text:
    LESTER KEETER v. STATE.
    No. A-2907.
    Opinion Filed October 14, 1918.
    (175 Pac. 263.)
    J. APPEAL AND ERROR — Record. Alleged errors must he supported by tlie record, else there is no tiling for this court to consider.

      2. SAME — Review—Weight of Evidence. This court is only concerned with questions of law as applied to the facts in the admission or rejection of evidence, and, where evidence was clearly admissible, the argument advanced that such evidence was of little probative force cannot be considered as a ground for reversing the judgment.
    3. TRIAL — Misdemeanor Case — Verdict in Absence of Defendant. In misdemeanor eases, it is within the discretion of the trial court to permit a verdict to be rendered iii the absence of the defendant.

      Appeal from County Court, Cotton County; J. C. Norman, Judge.

    Lester Keeter was convicted of the crime of unlawful possession of intoxicating liquors, and his punishment fixed at a fine of $50 and imprisonment in the county jail for 30 days, and he appeals.
    Judgment affirmed.

      John M. Young, for plaintiff in error.

      8. P. Freeling, Atty. Gen., and R. McMillan, Asst. Atty. Gen., for the state.
   MATSON, J.

The defendant, Lester Keeter, was convicted in the county court of Cotton, county of the crime of having unlawful possession of intoxicating liquors, and his punishment fixed at a fine of $50 and imprisonment in the county jail for 30 days. He has appealed from this judgment of conviction, and assigns as error, first, that the trial court permitted the witness Coleman, sheriff of Cotton county, to testify to a certain conversation had with the wife of the defendant at the home of the defendant, at the time said sheriff was executing a search warrant for the discovery of intoxicating liquors. It is claimed that such evidence was hearsay, and was in effect compelling the wife to be a witness against the husband in violation of section 5882, Revised Laws 1910.

The record discloses the following questions and answers as a basis for this assignment of error:

“Q. Did you find anything in that closet except what you told about?. A. Did not. Q. During that time Mrs. Keeter was in bed? A. Yes, sir. Q. During that time did she say anything? A. Only replied to my questions. Q. What were they? A. I asked her what there was in bed that made that bulky bundle? (Defendant objects to any questions had between the witness and the wife of the defendant, as incompetent, irrelevant, and immaterial and hearsay. (Question withdrawn by county attorney.) Q. Had you noticed something about the bed that caught your attention to the condition? A. I did. Q. What was that? A. It was unusually bulky, or something in bed there didn’t look natural to me. Q. What position in the bed was that bulk in, was in one end or the middle? A. Just behind Mrs. Keeter to the west. Q. She was in bed? A. Yes, sil*. Q. Was some of the children in there also? A. Baby. Q. Just a baby? A. Yes, sir. Q. Do you know whether or not she was under the cover, and if there was any cover? A. Yes, sir. Q. She was under the cover? A. Yes, sir. Q. I believe now I will ask you what it was you and Mrs. Keeter said. (Objected to by the defendants as incompetent, irrelevant, and immaterial, and not bearing on the case and attempting to make the wife a witness against the defendant.) By the Court: That would depend on if the defendant was present. By Mr. Morris: Q. Well, I will ask you if he was present. A. He was standing just outside the door in the room. Q. Do you know whether he heard all that was said? A. He could have heard, but I don’t know if he did or not. Q. Then you found nothing there then at that time you was hunting for ? A. Did not.”

From the foregoing excerpt of the record it is clear ’ that the defendant’s wife was not permitted to testify to any conversation with the witness Coleman. There is -no foundation for this . assignment of error. Alleged errors must be supported by the record, else there is nothing for this court to consider. Fain v. State, 14 Okla. Cr. 556, 174 Pac. 296.

It is next contended that the court erred in permitting one Williams, a witness, to testify to an alleged sale of whisky by this defendant to the said Williams some several months prior to the time the search was made, and this particular whisky discovered. Counsel admit that evidence of prior sales is admissible in cases of this kind for the purpose of proving intent to sell, but contend that the alleged sale to Williams was “too remote'and his testimony too uncertain and incredible to receive serious consideration.”

The objection goes, not to the immateriality or incompetency of the evidence, but is directed rather to the weight to be given it. The weight to be given to the evidence, as well as the credibility of witnesses, is a matter for the jury to determine. This court is only concerned with questions of law as applied to the facts' in the admission or rejection of evidence, and, as this evidence was clearly admissible under former decisions of this court, the argument advanced that it was of little probative force cannot be considered as a ground for reversing the judgment.

It is also contended that the court received the verdict in the absence of the defendant. This assignment is without merit. Section 5919, Revised Laws 1910, provides that, where the information charges a misdemeanor, the verdict may, in the discretion of the court, be rendered in the absence of the defendant. In this case it appears that the defendant was at large on bond, and that he voluntarily absented himself from the courtroom during the time the jury was deliberating upon a verdict. Under such circumstances, he will not be heard to complain that the court, in the exercise of its discretion, received the verdict in his absence, although a jail sentence was imposed by the jury. The foregoing statute expressly provides that in misdemeanor cases the verdict may be rendered in the absence of the defendant.

An examination of the record convinces the court that .the defendant had a fair and impartial trial, and that the evidence is sufficient to support the verdict and judgment.

The judgment of conviction is therefore affirmed.

DOYLE, P. J., and ARMSTRONG, J., concur.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    VINCENT KERRIEL v. STATE (two cases).
    Nos. A-2970, A-2971.
    Opinion Filed November 2, 1918.
    (175 Pac. 625.)
    ABATEMENT OF PROSECUTION — Death of Accused. After appeals from convictions, and upon the Attorney General’s suggestion of appellant's death, it would be ordered that the proceeding abate, with direction to the trial court to enter -its appropriate orders to that effect.

      Appeals from District Court, Coal County; J. H. Linebaugh, Judge.

    Vincent Kernel was convicted of manslaughter in the first degree on two separate .informations, and from the judgments he appeals.
    Ordered that proceedings in errol-ábate, with direction.

      George Trice, for plaintiff in error.
    The Attorney General and R. McMillan, Asst: Atty. Gen., for the State.
   PER CURIAM.

The plaintiff in error, Vincent Ker-riel, was convicted of manslaughter in the first degree on an information charging that he did kill and murder one A. D. Cogburn, by shooting him with a shotgun, and was sentenced to imprisohment in the state penitentiary for the term of 15 years. He was also convicted of manslaughter in the first degree on an information charging that he did kill and murder N. J. Cogburn, by shooting him with a shotgun, and was sentenced to imprisonment in .the state penitentiary for the term of 19 years. From the judgments he appealed, by filing in this court petitions in error with case-mades attached.

Since said appeals were taken, and before the final submission of the causes, suggestion of the death of the plaintiff in error has been made by the Attorney General. It is therefore adjudged and ordered that the proceedings in these causes be abated, with direction to the district court of Coal county to enter its appropriate orders to that effect.


text:
    CULL SWIMMER v. STATE.
    No. A-3313.
    Opinion Filed November 2, 1918.
    (175 Pac. 554.)
    ABATEMENT OF PROSECUTION — Death of Appellant. On appeal from a conviction where a subsequent suggestion of the ap-nppeilaut’s death is made by the Attorney General with proof of his death after taking the appeal, all appellate .proceedings will be abated with direction to the trial court to enter its appropriate order.

      Appeal from District Court, Mayes County; Preston S. Davis, Judge.

    Cull Swimmer was convicted of felonious assault, and he appeals.
    Order that proceedings abate.

      Brewster & Brewster, for plaintiff in error.
    The Attorney General and R. McMillan, Asst. Atty. Gen., for the State.
   PER CURIAM.

The plaintiff in error was convicted of assault and battery with a sharp and dangerous weapon and was sentenced to be imprisoned in the penitentiary for the term of three years. From the judgment an appeal was perfected by filing in this court on April 5, 1918, a petition in error with case-made.

Since the appeal was taken, suggestion of the death of the plaintiff in error has been made by the Attorney General, with proof that the plaintiff in error died on the 13th day of October, 1918. It is therefore adjudged and ordered that all proceedings in this cause be abated, with direction to the district court of Mayes county to enter its appropriate order to that effect. ■


author: PEE CURIAM.

text:
    J. C. COLLINS v. STATE.
    No. A-3294.
    Opinion Filed November 2, 1918.
    (175 Pac. 625.)
    ABATEMENT OF PROSECUTION — Death of Accused. After appeal from a conviction, and on the state’s motion to abate proceedings, supported by proof of the death of appellant, it will be ordered that all proceedings abate, with direction to the trial court to enter an order to that effect.

      Appeal from Superior Court, Muskogee County; Guy F. Nelson, Judge.

    J. C., alias Jack, Collins was convicted of a violation of the prohibitory law, and he appeals.
    Order that proceedings abate.

      Broum & Stewart, for plaintiff in error.

      R. McMillan, Asst. Atty. Gen., and W. W. Cotton, Co. Atty. of Muskogee county, for the State.
   PEE CURIAM.

The plaintiff in error was convicted of having possession of intoxicating liquor with intent to sell the same; the jury fixing the punishment at confinement in the county jail for six months and a fine of $500. From the judgment pronounced' upon said conviction, an appeal was perfected by filing in this court on March 12, 1918, a petition in error with case-made.

Counsel for the state have filed a motion to abate, supported with proof of the death of plaintiff in error, showing that the same occurred on June 24, 1918. It is therefore adjudged and ordered that all proceedings in this cause be abated, with direction to the superior court of Muskogee county to enter an order to that effect.


author: MATSON, J.

text:
    C. A. TEMPLE v. STATE.
    No. A-2998.
    Opinion Filed November 2, 1918.
    (175 Pac. 555.)
    CRIMINAL LAW — Production of Incriminating Evidence. Where tlie trial court orders tile defendant to produce in open court the original deed which the defendant is charged with having forged, and where, because of said order, defendant’s counsel, objecting and- excepting to the court’s action, produce said original deed theretofore obtained from the defendant, and where the trial court subsequently permits the state over the objection and exception of defendant to introduce said original deed in evidence against him, section 21, art. 2, Constitution, providing. “No perso'u shall lie compelled to give, evidence tending to incriminate him,” is violated.
    SAME — Immunity from Prosecution. Por reasons holding that the trial court did not err in overruling defendant’s plea of immunity against prosecution, see body of opinion.

      Appeal from District Court, Atoka County; J. H. Linebaugh, Judge.

    C. A. Temple was convicted of the crime of forgery and sentenced to serve a term of imprisonment in the penitentiary for seven years, and appeals.
    Reversed.

      J. G. Ralls and Jones & McCasland, for plaintiff in error.

      S. P. Freeling, Atty. Gen., and R. McMillan, Asst. • Atty. Gen., for the State..
   MATSON, J.

During the progress of the trial, the court permitted the state, over the objection and exception of the defendant, to introduce in evidence the original deed, which this defendant, together with his codefendant, was charged with having forged. The basis of the objection to the introduction of this particular instrument was that the defendant had been compelled to produce evidence against himself, which tended to incriminate him of the crime charged in violation of section 21 of article 2 of the Constitution. The record shows that the defendant, through his counsel in obedience to an order of the trial court, was compelled to produce and did produce, in compliance with a request to the court by the county attorney, the original deed, which formed the basis of the prosecution against him and which the court, after said deed had been so produced by compulsion of the court’s order, permitted the state to use as evidence against this defendant. All of this happened after the defendant had filed a motion before the trial commenced that the court make an order that the original deed be returned to' him, which motion was overruled and exception saved.

Section 21 of article 2 of the Constitution provides:

“No person shall be compelled to give evidence which shall tend to incriminate him, except as in this Constitution specifically provided; nor shall any person, after having been once acquitted by a jury, be again put in jeopardy of life or liberty for that of which he has been acquitted. Nor shall any person be twice put in jeopardy of life or liberty for the same offense.”

We are of opinion that the production of this deed in response to the order of the court to produce the same over the objection and exception of the defendant and his counsel, and the subsequent use of the same against the defendant upon the trial of the case over his objection, was clearly in violation of the constitutional guaranty granted him in section 21, art. 2, aforesaid. Subdivision 1, § 2264, Wigmore on Evidence; Boyd v. U. S., 116 U. S. 616, 6 Sup. Ct. 524, 29 L. Ed. 746; U. S. v. Rhodes (D. C.)) 212 Fed. 519; U. S. v. Lombard (D. C.) 228 Fed. 981; U. S. v. Abrams (D. C.) 230 Fed. 313.

' It is contended by the state that, while the introduction of this deed may have been erroneous under the circumstances, still, in view of the fact that the matters might have been proved by the introduction of the recorded instrument (Grayson v. State, 12 Okla. Cr. 226, 154 Pac. 334) the error was not prejudicial to the defendant. Such a construction would render the constitutional provision absolutely of no avail to an accused person. Perhaps these facts could have been proven just as effectively without the production of the original deed', but it was incumbent upon the state and its officials to produce its evidence according to the well-established principles, of law, and not in violation of the defendant’s constitutional and statutory'rights. The aforesaid constitutional provision is a limitation against “governmental activity.” In this respect the instant case is to be distinguished from that of Silva v. State, 6 Okla. Cr. 97, 116 Pac. 199, where the evidence was obtained by means of an unauthorized and illegal search by persons without authority. In such cases “the agent is responsible as an individual for his unlawful conduct, but the courts will avail themselves of the evidence thus obtained if it is otherwise relevant and competent.” 10 R. C. L. p. 932. Here the deed was produced upon the order of the trial court; the production was required by the state itself, and defendant is entitled under such circumstances to rely upon the constitutional guaranty that the state will not use such evidence against him.

It is also contended that the court erred in not sustaining the defendant’s plea of immunity, which is based on the proposition that the state having used the deed in evidence against his codefendant, Dick Montgomery, the same automatically operated to grant to this defendant an immunity from prosecution under the provisions of section 27, art. 2, Constitution.

The defendant, according to the terms of section 27, art. 2, Constitution, may only be compelled to give testimony or produce evidence against another person charged with an offense against the law of this state when legally called upon to do so. The record shows in this case that there was no understanding between this defendant and the trial court, or the prosecuting attorney with the consent of the trial court, that this defendant was to produce this original deed to be used in evidence against his co-defendant, Dick Montgomery, and that this defendant was to be used as a witness on behalf of the state against said codefendant, and that this defendant was willing and had agreed to make a full and complete disclosure in good faith, and testify truthfully and fully as to all the material facts within his knowledge, touching the question of the guilt of his codefendant, Dick Montgomery. The production of this deed by defendant through his counsel was by compulsion and against his (defendant’s) will. He did not part with its custody voluntarily, nor was he legally called upon to produce it. Its production, under the circumstances, was to relieve him of being in contempt of the trial court, and not for the purpose of using him as a witness against his codefendant. His protection, therefore, arises by virtue of the prohibitions contained in section 21, art. 2, supra, and not by reason' of the provisions of section 27, art. 2.

For these reasons, we believe that the court did not err in overruling the plea of immunity from prosecution interposed in this case. Scribner v. State, 9 Okla. Cr. 465, 132 Pac. 933, Ann. Cas, 1915B, 381.

The other alleged errors relied upon for a reversal are either without merit, or are such as are not likely to arise upon a retrial of this case.

For the reasons given, the judgment of conviction is reversed, and the cause remanded to the. district court of Atoka county, with instructions to grant the defendant a new trial, and for further proceedings in accordance herer with.

DOYLE, P. J., and ARMSTRONG, J., concur.


text:
    DAN WARD v. STATE.
    No. A-2671.
    Opinion Filed November 2, 1918.
    (175 Pac. 557.)
    1. INDICTMENT AND INFORMATION — information — Venue. Information examined, and Held sufficient to show that the venue of the action was in the county court of Tulsa county, Okla. ■
    2¡. WITNESSES — Reputation Evidence — Foundation. It is suf-fiicieht predicate for the admission of reputation evidence that the witness has sworn that he knows the general reputation of the place in issue for the particular kind of business, provided such general reputation relates to the time of the offense and the locality of the place, and is material to the issue.
    3. INTOXICATING LIQUORS — Possession With Intent to Sell — ' Reputation of Place — Evidence. Where the evidence discloses . the possession of intoxicating liquors in a place of public resort fitted up with- all the fixtures and appurtenances of a liq-tior saloon, the general reputation of such place as a place where intoxicating liquors are kept for sale, is admissible on the question of intent, where the crime charged is the unlawful possession of intoxicating liquors with intent to sell the same.

      Appeal from County Court, Tulsa County; J. W. Woodford, Judge.

      Dan Ward was convicted of the offense of having unlawful possession of intoxicating liquors, and his punishment fixed at a fine of $250 and imprisonment, in the county jail for 90 days, and he appeals.
    Affirmed.

      Pat Malloy and E. M. GaUaher, for plaintiff in error.

      S. P. Freeling, Atty. Gen., and R. McMillan, Asst. Atty. Gen., for the State.
   MATSON, J.

The first assignment of error relied upon for reversal of this judgment is:

“That the court erred in overruling the demurrer of the defendant to the information.”

The information under which this prosecution ‘was had is as follows:

“State of Oklahoma, County of Tulsa. In the County' Court within and for Said County and State. The State of Oklahoma, Plaintiff, v. Dan Ward, Defendant. Information for Unlawful Possession of Intoxicating Liquors. Be it Remembered: That Ed Crossland, the duly qualified and acting county attorney for Tulsa county, Oklahoma, who prosecutes in the name and by the authority of the state of Oklahoma, comes now into the - court for Tulsa county, state of Oklahoma, on this, the 28th day of April, A. D. 1915, and gives the court to understand and be informed that on the 27th day of April, A. D.. 1915, in Tulsa county, state of Oklahoma, Dan Ward, late of said county, and within the jurisdiction of this court, did unlawfully and wrongfully have in his possession certain intoxicating liquors, to wit, fourteen bottles of beer, one-half bottle of gin, and about one quart of whisky contained in two bottles, with the intent then and there upon the part of said defendant to sell, barter, give away, and otherwise furnish the same in violation of the prohibitory liquor laws of the state of Oklahoma, contrary to the form of the statutes in such cases made and provided, and against the peace and dignity of the state. Ed Crossland, County Attorney.”

The particular ground upon which it is contended that the foregoing information is insufficient is that it— “wholly fails to allege or charge the venue of the action in that it omits entirely from the information proper the name of the court to which it is presented.”

The information is entitled, “In the County Court within and for Tulsa County, Oklahoma,” and upon its face charges an offense over which the said court had jurisdiction. The record shows also that the information was filed in and presented to the county court of Tulsa county, and that it was signed and presented by the county attorney of that county, the duly authorized representative of the state of Oklahoma to present and prosecute such offenses in that court.

This assignment of error is purely technical and without merit. Section 5746, Revised Laws 1910, in part provides :

“The * * * information is sufficient if it can be understood therefrom: First, That it is entitled in a court having authority to receive it, though the name of the court be not stated.”

Section 5747, Id., is as follows:

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

In Cox et al. v. State, 3 Okla. Cr. 129, 104 Pac. 1074, it was held:

“No indictment or information is insufficient by reason of a defect or imperfection in the matter of form -which does not tend to prejudice of the substantial rights of the. defendant upon the merits.”

In the body of the opinion it is said:

“So we see that by the express language of the statute the omission of any matter of form from an indictment, which does, not tend to the prejudice of the substantial rights of a defendant upon the merits, does not affect the sufficiency of an indictment. It is best to have a correct caption to an indictment or information, but it does not add to or take from the charging part of the indictment or information. Its presence neither gives to the defendant any additional rights, nor does its absence impose any additional burdens upon him. If it appears that the indictment is filed in a court having jurisdiction of the offense charged, the purpose of the law has been accomplished. The caption of the information now before us is no part of the information itself. There is nothing except this caption to indicate that this information was ever filed in the district court of Kogers county. This was simply a clerical error on the part of the county attorney. The record shows that the information was filed and presented in the county court, which had jurisdiction of the offense charged. This was sufficient.”

The conclusion is reached, therefore, that the court did not err in overruling the demurrer to the information, as the information was presented and filed in the county court of Tulsa county, said court having jurisdiction of the offense stated therein, and the prosecution was instituted and carried on by the county attorney of that county. The omission to put the word “county” before the. word “court” in the body of the information in no way operated to deprive the said court of its jurisdiction to try said offense, nor did such omission “prejudice the substantial rights of the defendant on the merits.” The information was sufficient as to form to meet the requirements of the foregoing statutes.

It is .next contended:

“That the court erred in the admission, of incompetent, irrelevant, immaterial, and hearsay testimony during the trial.”

This assignment of error is supported by the following argument:

“The testimony for the state consisted entirely of the testimony of Carl Lewis and M. J. Miller, deputy sheriffs, James Woolley, sheriff, and George Bullett, the owner of a certain building. Their testimony in substance was to the effect that on the 27th day 'of April, 1915, that these officers, under a search warrant, went to a certain place, a two-story building on Boston avenue, between First and Second streets, in the city of Tulsa, Oklahoma, to search for liquor, that the building was a two-story brick. That they went upstairs and found in an ice box about fourteen bottles of beer, an amount of whisky, which they were unable to recall, but fixed at about a quart; the defendant was not there at the time; that there was a bar in the place and a few glasses. Over the objection of the plaintiff in error all three of these officers undertook to testify to the reputation of the place as being a place where whisky was sold. The county attorney did not undertake to lay any predicate for the direct question touching the reputation of the place, and it was only upon the repeated insistence of the prosecutor that the officers testified that the place had the reputation for the sale of whisky. The sheriff, though asserting that he did not know the reputation, was permitted to state the reputation as a place where liquor was sold. This character of testimony was clearly error],' first, because it was hearsay; second, because there was no sufficient predicate laid.”

The objection that no sufficient predicate was laid to the admission of this evidence, we think not well taken. The record shows that the trial court was particularly cautious in requiring each of the witnesses who testified as to the reputation of the place where the liquor was found to state as a predicate that he knew such general reputation. This was a sufficient predicate. The general rule is well established that, where a witness testifies that he knows the general reputation of a witness or a place for having a particular trait of character or for a particular kind of business, he may- then be permitted to state what that reputation is, provided it relates to the time of the offense and locality of the place, or residence of the witness whose reputation is attacked. Dave v. State, 22 Ala. 23; Cole v. State, 59 Ark. 50, 26 S. W. 377; Craig v. State, 5 Ohio St. 605; Young v. Com., 69 Ky. 312; Peck v. State, 86 Tenn. 259, 6 S. W. 389; Gilliam v. State, 1 Head. (Tenn.) 38, 73 Am. Dec. 161; Merriman v. State, 3 Lea (Tenn.) 394; 1 Greenleaf on Evi. 461.

The rule that evidence of the reputation of the place as being a place where intoxicating liquor is kept for sale may be established in a case where the defendant is charged with the unlawful possession of such liquors in such place, if such a place be one resorted to by the public for that purpose, is established in the former opinions of this court. The reason for the rule is thus stated in Kirk v. State, 11 Okla. Cr. 203, 145 Pac. 307 :

“It is held in that case (Wilkerson Case, 9 Okla. Cr. 662, 132 Pac. 1120), and uniformly in all cases where the offense charged was unlawful possession, that testimony tending to show that the defendant had previously sold other liquor, or kept other liquor for sale, is admissible on the question of intent, and if such liquors were kept at a place at which the public generally resorted, and the circumstances of the case indicated that such place was used for the purpose of selling intoxicating liquor, the general reputation of such place is admissible on the question of intent.”

The reputation of the place as one where intoxicating liquors are kept for sale is an asset of trade, and as much a substantial element of the intent of the person who keeps liquors in such a place as is evidence that the place was fitted up with a bar and other fixtures and appurtenances of a liquor saloon. Intent to sell is as much an element of the offense of unlawful possession under our statute as is the intent to sell where the offense charged is the keeping and maintaining of a place where intoxicating liquors are received and kept for the purpose of sale. If the proof shows that possession of such liquor was in a place of public resort, why should not the reputation of such a place be admissible in either case on the question of intent to sell? This court has unequivocally held that the reputation of the place of keeping may be proved, where the offense charged is maintaining a place for the purpose of sale. We see no good reason for admitting such evidence in that class of cases, and in excluding it in this class, where the facts show possession in a place of public resort. The same logic and reasoning that will support the theory upon which such evidence is held admissible in the former class of cases supports its admissibility in the latter.

In this case the defendant took the witness stand in his own behalf, and testified that he paid the rent on the building where the liquor was found to the owner thereof for the period of time when the same was discovered; but he testified that he had sublet that portion of the building in which the liquor was found to one Frank Kesterman, and defendant claimed that such liquors were the property of the said Kesterman and were in Kesterman’s possession and under his control at the time complained of. On cross-examination, the defendant admitted that he was in this place of business every day; that he knew the kind of business that was being carried on therein; that he did not pay the special tax required by the federal government of retail liquor dealers, but did not know whether such a tax had been paid for his benefit by somebody else.

The evidence on the part of the state showed that the defendant paid the rent on the building in which the whisky was found during a period of time for about one month previous, and for two or three months subsequent to the date of the search; that the place was known as “The Senate”; that it was in the upper story of a two-story brick building located on Boston street in the city of Tulsa, in the business part of suqh city; that it was fitted up with a bar and glasses, tables, and chairs, and a quantity of whisky, gin, and beer was discovered at the time the search was made, both behind the bar and on ice. The proof on the part of the state is amply sufficient to authorize a verdict of guilty, and to sustain a judgment of conviction based thereon.

An examination of the entire record, including the instructions given by the court, does not disclose error prejudicial to the defendant, such as should authorize a reversal of the judgment.

Whatever conflict there is between the evidence on the part of the state and that of the defendant himself was for the jury, and the decision of the jury will not be disturbed by this court, where there is competent evidence in the record sufficient to sustain the conviction.

The judgment is affirmed.

DOYLE, P. J., and ARMSTRONG, J., concur.


text:
    FERD MORGAN v. STATE.
    No. A-2906.
    Opinion Filed November 2, 1918.
    (175 Pac. 625.)
    1. INDICTMENT AND INFORMATION — Commencement of Prosecution. Prosecutions for crime in courts of record must be either by indictment or information.
    2. SAME — Verified , Complaint — Sufficiency—Plea of Not Guilty. While a verified complaint filed in the court of record may be sufficient to authorize the issuance of a warrant of arrest for the person accused, it is not sufficient as an accusation upon which a criminal trial may be based in courts of record. A pica of not guilty to a verified complaint in a court of record presents no issue for the court to'try. .
    3. TRIAL — Defective Information — Joinder of Issue. Where it is apparent from the record that, after the defendant has been arrested on a verified complaint in a court of record and has pleaded not guilty thereto, the county attorney subsequently files with the papers in the case an information charging the offense, without the knowledge of the defendant and without notice to him or his counsel that same had been filed and without any filing mark having been placed thereon, and without any plea having been entered by the defendant to said accusation, it is error for the trial court to proceed, over the objection and exception of the defendant, to try him upon such an accusation without any issue having been first lawfully joined.

      Appeal from County Court, Pawnee County; George E. Merritt, Judge.

      ' Ferd Morgan was convicted of maintaining a liquor nuisance, and he appeals.
    Reversed.

      McNeill & McNeill, for plaintiff in error.

      S. P. Freelinc), Atty. Gen., and R. McMillan, Asst. Atty. Gen., for the State.
   PER CURIAM.

This is an appeal from the county court of Pawnee county wherein the defendant, Ferd Morgan, was convicted of maintaining a liquor nuisance and his punishment fixed at a fine of $100 and imprisonment in the county jail for a period of 90 days. From this judgment he has appealed to this court and has assigned several grounds of alleged error as reasons for reversing the judgment.

Among the grounds relied upon is that the court erred in overruling the defendant’s motion to discharge the jury and continue the case for the purpose of granting the defendant the right to plead to the information.

The county attorney evidently proceeded upon the theory that this prosecution can be instituted in the county court upon a duly verified complaint. This form of procedure in criminal actions is not permissible in courts of record. Section 17, art 2, Constitution.

The record shows that a verified complaint charging the defendant with this crime was filed in the county court of Pawnee county on the 7th day of September, 1916, and a warrant was issued for the defendant. He was brought before the court, and on the 9th day of September, 1916, entered a plea of not guilty to said complaint. ' Thereafter on the 2d day of October, 1916, the county attorney filed an official information with the clerk of the county court of Pawnee county, but the defendant was never arraigned or required to plead to such information, nor did he ever have a copy of the same before the trial commenced, as provided by section 20, art. 2, of the Constitution. It follows that defendant was never legally informed of the nature and cause of the accusation against him within the meaning of the aforesaid section of the Constitution.

On October 4, 1916, the case was called for trial, and a jury was impaneled and sworn to try the issues, the witnesses for both the state and the defendant were called, sworn, and placed under the rule, the county attorney made an opening statement on behalf of the state, and the attorney for the defendant made an opening statement on his behalf, and also objected to proceeding to trial, among other reasons, for the reason that the court had no jurisdiction to hear and determine the said offe.nse; which objection was overruled, and the court proceeded with the trial, and during the examination of the second witness placed upon the stand by the state, the following-proceedings were had:

“Q. In the last five or six months, have you purchased or drank any whisky or beer there? Mr. McNeill: Objected to as indefinite and uncertain, incompetent, irrelevant, and immaterial, for the further reason putting the defendant under a complaint which is contrary to law, not proving first any connection of the defendant with the building. The Court: Overruled. Mr. McNeill: Note an exception, and for the further reason that the complaint alleges a specified time and the state can elect that date to prove the time. The Court: Overruled. Mr. McNeill: Note an exception. Mr. McCollum: If the court please, just a moment. The counsel just referred to the complaint, the information has been filed with the clerk here since the 2d day of October, and he has failed to place the filing mark on it, and I would like the record' to show the clerk put the filing mark’on it. Mr. McNeill: Objected to; the only thing he pleaded to was the complaint, the filing of the information after the jury had been impaneled cannot be proper. The Court: Overruled; let the information be marked filed. Mr. McNeill: Note an exception. The Court: Let the information be marked filed. Mr. McNeill: To which the defendant objects and moves the court to dismiss the jury and continue the case for the reason the information was not read to the defendant, and the defendant has not entered a plea to the information, and the information cannot be filed after selecting the jury. The Court: There is no attempt at this time to file the information, simply placing the filing mark on does not constitute filing. The court- has personal knowledge of the information being on file since the 2d day of October. The mere placing, marking the date of filing, does not constitute filing. Mr. McNeill: You can’t put papers in a jacket and say the defendant takes knowledge of these things, never asked to plead to it. The Court: Overruled. This information conforms to the language of the complaint? Mr. McCollum: Yes, sir; verbatim. The Court: Overruled. Mr. McNeill: Note an exception.”

Before the filing of the information charging this offense, the court never acquired jurisdiction of the subject-matter of the offense. The prosecution therefore was never legally commenced until the 2d day of October, 1916, when the information charging the offense was filed with the clerk of the court; although prior thereto, the defendant may have pleaded not guilty to a verified complaint, there was no issue lawfully joined upon the trial of which jeopardy would have attached, and a legal judgment of conviction be based. As soon as the information was filed the defendant should have been required to enter his plea thereto, so that an issue could be formed, a trial had, and a legal judgment rendered. We are aware of the fact that it has been held by this court that in misdemeanor cases a defendant may waive arraignment and plea and does so if he proceeds to trial without either arraignment or plea and without objection. But that condition is not presented by this record. Here the defendant objected to the jurisdiction of the court in proceeding to trial and upon the discovery and upon the first intimation that defendant had that an information had been filed in the case, he moved the court to discharge the jury, which motion was overruled, and to which he' saved an exception at the time. It is our opinion that, under such circumstances, the defendant' did not waive his constitutional and statutory rights to be informed of the nature and cause of the accusation against him, and to have a copy' thereof and to be properly presented in court by being notified before trial of the filing of a valid information. For this reason we think the judgment of conviction should be reversed and cause remanded to the county court of Pawnee county, in order that the defendant may be arraigned and required to plead to the information.

While there is ample evidence in this record to show that a whisky' nuisance was kept and maintained on the premises alleged, there is very little evidence to the effect that the defendant was the keeper of such nuisancA or aided or abetted in keeping or maintaining the same. The evidence is not of that satisfactory or convincing nature which should be forthcoming before a person should be deprived of his property or liberty.

The judgment is reversed.


author: DOYLE, P. J.

text:
    HUGH POPE v. STATE.
    No. A-2732.
    Opinion Filed November 6, 1918.
    (175 Pac. 727.)
    1. JURY — Challenge for Cause. — Formed Opinion — Question of Law. Tlio issue raised upon a challenge for .cause lo a juror in u criminal case, on the ground that he has formed an opinion founded upon rumor, statements in public journals, or common notoriety, and upon which he lias expressed an opinion, is one of mixed law and fact; and the finding of the trial court upon the issue ought not to be set aside by a reviewing court, unless it appears that upon the evidence the trial court ought to have found that the juror had formed such an opinion that he could not in law be deemed impartial.

      2. SAME — Expression of Opinion — Statute. The mere expression of an opinion by a juror in common conversation, without anything to show ill will, hostility, or a fixed determination of belief.' is not a legal ground of challenge for cause. In order to disqualify the juror there, must be “the existence of a state of mind on the part of the juror, in reference to the case, or to either party, which satisfies the court, in the exercise of a sound discretion, that he cannot try the issue impartially, without prejudice to the substantial rights of the, party challenging.” Section f)8i)8, Itcv. Laws 19'iO.
    3. EVIDENCE — Self-Serving Declarations — Res Gestae. In a prosecution for murder, self-serving declarations of the defendant, made about three minutes after the homicide and in reference to it. held properly excluded as self-serving and as no part of (he res gestae.
    4. WITNESSES — Cross-Examination—Character Witness — Reports. A witness to good character may he, asked on cross-examination whether he has heard rumors of particular and specific charges of the commission of acts inconsistent with the character which he was called to prove. This is admissible, not for tiie purpose of establishing the truth of such reports, but .to tost the credibility of the witness and to determine the weight of his evidence: However.' such reports, to be admissible, must be confined to a time.previous to the commission of the crime charged.
    5. APPEAL AND ERROR — Argument of Prosecuting Attorneys— Review — Affidavits. Improper remarks made 1 by the prosecut-’ ing attorney in his argument to the jury must be incorporated in the case-made by transcript or bill of exceptions allowed and signed by the trial judge before they can be considered oil appeal. Such remarks cannot be presented by affidavit unless it appears from the record that, the trial judge refused to have such remarks taken down by the stenographer.
    6. HOMICIDE — Manslaughter in First Degree — Sufficiency of Evidence. In a prosecution for murder, evidence held to sustain a conviction of manslaughter in the first degree.

      Appeal from District Court, Grady County; Will Linn, Judge.

    Hugh Pope was convicted of manslaughter in the first degree, and he appeals.
    Affirmed.
    The plaintiff in error, Hugh. Pope, hereinafter referred to as the defendant, was informed against for the’murder of Marvin Chitwood, and, upon trial, was convicted of manslaughter in the first degree.
    The evidence shows that the defendant and the deceased, Marvin Chitwood, were, before the night of the fatal difficulty, good friends. The age of the deceased was 18 years, and the age of the defendant was 23 years. The father of the deceased conducted a barber shop in Mineo, on the south side of the Main street, in a building of 24 feet front with a partition dividing it into two rooms. One .side of the partition was a tailor shop .where the deceased worked. The deceased, his twin brother, Mearle, the defendant, and three or four other young men were in the tailor shop on the night of the homicide from about half past 8 until midnight, drinking and making music and dancing. When they left the shop the deceased and the defendant became engaged in a quarrel over locking the door. The brother of the deceased and George Cook preceded the others to the First National Bank corner, and'the deceased, .followed by the defendant, went to this corner, where the brother of the deceased and the defendant had a fight, and the defendant cut the brother of the deceased on the leg with his knife. The defendant went to the home of the deceased, and called his father and told him that he had cut one of his boys and made threats against the other. The father went to the barber shop, where his son and Jim Dunaway were dressing the cut on Mearle Chit-wood’s leg. The defendant appeared with a revolver in his hand, and after a few words, and while scuffling with old man Chitwood, shot the deceased. Death was almost instantaneous. A substantial statement of the evidence is as follows :
    Jim Dunaway testified:

      “I was in the barber shop when it closed that night about 8 o’clock, and I and Mearle Chitwood went to the tailor shop about 10 o’clock. Marvin Chitwood, the deceased, the defendant, George Cook, a stranger, and the Rice boys, who conducted the place, were there. About half past 11 they all left the tailor shop except the Rice boys. When they reached the sidewalk the deceased said to the defendant, ‘Now the door is locked, I have locked it, and I would like to see you unlock it.’ The defendant hit the deceased, who said, ‘Hugh, I don’t want any trouble,’ and struck at him. I thought they were just scuffling. Then the deceased got up and went up the street and the defendant followed him. I took hold of the defendant’s arm, and told him to go home, that they didn’t want any trouble. The deceased passed his brother on the corner of the First National Bank building, who asked him what was the matter, and the deceased said that he and Hugh Pope had had a fight and Hugh had whipped him. The defendant was standing there at the time, and his brother Mearle said, ‘Can’t you whip him?’ He said, ‘No,’ and Mearle said, ‘Then I can;’ and the defendant walked on up there, and I was persuading him not to go. I had hold of his arm, and he shoved me away, and Mearle Chitwood hit the defendant and knocked him out into the street and jumped astride of him, and then got off. George Cook and the other three boys were present on the corner. I got the two Chitwood boys while George Cook went off with the defendant. I went back with the Chitwood boys to the barber shop to dress Mearle Chitwood’s wounds where he had been cut with the knife. The defendant appeared at the door and said, ‘Boys, stand still!’ and he walked dovn between the barber chairs to where Mr. Chitwood, the father, was. Mr. Chitwood told him, ‘We have always been friends,’ and to go on, and it would be all right; that he did not want to have any trouble. Mearle Chitwood was sitting there with the salve in his hands that we had been using on his wounds and he got up to put it away. The defendant told him to stop, and Mearle said he would never stop for any ham. The defendant then displayed a pistol. When he did this old man Chitwood grabbed him and' a gun fired. The deceased said he was shot. I rushed him back into the junk room, where he fell, and said, T believe I am shot in the heart.’ Those were his last words. I heard another shot, and rushed back thinking that old man Chitwood had been shot. When the defendant came in the electric lights of the town were off and the light was from an oil lamp. The defendant commanded me to keep my hands off the lamp; at the time he had his right hand behind him.”
    ■George Cook testified—
    that they left the tailor shop about 11:30; that he and Mearle Chitwood, preceding the others, stopped at the First National Bank corner, where they remained about half an hour; that he heard the deceased say that he had got into a fight with Hugh, and the defendant walked up and said something to Mearle Chitwood, and struck him, then Mearle knocked the defendant down. “Then both the boys picked up bricks, and I told the defendant to go on. I picked up the defendant’s hat, and went north with him to the Glass Hotel, where I was staying, and the defendant went on saying something about getting a gun and coming back to kill both of them. I saw the defendant take two drinks, and saw Mearle Chitwood take one. Didn’t see the deceased drink any whisky at all. I know I was not drunk on that occasion.”
    Witness Proctor testified:
    “I arrived in Mineo on the south-bound train, and went west on the north side of Main street. I saw a man come down the street who stopped at the corner of the First National Bank a few minutes, and moved on a little further and stopped again. He was going west towards Chitwood’s barber shop, and I heard the shooting a few minutes afterwards.”
    Paul Glass testified—
    that “I had been out in the country and got back to Mineo about 12 o’clock that night, and saw the defendant go north from the bank with George Cook, and the defendant had his hat on;” that later he heard the shots, and would say they were about ten seconds apart.
    Mrs-. Chitwood, the mother of the deceased, testified— that her home was about three blocks, north of the First National Bank, and defendant came there that night’ and called her husband, and she heard him say that he had cut one of the boys to pieces and was going to cut the other one, and then her husband left.
    Mearle Chitwood testified:
    “I left the tailor shop with George Cook and we' stopped at the bank corner. Then Marvin and Jim Duna-way came, and Marvin said he had a fight with the defendant. The defendant came up with a knife in his hand and struck at me, and I hit him and knocked him down, and I found the defendant had cut my leg. We went to the barber shop to dress my wounds. While there my father came in, and shortly the defendant came in and said, T have been out there listening to you damn sons of bitches, and heard what you have been talking about, and now I have got them two Chitwood boys.’ I started to raise up, and the defendant told me to sit down. Then my father grabbed the defendant around the waist and he backed off a little and shot.”
    Len Chitwood testified:
    “I am the father of Marvin and Mearle Chitwood. The defendant came up to my house that night about 12 o’clock. I had retired. He called me. I knew his voice, and wondered what he wanted. He said he wanted me to come down and take care of my boys; that he had cut them bad; that he did not know which one he cut as the two were so much alike, but said he was going to get the other one; that he was going home to get his gun, and when I heard his target go off I might know what had happened. I dressed and went to the barber shop, and the boys were there with a coal oil lamp. Marvin was trying to dress a knife cut on Mearle’s leg. The defendant came in and said: ‘I have been listening to you damn sons of bitches, and now I have got you all here in a pile.’ The defendant ordered Jim Dunaway to leave the lamp alone. He then walked toward us with his gun in his hand and told me to step aside. I talked to him and asked him to let things be as they were and there would be no trouble. I then grabbed him around the waist so he could not shoot, as I thought, and was trying to get him out of the door when he shot. After the first shot I caught the gun, but he held it and fired again. I have known him since he was .a small boy.”
    For the defense six character witnesses testified as to the previous good character of the defendant in the community for being a peaceable law-abiding citizen.
    The defendant, as a witness in his own behalf, testified — •
    that he was 23 years old. Had lived in Mineo practically all his life, and had known the Chitwood boys practically all their lives, “and our relations were friendly.” “On the night of the homicide I was at Rice’s tailor shop with the Rice boys, Chitwood boys, Jim Dunaway, and another boy who I did not know. We were playing and singing and drinking whisky. When we left the shop one of the Chit-wood boys locked the door and left the Rice boys in there. I said, ‘Wait a minute, had we better get those boys out so they can go home?’ and the Chitwood boy said, ‘It’s locked now; if you get in you will have to break in;’ and started to cursing me. I laughed at him and slapped him on the shoulder, and said, ‘That was all right.’ Then we got on the sidewalk, and he hit at me and missed me, and I didn’t make any effort to hit him. Then he hit me in the mouth, and we scuffled around the street a little bit, and that was all. He went towards the First National Bank, and Duna-way and I went there, too. There we saw one of the Chit-wood boys and George Cook. Mearle Chitwood said, ‘Hugh, what did you jump on Marvin for?’ and before I had time to explain I landed in the street, knocked down, and Mearle Chitwood jumped astride of me.. I had a pocketknife in my hand, and I was trimming my fingernail at the time, and when I was knocked down the knife hung in his clothes, but I did not know for sure that I had cut him. We had another little scuffle in front of the hardware store between the barber shop and bank. I had gone up there with George Cook to get my hat. Then we walked north to the hotel, and I went up to Mr. Chitwood’s house and called him out. I told him his boys were down there, and were not taking care of themselves, and that we had had a fight;'that one of the boys was cut; that 1 did not know which for sure; and he told me not to go down there until he got there. I told him that I was going to get my hat, but didn’t tell him that I was going to get my gun and come down there and kill them. I already had my gun. I then went to the Glass Hotel, looking for Mr. Cook, and sat down and waited until Mr. Chitwood had gone down to the barber shop. Then I went down there and got my hat, and then walked up on the sidewalk in front of the barber shop, and saw Mr. Chitwood and the boys in the shop and also Jim Dunaway. I went in and walked between the mirror and the two barber chairs. Dunaway started to get up and turn the light down, and I thought he was going to blow it out. Mearle Chitwood got up and started around behind me, I supposed to get a razor, and I pulled the gun out of my pocket and threw it on Chitwood, but made no effort to shoot him. Then old man Chitwood grabbed me. Old man Chitwood started to talk to me, and then threw his arms around me and held me tight, and rushed forward with me towards the door, and he was making efforts to get my gun, and we struck the window and broke it. About that time the gun went off. I didn’t shoot. I could not see either of the Chitwood boys at the time. We scuffled over the gun until we got outside, and it was fired again, but he had hold of it at that time and I had no intention to fire it. After the second shot we got loose from each other, and I supposed that I had shot Mr. Chitwood. I ran to Dr. Hune’s office, some one hundred and fifty feet. When I got there I told Dr. Hune to come and see about Mr. Chitwood, that we had trouble, and I was afraid he was shot. The pistol shown me here is the one I had. It is an automatic. Colts. I didn’t tell witness Cook that I was going to get my gun. I don’t make it a practice to-carry a pistol.”
    In rebuttal Roscoe Simpson testified:
    “I am in the telephone business at Mineo. I saw the defendant with his father on the street just after the killing. I heard the defendant say to his father, brother, and others that he did it in self-defense. I don’t know whether he had 'reference to the cutting or the shooting.”

      J. B. Pope and Riddle & Hammerly, for plaintiff in error.
    The Attorney General and R. McMillan, Asst. Atty. Gen., for the State.
   DOYLE, P. J.

(after stating the facts as above). This appeal is prosecuted from a judgment of conviction rendered in the district court of Grady county on the 5th day of February, 1916, in pursuance of the verdict finding the defendant guilty of manslaughter in the first degree, and fixing his punishment at imprisonment in the penitentiary for a term of four years.

The first assignment of error is that the verdict is contrary to and unsupported by the evidence. It is contended under this assignment that the evidence shows that defendant believed the deceased started to arm himself with a razor for the purpose of assaulting the defendant, and that he pulled his gun to prevent him from so arming himself; that in the scuffle with the father of the deceased the gun, an automatic pistol, was discharged accidentally; that at the time of the discharge the defendant, struggling with the father of the deceased, was unable to see the deceased or know where he was. We deem it sufficient to say that in our -opinion the evidence in the case tended strongly to prove that the killing was premeditated and deliberate, and was amply sufficient to support a verdict of murder. The defendant was an armed trespasser, and had within the hour preceding assaulted the deceased and had cut his brother with a knife. 'His evidence fails to show what other purpose he had in entering the barber shop at the time he fired the fatal shot. Fortunately for the defendant, the jury, in- mercy or in a mistaken view of the law or the facts, found him guilty of manslaughter in the first degree. This the jury had a right to do.

The next error assigned is that the court erred in overruling the defendant’s challenge to the juror Boule-ware. From the examination of this juror it appeared that he had heard the case discussed by neighbors, who knew nothing about the case except by hearsay; that he had expressed an opinion about the case, but had no opinion at that time as to the guilt or innocence of the defendant; that he could disregard that opinion, and try the case solely under the evidence as presented.

We are of the opinion that there was no error, in overruling the challenge. In the case of Gentry v. State, 11 Okla. Cr. 355, 146 Pac. 719, it is said:

“Under our statute, the mere expression of an opinion by a juror in common conversation, without anything to show ill will, hostility, or a fixed determination of belief, is not a legal ground of challenge for cause. In order to disqualify the juror there must be ‘the existence of a state of mind on the part of the juror, in reference to the case, or to either party, which satisfies the court, in the exercise of sound discretion, that he cannot try the issue impartially, without prejudice to the substantial rights of the party challenging.’ Section 5858, Rev. Laws 1910.
“The issues raised upon a challenge for cause to a juror in a criminal case, on the ground that he has formed an opinion founded upon rumor, statements in public journals, or common notoriety, and upon which he has expressed an opinion, is one of mixed law and fact; and the finding of the trial court upon the issue ought not to be set aside by a reviewing court, unless it appears that upon the evidence the trial court ought to have found that the juror had formed such an opinion that he could not in law be deemed impartial.”

The third assignment is that the court erred in refusing to permit the witness Dr. Hune to testify as to what the defendant said to him immediately after the homicide when the defendant went to his office. The record shows that Dr. Hune, a witness for the defendant, testified that his office is about 150 or 200 feet from the Chitwood barber shop; that he was in bed in his office the night Marvin Chitwood was killed, and heard a shot between 12:30 and 1 o’clock, and two or three minutes later the defendant came up the stairs to his office. He was then asked to state what, if anything, the defendant said. The court sustained an objection that the same was incompetent. Counsel for the defendant stated that “we expect to show by this witness that the defendant Pope, when he came to his office, said that he had better go down to the barber shop, that he thought some of them were badly hurt, as they had been in a scuffle and his pistol was accidentally discharged and he thought Chitwood was shot.” We think the court properly rejected the testimony offered on the ground that the statements of the defendant to Dr. Hune formed no part of the res gestae, were self-serving, and incompetent for any purpose. The testimony was, therefore, inadmissible. See Gransden v. State, 12 Okla. Cr. 417, 158 Pac. 157.

The fourth assignment is that “the court erred in permitting counsel for the state to inquire of certain character witnesses about alleged difficulties and threats made by the defendant on other occasions and concerning other parties and arguing the same to the jury as a fact proven.” It appears that G. W. Stevenson, the first character witness called, testified to’ the defendant’s good character for peace and quiet. His cross-examination was in part as follows:

“Q. Did any one ever tell you about Hugh Pope drawing a gun on Daniel Froneberger and threatening to kill him? A. Not prior to this trouble. Q. But since this trouble you have heard about it? A. I didn’t hear any of the particulars about it; I just heard it referred to. Q. At the time of this killing had you heard about Hugh Pope pulling a gun on Fred Scroggins and making him get up one night and build a fire? A. No, sir. Q. Do you know Harold Smith, a little boy fourteen or fifteen years old? A. I do not know him by his name. Q. Did you ever hear about Hugh Pope pulling a gun on that little boy and making him dance down at the wagon yard there? A. No, sir. Q. Do you know Jack Abram?' A. Yes, sir. Q. Did you ever hear of Hugh Pope pulling a gun on him between Mineo and El Reno and threatening to kill him? A. No, sir. Q. None of these occurrences you have heard about except the one with the Froneberger boy? A. I have heard something of it since the occurrence. Q. You have heard all of these things since the killing occurred? A. Yes, sir; most of them. Mr. Riddle: We move to strike out the testimony as assuming a state of facts not in the record, incompetent, -irrelevant, and immaterial. Overruled by the court. Exceptions allowed.”

Other character witnesses were asked the same questions on cross-examination, and two or three stated that since the homicide they had heard such reports.

As a general rule a witness to good character may be asked on cross-examination whether he has heard rumors of particular and specific charges of the commission of acts inconsistent with the character which he was called to prove, and generally as to the grounds of his evidence, not so much to establish the truth of such facts or charges as to test his credibility and to determine the weight of his evidence. -He may be asked if he has not heard some general report which contradicts the good report which he has been called upon to prove. Underhill, Crim. Ev. par. 82; Stouse v. State, 6 Okla. Cr. 415, 119 Pac. 271. However, evidence of bad character must refer to a period prior to the discovery of the crime, and ordinarily such reports, to be admissible, must be confined to a time previous to the commission of the crime charged. We think the cross-examination of the character witnesses was proper. It appears that these witnesses qualified their answers by stating that they had heard such reports since the homicide occurred, and for this reason the motion to “strike out” this testimony should have been sustained. However, on the undisputed facts of this case, we cannot regard this error as a sufficient cause for a reversal.

In support of one of the grounds for new trial affidavits of the defendant and his counsel were filed to the effect that counsel for the state, in the closing argument to ‘the jury, stated, in substance, that certain character witnesses had not heard of the gun plays on the part of the defendant until after the homicide, and that had they known of such gun plays their testimony would have been .different; that objection was made, and defendant's counsel called for the court reporter, which was granted. Alleged improper remarks made by the prosecuting attorney in his argument to the jury must be incorporated in the case made by transcript or by bill of exceptions allowed and certified by the trial judge before they can be considered on appeal. Such remarks cannot be presented by affidavit or in any other manner, unless it appears from the record that counsel for the defendant requested the trial judge to have such remarks taken down by the ■stenographer in order that they might be incorporated in the record, and the court refused to have this done. Upon the record in this case there is nothing properly before the court to act upon.

Several assignments are based upon objections made and exceptions taken to the instructions given submitting the defense that the shooting was accidental. It would subserve no good purpose to x-eview them at length, as the' evidence is undisputed and the defendant admits that after he assaulted the deceased on the street, and after he had stabbed the brother of the deceased, he returned and entered the barber shop of the father of the deceased armed with a pistol; that he then committed an assault upon one Dunaway, and also upon the brother of the deceased, by di'awing a pistol upon them. Thus from his own testimony it appears that he was engaged in the commission of a misdemeanor at least, when he fired the fatal shot, and that the homicide was manslaughter in the first degree at least, even though the shot that caused the death of M'aiwin Chitwood was accidental and unintentional, and for this reason the instructions objected to were far more favorable to the defendant than the law warrants.

Having considered all the assignments of error, and finding no error prejudicial to the substantial rights of the defendant, the judgment is affirmed.

ARMSTRONG and MATSON, JJ., concur.


text:
    C. A. TEMPLE v. STATE.
    No. 2997.
    Opinion Filed November 7, 1918.
    Rehearing Denied November 9, 1918.
    (175 Pac. 733.)
    1. JURY — Challenge for Bias — “Impartial Jurors” — Statute. In a prosecution for larceny of livestock, jurors impaneled for the trial may be challenged for actual bias, where it appears that on the day before they had rendered a verdict convicting the same defendant of forgery, where it appears that the testimony in the first case involved certain controverted questions of fact in issue in this case, and where the same witnesses will be called to , give the same testimony on an issue the same in both cases. Such jurors are not “impartial” jurors, within the meaning of the Constitution and laws of this state.
    2. JURY — Competency—Question for (!oui-t. The competency of a juror is, under the statute, a question to be determined by the trial court in the exercise of a sound discretion. The discretion given, however, is not intended to deprive the defendant of liis right of trial by an impartial jury, and the statute cannot be regarded as changing in any degree the essential qualifications which jurors must possess.
    3. JURY — Impartiality of Juror — Duty of Trial Court. Whenever the fairness and impartiality of a juror is called in question, the trial court must be clearly satisfied that such juror is fair and impartial, and it is the duty of the trial court to resolve all doubts on this question in favor of the defendant.
    4. JURY — Voir Dire Examination — Latitude. A liberal latitude should be given the defendant in the examination of jurors on their voir dire.
    3. WITNESSES — Transcript of Testimony — Absent Witness — Predicate. Proof of predicate for the introduction of the transcript of the testimony of an absent witness taken upon the preliminary examination held incompetent and insufficient.
    6. EVIDENCE — Conviction — Weight of Evidence. Defendants should not be convicted upon mere suspicion of guilt or even strong probabilities of guilt; to warrant their conviction, the testimony, when the whole is considered, should bo clear and convincing, entirely satisfying the minds and consciences of the jury.

      Appeal from District Court, Atoka County; J. H. Lineb'augh, Judge.
    C. A. Temple was convicted oí cattle theft, and he appeals.
    Reversed.
    The plaintiff in error, Temple, and Ben Jordon were jointly informed against for the theft of two steers, the property of C. C. Stewart. A severance was granted and the state elected to first try the defendant Jordon. He was tried, convicted, and sentenced to the penitentiary for a term of ten years. Upon the trial of the defendant Temple, generally known as Tom Temple, he was found guilty, but the jury failed to agree upon his punishment. On November 29, 1916, the court sentenced him to imprisonment in the penitentiary for the term of five years. Unable to give supersedeas bond, he was committed to the state penitentiary.
    The proof on the part of the state, briefly stated, is as follows:
    C. C. Stewart testified that he lived near the southeast corner of Atoka county, and was the owner of six work steers; that in November he missed two of these steers; that about the 1st of January he found his steers in Webb’s feed pen at Hugo; that they were taken without his knowledge or consent.
    Otis Morgan testified that he lived near Farris, in Atoka county; knew the defendant Ben Jordon, and bought cattle from him at different times, including two steers, which he paid for by a check signed by his father, J. S. Morgan; on the request of Ben Jordon, he made the check payable to Ben Willis; that he bought the steers in Atoka county, and there gave the check to Ben Jordon. He identified the check and it was offered in evidence. It was dated at “Hugo, Old., 11-30. First National Bank: Pay to Ben Willis or order $70.00 Seventy Dollars. [Signed] J. S. Morgan.” Indorsed, “Ben Willis.” He drove the steers to Hugo. He was then asked:
    “State whether or not you know where John Morgan is. A. He is in Texas. Mr. Jones: Objected to unless he knows of his own knowledge. The Court: He stated that he did. Mr. Jones: We except.”
    O. P. Ray, Jr., sheriff of Atoka county, testified as follows:
    “Q. I will ask you to state if you, as sheriff of Atoka county, have made any effort to locate John Morgan? A. Yes, sir. Q. Did you find him? A. Yes, sir.”
    The state then offered a subpoena issued for John Morgan to the sheriff of Choctaw county, with the return thereon of O. P. Ray, Jr., sheriff of Atoka county, that he could not find the within-named John Morgan in Choctaw county. Over the defendant’s objections the same was admitted in evidence. He further testified that he found the steers in question in a feed lot at Hugo, and notified the owner, Mr. Stewart. Recalled, he further testified as follows :
    “Q. You are the same Mr. O. P. Ray that testified here yesterday in the case of the state of Oklahoma, against C. A. Temple, the defendant here, charged with the crime of forgery, are you not? A. Yes, sir. Q. Was the testimony you give in this case in regard to this case — given—all of it — in the other case? A. No, sir.”
    Proper objections were made and exceptions reserved.
    Russell Telle testified that he was deputy cour.t clerk and as such took the testimony in the preliminary examination in the case of State of Oklahoma v. Tom Temple and Ben Jordon, and produced a transcript of the testimony of John Morgan, witness for the state in said examination; that the same was a correct transcript. Over the defendant’s objection that no proper predicate ha l been proven, the same was read to the jury. His testimony on the preliminary examination was that he was in the butcher business at Hugo, and his son Otis Morgan bought cattle and handled them for him on his farm in Atoka county; that his son delivered some cattle in November, including two work steers; that on or about the 15th of December he had a conversation with the defendant Tom Temple at Hugo about the check that his son gave for these steers, and Temple said he had been to the bank, and found that he did not have enough money in the bank to pay the check for his cattle; that he' went to the bank, and told them to pay the check. On cross-examination he stated that he had met Tom Temple but a few times; that he knew Charley Norris, who was with Tom Temple at the time, but didn’t know whether it was Tom Temple or Charley N]orris that went to the bank with him to cash the check; that Henry Colbert was present when they were talking about the check; that he formerly knew a Ben Willis that lived near Farris.
    Henry Colbert testified that he worked for John Morgan in his butcher shop about the 15th of December, 1914, and Tom Temple was there about that time, but he did not understand what they were talking about.
    For the defense several witnesses testified that they were well acquainted with the defendant, and knew he could not read or write except to write his name.
    C. B. Memminger testified that he was cashier of the Atoka State Bank, and knew the custom of banks in cashing checks, and that, if a person should present a check for payment that purported to be payable to any person other than the one presenting it, the bank under the rule would require the person presenting the check to indorse the same. To the same effect was the testimony of James Hudspet, cashier of the Oklahoma State Bank.
    Two or three witnesses, including the court clerk, qualified as experts in handwriting, and were asked to compare the signature of the defendant with the indorsement on the check, and to state their opinion whether or not both were written by the same person. Objections by the county attorney to this evidence were sustained by the court.
    The defendant, as a witness in his own behalf, testified that he was 33 years old, a resident of Atoka county; had lived in and around there all his life; that he never had anything to do with the $70 check introduced in evidence; the first time he ever saw the check was at the examining trial; that he had never had the check in his possession and did not cash or get the money on it at Hugo; that he could not read or write, but could sort of halfway sign his name, so that people could understand it; that he knew John Morgan, but never had any conversation with him in regard to the two steers in question; that he was not at Hugo on or about the 15th day of December; that at one time he sold Mr. Morgan a couple of heifers, and received a check for $50, and he took it to the bank at Hugo, and they said Mr. Morgan had not money enough there to pay it with, and he went to Morgan’s market, and he took the check and gave him the money for. it. Cross-examination was in part as follows:
    “Q. Was Ben Jordon working for you in November and December, 1913? A. He was not. Q. State if he was living out there with you ? A. Sometimes he stayed at my house. Q. State if it is not a fact that you knew this case was set for trial in November and you knew you had a forgery case against you? A. Yes, sir. Q. And you were not here? A. No, sir. Q. When you started back was when the sheriff got you in the state of Washington? A. I had started back from Seattle and had gone about three hundred miles. Q. You were convicted of a felony the other day, were you not? A. That is what I would call it.”
    State’s rebuttal:
    Ben Jordon, as a witness for the state, testified that he was charged jointly with Tom Temple with the larceny of the two steers; that he took the steers and sold them to Otis Morgan, and received a check for $70 and gave the check to Tom Temple; that he was working for Temple at the time; that there was no understanding between him and Temple that he was to steal these steers, and he never had any talk with Temple about stealing any steers; that he is now serving a term for stealing these steers; that he had served a term in the penitentiary at Leavenworth for manslaughter; that he found these steers ten or 12 miles from where the defendant Temple lived and ho one was with him at the time.
    Ben Willis was then called as a witness for the defendant, and testified that he was now serving a term in the penitentiary; that he knew Ben Jordon, and he received the check for $70 that was offered in evidence from Ben Jordon, and the indorsement thereon was witness’ signature; that he cashed the check at the First National Bank at Hugo on the 15th day of December, 1914. Cross-examined, he was asked if he was in on stealing these steers, and said he was not; that the steers he gave Ben Jordon authority to sell were his steers; that he was now serving a term for bank robbery.

      Jones & McCasland and J. G. Ralls, for plaintiff in error.
    The Attorney General and R. McMillan, Asst. Atty. Gen., for the State.
   DOYLE, P. J.

(after stating the facts as above). The first question to be noticed in this case arises upon the rulings of the court in impaneling the jury. It appears that the defendant had been convicted of forgery by the verdict of a jury, returned the day before the trial of this case commenced, and these jurors were called as trial jurors in this case. On their voir dire each of these jurors was asked this question:

“Q. After you hear Sheriff Ray testify in this case, if he testifies to the same state of facts that he testified to in the other case, would that influence you one way or thé other ip passing upon these same facts, if they were controverted? The County Attorney: Objected to. The Court: Objection sustained.”

Each of these jurors was in turn challenged for cause. In reply to questions by the court, these jprors said that they had formed no opinion of the guilt or innocence of the defendant. The court overruled the challenges for cause.

When the defendant had exercised all but one of his peremptory challenges, he requested the court to permit him to ask each member of the jury that served in the forgery case—

“if they have any fixed opinion as to whether or not the facts testified to by Mr. Ray in that other case are true. We desire to ask it for the purpose of basing a peremptory challenge. The Court: The request will be refused. Exercise your last challenge. Mr. Jones: We waive it.”

To each of these rulings the defendant then and there reserved exceptions.

The purpose of the examination of a juror on his voir dire is to ascertain whether there are grounds for a challenge for either actual - or implied bias; also to enable the defendant to exercise intelligently his peremptory challenges. Our Procedure Criminal provides that, upon the trial of a challenge, the juror challenged may be examined as a witness to prove or disprove the challenge and is bound to answer every question pertinent to the inquiry. Section 5864, Rev. Laws 1910. This court has uniformly held that a liberal latitude should be given the defendant in the examining of jurors on their voir dire. Under the statute the defendant had the right to ascertain, by appropriate questions, the effect or influence, if any, the hearing of the testimony in the forgery case had upon the minds of these jurors, where such testimony might reasonably be expected to be introduced on the trial of this case. The questions were proper and pertinent for the purpose of ascertaining the competency of such jurors, and, assuming that the answers to the questions propounded would not have furnished sufficient grounds for a challenge for cause, the inquiry would then be proper and legitimate for the purpose of enabling the defendant to intelligently exercise his peremptory challenges. It follows that the court erred in sustaining the objections thereto. Likewise it was error to refuse permission to ask these jurors if they had formed any .impression or opinion as to whether or not the facts testified to by a witness in the forgery case, who would be a witness in this case, were true.

Upon a careful examination of the record, we have reached the conclusion that the jurors who had agreed to a verdict of guilty in the forgery case were not impartial jurors, under the meaning of our Constitution, and that it was a manifest abuse of discretion to overrule the challenges to said jurors on the ground of actual bias. Under the Constitution and laws of this state, it is a fundamental principle that fairness and impartiality are prerequisite qualifications in all jurors who are called upon to try a defendant in a criminal action, and no jury can in truth be said to be fair and impartial when this prin--ciple has been transgressed in selecting such jury.

Section 5858, Code of Crim. Proc. (Rev. Laws 1910), defines as one ground of« challenge to a juror—

“the existence of a state of mind on the part of the juror, in reference to the case, or to either party, which satisfies the court, in the exercise of a sound discretion, that he cannot try the issue impartially, without prejudice to the substantial rights of the party challenging.”

It appears that the testimony in the former case involved certain controverted questions of fact in the trial of this case. The flight of the defendant as evidence of guilt and his ability to -read and write were in issue in both cases. It may be possible that a juror may be so peculiarly constituted that the rendition of his verdict in the one case would have no influence upon his action in the other, but this question must be disposed of upon the assumption that all jurors possess the characteristics common to ordinary men. A fair trial cannot be had except by an unbiased jury, and jurors who have passed upon the credibility of witnesses in the one case are disqualified and incompetent as jurors in a case where the same witnesses will be called to give the same testimony on an issue the same in both cases.

The competency of a juror is, under the statute, a question to be determined by the court in the exercise of a sound discretion. The discretion given, however, is not intended to deprive the defendant of his right of trial by an impartial jury, and the statute cannot be regarded as changing in any degree the essential qualifications which jurors must possess.

Section 5861, Code of Crim. Proe. (Rev. Laws 1910), provides:

“No person shall be disqualified as a juror by reason of having formed or expressed an opinion upon the matter or cause to be submitted to such jury, founded upon rumor, statements in public journals, or common notoriety, provided it appears to the court, upon his declaration, under oath or otherwise, that he can and will, notwithstanding such opinion, act impartially and fairly upon the matters to be submitted to him.”

The fact that these jurors stated on their voir dire that they had formed no opinion as to the guilt or innocence of the defendant, and that they could and would act impartially and fairly upon the matters to be submitted to them, was wholly immaterial. They could not be the judges of their own impartiality. They had received the evidence in the former case in the most solemn form and rendered a verdict. They had thus formed and expressed an opinion on some of the facts on which the defendant was to be tried, and were therefore disqualified. Our construction of the statute is that when the opinion is formed in this manner — that is, from hearing the facts of the case testified to — the examination of the juror must cease. He is incompetent.

It has been the uniform holding of this court that, whenever the fairness and impartiality of a juror is called in question, the trial court must be clearly satisfied that such juror is fair and impartial, and it is the duty of the trial court to resolve all doubts on this question in favor of the accused.

The only testimony tending to connect the defendant Temple with the theft of the cattle was the testimony of John Morgan taken at the preliminary examination and read to the jury from the transcript.

Counsel for the defendant contend that the evidence to prove the predicate for the introduction of said trans-script, admitted over their objections, was incompetent and insufficient. Considering the competency of the testimony as it is met b.y the objections urged, it appears that Otis Morgan was, without showing his competency, permitted to testify that John Morgan was in Texas, and for this reason the court erred in overruling the objection thereto. It also appears that the return on a subpoena issued for John Morgan to the sheriff of Choctaw ’ county, made by O. P. Ray, sheriff of Atoka county, showing that the witness John Morgan could not be found in Choctaw county, was admitted. Obviously the court erred in overruling the defendant’s objection thereto. The subpoena had not been issued to the sheriff of Atoka county, and his return thereto was incompetent and inadmissible for any purpose. This was all the evidence introduced to prove a predicate, and was wholly incompetent and insufficient to prove the same. It was therefore prejudicial error to permit the transcript of the testimony of John Morgan to ■be read to the jury. Without the testimony of John Morgan the evidence is wholly insufficient to sustain a conviction, and, even if Morgan’s testimony was admissible, it is apparent that the evidence in the case is not that clear and convincing proof of the guilt of the defendant which would warrant his conviction. Its tendency, at most, is only calculated to create a suspicion that he was implicated in the theft of the cattle.

Defendants should not be convicted upon mere suspicions of guilt, or even strong probabilities of guilt. To warrant their conviction, the testimony, when all considered, should be clear and convincing, entirely satisfying the minds and consciences of the jury.

For the reasons stated, the judgment is reversed.

ARMSTRONG and MATSON, JJ., concur.


text:
    STATE v. EARL VAUGHN.
    No. A-2823.
    Opinion Filed November 9, 1918.
    (175 Pac. 731.)
    1. ESCAPE — Information—Sufficiency. Information examined and held, allegations thereof are insufficient to charge an offense under section 2198, Revised Laws 1910.
    2. FORMER JEOPARDY — Demurrer. Section 5795. Revised Laws 1910. construed, and held, where the trial court sustains a demurrer to an information in a criminal case, and fails to order or direct that a new information bo filed charging the sanie offense, the judgment sustaining the demurrer to the information is final, and the accused may not be subjected to another prosecution for the same offense.

      Appeal from District Court, Ch'eer County; T. P. Clay, Judge.

    Information by the State against Earl Vaughan. From a judgment sustaining a demurrer to the information, the State appeals.
    Judgment affirmed, and case dis-' missed.

      S. P. Freeling, Atty. Gen., and R. McMillan, Asst. Atty. Gen., for the State.
   MATSON, J.

In this case the state of Oklahoma has taken an appeal from the judgment rendered in the district court of Greer county, Okla., sustaining a demurrer to an information filed in said court by the county attorney of said county, the charging part of which is as follows:

“Earl Vaughn did then and there, while duly confined in the state reformatory at Granite, Oklahoma, by virtue of a commitment duly and legally issued out of the district court in and for Canadian county, state of Oklahoma, unlawfully, willfully, and feloniously attempt to escape from same reformatory, by then and there running away from Joe Hackelman, a guard at said reformatory, while he was being returned to the prison from work outside the prison, and before he had returned to within the prison walls.”

No appearance has been entered, or brief filed, in behalf of the defendant in error, and the court is not advised as to the particular ground, or grounds, upon which the district court based its judgment sustaining the demurrer to the foregoing information. This court has in the past entertained appeals by the state from the action of the lower court in sustaining demurrers to informations. State v. Zanger, 9 Okla. Cr. 123, 130 Pac. 1107; State v. Brown, 10 Okla. Cr. 52, 133 Pac. 1143; State v. Carter, 2 Okla. Cr. 706, 103 Pac. 1042; State v. Johnson, 13 Okla. Cr. 133, 161 Pac. 821.

The particular sections of the statute forming the basis of this prosecution which are necessary to be considered in connection with the question of the sufficiency of the information are as follows: Section 2198, Rev. Laws 11910, provides:

“Any prisoner confined in the penitentiary for a term less than for life, who attempts by force or fraud, although unsuccessfully, to escape from such prison, is guilty of felony.”

Section 2200, Rev. Laws 1910, provides:

“Any prisoner confined in any other prison than the penitentiary, who attempts by force or fraud, although unsuccessfully, to escape therefrom, is punishable by imprisonment in a county jail not exceeding one year, to commence from the expiration of the original term of his imprisonment.”

It is apparent from the foregoing statutes that an attempt to escape by force or fraud on the part of a prisoner confined in the penitentiary for a term less than for life is a felony, and of such offense the district court would have jurisdiction. On the other hand, an attempt to escape from any other prison by such means would only be a misdemeanor, which the district court would not have jurisdiction to try. The question then arises as to whether or not the Oklahoma state reformatory is such a prison as is included within the term “the penitentiary,” as provided in section 2198, supra. If so, then the district court would have jurisdiction to try prisoners charged with attempt to escape from the state reformatory by force and fraud committed by prisoners confined therein for a term less than for life.

Section 2198 is carried into the Revised Laws of 1910 from the territorial statutes. At the time of its .adoption the territory of Oklahoma had no such institution as the Oklahoma state reformatory. The said institution is a creature of the first state Legislature and the act creating it is found in article 9 of chapter 68, Rev. Laws 1910. Among other provisions of said act, discretion is granted to the courts sentencing persons tó imprisonment for felonies to impose imprisonment either within the Oklahoma state reformatory, or the state penitentiary, where such convicted persons are at the time of conviction between the ages of 16 and 25, years; also it is provided that the board of prison control may transfer prisoners from the state penitentiary to the state reformatory, or from the reformatory to the state penitentiary. See sections 7126, 7129, and 7130, Rev. Laws 1910.

The discretion conferred upon trial courts to confine felons either within the state penitentiary, located at McAles-ter, or within the state reformatory, located at Granite, and to permit the board of control of said institutions to transfer prisoners from one of said penal institutions to the other, has become the settled policy of the Legislature (see chapter 57, Session Laws 1915; chapter 211, Session Laws 1917), and indicates clearly that the establishment of the penal institution known as the Oklahoma state reformatory was the establishment of nothing more nor less than a penitentiary for the confinement of those persons who might .thereafter be convicted of felonies. It is our opinion, therefore, that the allegation in the charging part of the foregoing information that the accused was “confined in the state reformatory at Granite, Oklahoma,” is sufficient to designate a confinement in the state penitentiary, within the meaning of section 2198, supra, and attempts to charge the commission of a felony sufficiently to give jurisdiction to the district court to try said offense, provided the information is in other respects sufficient under said statute.

We now pass to the question of whether or not said, information sufficiently charges an offense under said section 2198. In this connection it is to be noted that one of the material elements of the crime defined is that the prisoner who attempts to escape must be confined for a term less than for life; otherwise, there is no offense. The information wholly fails to allege the length of term for which the accused was committed, nor is the commitment copied into the information, nor made a part thereof in any way. In this respect it is our opinion that the information is fatally defective. Also it is' to be noted that the prisoner who attempts to escape must do so, under the terms of said statute, either by force or fraud, or by a combination of force and. fraud. The information does not allege that the attempted escape was forcibly or fraudulently made, except by the mere allegation that the prisoner “ran away” from the guard. Of course, such an allegation would indicate the use of force to some extent, or fraud might have been employed to that end. In order to make the information more perfect as a pleading for the offense, the pleader should have stated facts showing the circumstances under which the attempted escape was made. In other words, if force was employed against the guard who had custody of the prisoner, in order to effect an attempted escape by running, such facts should have been stated, or if fraud was employed, so as to direct the attention of the guard away from the prisoner and permit his attempted escape by running away, such facts and circumstances should have been alleged, so as to be apparent to the court that the terms of the statute were violated, and that the attempted escape was not made with the knowledge, consent, or connivance of the guard in whose custody the prisoner was at the time. The prisoner might have attempted to run away without the use of force or fraud upon the guard, or he could have attempted to run away with the consent of the guard, and have been captured by other persons before his escape was completed. It is our opinion, therefore, that the information does not charge an offense within the meaning of section 2198, supra, and the judgment of the trial court sustaining the demurrer thereto is affirmed.

Attention is called to the fact' that section 5795, Rev. Laws 1910, provides:

“If the demurrer is sustained, the judgment is final upon the indictment or information demurred to, and is a bar to another prosecution for the same offense, unless the court, being of opinion that the objection on which the demurrer is sustained may be avoided in a new indict-' ment or 'information! direct the case to be resubmitted to the same or another grand jury, or that a new information be filed.”

Sections 5796 and 5797 also provide:

“If the court do not direct the case to be further prosecuted, the defendant, if in custody, must be discharged, or if admitted to bail, his bail is exonerated, or if he have deposited money instead of bail, the money must be refunded to him.”
“If the court direct that the case be further prosecuted, the same proceedings must be had thereon as are prescribed in this article.”

In this case the trial court did not order a new information to be filed against the defendant. It is our opinion, therefore, that the judgment sustaining the demurrer to the information is final, and that the accused may not now be subjected to another prosecution for this same offense. Ex parte Hayter, 16 Cal. App. 211, 116 Pac. 370; People v. Jordan, 63 Cal. 219; State v. Crook; 16 Utah, 212, 51 Pac. 1091; State v. Comfort, 22 Minn. 271; Johnson v. Territory, 5 Okla. 695, 50 Pac. 90. It is our opinion, therefore, that the information in this case having attempted to charge a felony, and the court having not ordered that a new information be filed, the attempted prosecution is at an end, and the cause must be dismissed.

The case of Ex parte Dodson, 3 Okla. Cr. 514, 107 Pac. 450, is not in conflict with this conclusion, because in that case the prosecution was by indictment for a misdemeanor, and the cause was transferred to the county court, which court had no authority, after sustaining the demurrer to the indictment, to direct that the cause be submitted to the same or to another grand jury, while the district court has authority to do so. At the time the Dodson Case was decided, also there was no provision authorizing the trial courts to direct that a new information be filed, properly charging the offense.

For the reasons stated, the judgment is affirmed, and the. case dismissed.

DOYLE, P. J„ and ARMSTRONG, J., concur.


text:
    ROBERT MILLER v. STATE.
    No. A-3440.
    Opinion Filed November 14, 1918.
    (175 Pac. 727.)
    ABATEMENT OF PROSECUTION — Death of Accused. Where pending writ of error in a criminal proceeding, plaintiff in error dies in the penitentiary, the proceeding abates.

      Appeal from. District Court, Pittsburg County; R. W. Higgins; Judge.

    Robert Miller was convicted of burglary, and brings error.
    On death of plaintiff in error, proceedings abated.

      T. D. Taylor, for plaintiff in error,

      The Attorney General and R. McMillan, Asst. Atty. Gen., for the State.
   PER CURIAM.

Plaintiff in error, Robert Miller, was convicted in the district court of Pittsburg county on an information charging the crime of burglary by use of explosives and his punishment fixed at imprisonment in the state penitentiary for a period of 20 years. From the judgment rendered on the verdict on the 16th day of May, 1918-, an appeal was perfected.

Unable to give supersedeas bond plaintiff in error was committed to the state penitentiary at McAlester. The Attorney General has filed a motion to abate, for the reason that plaintiff in error died in the penitentiary on the 27th day of October, 1918. Attached to the motion and made a part of the same is the affidavit of Sam L. Morley, warden of the state penitentiary at McAlester. In a criminal action, the purpose of the proceedings being to punish the accused, the action must necessarily abate upon his death.

It is therefore considered and ordered that the proceedings in this action do abate. The district court of Pittsburg county is directed to enter its appropriate order' to that effect.