author: DOYLE, Judge.

text:
    W. H. Pilgrim v. State.
    No. A-110.
    Opinion Filed October 9, 1909.
    (104 Pac. 383.)
    1. GRAND JURY — Preservation of Evidence — Necessity. Section 5333, Wilson’s Rev. & Ann. St. 1903, provides: “The grand jury must appoint one of their number as clerk, who must preserve minutes of their proceedings, except of the votes of the individual members, and of the evidence given before them.” Held, that this statute does not require that evidence before the grand jury be preserved. At most it means minutes of the evidence, which would be merely a memorandum.
    2. WITNESSES — Testimony of Grand Jurors — Competency. Section 5347, Wilson’s Rev. & Ann. St. 1903, provides: “A member of the grand jury may, however, be required bv any court to disclose the testimony of a witness examined before the grand jury for the purpose of ascertaining whether it is consistent with that given by the witness before the court, or to disdlose the testimony given before them by any person, upon a charge against him for perjury in giving his testimony or upon his trial therefor.” Held, that this statute affirmatively ■ establishes the competency of grand jurors as witnesses testifying orally as to the statements of defendant, made as a witness before the grand jury in a prosecution of said witness for perjury.
    3. PEIRJURY — Admissibility of Evidence — Address of Judge. On a prosecution for perjury, consisting of testimony by defendant before a grand jury, which was investigating crimes committed in connection with the unlawful mutilation and alteration of election returns, it was error to admit in evidence, and have read from the record, an address made by the presiding judge at the convening of the first term of the district court of the county; such evidence being irrelevant and calculated to mislead the jury as to the proper grounds and consideration upon which they should found their verdict, and therefore prejudicial to the defendant. 3 Cr. — 4

      4. PERJURY — Intent. Section 2081, Wilson’s Rev. & Ann. St. 1903, which declares that: “An unqualified statement of that which one does not know to he true is equivalent to a statement of that which one knows to be false” — should be construed with section 2071. Wilson’s Rev. & Ann. St. 1903, which provides that: “Every person who, having taken an oath that he will testify, declare, depose or certify truly before any cpmpe-tent tribunal, officer, or person, in anv of the oases in which such an oath may bv law be administered, willfully and contrary to such oath, states anv material matter which he knows to be false, is guilty of perjury.”
    5. SAME. Perjury consists in swearing' willfully and corruptly, contrary to the belief of the witness, not in swearing rashly and inconsiderately according to his belief.
    G. SAME. (Corrupt motive is indispensable to perjury; and one having knowledge respecting the fact, who testified, however positively, only what he believes to be true, can be guilty of no crime, although he was "mistaken.”
    7. TRIAL' — Direction of Acquittal. A motion on the part of the defendant to direct a verdict of acquittal should be sustained, where the evidence is insufficient to show the commission of the oifense charged.
    8. PERJURY — Sufficiency of Evidence. See opinion for evidence stated, which is held to be insufficient to sustain a conviction for perjury.
    (Syllabus by the Court.)

      Error from District Court, Alfalfa County; Milton G. Garber, Judge.

      W. H. Pilgrim was convicted of perjury, and he brings error.
    Reversed.

      Guy D. Talbot and Cloud & Halstead, for plaintiff in error.—
    On necessity of corrupt intent in perjury; Green v. State, 41 Ala. 419; Nelson v. Slate, 32 Ark. 192; Commonwealth v. Dunham, Thaeher Cr. Cas. 519; State v. Higgins, 124 Mo. 640; United States v. Shellmire, Fed. Cas. No. 16,271; United States v. Smith, Fed. Cas. No. 16,341; Scott v. Coolc, 62 Ky. 314; Commonwealth v. Brady, 71 Mass. 78; Gibson v. State, 15 S. W. 118.

      Charles West, Atty. Gen., and Charles L. Moore, Asst. Atty. Gen. (C. IT. Parker, of counsel), for the State. No copy of brief reached the reporter.
   DOYLE, Judge.

At the June, 1908; term of the district court of Alfalfa county the plaintiff in error, W. H. Pilgrim (hereinafter designated as the defendant), was indicted for perjury. Upon this indictment the defendant was tried and convicted at the October term, 1908, of said court.

The indictment, in substance, charges that in the county of Alfalfa and state of Oklahoma, on the 21st day of January, 1908, the defendant, W. H. Pilgrim, appeared before the grand jury of said county as a witness to testify as to certain matters in an' inquiry then being held by said grand jury for the purpose of investigating a certain crime, or crimes, which had beén committed in the proposed county of Alfalfa, state of Oklahoma, in.connection with the unlawful mutilation, alteration, and falsification of certain election returns of the election held on September 17, 1907; that the defendant was by T. B. Couch, the foreman of the grand jury, sworn to testify the truth, the -whole truth, and nothing but the truth; that it was and became a question of fact, material to said investigation by said grand jury, to determine the time when the ballot boxes and keys to the locks of election precinct No. 7 of the proposed county of Alfalfa, together with a part of the keys to the locks of the ballot boxes of election precinct No. 5 of said proposed county, which ballot boxes and keys, employed and used by the election boards in said election precincts in said election, were delivered by one J. D. Williams to the office of the county clerk óf the proposed county of Alfalfa, at Cherokee; that the defendant did then and there falsely, corruptly, knowingly, willfully, maliciously, feloniously, unlawfully, and contrary to his said oath swear and testify, in substance and effect, that the ballot boxes and keys to the locks of same of election precinct No. 7, together with a part of the keys to the locks of the ballot boxes of election precinct No. 5, were delivered by one J. D. Williams to the office of the county clerk of the proposed county of Alfalfa, at Cherokee, on the 19th day of September, 1907, when in truth and in fact the ballot boxes and keys to the locks of. same of election precinct No. 7, together with a part of the keys to the ballot boxes of election precinct. No. 5, were not delivered by J. D. Williams to the office of the county clerk, at Cherokee, on the 19th day of September, 1907, but were so delivered by said <T. D. Williams to the office of the county clerk, at Cherokee, on the 18th day of September, 1907; that in all of said particulars the testimonjq statements, and declarations so sworn and testified unto by the said W. H. Pilgrim were then and there material matters in and to the said investigation and inquiry by said grand -jury, and were then and there not true, but false, as the said W. H. Pilgrim then and there well knew.

The jury returned a verdict of guilty on October 8, 1908. On October 10th defendant filed his motion for a new trial, which motion was on the same day overruled by the court, and exception allowed. On the same day the court pronounced judgment on the verdict, and sentenced the defendant to serve a term of. two years’ imprisonment in the state penitentiary, and from that judgment and sentence he has appealed to this court.

The ease was argued orally before the full bench, and able and elaborate briefs were submitted by counsel for the defendant and for the state. We have carefully read the evidence; and, having reached the conclusion that the judgment in this case cannot be permitted to stand, for this reason we see no occasion for following counsel in their learned discussion of all the various errors assigned. We will therefore only discuss a few of the most important questions presented.

Counsel for the defendant contend: That the testimony of certain grand jurors concerning the proceedings of the grand jury, and the evidence introduced before it, including tire administering of the oath to, and the testimony given by, the defendant, was incompetent and inadmissible, for the reason that it was not the best evidence of the proceedings of, and the evidence given before, the grand jury, and that parol proof was not admissible. Section 5333, Wilson’s Rev. & Ann. St. 1903, provides:

“The grand jury must appoint one of their number as clerk, who must preserve minutes of their proceedings, except of the votes of the individual members, and of the- evidence given before them.”

This statute does not require that evidence before the grand jury be preserved. At most it means minutes of the evidence, which would be merely a memorandum. This would authorize oral evidence. Section 5347, Wilson’s Rev. & Ann. St. 1903, provides :

“A member of the grand jury may, however, be required by any court to disclose the testimony of a witness examined before the grand jury for the purpose of ascertaining whether it is consistent with that given by the witness before the court, or to disclose the testimony given before them by any person, upon a charge against him for perjury in giving his testimony or upon his trial therefor.”

This provision of our statute affirmatively establishes the admissibility of such testimony. By virtue of this provision the evidence of the grand jurors was clearly competent.

It is also contended that the court erred in admitting in evidence, over the objection of the defendant, the remarks of the trial judge, made at the convening of the first term of the district court of Alfalfa county. These remarks were spread upon the record of the court, and are as follows:

“Opening of Court by Hon. M. C. Garber, Presiding Judge.
“Fellow Citizens: We are about to convene the first session of the district court of Alfalfa county. The event marks a new epoch in its history. It constitutes a new milestone in the development of a new commonwealth, and I trust that those who are charged with the responsibilities of the occasion will so write with clean hands and honest motives that our successors, the future citizens of this county, may not be compelled to look back with shame to this period, but may be able to look back with some degree of pride, and say that those who were charged with the responsibility were actuated by the commendable motive of the enforcement of the law for the better protection of the home and the fireside, and for the promotion of justice and equity, and that a forum was organized in this humble building in which every man stood upon equal footing, and in which there was no respecter of persons. If this can be said of those who follow, we shall then have contributed our part towards doing the day’s work, which is a part of the responsibility of each citizen. When I refer to those upon whom this responsibility rests, I include, first, the members of the bar who are members of the court, with whose assistance only can the enforcement of the law be secured; and, secondly, I include all citizens called upon to act as jurors who alone are the judges of the fact in a case and upon whom rests the responsibility, in a large measure, of determining the majority of legal controversies that will arise. It is the jurors, acting in a representative eapacit\-, guided by the law and carefully and impartially weighing the testimony in order to arrive at a correct determination of the facts in a case; and thirdly, I refer to the citizens of the county — to the man behind the plow and the counter and in the editorial room— who are charged with the responsibilitjr. of contributing their part lo the molding of a courageous public opinion, without which the decree of the court is a dead letter. And so, finally, it drifts back to the responsibility of the individual citizen for the enforcement of the law.
“We organize this court to-day to contribute the legal expression and judgment of this public opinion for the protection of the individual rights of the citizen. I trust that it will be an institution that will contribute its part, and with the assistance of the members of the bar and the good citizens of the county it will be done. With the assistance of the bar and jurors, and the law-abiding, orderly citizenship of the county, I am satisfied that this court will contribute its part in the satisfactory adjustment of all legal controversies, the protection of legal rights, enforcement of law, and the maintenance of public peace and happiness. As public servants, charged with the responsibility of the expenditure of public funds for the maintenance of this institution, we must have due regard for the interests of the taxpayers, as well as the rights of the litigants. The occasion affords a timely opportunity for the members of the bar and citizens present to give some expression of their opinion, and to whom the court now extends a cordial invitation to do so.”

The prosecution for the ostensible purpose of showing the opening of the Alfalfa county district court, as the January term, 1908, offered, and was permitted to read in evidence from the court journal, this address. It is insisted by counsel for defendant that this record could have been offered only for the improper purpose of prejudicing the rights of the defendant, and that these remarks of the trial court were calculated to make an-impression unfavorable to the defendant upon the minds of the jury. The question presented is singular, to say the least. However, we can conceive of no purpose for which this part of the court record was admissible evidence. What the presiding judge said in his address to the spectators who had assembled to witness the opening of the first term of the district court of Alfalfa county was irrelevant, and could have no, legitimate bearing upon any issue in the case. While we have the greatest respect for the judgment of the able and impartial trial judge, we are constrained to believe that this evidence was inadmissible, and clearly prejudicial to the substantial rights of the defendant. The trial judge being the author of this address, it was well calculated to mislead the jury as to the proper grounds and consideration upon which they should found their Verdict, and it is impossible to tell to what extent the defendant’s rights may have been prejudiced thereby. The defendant, a former official of the county, was on trial charged with perjury in connection with the grand jury’s investigation of election frauds. To read to the jury these views of the trial judge as to the duties of jurors in assisting the court in the enforcement of the laws and the protection of society could not be otherwise than prejudicial. When we consider that the verdict is not supported by sufficient evidence, the correctness of this conclusion is confirmed. Jurors are easily influenced by the remarks of a trial judge, and the greatest care should be observed that nothing is said that can by any possibility be construed as an expression of the trial judge’s views respecting the merits of a criminal case. Courts cannot be too circumspect in this regard.

Under the next assignment it is contended that the evidence offered was insufficient to make out or establish the crime of perjury. , This assignment is based upon the elementary proposition that knowledge of the falsity of the alleged perjured testimony is an essential and indispensable element of the crime of perjury. The state introduced evidence in substance as follows: That the grand jury at the January, 1908, term of the district court of Alfalfa county made an investigation of the alleged alteration and mutilation of certain pollbooks and tally sheets used in certain voting precincts in said county, in the general election held on September 17, 1907; and that on January 21st the defendant, W. H. Pilgrim, who was deputy county clerk of said county when the election was held, was called before the grand jury and examined as a witness; that he testified that the returns from all of the precincts in Alfalfa county, except Round Grove and Ingersoll (number 7) were delivered to the county clerk’s office on September 18th; that Ingersoll and Round Grove were not delivered until the 19th; that J. D. Williams, the inspector who delivered the returns from Ingersoll, also delivered with them a part of the keys to the ballot boxes used in Beard precinct (number 5), which keys would unlock nearly all of the ballot boxes used in Alfalfa county in that election; that on January 22d the defendant voluntarily appeared before the grand jury, and again stated that the returns from In-gersoll, together with a part of the keys from Beard precinct, were not delivered until September 19th; that on January 23d the defendant was again called before the grand jury, was cautioned that he was still under oath, and was asked if there was a receipt out showing that he had receipted for the Ingersoll returns on the 18th — what he would say as to that — and that the defendant answered that he would say the date in the receipt was a clerical error.

B. F. Blue, a member of the grand jury, testified, and on cross-examination was asked, when the defendant was before the grand jury on January 23d, and asked if there was a receipt given by him showing that the returns from Ingersoll were delivered on the 18th, what he would say to that, and answered that he would say that it was a clerical error, if defendant did not qualify his answer by saying that, unless the duplicate on file in the county clerk’s office also showed the date of the 18th, he would say that it was a mistake, and that if the receipts both showed the 18th, he would rather trust them than his memory — witness Blue answered that he did not recall that the defendant was asked that question and made that answer, but that he (the witness) was hard of hearing, and that the defendant might have been asked that question and made the answer, and he (the witness) would not have heard it.

T. E. Couch, foreman of the grand jury, testified in part as f ollows :

‘‘Q. Tell the jury what he testified to; and, if it is necessary to intelligently recite what he testified to, state in substance the questions that were asked of him. A. Well, it was like this: It seems that the returns from the election had all been .made to Mr. Pilgrim; that he had been here and received the returns, and they came in all together, and that being the case, why we were considering where the crime had been committed — whether it was here, or whether it was before it got here, or after it had been turned over, or when it was, and we subpoenaed him before us for that reason, to find out, and we were questioning him in this— in these particular places here — and when the returns were made, how they were made, who made them, etc., and he gave us the time the returns were brought in from this township, and' that one, and so on, and after awhile we come to find out that this township, No. 5 over here, that the returns and keys were not all delivered at the ‘same time. Then we were inquiring into that, and said that there was half of the keys taken to Ingersoll and turned over there to Mr. Williams, and he brought them down, and that the ballot boxes and pollbooks from Beard township, or No. 5 rather, were brought in, I think the first that arrived. Anyhow, they were here early the next morning after the election, something like sunup, and that the keys and that the other half of the keys that was not delivered with the returns, they came in— the half that went round by Ingersoll, they were not delivered until the evening of the 19th. Q. Who testified to that? A. Mr. Pilgrim testified to that. Q. In that testimony that he gave on the 21st day of January, 1908, before the grand jury, did he testify in regard to the time when the ballot boxes and keys to the locks of the ballot boxes of Ingersoll precinct, being precinct No. 7, and also as to the time when a part of the keys to the locks of the ballot boxes of precinct No. 5, being Beard township, were returned to him? A. Yes, sir. Q. State what he said in regard to the return of these items, as to when they were returned to him. A. He said they were returned to him in the evening of the 19th, or the second day after the election was held, and that this part of the keys that came around from Beard township, around through Ingersoll, was out just about 36 hours from the time the Beard township returns were delivered to him, until the keys were turned over to him, and also stated that those keys that were up there unlocked almost all of the boxes but a few. I don’t remember; five or nine, or something like that. Q. Did he state who returned the ballot boxes and keys to No. 7, and who returned part of the keys to the ballot boxes of precinct No. 5? A. You mean the keys that went around? Q. Yes, sir. A. Why, Jeff Williams.”

On cross-examination the witness, T. E. Couch, was asked if anything was said by the defendant before the grand jury about the receipts that had been issued for the Ingersoll boxes, or that were found in the county clerk’s office, and answered that when the defendant was before the grand jury on January 21st, Mr. Blue asked him if he gave Mr. Williams a receipt for the keys; that defendant talked about a receipt, and witness thought it was that evening the defendant said he made a notation on the receipt in regard to the keys. He was also asked if he heard anything about the receipt that is on file in the clerk’s office, when the defendant was before the grand jury. Witness thought defendant mentioned that he made a notation on-that receipt, too, about the keys and their return, on which he made a notation when they were returned. The witness further testified on cross-examination that the grand jury had before it, and examined, the receipt given to Williams, and also the receipt in the county clerk’s office.

J. D. Williams testified that he was inspector of election at Ingersoll precinct on September 17, 1907; that he brought the returns from that precinct, and delivered them to the defendant at the county clerk’s office on September 18th; that at the same time he brought and delivered to the defendant a set of keys, said to belong to Beard precinct, which had been handed to him at Ingersoll during the forenoon of September 18th by M. L. Guffy. In his testimony the witness Williams also identified the receipt given to him by the defendant, which receipt was admitted in evidence over the objection and exception of the defendant.

Ab Hunt testified that he came from Ingersoll to Cherokee with J. D. Williams on September 18th, and was with him when he returned the election returns from Ingersoll, and part of the keys from Beard, to the defendant at the clerk’s office on that date.

M. L. Guffy testified in behalf of the state that he was one of the election judges at Beard precinct; that when the count of the votes and the records Avere finished in Beard precinct, he at once left the polling place and Avent to Ingersoll on the morning of the 18th; that he forgot to leave Avith the election board in Beard township one set of the keys to the boxes there which were in his possession; that when he reached Ingersoll he gave the keys to J eff AVilliams, and asked him to deliver them to the county clerk.

• The defendant moved the court to direct a verdict on the ground that the evidence introduced by the state failed to show the commission of any offense by the defendant, which motion was by the court overruled and exception alloAved.

W. H. Pilgrim, the defendant, testified on his own behalf, in substance, as follows: That he Avas before the grand jury in question three times; that he was first called before them on January 21st, and questioned with reference to receiving the election returns; that the grand jury had him draw a plat of the building in which they were kept, showing how the doors and windows were locked, and all about the building; that they asked him if it would have been possible for anybody to have gotten into the building where the ballot boxes were kept, or into the place Avhere he kept the keys; that he did not remember of anything being asked him the first time he Avas before the grand jury about the time he received the returns of any particular precinct, and did not think such questions were asked him on that occasion; that he voluntarily Avent before the grand jury on January 22d, and stated that half of the keys from Beard precinct and the returns from Ingersoll were not delivered to him until September 19th, and that he asked the grand jury to investigate why they Avere kept out so long; that he was recalled on January 23d, and testified as folloAvs:

“Q. What questions were asked you at that time? A. They asked me if I AAras positive about the Ingersoll returns coming in on the 19th. Q. What ansAver did you make to that? A. I told them that was my recollection, but for fear that I might be mistaken, I asked them to get the receipts that were on file in the clerk’s office, and also the receipt I had given Jeff AVilliams, and examine them. I told them I would rather trust the dates of the receipts than the dates of it in my 'memory. Q. You told them you would trust the receipts, did you say? A. Yes, sir; I did. Q. Rather than your memory? A. Yes, sir. Q. Were you asked with reference to these receipts as to what your opinion would be if the receipts showed they came in on the 18th? A. Yes, sir. Q. What statement did you make concerning the receipt given by you to Mr. Williams, based on the assumption that that receipt showed that the boxes were returned on the 18th? A. Well, the question was put something like this, as I remember it: Mr. Blue says, he asked me this question: Tf the receipts that you gave Jeff Williams should show date of the 18th, what would you think about it ?’ That is about the language, 1 believe. I says T would think it was a mistake, unless the other receipt that is in the clerk’s office also showed the same date,’ but I was willing for a receipt to be produced, and I would rather trust that than my memory.”

The defendant further testified that he was deputy county clerk when the election was held in 1907, and as such had charge of sending out the election supplies to the various precincts, and receipting for the returns as they came in; that the returns began to come in the morning of September 18th, and that the last of them came in on the 20th; that there were 18 precincts, and three boxes for each precinct; that as the returns were brought in from each precinct, he made notation on each receipt that had been signed by the election inspector for the supplies for the various precincts when they were taken out before the election, which notation was made by him on the bottom of each receipt showing just what was returned; that it was this notation to which he referred as a “duplicate receipt” in his testimony before the grand jury, when he told them that if the receipt given to Williams showed the Ingersoll boxes were returned on the 18th, he would say that that was a mistake, unless the receipt in the clerk’s office also showed the date of the 18th; that when he testified before the grand jury that the boxes from Ingersoll precinct were returned to the office of the county clerk on September 19th, he stated his honest recollection and belief; that at the time he testified before the grand jury he was not in possession of any fact that led him to doubt or question the truthfulness of his statement.

Numerous character witnesses testified that they knew the defendant’s reputation for honesty and integrity, and that his reputation was good, which was not controverted by the state. We have carefully considered the evidence, and we are of opinion that it is insufficient to show the commission of the offense charged. For this reason the motion to direct a verdict of acquittal should have been sustained. The prosecution is for one of the highest crimes known to the law. The law presumes the defendant innocent until his guilt is established by competent evidence beyond a reasonable doubt. To constitute perjury the statement made must not only be false, but the party making it must know it to be so. If the witness testified under an honest mistake or misapprehension, and believed what he testified to be true, a conviction cannot be had, though the statement be false. Butler v. State, 36 Tex. Cr. R. 444, 37 S. W. 746; Cutler v. Territory. 8 Okla. 101, 56 Pac. 861.

Section 2081, Wilson’s Rev. & Ann. St. 1903, provides:

“An unqualified statement of that which one does not know to be true is equivalent to a statement of that which one knows to be false.”

In Cutter v. Territory, supra, Chief Justice Burford, construing this provision, said:

“This section is not intended to define the crime of perjury, but must be read in connection with section 2074, which defines the crime, and, when so read, is intended to include cases where a witness willfully testifies to the truth of matters which he does not know to be true; that the statement must be willfully made is as essential to the crime of perjury in the case of an unqualified statement of that which the witness does not know to be true as in the ease of a statement which he knows to be false. There can be no crime of perjury where the witness is honestly mistaken in his testimony, or the oath is according to the belief and conviction of the witness that it is true. The California Criminal Codes contain these same provisions in reference to the crime of perjury, and the same question was before the Supreme Court of that state in the case of People v. Von Tiedeman, 120 Cal. 128, 52 Pac. 155; and the court held that there could be no perjury in making an unqualified statement of that which one does not know to be true, unless the element of willfulness entered into the act. We think that court correctly interpreted these statutes, and we have followed their construction.”

It 'is' declared an elementary principle in Wharton’s Criminal Law, § 1245:

“The offense consists in swearing falsely and corruptly without probable cause or belief, not in swearing rashly or inconsiderately according to belief. The false oath, if taken from inadvertence or mistake, cannot amount to the voluntary and corrupt perjury.”

Again, in section 1250 it is said:

“But, if there be no evil intent, general or special, perjury fails. Thus it is not perjury to swear honestly to testimony which the witness believes to be true, though a little diligence would have enabled him to have discovered its falsity.”

In Bishop’s New Criminal Law, § 1048, it is said:

“Perjury cannot be willful where the oath is according to the belief and conviction of the witness as to its truth. Beckless disregard of truth by a witness, who has no belief that he is swearing falsely, is not perjury, though his testimony is in fact false, and he would have made it true if he had used caution.”

See, also, Green v. State, 41 Ala. 419; Nelson v. State, 32 Ark. 192; State v. Higgins, 124 Mo. 640, 28 S. W. 178; United States v. Smith, Fed. Cas. No. 16,341; United States v. Shellmire, Fed. Cas. No. 16,271; Commonwealth v. Brady, 71 Mass. 78; Gibson v. State (Tex. App.) 15 S. W. 118 — all of which hold in substance that one can be convicted of perjury only where the false testimony was given corruptly, with knowledge of its falsity, and that it is not enough that the defendant in a perjury prosecution testified positively to that which he did not know to be true.

It appears from the evidence that the defendant, as deputy county clerk of Alfalfa county at the time of the election in question, was charged with the duty of receiving and receipting for all the returns from the various election precincts in said county; that there are 18 precincts, and that the returns all came in on two days. From this it is obvious that it would have been strange indeed if the defendant had been able to recollect with certainty the precise time at which any particular portion of the returns reached his office, and that nothing was more probable than that he should have been mistaken as to the time when the returns from some particular precinct came into bis possession. Upon receiving said election returns, receipts were issued to the inspectors or persons returning the same, and a duplicate was filed in the office of the county clerk. In the investigation had by the grand jury the original and best evidence of the facts as to when the ballot boxes and keys were returned was the original and duplicate receipt so issued and filed by the defendant in his capacity as deputy county clerk. The evidence discloses that these receipts were in the possession of the grand jury, but were not submitted to the defendant while testifying as a witness. The evidence does not inform us for what purpose the receipts were withheld. Defendant was entitled, as a matter of fairness, if not of right, to examine the receipts that he had issued, and the duplicates on file in the office of the county clerk. Wilson’s Rev. & Ann. St. .1903, § 5339, provides:

“The grand jury may not receive hearsay or secondary evidence.”

With the original and duplicate receipts in evidence before the grand jury, we fail to see how the evidence of defendant could be material in any respect without giving him the opportunity to examine said receipts, and that he then should deny their correctness. The dates as shown, by the receipts could not be established by statements of the defendant as a mere matter of his opinion and belief. Under these circumstances, rendering it very probable that the defendant might have been mistaken as to dates, and very improbable that he should have remembered all of this correctly, there is nothing in the evidence, either direct'or by inference, that tends to show that the defendant had any knowledge that the testimony he gave before the grand jury was false. For the reasons hereinbefore stated we are of opinion that the evidence is insufficient to establish an evil intent, or that the testimony was given willfully and corruptly, and that the evidence as shown by the record is wholly insufficient to support a conviction for the crime of perjury. Our conclusion is fortified by the fact that defendant is a man of good repute, as shown by the record.

The judgment is therefore reversed, and the cause remanded, with direction to the court below to dismiss the prosecution.

FUBMAN, Presiding Judge, and OWEN, Judge, concur.


source: Caselaw Access Project

author: FUBMAN, Presiding Judge.

license: Public Domain

text:
    H. E. Bridges v. United States.
    No. 117.
    Opinion Filed October 18, 1909.
    (104 Pac. 370.)
    INSTRUCTIONS — Credibility of Accused. It is error for the trial court to single out the defendant personally and charge upon the credibility of his testimony.
    (Syllabus by the Court.)

      Appeal from District 'Court, Creek .County; John Carwthers, J udge.

    Ií. E. Bridges was convicted of the larceny of a steer, and he appeals.
    Beversed and remanded.
    The defendant was tried in the district court of Creek county for the offense of larceny of a steer. The indictment was transferred from the United States Court of the Western District of the Indian Territory upon the incoming of statehood. The defendant was found guilty by the jury, and the case is properly before this court on appeal.

      McDougal, Wood '& Latimore, for appellant.

      Charles West, Atty. Gen., and C. L. Moore, Asst. Atty. Gen., for the State.
   FUBMAN, Presiding Judge.

First. Upon the trial of this case the court instructed the jury as follows:

“Under the law the defendant has the right to testify on his own behalf; but the credibility and the weight to be given to his testimony are matters exclusively for the jury. In weighing his testimony, you have a right to take into consideration his manner of testifying, the reasonableness or unreasonableness of his account of the transaction, and his interest in the result of the verdict, as affecting -his credibility. You are not 'required to receive blindly the testimony of the accused as true; but you are to consider whether it is true, and made in good faith, or only for the purpose of avoiding conviction.”

In the case of Jesse Reed v. United States, 2 Okla. Cr. 652, 103 Pac. 371, Judge Owen, speaking for the court said:

“In our opinion it is reversible error for the trial court to single out the defendant personally, and instruct the jury upon the credibility of his evidence. This court so held in the case of Fletcher v. State, 2 Okla. Cr. 300, 101 Pac. 599, and in the case of Green v. United States, 2 Okla. Cr. 55, 101 Pac. 112, and again in the case of Hendrix v. United States, 2 Okla. Cr. 240, 101 Pac. 125. In the latter case the instruction was condemned, but was held to be harmless error in that case for' reasons given in the opinion. In the case of Fletcher v. State, opinion by the Presiding Judge of this court, the court, in passing on this question, says: 'We think that it is error for the court to single out any special witness, personally, and burden his testimony with any suggestions which might indicate to the jury that in the opinion of the court such witness was liable to testify falsely. Instructions as to the credibility of witnesses should be general, and apply equally to all of the witnesses for the state and the defendant alike. Because a witness may be the defendant is no reason why he should be visited with condemnation upon the one hand, or clothed with sanctity upon the other. He is before the court as a witness, and should be treated by both the court and the jury just as other witnesses are treated — no better and no worse. We trust that the courts of Oklahoma will cease to give such instrucr, tions in the future; otherwise, it will result in the reversal of man}'- convictions, which, but for such instructions, would be affirmed.’ The opinion of the court in that case is here approved.”

When this case was submitted to this court, the Attorney General filed a confession in error on account of this instruction. But subsequently by permission of the court, this was withdrawn upon the plea that no exception was reserved in the trial court. Upon an examination-of the case-inadé we find that this instruction was expressly excepted to before the instructions were read to the jury.

Second. In this case the evidence against the defendant is of an unsatisfactory character, and the trial jixdge would have been entirely justified in setting the verdict aside on this ground. Unless the state can secure more convincing proof of the defendant’s guilt, it will be a useless expense to the state to place the defendant on trial for this offense again. But, as the case will have to be reversed on account of the error in the instructions, it is unnecessary to discuss the evidence in detail.

Beversed and remanded.

DOYLE and OWEN, Judges, concur.


author: PER CURIAM

text:
      Ex parte Frank Haikey.
    No. A-238.
    Opinion Filed October 18, 1909.
    (104 Pac. 377.)
    CONSTITUTIONAL LAW — Deprivation of Liberty — Imprisonment Pending Appeal. The act of criminal procedure of Oklahoma (Wilson’s Rev. & Ann. St. 1903. sec. 5771; Sess. Laws 1905, p. 334, c. 29, art. 2, sec. 1) piovides that, upon conviction and sentence for a crime punishable by death or imprisonment for life, the crime is not bailable, and that in all oases where the sentence is for a crime not bailable the appeal shall suspend execution until the matter is determined and the defendant in the meantime shall be confined to the state prison. Held, upon petitioner’s demurrer to respondent’s answer and return showing conviction and sentence to imprisonment for life, commitment issued and appeal taken, that said provision does not disparage any substantial rights of constitutional guaranty and is not repugnant to or inconsistent with the Constitution of Oklahoma.
    (Syllabus by the Court.)
    Original application by Frank Haikey for writ of habeas corpus.

    Writ denied.
    This is an original application for writ of habeas corpus filed by the petitioner, Frank Haikey, in this court on July 6, 1909. On November 10, 1908, the petitioner was convicted in the district court of Creek county, Okla., of murder and sentenced to life imprisonment in the penitentiary, and thereafter prosecuted his appeal to this court where the same is now pending undetermined as case No. A-238. He was removed from the county jail of Creek county to the state penitentiary, and is now confined therein for safe-keeping, by the respondent R. W. Dick, warden. The petition herein is not verified, but petitioner asks that he be remanded to the county jail of Creek county pending the decision of this court in review of the judgment appealed from.

      Robertson, Kean & Bohamnon, for petitioner.

      Charles West, Atty. Gen., and Chas. L. Moore, Asst. Gen., for the State.
   PER CURIAM

(after stating the facts as above). The question here presented has been decided adversely to the contention of the defendant in Ex parte Mingle (decided at the present term of this court), 2 Okla. Cr. 708, 104 Pac. 68, Judge Doyle, speaking for the court, said:

“The defendant interposed a demurrer to the answer and return of respondent on the ground that the law which provides that, after conviction and sentence for a crime punishable by death or by imprisonment for life in the state penitentiary, the crime is not bailable, and that, in all cases where the sentence is for a crime not bailable, the appeal shall suspend execution until the matter is determined by the Criminal Court of Appeals, and the defendant in the meantime shall be confined to the state prison (Wilson’s Rev. & Ann. St. 1903, § 5771; Sess. Laws 1905, p¡ 334, e. 29, art. 2, § 1), is unconstitutional, in this: that it deprives petitioner of his liberty by confining him in the state penitentiary pending his appeal to this court. The argument of counsel for petitioner is: That this provision of the laws of Oklahoma Territory is repugnant to the Constitution and did not become a part of the law of this state. But no particular provision of. the Constitution inconsistent therewith has been pointed out. We cannot agree with counsel in their contention. The Constitution grants power to the legislative branch of the government to provide by proper legislation the manner in which appeals in criminal cases may be taken. The language of the law is plain and unambiguous, and provides that the appeal shall suspend execution until the matter is determined upon t'hé appeal, and the defendant in the meantime shall be confined in the state prison. The defendant is entitled to the advantage of every right which the law secures to him before his conviction, is made final. He has.the right of appeal, and in this class of crimes, while his appeal is pending, although confined in the penitentiary, it is his privilege not to be held at hard labor. To this extent only the pendency of his appeal stays the execution of the judgment and sentence. We do not see that this provision of the law deprives the petitioner of any constitutional right. The offense is not bailable, .and he stands committed by a court of competent jurisdiction. The demurrer is therefore overruled.”

The writ of habeas corpus is denied.


text:
    State v. A. B. Harmon.
    No. A-112.
    Opinion Filed October 18, 1909.
    (104 Pac. 370.)
    1. INDICTMENT AND INFORMATION — Demurrer—Failure to State Public Offense. Where an information is on its face fatally defective because based on a statute which had been repealed, and advantage of such defect was taken by demurrer before pleading to the merits, which demurrer was overruled, and again by motion in arrest of judgment after verdict, held, that the court erroneously overruled the demurrer, but properly sustained the motion in arrest of judgment.
    2. • SAME — Motion in Arrest. Where the facts stated in an information are insufficient to constitute a public offense, a motion in arrest of judgment should be sustained.
    (Syllabus by the Court.)

      Appeal from, Ellis County Court; A. Williams, Judge.

    A. B. Harmon was convicted of practicing medicine without a license, and, his motion in arrest of judgment having been thereafter sustained, the state appeals.
    Affirmed.

      Charles West, Atty. Gen., Charles Tj. Moore. Asst. Atty. Gen., C. 13.. Leedy, County Atty., for the State.
    Miller, Cornell '& Leelca, for defendant in error.
   DOYLE, Judge.

The defendant in error, A. B'. Harmon, was prosecuted in the county court of Ellis county on an information filed in' said court on the 5th day of August, 1908, which information reads as follows:

“In the name and by the authority of the state of Oklahoma now comes C. B. Leedy, the duly elected, qualified, and acting county attorney in and for the county of Ellis, and state of Oklahoma, and gives the court to know and be' informed that on the 2d day of August in the year of our Lord one thousand nine hundred and eight (1908), and prior thereto, at and within the county of Ellis, and state of Oklahoma, one Dr. A. B. Harmon did then and there unlawfully, wilfully, attempt to and did practice medicine, without a license, and said A. B. Harmon did then and there profess publicly to be a physician, and did prescribe for the sick, and did append to his name M. D. That the said A. B. Harmon has no license to practice medicine in this state, and has unlawfully and wilfully violated section 14 of chapter 9 of Wilson’s Bevised and Annotated Statutes of Oklahoma; contrary to the form of the statutes in such cases made and provided, and against the peace and dignity of the state.”

The defendant filed a general demurrer, which was by the court overruled, and exception allowed. Whereupon the defendant entered a plea of “not guilty.” At the January term, 1909, the ease was called, and a jury was sworn 'to try the cause. Alter hearing the evidence, the court instructed the jury, and, after argument of counsel, the jury retired and upon consideration of their verdict returned into court the following verdict:

“We, the jury being duly chosen, summoned, impaneled, and sworn to -try the issues in the above-entitled cause, do upon our oaths find the defendant guilty and assess his fine at $25.00.”

Whereupon the defendant filed his motion in arrest of judgment, which motion is as follows:

“Comes now the defendant after verdict and before judgment, and moves the court that no judgment be rendered in the above-entitled cause, and as grounds therefor states: (1) That this court has no jurisdiction to try the defendant for the alleged or pretended offense attempted to be charged in the information filed herein. (2) That the facts stated in the information do not constitute a public offense under the laws in force at the time alleged in said information that the said pretended offense was committed. (3) That the information does not substantially conform to the requirements of the statutes. A. B. Harmon, Deft., by Miller, Cornell, and Leeka, His Attorneys.”

And thereafter said motion in arrest of judgment was by the court sustained, and the state allovred an exception, which ruling of the court is set forth in a journal entry as follows:

“Now, on this date, January 16th, 1909, this cause came on regularly to be heard upon the motion in arrest of judgment. And the court, after being advised in the premises, is of opinion that the law under which the information was herein drawn has been repealed by the Session Laivs of the Territory of Oklahoma, 1903, chapter 5, p. 92, sec. 9, and that said information does not charge a crime under the said laws of 1903, and that the said law of 1903, is inoperative, in that it does not define what constitutes-the unlawful practice of medicine. It is therefore the order and judgment of the court that the motion in arrest of judgment be, and the same is hereby sustained, and that the defendant be and he is hereby discharged and his bond exonerated. To which ruling of the court the plaintiff excepts.”

From the judgment of the county court sustaining the motion in arrest of judgment, the state of Oklahoma prosecutes this appeal.

We are of opinion that the court erred in overruling the demurrer, and that the decision of the court sustaining the motion in arrest of judgment should be affirmed, for the reason set forth in the second paragraph of said motion, to wit:

“That the facts stated in the information do not constitute a public offense under the laws in force at the time alleged in said information that said pretended offense was committed.”

From the record before us it is obvious that this case was tried under a misapprehension of the laws in force at the time alleged in the. information: this being due to the fact that the session laws were not published until October, 1908. Chapter 9, Wilson’s Rev. & Ann. St. 1903, including section 14 (section 314) thereof, as alleged in said information, was repealed by the provisions of chapter 5, p. 88, Sess. Laws Okla. 1903. The territorial laws relating to the practice of medicine were not extended and did not remain in force in the state of Oklahoma by reason of section 39, art. 5 (section 112, Bunn’s Ed.) Const., which provides that:

“The Legislature sháll create a board of health, board of dentistry, board of pharmacy, and pure food commission, and prescribe the duties of each. All physicians, dentists and pharmacists now legally registered and practicing in Oklahoma and Indian Territory shall be eligible to registration in the state pf Oklahoma without examination or cost.”

This provision of the Constitution was made effective by chapter 70a, art. 1, p. 791a, Sess. Laws 1907-08, the same being entitled:

“An act to define and regulate the practice of medicine; to create a board of medical examiners for the examination and licensing of physicians and surgeons and to prescribe their qualifications; to provide for their proper regulation, and to provide for the revocation of their license; to require itinerant venders to procure a county license and to fix suitable penalties for the violation of this act, and repealing laws and parts of laws in conflict herewith.”

This law was approved June 12, 1908, and became effective on the 24th day of August, 1908. For this reason, we see' no occasion for following counsel in their learned discussion upon the other questions argued,- as their determination involves only statutes expressly repealed.

For the reasons stated, the decision of the lower court is hereby affirmed.

FURMAN, PRESIDING Judge, and GIVEN, Judge; concur.