdiction to review the record on appeal. Alexander v. State, 11 Okla. Cr. 110, 143 Pac. 205; Gunter v. State, 13 Okla. Cr. 83, 162 Pac. 231; Peyton v. State, 13 Okla. Cr. 243, 163 Pac. 719; Self v. State, 23 Okla. Cr. 349, 214 Pac. 935.

For the reasons stated, the motion to dismiss the appeal is sustained, the appeal is dismissed, and the cause remanded to the county court of Cleveland county, with direction to enforce the judgment and sentence.

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


text:
    Ex parte XENOPHON JONES.
    No. A-4927.
    Opinion Filed Dec. 6, 1923.
    (220 Pac. 978.)
    (Syllabus.)
    1. Pardon — “Pardon” Defined, and Effect Stated. A pardon is an act of grace and mercy bestowed by the state, through its chief executive, upon offenders against its laws after conviction, and a full, unconditional pardon reaches both the punishment prescribed for the offense and the guilt of the offender; it obliterates in legal contemplation the offense itself, and hence its effect is to make the offender a new man.
    2. Same — To be Evidenced by Written Instrument Subscribed by Governor. Granting a pardon is an official act on the part of the Governor, and such an official act as the law requires to be evidenced by written instrument, to be subscribed by him.
    3. Same — Secretary of State to Countersign and Affix Seal of State — “Official Act.” Under Const, art. 6, § 18, requiring the Secretary of State, as custodian of the seal of the state, to “authenticate therewith, all official acts of the Governor, except his approval of laws,” it is the duty of the Secretary of State to countersign and affix the great seal of the state to all pardons granted by the Governor, and it is essential to the validity of an instrument purporting to' be a pardon that' it should be authenticated under the great seal of the state as the official act of the Governor.
    4. Same — Pardon not Authenticated by State Seal not Entitled to Registration. Under Const, art. 6, § 17, providing that the Secretary of State shall keep a register of the official acts of the Governor, an instrument purporting to be a pardon, not authenticated by the great seal of the state, is not entitled to be registered by the Secretary of State as an official act of the Governor.
    5. Same — Pardon not Authorizing Discharge of Prisoner Where noli Authenticated by Seal of State. The instrument in question in this case, purporting to be a pardon, signed by J. C. Walton, then Governor, was not authenticated under the great seal of the state or registered in the office of the Secretary of State. Held, that to be a valid pardon it must be authenticated under the great seal of the state, and without such authentication such instrument is insufficient in law to authorize the discharge of petitioner from the imprisonment of which he complains.

      Application of Xenophon Jones for writ of habeas corpus.
    Writ denied.
    Moman Pruiett, W. N. Redwine, Victor A. Sniggs, and O. C. Patterson, for petitioner.
    George F. Short, Atty. Gen., and John Barry, Asst. Atty. Gen., for respondent.
   DOYLE, J.

This is an application for discharge from imprisonment in the penitentiary on the part of Xenophon Jones.

It is averred in the petition that on the 7th day of July, 1921, he was convicted in the district court of Muskogee county of manslaughter in the first degree, and was sentenced to imprisonment in the state penitentiary for a term of 25 years; that he is now confined in said penitentiary by the warden, J. H. Townsend, under said judgment and commitment; that on the 23d day of October, 1923, J. C. Walton, who was then Governor of the state of Oklahoma, by virtue of the power and authority vested in him, granted and issued to petitioner, Xenophon Jones, a full and complete pardon for said offense for which he is imprisoned, said pardon to take effect immediately, and is entitled to his discharge, but that, notwithstanding this fact, he is unlawfully and illegally restrained of his liberty by J. H. Townsend, the warden, in confinement in said penitentiary, who refuses to discharge him.

Attached to the petition, and made a part thereof, is a copy of an instrument purported to be a pardon signed J. C. Walton, Governor of the state of Oklahoma, which instrument it appears is not authenticated by the great seal of the state or registered in the office of the Secretary of State or otherwise attested.

The Attorney General filed a demurrer to said petition on the ground that the same does not state facts sufficient to authorize respondent to release said petitioner or to entitle said petitioner to a discharge from the imprisonment of which he complains. The argument of the Attorney General is that the purported pardon attached to said petition shows upon its face that it has not been presented to and authenticated by the Secretary of State or registered as an official act of the Governor, as provided and required under article 6, §§ 17 and 18, of the Constitution, and that until the same is so authenticated it is not a valid pardon.

It will be observed, as preliminary to the consideration of the question presented, that a pardon is an act of grace and mercy bestowed by the state through its chief executive, upon offenders against its laws after conviction, and a full and unconditional pardon reaches both the punishment prescribed for the offense and the guilt of the offender; it obliterates in legal contemplation the offense itself; and hence its effect is to make the offender a new man. Ex parte Crump, 10 Okla. Cr. 133, 135 Pac. 428, 47 L. R. A. (N. S.) 1036.

In United States v. Wilson, 7 Pet. 150, 8 L. Ed. 640, Chief Justice Marshall said:

“The Constitution gives to the President, in general terms, ‘the power to grant reprieves and pardons for offenses against the United States.’ As this power had been exercised, from time immemorial, by the executive of that nation whose language is our language, and to whose judicial institutions ours bear a close resemblance, we adopt their principles respecting the operation and effect of a pardon, and look into their books for the rules prescribing the manner in which it is to be used by the person who would avail himself of it.
“A pardon is an act of grace, proceeding from the power intrusted with the execution of the laws, which exempts the individual, on whom it is bestowed, from the punishment the law inflicts for a crime he has committed. It is the private, though official act of the executive magistrate, delivered to the individual for whose benefit it is intended, and not communicated officially to the court. It is a constituent part of the judicial system, that the judge sees only with judicial eyes, and knows nothing respecting any particular case, of which he is not informed judicially. A private deed, not communicated to him, whatever may be its character, whether a pardon or release, is totally unknown, and cannot be acted on. The looseness which would be introduced into judicial proceedings would prove fatal to the great principles of justice, if the judge might notice and act upon facts not brought regularly into the cause. Such a proceeding, in ordinary cases, would subvert the best established principles, and overturn those rules which have been settled by the wisdom of ages.
“Is there anything peculiar in a pardon which ought to distinguish it in this respect from other facts? We know of no legal principle which will sustain such a distinction. A pardon is a deed, to the validity of which delivery is essential, and delivery is not complete without acceptance.”

In Knapp v. Thomas, 39 Ohio St. 377, 48 Am. Rep. 462, it is said:

“It is, in effect, a reversal of the judgment, a verdict of acquittal and a judgment of discharge thereon, to this extent, that,there is a complete estoppel of record against further punishment pursuant to such conviction. Though sometimes called an act of grace and mercy, a pardon, where properly granted, is also an act of justice, supported by a wise public policy.”

Wharton says:

“Pardon, in its technical legal sense, is a declaration oh record by the sovereign that a particular individual is to be relieved from the legal consequences of a particular crime.” I Whart. Crim. L. (7th Ed.) § 591a.

This definition is probably the most accurate and comprehensive, and best expresses the legal signification of the word.

The power to pardon is an executive power expressly vested by the Constitution of the state in the Governor. The language of the Constitution (article 6, § 10) is:

“The Governor shall have power to grant, after conviction, reprieves, commutations, paroles, and pardons for all offenses, except cases of impeachment, upon such conditions and with such restrictions and limitations as he may deem proper, subject to such regulations as may be prescribed by law. He shall communicate to the Legislature, at each regular session, each case of reprieve, commutation, parole, or pardon, granted, stating the name of the convict, the crime of which he was convicted, the date and place of conviction and the date of commutation, pardon, parole, or reprieve.”

It is to be observed that, as the Constitution has vested the pardoning power in the Governor, and clothed him with exclusive authority to grant, after conviction, pardons for all offenses, except cases of impeachment, the only limitations which have been or can be made on the power are found in the Constitution itself. Ex parte Ridley, 3 Okla. Cr. 350, 106 Pac. 549, 26 L. R. A. (N. S.) 110. The Constitution deals with the pardoning power not as a prerogative claimed by divine right, but as an adjunct to the administration of justice, recognized in all civilized governments as necessary by reason of the fallibility of human laws, and human tribunals. Generally speaking, the granting of pardons is discretionary in its nature, and this discretion should, be exercised upon public considerations alone. The indiscriminate exercise of the pardoning power is a blow at law and order, and is an additional hardship upon society in its irrepressible conflict with crime and criminals.

This brings us to the question in this case, as to whether or not the instrument in question upon which petitioner claims that he is entitled to his. discharge, is a valid, effectual pardon without being authenticated under the great seal of the state. The question presented involves a construction of the following provisions of the Constitution:

“The Secretary of State shall keep a register of the official acts of the Governor, and when necessary shall attest ' them, and shall lay copies of the same, together with copies of all papers relative thereto, before either house of the Legislature when required to do so.” Article 6, § 17. ■
“The Secretary of State shall be the custodian of the seal of the state, and authenticate therewith all official acts of the Governor except his approval of laws. The said seal shall be called ‘the great seal of the state of Oklahoma.’ ” Art. 6, § 18.

The duty of courts in construing constitutional provisions is to give effect to the intent of the framers and of the people in adopting the same, and, whenever it is possible to do so, each provision must be construed so that it will harmonize with all others, to the end that the intent may be ascertained and carried out, and effect given to the instrument as a whole. In all cases where the meaning is clear and unambiguous the question is not what was the intention? but what is the meaning of the language used? Ex parte Crump, supra.

Under the Constitution the Secretary of State is the custodian of the great seal of the state, and is required to authenticate therewith all official acts of the Governor. In England there is one great seal by virtue of which a great part of the royal authority is exercised. The appointment of Lord High Chancellor, or Lord Keeper, is made by the delivery of the great seal into his custody. Seals were known and used among the earliest nations of antiquity. A striking illustration is that of Jeremiah buying the field in Anathoth, where he “subscribed the evidence and sealed it, and took witnesses,” much in the same way a conveyance of land is now made. Writings under seal were then of great importance ; for instance, in the Book of Esther, viii, 8, we read:

“Write you for the Jews also as it liketh you, in the king’s name, and seal with the king’s ring, for the writing that is written in the king’s name and sealed with the king’s seal may no man reverse. ’ ’

Chancellor Kent maintains that the object of seals is to give due solemnity and ceremony in the execution of important instruments, and not to designate any particular person, and President Pendleton said in Jones v. Longwood, 1 Wash. (Va.) 42:

“To consider it upon the reason of the thing, a seal is required to give solemnity to the act.” See 34 Cent. Law Journal, 280. When the Eling “does pardon under the great seal, it has the full effect of the Parliament pardon.” Holt, C. J., in 13 How St. Tr. 186. And “the Legislature cannot change the effect of such a pardon any more than the executive can change a law.” U. S. v. Klein, 13 Wall. 128, 20 L. Ed. 519.

We have examined all the eases accessible bearing upon the question under consideration, but find only one • directly in point. In Sutton v. Mcllhany, an early Ohio case, 5 Western Law Journal, 356, it is said:

“A pretended pardon, issued without the seal, would be a nullity. It would be a private, and not an official act of the Governor. When the law requires an instrument to be sealed, and it becomes necessary in the court of pleading to set it up, by either party, the party pleading it must aver it has a seal. I Chitty Pl. 348, 349; 12 John. Rep. 197. ’ ’

In Aetna Ins. Co. v. Hallock, 6 Wall, 556, 18 L. Ed. 948, Mr. Justice Miller said:

“If the paper here called an order of sale is to be treated * * * as a process of any kind issued from the court, which the law required to be issued under the seal of the court, there can be no question that it was void. * * * The authorities are uniform that all process issuing from a court, which by law authenticates such process with its seal, is void if issued without a seal.”

In Overton v. Cheek, 22 How. 46, 16 L. Ed. 285, it was held that a writ of error from the United States Supreme Court to a Circuit Court of the United States which has no seal is void.

In Starkey v. Lunz, 57 Or. 147, 110 Pac. 702, Ann. Cas. 1912D, 783, it was held that:

“A court clerk’s omission to attach his seal to a writ as required by law is a remediable irregularity only when the statutes authorize such amendment, and since circuit clerks are required to affix their seals to process issued by them, an attachment without such seal is void; the provision of [the statute] permitting amendment of ‘proceedings’ in furtherance of justice not being enough to authorize amendment by affixing the seal.”

In Oelbermann v. Ide, 93 Wis. 669, 68 N. W. 393, 57 Am. St. Rep. 947, it was held:

“If the law provides that an officer shall have an official seal, that his acts shall be certified to under his hand and seal of office, his certificate of verification of a complaint which is not impressed with such seal is void.”

In Randall Co. v. Glendenning, 19 Okla. 475, 92 Pac. 158, it is said:

“Under our statute, the only persons authorized to execute an instrument affecting real estate made by a corporation must be an attorney in fact of said corporation, or by the president or vice president of said corporation, and their signature must be attested by the secretary or clerk with the seal attached; so the signature of two officers of a corporation must be signed to every instrument affecting real estate, otherwise, the same is void, and a void instrument, under the authorities, is not eligible of record.”

In Knapp v. Thomas, supra, it is said:

"A charter of pardon has been sometimes likened to a deed, in- this sense, that it is of no force until it is delivered and accepted, * * * but no case can be found which denies that it is matter of record; and, in truth, it is matter of record of so high a nature that no averment can be taken against it.”

In Ex parte Reno, 66 Mo. 266, 27 Am. Rep. 337, it was held that a pardon properly attested, authenticated, and delivered is irrevocable, and is not void although not registered in the office of the Secretary of State where all official acts of the Governor are required to be registered.

We quote from the opinion as follows:

"That a pardon or commutation is a mere matter of grace, and, until this act of clemency is fully performed, neither benefit nor rights can be claimed under it. Simple intention on the part of the executive to bestow a pardon, confers no right, and is perfectly nugatory until the intention may be said to be fully completed. This intention may be said to be fully completed when the pardon is signed by the executive, properly attested, authenticated by the seal of the state, and delivered, either to the person who is the subject of the favor, or to some one acting for him, or on his behalf. Whenever these things are done, the grantee, or donee of the favor, becomes entitled as a matter of right to all the benefits and immunities it confers, and of which he eqnnot be deprived by revocation or recall.”

The power to pardon, except as limited by the Constitution, extends to every offense against the state known to the law. The great scope of power thus conferred is a potent reason for holding that the several safeguards surrounding the exercise of such powers must be fully complied with.

Under the Constitution the power to pardon cannot be treated merely as a privilege. In granting a pardon the Governor exercises a public function, and acts by virtue of his office. It is an official act on the part of the Governor, and such an official act as the law requires to be evidenced by a written instrument to be subscribed by him; it is then the duty of the Secretary of State to countersign and affix the great seal of the state thereto. The object of the constitutional requirement is apparent. The great seal of the state, bearing a device prescribed by the Constitution (article 6, § 35), impressed upon a written instrument bearing the purported signature of the Governor of the state, is the only proper authentication that the signature is genuine, and that the instrument is an official act of the Governor. This is the object and purpose of the requirement. It follows that without such attestation such instrument is not entitled to be registered by the Secretary of State as an official act of the Governor. Beyond the foregoing constitutional provisions as to registration and authentication there is no provision of law in this state directing what procedure shall be followed with respect to giving authentication to purported pardons and paroles.

It is said that a pardon partakes of the nature of a deed of conveyance, in that it must possess all the requirements of validity of a deed of conveyance at common law, one of the essentials being that it shall be issued under seal. Under this rule it is essential that a pardon before delivery must bear the impress of the great seal of the state of Oklahoma as required by the Constitution. Article 6, § 18. This court is presumed to know who is the chief executive at any-given time. The court knows judicially that on the 23d day of October, 1923, the date of the instrument in question, J. C. Walton was Governor; that upon his impeachment and removal from office, M. E. Trapp became, under the Constitution, he being Lieutenant Governor, the acting Governor from the 23d day of October, 1923. However, we have no doubt the instrument in question was signed by J. C. Walton, then Governor.

It follows from what we have said that under the last above quoted sections of the Constitution it is essential to the validity of an instrument purporting to be a pardon that it should be authenticated under the great seal of the state as the official act of the Governor, and we hold that a valid pardon must bear the impression of the great seal of the state before delivery and acceptance by the grantee; without such authentication the instrument in question was at most an attempt to pardon, and was a mere nullity. It is our opinion that, in the absence of such authentication, the instrument in question is insufficient in law to authorize the discharge of petitioner from the imprisonment of which he complains.

The demurrer to the petition is therefore sustained, and the writ denied.

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


author: PER CURIAM.

text:
    Ex parte R. L. WHARTON.
    No. A-4933.
    Opinion Filed Dec. 7, 1923.
    (220 Pac. 1118.)
    Application of R. L. Wharton for writ of habeas corpus.
    Cause dismissed.
    L. D. Mitchell, for petitioner.

      The Attorney General, J. K. Wright, Co. Atty., and Laney Harrod and H. T. Tumilty, Asst. Co. Attys., for respondent.
   PER CURIAM.

This was an application to this court for writ of habeas corpus involving the arrest of the petitioner, R. L. Wharton, upon a warrant issued by M. E. Trapp, Acting Governor, upon a requisition from the Governor of the state of Kansas, for the return of R. L. Wharton, to the state of Kansas, upon the ground that said petitioner was charged with obtaining money by false pretenses, the said R. L. Wharton being in the custody of Tom Cavnar, sheriff of Oklahoma county, and James Reardon, special agent of the state of Kansas. Upon the presentation of the petition to the presiding judge of this court the writ was allowed and made returnable November 26, 1923. Upon the return day, all parties appearing, it was by their counsel of record agreed in open court that said cause should be dismissed. It was thereupon ordered by the court that the same be and is hereby dismissed.


text:
    In re ED WARREN.
    No. A-4928.
    Opinion Filed Dec. 7, 1923.
    (220 Pac. 1118.)
    Petition of Ed Warren for writ of habeas corpus.
    Cause dismissed.
    Moman Pruiett, Victor A. Sniggs, and O. C. Patterson, for petitioner.
    The Attorney General and John Barry, Asst. Atty. Gen., for respondent.
   PER CURIAM.

This was an application for discharge from imprisonment in the penitentiary on the part of Ed Warren, who was on the 4th day of September, 1920, convicted in the district court of LeFlore county of murder and sentenced to imprisonment in the penitentiary for life, alleging that his imprisonment is illegal by reason of a certain pardon issued and granted unto the said Ed Warren on the 14th day of September, 1923.

When the petition was presented to the court counsel for petitioner filed motion to dismiss the case, which motion is sustained and cause dismissed.


author: PEE CUEIAM.

text:
    D. L. MARTIN v. STATE.
    No. A-4724.
    Opinion Filed Dec. 8, 1923.
    (220 Pac. 1118.)
    Appeal from District Court, Payne County; C. C. Smith, Judge.
    D. L. Martin was convicted of receiving a loan from the Yale State Bank while president and managing officer thereof, and he appeals.
    Appeal dismissed.
    John P. Hiekam, for plaintiff in error.
   PEE CUEIAM.

Plaintiff in error, D. L. Martin, was tried and convicted on an information in substance charging that in Payne county on the 17th day of January,- 1922, while president and managing officer of the Yale State Bank, a banking corporation, he executed and delivered his personal note for the sum of $5,000, payable to I. A. Tull, and delivered the same to I. A. Tull, and said D. L. Martin received from the said I. A. Tull, a like note for the like sum of $5,000, signed by I. A. Tull, and made payable to the Yale State Bank of Yale, and said D. L. Martin placed the note of I. A. Tull in the Yale State Bank as part of the assets of said bank for the purpose of aiding and assisting the said D. L. Martin in borrowing the sum of $5,000 from tbe Yale State Bank of Yale and covering up the fact that the loan was made to D. L. Martin, instead of I. A. Tull, the said D. L. Martin did then and there unlawfully and feloniously take out of the said Yale State Bank of Yale, the sum of $5,000, the property of the said bank without the knowledge and consent of the said bank and its board of directors, and against their will, and with the unlawful and felonious intent to deprive the said bank of said property and convert the same to the use and benefit of the said D. L. Martin.

On February 16, 1923, judgment was rendered and he was sentenced to imprisonment in the penitentiary for the term of one year and one day. From the judgment he appealed by filing in this court on June 11, 1923, a petition in error with case-made.

Plaintiff in error by his counsel of record has filed a motion to dismiss his appeal, which motion is sustained. The appeal herein is therefore dismissed and the cause remanded to the trial court. Mandate forthwith.


text:
    Ex parte H. B. LANE.
    No. A-4881.
    Opinion Filed Dec. 8, 1923.
    (220 Pac. 1117.)
    Application of H. B. Lane for writ of habeas corpus.
    Writ denied.
    C. F. Gowdy, for petitioner.
    The Attorney General, contra.
   PER CURIAM.

On October 13, 1923, petitioner H. B. Lane appealed to this court for a writ of habeas corpus, alleging that he was unlawfully deprived of his liberty and confined in the county jail of Nowata county, Okla., by W. S. Gillespie, sheriff of said county. For cause for issuance of the writ petitioner alleged that he was charged with the unlawful manufacture of intoxicating liquors in the county court of Nowata county, with an appearance bond fixed in the sum of $1,500; that on the 6th day of October, 1923, the October term of said county court adjourned without trying this petitioner, although said petitioner was confined in jail at said time.

Petitioner further alleges that said bond of $1,500 is excessive and that he cannot make bond in such sum, and asks this court to reduce the bond to the sum of $500.

Upon consideration of the petition this court reached the conclusion that it was without jurisdiction to grant the relief prayed for, and the writ was refused and the cause dismissed.


text:
    BILL MAGIN v. STATE.
    No. A-4567.
    Opinion Filed Dec. 10, 1923.
    (220 Pac. 666.)
    (Syllabus.)
    Intoxicating Liquors — Issuance of Search Warrant on Information and Belief — Illegality. Issuance of warrant to make search for illicit intoxicating liquor, on affidavit based on information and belief, and without stating facts showing probable cause, is improper.
    Appeal from County Court, Grady County.
    Bill Magin was convicted of unlawful possession of intoxicating liquors, and he appeals.
    Beversed and remanded.
    H. F. Tripp, and E. Hamilton, for plaintiff in error.
    George F. Short, Atty. Gen., and G. B. Fulton, Asst. Atty. Gen., for the State.
   PER CURIAM.

Plaintiff in error, Bill Magin, was charged in the county court of Grady county with the offense of unlawful possession of intoxicating liquor, alleged to have occurred on or about the 19th day of June, 1922. The trial resulted in a verdict of guilty with the punishment fixed as above stated, and judgment was rendered on the 12th day of December, 1922, and petition in error with case-made attached was filed in this court on the 9th day of February, 1923.

The Attorney General has filed the following confession of error:

“Comes now George F. Short, the duly elected and qualified Attorney General of the state of Oklahoma, and confesses error in the above-entitled cause, for the reason ' that the record discloses the following facts, to wit:
“On June 19, 1922, Matt Sankey, sheriff of Grady county, Oklahoma, made application to T. P. Moore, justice of the peace, for a search warrant, which application is shown in the record to be as follows:
“ ‘In the Justice Court within and for Grady County, Oklahoma.
“‘State of Oklahoma, Grady County — ss.:
“ ‘Comes now Matt Sankey, and upon oath states that he is sheriff of Grady county, and that to the best knowledge and belief of this affiant there is now located in the building located at 427 Chickasha avenue, now occupied by Will Ma-gin, quantities of malt, vinous, spirituous, and fermented liquors, and imitations and substitutes are kept for an unlawful purpose, and are to be disposed of in violation of the provisions of the prohibition laws of the state of Oklahoma. Wherefore he asks that a search warrant be issued,- commanding the sheriff or any constable, marshal, or policeman in Grady county, Oklahoma, to search said premises and seize said liquors if any should be found therein.
“ ‘Matt Sankey.
“ ‘Subscribed and sworn to before me on this the 19th day of June, 1922.
“ ‘T. P. Moore, J. P.,
“ ‘13th District, Grady County.’
“Based upon this application a search warrant was issued, and by authority of such search warrant the officer searched the premises of the plaintiff in error, and found between 40 and 45 gallons of grape juice and strawberry juice. Herbert Farley, who was at that time an employee of the plaintiff in error, testified on cross-examination that they had put the grape juice and strawberry juice in kegs; that they had put sugar in it; that he did not know how long it was left in the kegs, but that the pulp had molded; that nobody else except Farley and Magin drank it; that there was about 40 or 45 gallons altogether; and he practically admits that it was wine. Part of this beverage was taken by the officers and used in evidence against the plaintiff in error, and the search warrant predicated upon the above-quoted application was also admitted in evidence against him.
“The plaintiff in error in his brief urges that the court erred in admitting in evidence the search warrant, verified ‘on the best knowledge and belief’ of the sheriff, and cites section 30, article 2, of the Constitution of Oklahoma, which is the section relative to illegal searches and seizures. One of the more recent decisions of this court construing said section of the Constitution is that of Gore v. State, 24 Okla. Cr. 394, 218 Pac. 545. In that case the defendant was charged with violating the prohibitory laws of this state, and this court held that a search warrant must not be issued, except upon a showing of probable cause, supported by oath or affirmation, which must set forth the facts tending to establish probable cause; that an affidavit stating mere conclusions, or made on belief, without stating the facts, is insufficient, and a search warrant based upon such a showing is void, and also that any articles, papers, or property seized by the officers or the court under color of an unreasonable or unauthorized search and seizure,- taken from the home, office; or private premises of one accused of an offense, should not be used as evidence against the accused, where timely objections are made to the introduction of such evidence so illegally obtained. In the body of the opinion the court said:
“ ‘The defendant says these two affidavits are insufficient in form and substance to authorize the issuance of search warrants, and that the two search warrants issued, based upon these affidavits, are therefore void, not being in compliance with the constitutional and statutory regulations relating to search and seizure; that the statement made in the affidavits that the affiant “has probable cause for believing and does believe that intoxicating liquors are being manufactured,” etc., amounts to a complaint made on information and belief only, and does not “set forth the facts tending to establish the grounds of the application or probable cause for believing they exist,” as provided in our statutes. This court is of the opinion that this objection is well taken. In Salter v. State, 2 Okla. Cr. 464, 102 Pac. 719, the question of the issuance of warrants, whether in felony or misdemeanor cases, is ably discussed and analyzed by Judge Doyle, in which opinion the decisions of the United States Supreme Court, touching upon the question, are reviewed from the beginning, as well as the rulings of other courts, all to the effect that a complaint upon information and belief constitutes no grounds upon which a magistrate may issue a warrant. The probable cause must be shown, as distinguished from the mere information and belief of affiant. In another, opinion written by Judge Doyle, Silva v. State, 6 Okla. Cr. 97, 116 Pac. 199, this court held, among other things, that a search warrant issued upon information and belief is issued without warrant of law and in violation of section 30 of our Bill of Rights. ’
“In view of the facts above mentioned and the law applicable thereto, the Attorney General respectfully submits to the honorable court his confession of error. George F. Short, Attorney General, by G. B. Fulton, Assistant Attorney General. ’ ’

After considering the record, in connection with the confession of error filed by the Attorney General, the conclusion is reached by the court that the confession of error should be sustained. The judgment of conviction is therefore reversed, and the cause remanded to the county court of Grady county for further proceedings not inconsistent herewith.

Mandate forthwith.