author: BAKER, Judge

text:
    Arthur Hinsley v. United States.
    No. 749,
    Ind. T.
    Opinion Filed November 19, 1908.
    (98 Pac. 363.)
    1. APPEAL — Review—New Trial — Grounds—Sufficiency of Evidence. A new trial will not be granted for, insufficiency of the evidence, or where the evidence is conflicting, or because the verdict is contrary to the evidence; these questions being within the discretion of the trial court,, its decision will not be disturbed on appeal, unless it appears that the trial court abused its discretion touching these matters.
    2. CORPUS DELICTI — Sufficiency of Evidence. To warrant or sustain a conviction for crime, there must be evidence sufficient to prove that the offense was committed, and also to inculpate the defendant in the commission thereof.
    3. APPEAL — Review of Evidence. Upon the overruling of a motion for a new trial by the trial court upon the ground that there is no evidence to support the verdict, when the overruling of such motion was properly excepted to and preserved in the record, and is made the basis of an assignment of error, it is the duty of the appellate court to review the evidence; and, if the record discloses that there is no evidence to support the verdict, a new trial should be granted.
    (Syllabus by the Court.)

      Error from the United States Court for the Central District of the Indian Territory; before Justice Thomas C. Humphrey.

      Arthur Hinsley was convicted of manslaughter, and appeals.
    Reversed and remanded.
    Appellant, Arthur Hinsley, was indicted in the United States court for the Central district, Indian Territory, sitting at Durant, which indictment was duly returned by the grand jury and filed in said court on the 15th day of November, 1905, .wherein said appellant was charged with having on the 6th day of November, 1905, within said district, committed the crime of murder, in the killing of Clarence Schwartz. On the 17th day of November, 1905, the appellant was duly arraigned and entered a plea of not guilty, and upon his motion this cause was continued to the next term of said court. On February 28th, 1906, he was found guilty of the crime of manslaughter, and on the same day filed in open court his motion for a new trial, which motion was by the court on the 3d day of March, 1906, overruled; and the court sentenced appellant to imprisonment in the training school for boys at Boonville, in the state of Missouri, for the term of two years. A writ of error was duly allowed to the United States Court of Appeals for the Indian Territory, sitting at South McAlester, and this cause was pending in said Court of Appeals at the time of the organization of the state of Oklahoma, and was duly removed to the Supreme Court of the state of Oklahoma by virtue of the terms and provisions of the enabling act and the Constitution of the state of Oklahoma, and was, by the Supreme Court of this state, in pursuance of an act of the legislative assembly of the state of Oklahoma, entitled “An Act creating a Criminal Court of Appeals and defining the jurisdiction of said court,” approved May 18, 1908 (Laws 1907-08, p. 291, c. 28), transferred to this court.
    The appellant, Arthur Hinsley, a boy of about 13 years, the deceased, Clarence Schwartz, a boy of 12 years, and appellant’s brother, McKinley Hinsley, a boy of 10 years, were schoolmates, playmates, and friends, living near each other in the town of Caddo, Ind. T., for a considerable length of time before the killing occurred. These boys were in the habit of accompanying each other to and from school, and on hunting expeditions. On the morning of the day that the killing occurred the appellant and deceased were on their way to the public school in said town, and on their way planned a hunting trip, to take place after school of that day. They went from the school together at noon as usual, and during the noon hour deceased called at the home of appellant, and invited him to go to the hardware store, where they purchased a box of loaded shells (cartridges), and also stopped at a drug store near by and bought a tablet, taking the shells to the home of appellant and returning to school together in the afternoon. After school they went to the home of deceased, where the deceased remained to do some chores for the evening, while the appellant went to his home nearby. After waiting some time for the deceased, appellant, with his little brother, McKinley, started to the hunting ground, stopping for a short time at the National Bank corner in Coddo. In the meantime deceased had called at the home of appellant, but not finding him there he proceeded downtown to join appellant for the hunt agreed upon. The three, boys met at said bank corner, and started for the hunting ground in Ainsworth’s pasture. Soon after starting they met another playmate, named Edmond Franklin, whom appellant invited to join them on the hunt, but he did not go. When they reached the tank in said pasture, they amused themselves for a time shooting birds. Leaving the pasture for home, about sundown, and when they reached a point near the top of a hill on their way home, a dog which they had with them acted in a manner to indicate that he was about to locate a rabbit, and appellant, observing the dog’s conduct, called to the deceased and appellant’s little brother to scatter out, that the dog would likely “jump a rabbit.” At this time appellant, who had the only gun in the party, raised his gun to prepare to shoot the rabbit, and his thumb slipped off the hammer and the gun was discharged, killing Clarence Schwartz, who stood a short distance from where appellant’s brother, McKinley, stood at the time the gun was discharged. The gun was loaded with shot, the load taking effect in the left side of deceased, injuring his left arm to some extent, and killing him instantly. Appellant and his brother, after the discharge of the gun, went to the side of deceased and found him fatally wounded, and soon thereafter left him and started for home, going as far as the pasture gate, stayed there a short time, and went back t'o the deceased, and, leaving 'him a second time, went to their home. Appellant was sick all night after the killing, and was too ill to go to school next morning.
    The boys did not report the killing to their parents, but, on the contrary, both denied knowing anything about it, and continued to deny all knowledge of the same until the second day after the killing, when both appellant and his brother, McKinley, confessed their knowledge of the killing, and claimed that it was accidental, explaining the accident in detail. The boys made their confession to Town Marshall Braudrick, separate from one another, and at different places, but their explanations of the killing were identical, and were in strict accordance with their testimony at the trial. About i o’clock of the day following the killing deceased’s father, in search of his son, called at the home of appellant, but, he being at school, in company with the father of appellant, they went to the schoolhouse, where they found him, and he again denied all knowledge of the killing, but stated that he left deceased in the pasture with some other boys, who had a target gun. Upon being invited to go to the pasture with them, the three together proceeded to the pasture in question, and, reaching the pasture, pointd out a spot some distance from where the body was found as the place where he had left deceased. Others joined in the search for deceased, including two women of the neighborhood, who soon after the searching party reached the pasture found the body lying on the hillside, at the place where he was killed. An examination of the body revealed the fatal gunshot wound in the left side, and some abrasions of the skin on the left arm, and also found a circular abrasion of the skin about the size of a dime on his left hand. Appellant, continuing to deny all knowledge of the killing, was taken to the city jail or calaboose, together with his brother, McKinley, Edmond Franklin, Avon Franklin, and Roy Fuller, where they remained all night. The next morning all the boys, except appellant, were released from the prison, he remaining alone in prison from 9 o’clock until 11 o’clock in the morning, when he confessed his knowledge of the killing as aforesaid.
    ■ Appellant filed his motion for a new trial in due time in the court below, asking for a new trial for the reasons: (1) That the verdict of the jury finding the defendant guilty of manslaughtr, as charged in the indictment, is not supported by the evidence. (2) That the verdict of the jury finding the defendant guilty of manslaughter, as charged in the indictment, is contrary to the evidence. (3)That the verdict of the jury finding the defendant guilty of manslaughter, as charged in the indictment, is contrary to law. (4) That the court committed error in instructing the jury in this case on the law and theory of manslaughter. (5) That the court erred in instructing the jury as to the law of manslaughter, and that the said instructions do not correctlj state the law of manslaughter, and that such error was prejudicial to the defendant. (6) The court erred in refusing the following instruction requested by the defendant: “The government having failed to show by competent testimony affirmatively that the defendant was capable of discerning good from evil, you are instructed to acquit the defendant.” (7) The court erred in permitting the testimony of Ernest Bagwell, a witness for the government, to go to the jury over the objection of the defendant. (8) That the entire instruction of the court was erroneous and prejudicial to the rights of the defendant, in that it is in the abstract and ambiguous, and so worded and constructed as to confuse the jury as to the law applicable to the facts or evidence adduced in the case.
    Said motion being overruled by the court below, to which the defendant duly excepted, and appealing to this court, assigns and urges the following errors: First. That the court erred in overruling defendant’s motion for a new trial, based on the ground that the verdict of the jury was not supported by the evidence, and was contrary to the evidence. Second. That the court erred in overruling defendant’s motion for a new trial, based on the ground that the verdict in this case was not supported by the law, and was contrary to the law. Six other assignments of error are relied upon for reversal herein by appellant, and are in substance as follows: That the court erred in instructing the jury in this case in the law of manslaughter; in refusing to give instructions requested by appellant; in the admission of the testimony of Ernest Bagwell; for the reason that the instructions of the court were ambiguous; in overruling appellant’s motion for a new trial; and in sentencing accused.
    Ten witnesses were sworn and testified for the prosecution.
    The first, Dr. E. T. Smith, who described the wounds found upon the body of the deceased, testifying that they were gunshot wounds, and fatal.
    John Schwartz, father of the deceased, testified in substance that his son, in company with other boys, left his home the evening of the day of the killing after school, and that he failed to return that night; that the next morning he instituted search for his son, and, going to the home of appellant about 8 o’clock in the morning, found him in bed sick; that appellant stated to him at this time that he left deceased at or near the water tank in the Ainsworth pasture the evening before with some other boys who had a target gun; that the deceased started in the direction of a house nearby; that he saw nothing more of him after appellant himself left the pasture, returning to his home. Witness stated that he went a second time to appellant’s home, this time about 1 o’clock of the same day, and found him not at home. Being told that he was at school, he, in company with appellant’s father, drove in a buggy to the school house, where they found him. When being asked to go with them in search of deceased, he complied, and all went to the pasture in question. When they reached the pasture, appellant again stated that he had left the deceased near the tank, pointing to the place where he had left him; the place' pointed out being about a quarter of a mile distant from the place where the body of the deceased was afterwards found. At the time they were at the pasture and near the tank. Mrs Bulah McGuire and Miss Bulah Black, who lived near said pasture, were also searching for the deceased, and found his body on the hillside some distance from where appellant, in company with his father and deceased’s father, then were. They all proceeded to the body, and, reaching there, appellant displayed no emotion at seeing the body of his playmate. Upon being ac-caused by Mrs. McGuire with being responsible for the death of the deceased, he again denied all knowledge of the killing, stating that a man might have shot him; that he did not fire a gun near where the body was found.
    Bulah Black testified that she was in the searching party, in company with Bulah McGuire, and found the body of the deceased upon the hill at a point in plain view of at least two houses near by, and in view of several other houses; that, when she found the body, she immediately notified the father of deceased, who was then in company with appellant and his father and a Mr. Homer in said pasture near by; that they all went to the place where the body was found; and that the accused, upon seeing the body displayed no emotion. This.witness corroborates in all important respects the statements made at the scene of the killing as testified to by the father of deceased. Bulah McGuire also testified to substantially the same facts.
    A. P. Braudrick, the town marshal, testified, in substance, that he visited the place where the body of the deceased was found, which was within a quarter or half a mile from the corporate limits of Caddo, in the Ainsworth pasture, and described the position of the body as lying on his back with his head south, his left arm by his side, right arm stretched out at right angles with the body; that he found an empty shell of a number 12-guage gun about 30 feet from the body; that appellant was near him when he picked up the shell, saw him pick it up, but said nothing; that from an examination made by him he found the deceased was shot in the left side, and also noticed a mark or ring on his left wrist, about, the size of a dime or a little larger; that the ring or circle was black, and looked like a powder mark or burn, the skin was slightly broken in one place, but there was no blood; that he had a conversation with appellant after the body was carried home, and he denied knowing anything about the killing, admitted that he had gone hunting with deceased, but that he had left him at the big gin tank, and that he and his brother, McKinley, went from the tank to the Morris tank. After this conversation appellant and his brother, McKinley, with three other boys of about their ages, were put in the calaboose. After appellant had been imprisoned, the marshall had a further talk with him, and asked him to tell him the truth of the matter; that if he killed the deceased, he wanted to know it, and, if he did not, he wanted to know it; that the prisoner “broke down” and answered that he had killed him, and that he had done it accidentally. He also stated that the dog had jumped a rabbit, and he was trying to shoot the rabbit, but killed deceased. At the time of this confession, appellant and witness were the only persons in the calaboose. Appellant further stated to this witness that at the time he was preparing to shoot the rabbit his thumb slipped off of the hammer and the gun discharged, killing deceased, and that at the time the gun was so discharged his brother, McKinley, was standing nearly in line between him and the deceased, a short distance away. Appellant admitted the shell found by the marshal was from his gun, and was the shell which had contained the fatal shot.
    The marshal describing the surroundings where the body was found, said that there was no brush, long grass,’ or anything else to obstruct the view at that point; that the grass at that particular place was very short, and that the body was found nearly on top of the hill; that at the time appellant made the confession aforesaid his brother, McKinley, was not present, and was not in jail; having been released .a couple of hours before, and was at that time down town in charge of Joe Black and A. J..' Vaughan, deputy marshals; that McKinley Hinsley, upon being informed that appellant had made a confession about the killing, voluntarily made identically the same statement concerning the killing as did appellant, and being the same statement testified to by both at the trial of this case.
    Witness Joe Black testified that he was deputy town m'arshal, and had the care of and was guarding the boy prisoners, and that all the prisoners excepting appellant were released from the calaboose about 8 or 9 o’clock in the morning, and that from the time McKinley Hinsley was released in the morning until the time of the confession by appellant, as aforesaid, the two brothers had no opportunity of communicating with one another.
    Roy Fuller was the next witness for the government, but he swore to no material fact.
    William Harriman, a witness for the government, testified that he lived at Caddo during the month of November, 1905, and was acquainted with appellant and deceased; that on the Friday preceding the killing, just after school, appellant and deceased were throwing clods at one another, and seemed angry, and that appellant said, when the boys parted: “I will get )rou, gol durn you, yet.”
    Noah Lane, a witness for the government, testified, in substance, that he lived near Caddo in November, 1905; that he remembered the shooting of the Schwartz boy; that he is a barber by trade, and that appellant sometimes blacked boots in the barber shop in which he worked; that appellant was employed in said barber shop three or four weeks before the trial of this case in the court below; that he asked appellant at that time if he killed deceased accidentially, or on purpose, and that he replied: “It did not make any difference. He would get out of it just the same.”
    The last witness called by the government was Ernest Bag-well, who testified, in substance, that he, with Roy Ridley, were at the calaboose the morning that appellant was confined there; that he was standing outside, near the door of the plank wall surrounding the calaboose; that he heard the voice of a boy outside addressing some one, apparently on the inside of the calaboose, saying. “What are you going to tell them when they come back?” and heard the voice of the boy inside, in answer to the question, say: “I am going to tell them a damn lie, and stick to it.” Witness did not see either of the boys, and did not recognize tht voices heard.
    The record of the United States commissioner’s court, containing the testimony of Marshal Braudrick at the preliminary hearing, was offered; and this, with the testimony referred to, constitutes all the evidence offered by the government in support of the indictment herein.
    The appellant was sworn, and took the stand in his own behalf. He testified in substance that he was 14 years old on the 26th of January, 1905; that he and deceased attended the public schools at Caddo together; that they were friends and playmates, and that they had planned to go hunting on the day of the killing; that he and his brother, McKinley, and the deceased, went hunting together in the Ainsworth pasture; that on the morning of the day of the killing, as they went to school together, they agreed to go hunting that day after school; that they returned from school before dinner, stopped at the home of deceased, appellant going to his home, ate his dinner, and while there deceased came up in front of the house and hollowed. Appellant coming out of the house, deceased said, “Let’s go to town.” Thereupon both went to town. Going to a hardware store.” They bought a box of shells (cartridges), and a writing tablet at a drug store. After making these purchases, they took the shells to the home of appellant, and that afternoon returned to school together, and went home together after school, the deceased stopping at his home to milk and do up the work before going hunting. Appellant went to his home, and there waited for deceased to come, and, he not coming, appellant and his little brother, McKinley, started for the hunting ground. After appellant had left his home to go hunting, deceased called for him, but was told that he had gone hunting. Soon after appellant and deceased met at the National Bank corner down town, and, when deceased came up to where appellant was standing, he put his hand on his shoulder, and said: “Are you ready?” And deceased, appellant, and his brother, McKinley, started from the bank corner to the hunting ground. But just before leaving the comer they invited a little boy to join them in the hunt, but he did not go with them. The three boys reached the tank, in the Ainsworth pasture, where they amused themselves shooting birds. It was then about sundown. Appellant, being asked just how the shooting occurred, stated:
    “We started home then, and went up on top of the hill. Up there, before the accident occurred, the dog commenced jumping up, and I, just before we got there, I say, ‘Boys scatter out. He will likely jump a rabbit.’ Clarence turned around, and my brother was pretty near between us, and I started to raise my gun and started to cock it, and as I started to raise it the hammer slipped out [defendant hesitates' and weeps]. Well, the hammer slipped under my thumb and went off, and shot him.”
    At the discharge of the gun, deceased was about io steps from defendant. Discovering that deceased was shot, appellant went to him, and deceased “died right at once,” and that he was not able to speak after the shot was fired; that he stayed there a few minutes after the shooting and then started home; that he asked his brother, McKinley, to tell Mr. Schwartz about the killing, and that he would stay there, and his brother said he would not tell Mr. Schwartz, and said “tell him yourself,” but that he did not have the heart to do so, and that he and his brother went as far as the gate to the pasture, climbed upon the gate, stayed there a short time, and went back to the deceased. Remaining there a short time, they went to their home together. He further testified that he and the deceased were good friends and playmates, denied the testimony of Harriman regarding the throwing of clods at one another the Friday before the shooting; that he and deceased had gone hunting before that, and that deceased was about 12 years old; that they played together before and after school, arid on Saturdays and Sundays. He admitted upon cross-examination that he had told Marshal Braudrick, Mr. Schwartz, and Mrs. McGuire that he had not done the shooting, and denied knowing anything about it, and said that he and 'his brother, McKinley, had a talk about the killing, and that they agreed that neither of them could tell it, and that they did'not know what to do about it, and, when asked what they made up their minds to do about telling of the killing, he testified that they did not know whait to do. He denied knowing anything about the black ring or circle on the deceased’s wrist; and denied that while in the calaboose he made the remarks testified to by witness Bagwell. Appellant also testified that he did not have any ill will against the deceased, that he did not shoot him intentionally, and insisted throughout that the shooting was accidental. The cross-examination produced no material change in the testimony of 'appellant in chief.
    The second witness for the defense was Sterile Slack, who testified that he clerked in the hardware store where the boys bought the box of shells, and that they appeared friendly.
    Printer Arnold, a witness for appellant, testified that he was a classmate of both appellant and deceased; that they were good friends, played at school together, arid heard the boys talk about going hunting the day of the killing; that he never heard of the boys having any trouble; and that they always appeared to be good friends. . .
    Edmund Franklin, a witness for the defense, testified that he was well acquainted with both appellant and deceased; that he had seen them go hunting together twice, saw them together on the day of the shooting, at the bank corner, on their way to go hunting; that appellant asked him to go with them, but he did not go; that he often saw the boys together, and that they always appeared to be good friends, never heard of them having any trouble; and that it was about 4:30 o’clock in the afternoon when he saw appellant, deceased and McKinley Hinsley going hunting together.
    The next witness for the defense was Amey Hinsley, an aunt of appellant, who lived at his home. She testified that she was acquainted with the deceased; that she saw him on the afternoon of the day of the killing at appellant’s home; that deceased had stopped at the house and asked for appellant, and was told that he was gone hunting. On cross-examination she testified that she was at home at the time appellant returned from the hunt' that afternoon, and that he never mentioned deceased; that, when he reached home, he was sick and ate no supper; that his mother “doctored him all night”; that she was at home the evening after the shooting, saw deceased’s father there, who stated that his son, the deceased, had not come home the night before; that he asked for appellant, and was told that he was sick in bed; that he went to the room of appellant, but she did not hear what was said between them. This witness also testified on rebuttal for the government that appellant was a bright and intelligent boy.
    W. A. Shelby was called as a witness for the defense, but testified to no material fact.
    George Russell, a school boy, 16 years of age, was called as a witness for the defense. He testified that he was acquainted with appellant and deceased, often saw them together at school; saw them go hunting together; that they were good friends, never saw them have any trouble, never heard of them having any trouble, saw them on their way to the hunting ground the day of the killing; and that “they were going along friendly.”
    The last witness called for the defense was McKinley Hinsley, who corroborated his brother, the appellant, in every particular.
    This constitutes all the evidence offered by the defense.

      Charles E. McPherren, for appellant.

      Charles West, Atty. Gen., and W. C. Reeves, Asst. Atty. Gen., for appellee.
   BAKER, Judge

(after stating the facts as above). In harmony with the decisions of appellate courts generally, this court reluctantly disturbs the verdict of a jury upon the ground that the verdict is not supported by, and is contrary to, the evidence. This court will not set aside a verdict where there is a substantial conflict in the evidence. But, when there is no such conflict,, and where there is an absence of evidence to support the verdict, it is the duty of this court to set aside the verdict. It is not the purpose of this court to invade the province of the jury in the determination of questions of fact; but in the interest of justice this court will not permit a verdict to stand unsupported by competent evidence. We have, carefully read, closely considered, and analyzed all the testimony in this case, and we are unable to harmonize the verdict with the evidence.

It is evident from the reading of the record in this case that the government upon the trial below proceeded upon the theory that a motive for the killing could be supplied by the proof oí dis agreements or bad blood between appellant and deceased, bu the only testimony offered in support of this theory is the statement of the witness Harriman, who said that appellant and deceased on Friday before the killing were throwing clods at one another in front of his house, and that appellant said: “I will get you, gol durn you, yet.” The evidence conclusively shows that, if bad blood at that time did, in fact, exist between the boys (which is denied by appellant), friendship and good will was in the meantime fully restored before the following day, for it is undisputed that the boys had been going back and forth from school together, played together, planned a hunting trip together upon the most friendly terms, and, as a very strong and controlling circumstance tending to show no ill will on the part of appellant toward deceased, he not only took his little brother with him, but invited the Franklin boy to join them also. This conduct strongly indicates that appellant had no ill will or hatred toward the deceased at this time, and that he did not intend to injure or kill him. It is unreasonable to believe that, if the accused harbored in his mind a malicious intent to kill or injure the deceased, he would invite witnesses to see the consummation of said intent, and to furnish evidence of his guilt, nor would he take his intended victim upon the hilltop, in plain view of several houses, in daylight, and there injure or kill him. There is absolutely no evidence that there was any change of -feeling on the part of appellant toward the deceased between the time they left the Franklin boy a short distance from the hunting grounds, and the time of the killing. There is no evidence of a struggle or fight. The shooting being admitted, it behooved •the appellant to make a reasonable explanation of the killing. This he did.

In this-case it is claimed by appellant that the killing was accidental, and purely a misadventure. It can be properly claimed that if the testimony tended to show that the accused was satisfied with the result of his act, or conducted himself in such way as to clearly show his approval of the shooting he could not afterwards be heard to say that the killing was accidental or excusable. In this case the conduct of the accused was not commendable. His denying all knowledge of the shooting, and telling conflicting and contradictory stories concerning it, is a serious reflection upon the truthfulness and discretion of the accused, but it does not show his approval of the killing. His conduct after the killing, however, may have formed the basis in the minds of the jury to cause the verdict herein. Was the jury justified in the light of all the evidence? We think not. It doubtlessly would have been better in this case, as in every other case, for the accused to have told the whole tr-uth in the beginning. But we often find persons of mature years, and with much more intelligence and experience in the affairs of life, under circumstances such as prevailed in this case, denying facts and circumstances manifestly in their favor if admitted by them at the time. Would it not, therefore, be unreasonable to expect more from a mere child?

A strong and convincing circumstance that we cannot overlook in this case is found in the fact that the only two eve-witnesses to the killing, namely, appellant and his brother, McKinley, told the same story about the accident when they were separate and apart; and their statements agreed as to the facts concerning the killing, and under conditions showing that it was impossible for them to have agreed beforehand upon the story each should tell. The explanation of the killing, as finally made by appellant and his brother, have convinced us that this was a case of misadventure; and, if they had told the whole truth immediately after the occurrence of the homicide, it is the opinion of this court that the jury would not have rendered a verdict of guilty. In this case the court should have instructed, not upon the law of manslaughter, but upon the law of misadventure. Giving the evidence the most favorable consideration for the prosecution, no more than a mere suspicion or possibility could be inferred therefrom. Believing the rule of law to be that suspicions or possibilities, however strong, are not sufficient to convict of crime; and holding that there must be substantial testimony of the corpus delicti to justify a verdict of guilty, and finding no such testimony disclosed by the record in this case, we find that the court below erred in overruling appellant's motion for a new trial; and therefore the judgment of the lower court is reversed, and this case lemanded.

FURMAN, Presiding Judge, and DOYLE, Judge, concur.


source: Caselaw Access Project

author: FURMAN, Presiding Judge

license: Public Domain

text:
    Henry Weston v. Territory.
    No. 1980,
    Okla. T.
    Opinion Filed November 19, 1908.
    (98 Pac. 360.)
    1. INDICTMENT AND INFORMATION — Language of Statute. In an indictment for committing an offense against a statute, the offense may be described in the general language of the act, but the description must be accompanied by a statement of all the particulars essential to constitute the offense or crime, and to acquaint the accused with what he must meet on the trial.
    2. INTOXICATING LIQUORS — Illegal Sale — Information. An information or indictment for selling malt, spirituous, or vinous liquors, or any intoxicating drinks, in violation of section 3407, Wilson’s Rev. & Ann. St. 1903, must give the name of the person to whom the sale was made, so that the defendant may know what particular offense he is called upon to defend against.
    3. SAME. An information for giving away, upon any pretext, malt, spirituous, or vinous liquors, or any intoxicating drinks, in violation of section 3407, Wilson's Rev. & Ann. St. 1903, must state the name of the person +o whom the gift was made, and the pretext under which -the gift was made must also be 'stated, so that the defendant may know what offense he is required toi defend against.
    4. CRIMINAL LAW — Appeal—Reversal. When an indictment is fatally defective, and there is no testimony in the case tending to show a violation of law, the conviction will be reversed, with directions to dismiss the case.
    (Syllabus by the Court.)

      Appeal from Woods County Court; W. T. Wilson, Judge.

    Henry Weston was convicted of violation of the liquor law and appeals.
    Reversed and remanded
    On the 13th day of July, 1905, the following information was filed in the probate court of Woods county, Olcla. T., against Henry Weston, hereinafter called defendant, and Thomas Fox, viz.:
    'Territory of Oklahoma, Plaintiff v. Henry Weston and Thomas Fox, Defendants. Amended information. Comes now Luther Martin, the duly elected, qualified, and acting county attorney, within and for said Woods county, territory of Oklahoma, in the year of our Lord one thousand nine hundred and five, in the name and authority and on behalf of the territory of Oklahoma, information makes: That on the 23rd day of June, 1905, in the county of Woods and territory of Oklahoma, Henry Weston and Thomas Fox did then and there sell at retail and give away malt, spirituous, and vinous liquors, and intoxicating drinks without having obtained a license for the sale thereof, and that said liquors were not made from grapes grown or raised by the said Henry Weston and Thomas Fox on land owned or occupied by them in the territory of Oklahoma, contrary to the form of the statute in such case made and provided, and against the peace and dignity of the territory of Oklahoma. Luther Martin, County Attorney.”
    Said amended information contains the following indorsement:

      “Territory of Oklahoma, County of Woods, — ss.: Personally appeared before me the undersigned authority, J. Henry Walker, who, being of lawful age and first duly sworn on his oath, says that he read and knows the statements and allegations contained in the within information, and that the same are true. J. Henry Walker.
    “Subscribed and sworn to before me this 13th day of July, 1905. T. D. Nash, Probate Clerk.”
    On the same day defendant filed his demurrer to said information, which was overruled by the court, to which defendant duly reserved an exception. On the 14th day of July, 1905, the jury returned a verdict finding Thomas Fox, who was jointly charged with the defendant, with the offense named in the information, not guilty, and also a verdict finding the defendant guilty as charged. A motion for a new trial was filed and overruled, and the defendant brought this case to the Supreme Court of Oklahoma Territory by appeal. When the state of Oklahoma was admitted into the Union this case, under the provisions of our Constitution and the enabling act, was transferred to the Supreme Court of the state. Upon the creation of the Criminal Court of Appeals the Supreme Court, as directed by law, transferred the case to this court.

      Snoddy & Son, for appellant.—
    On the question of sufficiency of information: Compiled Statutes of Nebraska, § 2, c. 50; Wendt v. State (Neb.) 49 N. W. 351; State v. Ball (Neb.) 43 N. W. 398; State v. Standish (Kan.) 16 Pac. 66; State v. Bernstein (Iowa) 105 N. W. 1015; Rector v. Territory, 9 Okla. 530; State v. Pischel, (Neb.) 20 N. W. 848; Seigel v. People, 106 111. 94; Young v. State, 58 Ala. 359; Gillian v. State, 47 Ark. 556; State v. Hutchins, (Iowa) 36 N. W. 775; State v. Briggs (Iowa) 47 N. W. 865; Wilson’s Rev. & Ann. St. Okla. 1903, § § 5358, 5365; Alexander v. State, 29 Texas; Bishop on Statutory Crimes, § 1037; Dixon v. State (Texas) 1 S. W. 448.

      W. C. Reeves, Asst. Atty. Gen., for the Territory.—

      On the sufficiency of the information: 23 Cyc. 232; Bishop’s Criminal Procedure, § 436; Bishops’s Statutory Crimes, § 244; Black on Intoxicating Liquors, § 441; Pettit v. People (Colo.) 52 Pac. 676; Boldt v. State, 72 Wis. 7; Jordon v. State (Texas) 39 S. W. no; Dahmer v. State, 56 Miss. 787; Dant. v. State (Ind.) 5 N. E. 870.
   FURMAN, Presiding Judge

(after stating the facts as above). In view of the disposition which we feel it to be our duty to make of this case, as in all probability it will nevei be tried again, and as the law upon which the information was based has been superseded by the constitutional and statutory provisions upon prohibition, we do not deem it necessary to do more than discuss and decide the vital questions in the case. These questions are, first, the sufficiency of the information; secondly, the sufficiency of the evidence.

First. In our judgment the information is fatally defective in attempting to charge a violation of law in the matter of selling at retail, or giving away, “malt, spirituous, and vinous liquors and intoxicating drinks” in violation of law. Section 3407, Wilson’s Rev. & Ann. St. Okla. 1903, is as follows:

“Any person who shall sell at retail or give away upon any pretext, malt spirituous, or vinous liquors, or any intoxicating drinks without having first complied with the provisions of this act, and obtained a license, as herein provided, shall for each offense be fined,” etc. It is seen that to sell at retail under the conditions named in the statute was an offense against the law, pretext or no pretext. But the giving away must have been “upon any pretext,” or there was no violation of law. * This being a part of the section of the statute creating the offense, the very language of the statute, or words of'similar import, must have been useSd in the information. In Slover v. Territory, 5 Okla. 509, 49 Pac. 1010, Judge Tarsney said:
“In criminal cases the accused has the constitutional right 'to be informed of the nature and cause of the accusation.’ Const. U. S. Amend, art. 6. The indictment must set forth the offense with clearness and all necessary certainty, to apprise the accused of the crime with which he stands charged, and every ingredient of which the crime is composed must be accurately and clearly alleged. It is an'elementary principle of criminal pleading that the indictment must furnish the accused with such a description of the charge against him as will enable him to make his defense, and avail himself of his conviction or acquittal for protection against a further prosecution for the same cause, and also to inform the court of the facts alleged, so that it may decide whether they are sufficient in law to support a conviction if one should be had. For these facts are to be stated and set forth in the indictment with reasonable particularity of time, place, and cir-circumstances. United States v. Cruikshank et al., 92 U. S. 542, 23 L. Ed. 588; Cooley’s Const. Lim. 374; Wharton’s Crim. Plead. & Prac. 153.”

In Lawton v. Territory, 9 Okla. 458, 60 Pac. 94, Judge Hainer said:

“However, all the courts hold that it is necessary to allege, in the indictment or information, every essential element of the crime, and that an indictment or information which fails to do so is bad.”

In Perkins v. Territory, 10 Okla. 506, 63 Pac. 861, the Supreme Court held that:

“If the charge in the indictment is substantially in the language of the statute, it is sufficient, and the language used should receive its common and ordinarily accepted meaning.”

These decisions are in harmony with the overwhelming weight of the decided cases, and with the philosophy of the law, and meet our entire approval.

The statute under discussion was taken from Nebraska. In the case of State v. Ball, 27 Neb. 604, 43 N. W. 399, the Supreme Court of that state said:

“The section under consideration was evidently intended to prohibit the sale of intoxicating liquors by those having no license to engage in the traffic. This is the primary object of the law. In order to make the prohibition effective, the Legislature saw proper to provide against its evasion by subterfuge or prtext in giving away, as by the sale of articles of no value, accompanied by a gift of the liquor, or by an ostensible or colorable transaction, by which the liquor could be disposed of without a sale, and yet constitute the principal element of the sale or barter. Webster in his Unabridged Dictionary defines the word 'pretext’ as ‘ostensible reason or motive assigned or assumed as a color or cover for the real reason or motive; false appearances; pretense.’ It was evidently not the intention of the Legislature to make the simple act of giving, away intoxicating liquors a crime without reference to the circumstances, necessities, or conlitions attending the giving; and therefore the giving of intoxicating liquors, when wholly unaccompanied by an intention to evade the law, is not necessarily a crime. We are strengthened m this view by reference to section 31 of the same chapter (Comp. St 1895, c. 50, § 31), which makes it a crime for any person to treat another or to give away any liquor, beer, wine, or intoxicating beverages whatever, purchased and to be drunk in any saloon, or other public place where such liquors or. beverages are kept for sale. If it had been the intention of the Legislature to make the giving away of intoxicating liquors a crime in all cases, then the enactment of the section above referred to would have been wholly useless, as the offense would have been completely covered by section 11 above quoted. If the giving ‘was upon any pretext,’ for the purpose of evading the law, the pretext, under which it was given would have to be set out substantially in the indictment. The indictment in this case, therefore, did not charge the crime of ‘giving away’ under the provisions of the section quoted, and did not charge a violation of the law in that particular. We think, also, that the contention of counsel for the district court that the indictment was vague and uncertain, as charging both the selling and giving away, within the meaning of the statute, of the same article of intoxicating liquors, cannot be maintained. As we have seen, in order to constitute a crime, the giving must be upon some pretext for the purpose of evading the law, and the term ‘giving away.’ does not inport such an act. This being true, the allegation of the indictment can charge nothing more than the sale and delivery of the liquor to the person named. That it might have been better pleading to charge in direct terms the sale and delivery of the liquor is perhaps true (although the term ‘sale’ probably includes both), yet we cannot see that more than this was charged.”

In United States v. Hess, 124 U. S. 483, 8 Sup. Ct. 571, 31 L. Ed. 516, the Supreme .Court held that:

“In an indictment for committing an offense against a statute, the offense may be described in the general language of the act, but the description must be accompanied by a statement of all the particulars essential to constitute the offense or crime, and to acquaint the accused with what he must meet on trial.”

It will not be denied that, in cases of obtaining money or goods under false representations, the indictment or information must not only use substantially the language of the statute in charging the offense, but must go further and give the representations made which are claimed to be false, and also give the name of the party defrauded, and state all of the material details of the transaction. Otherwise is it manifest that a defendant could not prepare to make his defense or plead a judgment, either of acquittal or conviction in bar of a subsequent indictment for the same offense. So in the case at bar the indictment should have given the name of the person to whom the alleged sale was made, and should have alleged that the gift was upon a pretext, and have stated what the pretext was, and the name of the person to whom the pretended gift was made. The necessity for this rule of law is clearly stated in Dixon v. State, 21 Tex. App. 520, 1 S. W. 450. The court said:

“In the case of the offense with which the defendant has been convicted, this -rule is particularly applicable, because the accused party may have sold intoxicating liquors to a thousand different persons without, in a single instance, having violated the law. The sales may have been to persons who had proper prescriptions, or the liquor sold may have been for sacramental purposes. How is he to know what particular sale he is to asswer for unless the indictment in some way identifies the sale complained of by the state as a violation of law? Must he come prepared to prove the legality of each of the thousand sales he has made ? To require this would be unreasonable and oppressive. It is not unreasonable to devolve upon the state the not difficult duty of informing the accused which one of the sales made by him is complained of as unlawful. We think that he is entitled to this information, and because in this case the indictment did not afford such information, it is uncertain and bad, and the trial court erred in overruling the exception to it, for which error the judgment is reversed, and because the indictment is defective in the matter of substance, the prosecution is dismissed.”

We fully concur in the views expressed in these authorities.

Second. Upon an examination of the evidence we find that there is not a particle of testimony of any sale. There is evidence of the defendant having given away intoxicating drinks, but thert is nt> evidence of “any pretext,” or that such giving was a subterfuge to evade or defeat the law. For these reasons the trial court erred in not sustaining defendant’s demurrer to the indictment, and also erred in orerruling defendant’s motion for a new trial. While this court is anxious to sustain the proceedings in trial courts, it can only do so when they are in conformity with the law.

This judgment is therefore reversed, and the cause remanded, with directions to the trial court to sustain defendant’s motion for a new trial and his demurrer to the information, and dismiss the prosecution and discharge the defendant.

BAKER and DOYLE, Judges, concur.


author: DOYLE, Judge,

text:
      Ex parte Charles Johnson.
    No. A26.
    Opinion Filed November 19, 1908.
    (98 Pac. 461.)
    1. HABEAS CORPUS — Jurisdiction—Courts. The Criminal Court of Appeals, the Supreme, district, and county courts, and the justices and judges thereof, have concurrent original jurisdiction in habeas corpus.
    2. SAME — Commitment—Inquiry into Validity — “Process Issued Upon Final Judgment.” An order of commitment to hold for trial, issued by a magistrate before whom a person is brought for examination upon a felony charge, after such examination is concluded and a finding made, that there is sufficient cause to believe defendant guilty of a felony, is not “a process issued on any final judgment of a court of competent jurisdiction.”
    3. SAME — Scope of Inquiry. Before indictment or information filed, the duty of the court or judge upon habeas corpus hearing is similar to that of the magistrate upon the preliminary examination, and determines only the particular restraint complained of, and is not necessarily final. *
    4. SAME — Successive Applications. An order of a district judge remanding a prisoner on habeas corpus does not preclude him from making application to this court for habeas corpus. The constitutional right oí the writ is not exhausted by the first remanding order.

      5. SAME — Jurisdiction—Courts. In habeas corpus proceedings the Criminal Court of Appeals is a court of original jurisdiction.
    6. SAME — Grounds of Relief — Want of Eyidence. Wfhere there is no legal or competent evidence to.sustain it, an order of commitment is void.
    7. SAME — Murder—Evidence—Sufficiency. Tullere there is evidence to connect a petitioner charged with murder with the time, place, and motive for killing, the writ will be denied, and petitioner remanded.
    (Syllabus by the Court.)
    Original application by Charles Johnson for habeas corpus and for certiorari in aid thereof.

      Habeas corpus denied, and petitioner remanded to the custody of the sheriff.
    This is an original proceeding in this court for a writ of habeas corpus and for a writ of certiorari in aid thereof. The petition was signed and verified by the petitioner, and, omitting the formal parts, was as follows:
    “Your petitioner, Charles Johnson, most respecfully represents to your honors that he is now illegally and unlawfully restrained of his liberty and detained by M. B. Louthan, sheriff of Grady county, Okla,, in the county, jail at Chickasha, in said county and state; that he is held in custody by virtue of a certain commitment issued by James M. Davis, a justice of the peace in and for Union township, Grady county, Okla., upon a charge of murder. A copy of said commitment is hereto attached and made a part of this petition, marked ‘Exhibit A.’
    “Your petitioner states that heretofore, to wit, on or about the —■-day of September, 1908, he was arrested upon a warrant issued by said justice of the peace, based upon a certain complaint made against him and one E. P. Slade and Fred Wilkinson, charging them with the crime of murder of one Sam Potter, on the 12th day of September, 1908; that he was thereafter carried before said James M. Davis, justice of the peace aforesaid, for the purpose of having an examining trial, and the state introduced its testimony and evidence, and the dedendants their testimony, and as a result of said examining trial said .defendant was committed and incarcerated in jail, without bail, upon the charge of murder, as aforesaid. A copy of said warrant is hereto attached and made a part of this petition, marked ‘Exhibit. B.’

      “Your petitioner further avers that there was no competent or legal evidence introduced at said trial before said James M. Davis, as aforesaid, in any way connecting your petitioner with the said crime of murder for which he was charged, and no evidence introduced upon and from which the said James M. Davis, justice of the peace, aforesaid, could judicially determine that there was reasonable ground or probable cause to believe your petitioner guilty of said crime of murder as aforesaid, and said commitment issued by said James M. Davis, as aforesaid, was without authority of law and exceeded the jurisdiction of said justice of the peace, and therefore the same is null and of no force and effect.
    “Your petitioner further states that on, to wit, the-day of September, 1908, he together with the said E. P. Slade and Fred Wilkinson, presented their petition to the Honorable Frank M. Bailey, district judge of the Fifteenth judicial district, 01-da., together with a true and correct copy of all the testimony and evidence taken before the said James M. Davis in the examining trial as aforesaid for a writ of habeas corpus, and, after consideration of said petition and the evidence attached thereto, the said Plonorable Frank M. Bailey, as aforesaid, made an order allowing your petitioner and the other parties charged with said murder bail in the sum of $1,000 each, but in said order held that there was no evidence connecting your petitioner and the other defendants with said crime, except in a few indirect circumstances.
    “Your petitioner states that said Honorable Frank M. Bailey, as aforesaid, committed grevious errors in refusing to grant said writ of habeas corpus absolutely, and under the said decision made by the said Honorable Frank M. Bailey your petitioner was entitled to his liberty and to be discharged from custody. A copy of said order made by said district judge, as aforesaid, is hereto attached and made a part of this petition, marked ‘Exhibit C.’
    “Your petitioner further states that he was and is unable to execute said bond in the sum of $1,000, as aforesand, and that by reason thereof, and by reason of the facts herein alleged, he is still deprived of his liberty unlawfully and without any legal authority.
    “Your petitioner alleges that h'e is entitled to have a writ of certiorari issued by this court, directed to the said Plonorable Frank M-. Bailey, as aforesaid, commanding him to send up the record, including the petition and the exhibits thereto, including all the evidence introduced on said hearing, in order that this honorable court may examine into the unlawful imprisonment of your petitioner, as alleged herein.
    “Wherefore your petitioner prays that this honorable court grant him a writ of habeas corpus herein, and a writ of certiorari directed to the said Honorable Frank M. Bailey, district judge, as aforesaid, to the end that his unlawful imprisonment may be inquired into, and that he may be discharged from said unlawful imprisonment and restored to his liberty, and will ever pray.
    “F. E. Riddle, Attorney for Petitioner.”
    Omitting Exhibits A and B, Exhibit C of said petition was as follows:
    “Exhibit C.
    “In the District Court in and for the Fifteenth Judicial District, Grady County, Oklahoma.

      "In re the Application of Charles Johnson, for Writ of Habeas Corptis. Order Admitting to Bail.
    “Now at this time came on to be heard upon evidence before the committing magistrate and additional evidence and application and petition of Charles Johnson for writ of habeas corpus before the undersigned district judge, and he, being well and sufficiently advised in the premises, is of the opinion that said defendant is illegally restrained of his liberty and entitled to bail, and it appearing to the undersigned district judge from the record herein that there is no legal and competent testimony connecting said petitioner with the crime for which he is charged, except indirect circumstances, and thaj: he should be admitted to bail in the sum of $1,000, it is therefore considered and ordered by the undersigned district judge that said petitioner, Charles Johnson, be and he is hereby admitted to bail in the sum of $1,000, and upon the execution of said bail, with sufficient security, as required by law, the sheriff of Grady county is hereby ordered and directed to reléase said petitioner from his custody and restore him to his liberty under said bond.
    “Witness my hand this the 10th day of October, 1908.
    “Frank M. Bailey, District Judge.”
    On the 24th day of October, 1908, writs were allowed as prayed for in said petition, returnable the 27th day of October, 1908, at which time respondent filed his return showing that he held said petitioner by virtue of a commitment issued, as alleged in said petition, and there was also filed in this court the record of said cause, as shown by an agreed statement filed therewith, which is as follows:
    “It is hereby agreed by and between attorney for petitioner and B. B. Barefoot, county attorney, that the above and foregoing contains a true and complete record of all the evidence, testimony, and orders made in the habeas corpus proceeding before H011. Frank M. Bailey in said cause, and contains all the evidence considered by said district judge. F. E. Riddle, Attorney for Petitioner. B. B. Barefoot, County Attorney.”
    The attorney for petitioner also filed a waiver of the presence of the petitioner, and submitted the cause on the petition, the return, the record, and the evidence under the agreed statement.
    F. E. Riddle, for petitioner.

      B. B. Barefoot, County Atty., and W. C. Reeves, Asst. Atty. Gen., for respondent.
    No briefs came to the hands of the reporter.
   DOYLE, Judge,

(after stating the facts as above). It is alleged by petitioner that his restraint is illegal and unauthorized, first, because the magistrate who issued the warrant and commitment acted without authority of law, and exceeded the jurisdiction of a justice of the peace in so doing. The petition, with the exhibits and the return as made, shows that the complaint and warrant were proper in form, and the commitment was regular on its face. The Constitution of the state provides (article 7) ■

“Sec. 18. The office of justice of the peace is hereby created, and, until otherwise provided by law, courts of justices of the peace shall have, co-extensive with the county, jurisdiction, as examining and committing magistrates, in all felony cases.”

Thus it appears that the justice of the peace as an examining magistrate had jurisdiction of the person and of the" crime charged, and did not act beyond the power conferred upon him by the Constitution as such officer. This contention will be, at best, a mere conclusion of law, unless it is based upon the alleged want of probable cause. In support of this contention, petitioner alleges that the district judge of the Fifteenth judicial district, Okla., upon a hearing had before him, determined and found that there was no evidence adduced at said preliminary examination, connecting petitioner with the crime charged. The record shows that subsequent to said commitment, and upon an application therefor made by petitioner to Hon. Frank M. Bailey, district judge of the Fifteenth judicial district, Okla., a writ of habeas corpus was allowed by said district judge, commanding the sheriff of Grady county to make return to said writ, and bring the petitioner before said district judge. In obedience to the writ, the petitioner was brought before Judge Bailey, and the cause of his arrest and detention was inquired into and considered, and thereupon said district judge made the findings and order as shown by Exhibit C of the petition herein.

In the outset of our inquiry and investigation we are confronted with section 4867, Wilson’s Rev. & Ann. St. (chapter 66, art. 30 § 669), as follows:

Sec. 669. No court or judge shall inquire into the legality -of any judgment or process, whereby the party is in custody, or discharge him when the term of commitment has not expired in either of the cases following: * * * Second, upon any process issued on any final judgment of a court of competent jurisdiction; or (fourth) upon a warrant of commitment issued from the district court, or any other court of competent jurisdiction, upon an indictment or information.”

Constraing a statute identical in its language, Chief Justice Horton in the case of In re Snyder, 17 Kan. 552, says:

“An order of commitment to hold a prisoner for trial, issued by a magistrate before whom a person is brought for examination, upon a charge of having committed an offense, after such examination is concluded, and a finding made that it appears that the prisoner is guilty as charged in the complaint and warrant, is not 'a process issued on any final judgment of a court of competent jurisdiction/ nor is such a commitment included in any process named in No. 671 of the Code. Hence there is no prohibition in said section to prevent a court or judge from inquiring into the legality of the imprisonment of a person under. a commitment of an examining magistrate.”

AVe think the rule announced by Chief Justice Horton is correct. It is certainly in point. Section 4868, Wilson’s Rev. & Ann. St. 1903 (chapter 66, art. 30, § 670) is as follows:

“Sec. 670. No person shall be discharged from an order of commitment issued by any judicial or peace officer for want of bail, or in cases not bailable, on account of any defect in the charge or process, or for alleged want of probable cause; but in all such cases, the court or judge shall summon the prosecuting witnesses, investigate the criminal charge, and discharge, let to bail or recommit the prisoner, as may be just and legal, and recognize witnesses when proper.”

The Supreme Court of Oklahoma in the case of Ex parte Stevenson, 20 Okla. 549, 94 Pac. 1071, opinion by Justice Kane, says:

“In the record before us it would seem that the question of former adjudication was not raised in the application for writ of habeas corpus before Judge McMillan, but that the case was there presented upon the evidence, and Judge McMillan found against the petitioner. Under the common law administered in England, if one judge refused to discharge a prisoner on the writ of habeas corpus, he could appeal to another, and so on, until he had taken the opinion of all the judges accessible AVe do not want to be understood as adopting or rejecting the common-law rule, or as passing upon the effect of the judgment of Judge McMillan as an estoppel to an original application for a writ of habeas corpus before this court. It is true that the same evidence that was presented to Judge McMillan is before us as an exhibit to the petition, but still, where a case has already been once heard upon habeas corpus• and the prisoner has been remanded, another court will not always deem it expedient to grant another writ and hear the case again on the same evidence. Church on Habeas Corpus, 187. The writ of habeas corpus is denied, and the petitioner is remanded to the custody of the sheriff of Cleveland county, state of Oklahoma.”

In this case the conclusion only is concurred in by the other members of the court, and the learned justice who rendered the opinion leaves it an open question whether the finding and order of the district judge is res adjudicata, to be reviewed on appeal only.

Under the foregoing provisions of our statutes and the decision last quoted, the question is presented whether this court is prohibited in proceedings • by habeas corpus from examining the proceedings or record of a lower court in the cases mentioned, or whether petitioner’s remedy is only by appeal to this court. In determining the construction to be given to these provisions, we are mindful that the great object and purpose of the writ of habeas corpus is the liberation of those who may be imprisoned without sufficient or probable cause. It is the most simple and speedy remedy. Habeas corpus is the great prerogative writ, and is the best protection and most efficient security of personal. liberty known to the law. Its history is lost in antiquity. It was in use before, but the first royal recognition of it is found in Magna Charta. It was guaranteed to our English ancestors by the habeas corpus act of 1679, and 'came to us as a part of oui inheritance from the mother country. It was secured to the citizen by that part of article 1, § 9, Const. U. S., which provides: “Sec. 9. The privilege of the writ of habeas corpus shall not be suspended unless when, in cases of rebellion or invasion, the public safety might require it.” And that part of article 14 of the amendments to the Constitution of the United States which provides that no person- shall be deprived of life or liberty “without due process of law.”

Justice Tarsney in the case of In re Patszvald, 5 Okla. 79Ü, 50 Pac. 142, commenting on this provision of the federal Constitution, says:

“This writ cannot be abrogated or its efficiency curtailed by legislative action. Cases within the relief afforded by it at common law cannot, until the people voluntarily surrender the right to this, the greatest of all writs, by an ámendment of the organic law, be placed beyond its reach and remedial action. Its privileges cannot be even temporarily suspended, except for the safety of the state in cases of rebellion and invasion. Const, art. 1, § 9. That provision of the Constitution is a guaranty that the right of the writ of habeas corpus should remain as it existed at the common law, and should not be curtailed by legislative enactment or by subtle and metaphysical judicial interpretation, and Legislatures can no more prevent its application to cases where it would have been applicable at common-law than they can abrogate the right of trial by jury.”

It is secured to the people of Oklahoma by section io of the Bill of Rights, which is as follows: “Sec. io. The privilege of the writ of habeas corpus shall never be suspended by the authorities of this state.” The great and leading intent of our Constitution in respect to the writ of habeas corpus is manifest. It is that every citizen may be protected by judicial action from unlawful imprisonment. By virtue of this broad and comprehensive provision in the Bill of Rights, and the existing statutes, it is a writ of right; and this court, the.Supreme Court, the district and county court, and any justice or judge thereof has power to grant writs of habeas corpus for the purpose of inquiring into the cause'of restraint of liberty of any person in jail who is in custody in violation of his rights under the Bill of Rights. The Constitution or the laws of the state, and the court, justice, or judge to whom the application is made, shall forthwith allow a writ of habeas corpus, unless, it appears from the petition itself that the petitioner is not entitled thereto.

While all courts of record have concurrent original jurisdiction a district court or the judge thereof, except as provided by article 25, c. 68, Wilson’s Rev. & Ann. St. 1903 (section 5764), can only grant, issue, and determine the writ upon the petition of a party confined in that respective district; and a county court, or judge thereof, can only grant, issue, and determine the writ upon the petition of a party confined in that particular county. Section 4866, Wilson’s Rev. & Ann. St. 1903, provides as follows: '

“(1) The court, or judge, shall thereupon proceed in a summary way to hear and determine the cause; and if no legal cause be shown for the restraint, or for the continuance thereof, shall discharge the party.”

And in all cases of commitment on a criminal charge the duty of the court or judge thereof upon such hearing is similar to that of the magistrate upon a preliminary examination; and, though the prisoner may be discharged, he may again be arrested for the same offense upon a sufficient showing. While the decision -of the court or judge may liberate the prisoner from imprisonment, it does not determine his innocence. He may be charged, tried, and convicted without regard to his discharge upon the writ of habeas corpus. Upon such a hearing the guilt of the prisoner of the crime charged or of the right to rearrest him in consequence of it, cannot be finally determined. The order of his discharge simply releases him from the particular restraint to which he is subjected. Such a decision cannot ■ convict him or acquit him of the crime charged. It is not final.

The habeas corpus statutes of this state are embodied in the Code of-Procedure Civil (chapter 66, art. 30) and the Code of Procedure Criminal (chapter 68, art. 25), Wilson’s Rev. & Ann. St. 1903. The provisions above quoted permit the decision of examining magistrates to be reviewable upon habeas corpus; otherwise, the habeas corpus articles contain no provision for appeal. It is elementary that the right of appeal is a statutory right, and this rule is especially, applicable in habeas corpus cases.

The courts of several states have held that the decisions in habeas corpus cases are not reviewable under a general law allowing an appeal from all final judgments. See Howe v. State. 9 Mo. 690; Ex parte Toney, 11 Mo. 662; Ex parte Jiliz, 64 Mo. 205, 27 Am. Rep. 218: Carruth v. Taylor, 8 N. D. 166, 77 N. W. 617; People v. Conant, 59 Mich. 565, 26 N. W. 768. In some states the right of appeal has been expressly granted by legislative enactments; in other states the courts hold that a decision in a habeas corpus proceeding is appealable under a statute which gives an appeal' from a final order affecting a substantial right made in a special proceeding. See State v. Buckham, 29 Minn. 462, 13 N. W. 902, and Winton v. Knott, 7 S. D. 179, 63 N. W. 783. By virtue of a provision of section 21 of the “Enabling Act” (Act June 6, 1908, c. 3335, 34 Stat. 277) all laws in force in the territory of Oklahoma at the time of the admission of Oklahoma as a state were extended over and'put in force throughout the state, except as modified or changed by the “Enabling Act,” or by the Constitution of,the state. Thus the adoption-of the habeas corpus statutes of the territory of Oklahoma was only so far as the same were not repugnant to, or in conflict with, the Constitution of the state. Had it been intended to provide for appeals in habeas corpus, some appropriate provision would have been made. Its omission affords the best evidence to the contrary, and, if anything is wanting to remove all doubt, it will be found in the nature and object of this great writ as a Constitutional right; its purpose being to afford a speedy remedy to a party unjustly accused of the commission of a crime without obstructing or delaying public justice, both of which objects would be defeated by the delays consequent upon an appeal. Any other rule would operate practically to subvert the constitutional safeguards and the fundamental rights of the citizen. Section 12 of the act creating the Criminal Court of Appeals (Laws 1907-08. p. 293) provides:

“Sec. 12. Said court and judges, shall have the power to issue'writs of habeas corpus and under such regulations as provided by law, issue such writs as may be necessary to enforce its own jurisdiction.”

Under.this section this court exercises original, and not appellate jurisdiction. It is Well settled that regulative restrictions of the constitutional privileges of the writ must receive a liberal interpretation at the hands of the courts, with a view of giving the petitioner the full benefits of his constitutional right to the writ.

It is our opinion that under the power with which this court is invested by the Constitution and laws of this state any person restrained of his liberty within the state has the right to invoke the original jurisdiction of this court on habeas corpus. And, while a judgment remanding the party on a writ of habeas corpus is not subject to review on a writ of error or appeal, it is entitled to some consideration on a second application, and may warrant the refusal of the second application. In the case at bar, and in all cases where the petitioner on application to a district court, or judge thereof, has been remanded, we are of the opinion that the constitutional right of the party to the writ was not exhausted by the first remanding order, and the petitioner has the right to present his application to this court, as has been done in this case. We believe any other construction of the statute would render it unconstitutional, as unduly infringing upon the powers given to the courts to issue writs of habeas corpus.

After an indictment it has never been the practice of courts to look into the question of guilt or innocence on habeas corpus; the rule being well stated in the case of Ex parte Patman, 20 Okla. 846, 95 Pac. 622. The opinion of the court was rendered by Chief Justice Williams, wherein he says:

“The relator being in custody by the sheriff of Muskogee county to answer an indictment pending and undetermined in the district court of said county for the crime of murder, a writ of habeas corpus is prayed for by relator, not that he may be ehlarged on bail, but it is claimed by him that- he is entitled to an absolute and unconditional discharge from custody. * * * An application for a habeas corpus for the purpose and under the circumstances for which this was made, is certainly novel and without precedent in the courts of this state. It would seem to have long since been much too well established by the common law as well as our statutes that an indictment not void upon its face, regularly returned to, and pending in a court having jurisdiction thereof, could only be disposed of by some appropriate proceeding in such court for an experiment such as the present. The practice of common law in the Court of King’s Bench is thus stated in Wilmot’s Opinions, 106 (Hurd on Habeas Corpus 331): Tn imprisonment for criminal offenses the court can aci upon it only in one of three manners: (1) If it appear clearly that the act for which the party is committed is no crime, or that it is a crime, but he is committed for it by a person who has no jurisdiction, the court discharges. (2) If doubtful whether a crime or not, or whether the party be committed by a competent jurisdiction, or if it appears to be a crime, but a bailable one, the court bails him. (3) If an offense, not bailable, and committed by a competent jurisdiction, the court remands or commits him.’ It is certainly essential to the proper discharge ,of its duties, and the due and efficient administration of the law, that whenever a court assumed to act in a manner and over parties within its jurisdiction it i.s its right and duty to proceed to its final determination without interference' from any other tribunal. The writ of habeas corpus was not designed to operate as a writ of error or certiorari, and does not have their force and effect. It does not deal with error or irregularities which render proceedings voidable merely, but such only as render them absolutely void.”

The sole purpose of the certiorari in this case was to produce the record under which the commitment was originally made- and upon which the district judge based his findings. However, we believe the proper practice is to require petitioner in this character of cases to produce and make a part of his petition the evidence taken at the preliminary examination.

This brings us to the principal, and probably the real, question in this case: Was there any legal evidence adduced to prove, or tending to prove in any manner, that there is sufficient cause to believe petitioner guilty of the offense charged? If there was no such evidence, the .justice of the peace could not make a legal commitment, because, where there is no evidence to sustain it, the commitment is void. If there is no legal and competent testimony connecting petitioner with the crime for which he is charged, as found by the district judge, then the petitioner should be discharged. We have carefully read and reviewed' the testimony as shown by the transcript. The testimony shows that one Sam Potter, residing at Mineo, Grady county, Okla., was on the night of September 12, 1908, between the hours of 9 and 10 o’clock, foully' murdered upon the front porch of his home in said city by having his skull crushed with an iron bar. His body was found lying on the porch with an iron bar beside it. There was no direct testimony as to who committed the crime, but there were circumstances which might well tend, in connection with other facts, to induce a belief in petitioner’s guilt. We are constrained to hold that substantially the proof is almost positive that petitioner has guilty knowledge. The evidence against him, we must admit, is not as strong as it might be, and the inference of guilt does not flow from the circumstances with such ’ an absolute and irresistible certainty as we sometimes find, but still the evidence was sufficient to put petitioner upon his defense. It will not be necessary to notice it in detail. The testimony tends to show that the deceased was the victim of a conspiracy, and within the hour preceding the finding of his dead body petitioner, together with three other persons, consulted near his home regarding money held by deceased, and that petitioner, being one of the number, was directed by his confederates to secure this money from deceased. It further shows that deceased, together with petitioner and his co-defendants, was engaged in questionable, if not criminal, transactions on the day deceased was killed. The testimony further shows that petitioner was seen by several witnesses leading deceased towards his home shortly before the murder was committed. An effort was made, as shown by the testimony, to prove an alibi, but the petitioner or his codefendants • did not testify. We deem it sufficient to mention these circumstances which tend, in connection with other facts shown, to prove the guilt of petitioner. The foregoing incriminating circumstances are shown by competent testimony, and not by illegal, incompetent, irrelevant, hearsay, opinion,' or secondary evidence. We will not further comment upon the evidence, as we do not desire that our comments should in any way influence the final, trial.

Justice Kane in the case of In re Thomas et al., 20 Okla. 167, 93 Pac. 980, in a well-considered opinion, states the rule to be that “the burden of proof is on the petitioner in a capital case to show that he is illegally deprived of his liberty.” The reasoning and the rules enunciated therein appeal to, and meet the approval of,this court.

It is the opinion of this court, applying the rules herein enunciated to the facts and circumstances as shown by all the evidence before us, the petitioner is not unlawfully restrained of his liberty, and that respondent, the sheriff of Grady county, Okla., properly and legally holds said petitioner.

The writ of habeas corpus, is therefore denied, and the petitioner, Charles Johnson, is hereby remanded to the custody of the sheriff of Grady county, Olda.

FURMAN, Presiding J udge, and BAKER, Judge, concur.