text:
      Ex parte CICERO STEED.
    No. A-1219.
    Opinion Filed September 23, 1911.
    (117 Pac. 887.)
    1. PINES — Imprisonment. A judgment of conviction and sentence in a criminal case must conform to the punishment prescribed and be enforced in conformity with the statute; and where a court in the judgment rendered, fixed 30 days as the term of imprisonment, and assessed a fine of $50 and costs, and ordered therein that defendant be released at the expiration of the 30 days, and further ordered that the defendant be required to pay said fine and costs in 10 equal installments, payable monthly, held, that the trial court had no power or authority to prescribe such conditions, and that such judgment so imposing a fine was in effect nothing more than a judgment to be satisfied by execution thereon as on a money judgment rendered in a civil action; and, further, held, that, in default of such payments, the court had no power or jurisdiction to issue a commitment for failure to pay such fine and costs.
    2. COSTS — Imprisonment for Nonpayment. There is no authority under our statute to imprison for failure to pay the costs.
    (Syllabus by the Court.)

      Application of Cicero Steed for a writ of habeas corpus.

    Writ granted.

      Henry Bulozv and W. M. Gaudill, for petitioner.

      Charles T. Randolph, Asst. Co. Atty., for the State.
   DOYLE, J.

The petition alleges that on May 30, 1910, an information was filed in the superior court of Custer county, charging the petitioner with the unlawful sale of one pint of whisky to one John Doe for the price of $1; that a warrant was thereupon issued to- the sheriff, and said warrant was served by arresting petitioner, and bringing him before said court on the day it was issued. March 23, 1911, nearly 10 months later, judgment was pronounced and entered on a plea of guilty, and petitioner was forthwith committed thereon. The judgment entered recites:

“That the defendant, Cicero Steed, be confined in the county jail of Custer county, state of Oklahoma, for a period of 30 days, said sentence to commence at once; and it is further ordered that said defendant be assessed a fine of $50 and the costs of this prosecution. And it is further ordered that the defendant herein be required, and is hereby required, to pay said fine and costs in 10 equal payments, payable monthly, beginning on the 15th day of April, 1911. It is further ordered that the defendant be released from the county jail at the expiration of 30 days upon his own recognizance until said fine and costs are paid.”

The petition and respondent's return disclose: That said petitioner served the term of 30 days by being confined in the county jail, and was then released as directed in the judgment and sentence. That on the 24th day of June, 1911, the court issued a-second commitment in said cause as follows:

“The State of Oklahoma to the Sheriff of Said County— Greeting: Whereas, Cicero Steed has been arrested on the charge of having committed the crime of selling intoxicating liquor; and whereas, the said Cicero Steed having been duly tried and convicted, and sentenced to 30 days’ imprisonment in the county jail, and to pay a fine of $50.00 and costs, and in the event said fine is not paid to stand committed until it is paid, the 30-day sentence having been served out, only the fine and costs are due, which amount to $60.00. It is therefore ordered and adjudged by 'this court that said Cicero Steed be committed to the jail of Custer county, in said state, and that you, the said sheriff, are hereby commanded that you convey and imprison said Cicero Steed in the said jail, and there safely and securely keep until a fine of $50 and costs of suit are paid — $60.00 in all — or he be discharged by due process of law. In witness whereof, I have hereunto set my hand and the seal of said superior court at Clinton, this 24th day of June, 1911. J. W. Tawter, Judge Superior Court. Attest: Cliff Caldwell, Clerk. [Seal.]”

That said petitioner was immediately re-arrested and confined in the county jail, and is now so imprisoned on said second commitment. It is further alleged that his restraint and imprisonment is illegal for the reason that under the order of commitment issued upon the original judgment in said cause he has fully served the term of imprisonment therein adjudged against him; that for this reason said court was without jurisdiction to issue said second commitment.

The only question that is presented for our determination is: Has that part of the judgment and sentence imposing imprisonment been executed and satisfied? Our criminal procedure act provides as follows:

Section 6917, Snyder’s Stat.:

“A judgment that the defendant pay a fine may also direct that he be imprisoned until the fine is satisfied, specifying the extent of the imprisonment, which cannot exceed one day for every two dollars of the fine.”

Section 6918:

“A judgment that the defendant pay a fine constitutes a lien, also, in like manner as a judgment for money rendered in a civil action.”

Section 6921:

“If the judgment is for a fine alone, execution may issue thereon as on a judgment in civil action.”

Section 6922:

“If the judgment be imprisonment, or fine and imprisonment until such fine be paid, the defendant must forthwith be committed to the custody of the proper officer, and by him detained until the judgment be complied with.”

The only judgment of imprisonment rendered by the court in this case was that the defendant be confined for 30 days in the county jail, and it was therein ordered that he be then discharged. Sections 6917, 6918, supra, are cumulative. If the court adjudge imprisonment until the fine is satisfied, the judgment must specify the extent of the imprisonment, which cannot exceed one day for every $3 of the fine, and the defendant must forth.with be committed unless the judgment and sentence is stayed as provided by law.

Where a. judgment of imprisonment is not stayed as provided by law, and the defendant has not served his sentence and is at liberty, he may be arrested as an escape and ordered into custody upon the unexpired judgment. Ex parte Eldridge, 3 Okla. Cr. 499, 106 Pac. 980, 27 L. R. A. (N. S.) 625; Ex parte Alexander, 5 Okla. Cr. 196, 113 Pac. 993. That is not this case. The court was without authority to adjudge that the fine imposed should be paid by installments, and was therefore without jurisdiction to issue said second commitment in default of such payments. Ex parte Clendenninq, 1 Okla. Cr. 227, 97 Pac. 650, 19 L. R. A. (N. S.) 1041.

There is no authority under our statutes to imprison for failure to pay the costs. In re Jake Harry, infra, 117 Pac. 726. However, the petitioner could not be discharged if a proper judgment provided that he should he imprisoned until the fine was paid, specifying the extent of the imprisonment.

The judgment of conviction and sentence in a criminal case must conform to the punishment prescribed, and be enforced in conformity with the statute; and the court here had no power or authority to prescribe conditions outside the statute. The judgment of the lower court, imposing a fine as shown by the petition, and the return thereto, was in effect nothing more than a civil judgment, to be satisfied by execution as on a judgment m a civil action. Ex parte Roller, 3 Okla. Cr. 384, 106 Pac. 548. Por this reason the court was without jurisdiction to issue said second commitment.

Petitioner having served the term of imprisonment specified in the judgment, the writ is allowed, and petitioner discharged.

FURMAN, P. J., and ARMSTRONG, J., concur.


source: Caselaw Access Project

author: FURMAN, P. J.

license: Public Domain

text:
      Ex parte J. H. COLBY and WADE STOVALL.
    No. 1490.
    Opinion Filed October 2, 1911.
    BAIL — Bight to — Murder—Mutual Combat. Where persons armed with deadly weapons voluntarily and willingly enter into a combat, knowing or having reason to believe that such conflict will result in the infliction of serious bodily injury or in the death of one or the other of said parties, .and one of said parties is killed in such conflict, the party doing the killing is guilty of murder and is not entitled to bail.
    (Syllabus by the Court.)
    Application for bail by J. H. Colby and Wade Stovall.
    Bail denied.

      Dorset Carter and /. W-. Hooker, for petitioners.

      Ben Franklin, County Attorney, J. B. Thompson, and A. W. Wadlington, for the State.
    The following is a statement of the material parts of the testimony introduced upon the hearing:
    Mrs. J. L. Little testified that she was acquainted'with both of the defendants; that about 10 o’clock on Friday morning, be-* fore the homicide, she met the defendants crossing the South Canadian river; that they were riding in a one-horse buggy, and were driving from Lexington toward Purcell.
    Mr. Will Partridge testified that on the day before the homicide he saw the two defendants in the city of Purcell about three o’clock in the afternoon; that he heard the defendant Colby ask a clerk in a hardware store for cartridges, for a shotgun loaded with BB shot; that BB shot are between buck shot and duck shot; that such shot are ordinarily used for large game.
    James Crawford testified that the day before the shooting, witness saw the defendant Colby and a man whom witness took to be the defendant Stovall, near the depot of the O. C. railroad in Purcell, and Dr. Colby was armed with a gun; that it looked like a shotgun.
    J. M. Felty testified that on the day before the homicide he saw both of the defendants at the O. C. depot in the town of Purcell; that the defendant Stovall had what looked like a shotgun; that defendants got off the train at Washington, about 8 miles from Purcell; that the defendants got off the train between 4 and 5 o’clock in the afternoon; that witness heard defendant Colby say, “There is going to be school, and professor is going to teach school.” That the two defendants then got into a wagon owned by Mr. Ed Glaseo, and drove in the direction of the old Washington schoolhouse.
    J. C. Claunch testified that he saw the defendants Friday afternoon before the homicide; that they got off the train at Washington, and got into a wagon owned by Mr. Glaseo; that the witness saw the parties have what he took to be a box of cartridges; that Dr. Colby introduced Stovall as Prof. Clark and said he was going to start school up there the next morning and for everybody to come, and said further “for us to tell everybody we saw to come”; that Dr. Colby had the wagon to stop in the town of Washington, and Dr. Colby got some staples.
    J. H. Vincent testified that he saw both of the defendants on Saturday, the day of the homicide; that he saw the defendant Stovall at his house, which is right close to the old Washington schoolhouse, and is on the same lot, the houses being about 15 steps apart; that the witness left home that morning about 15 minutes after the sun rose; that when he left home Stovall was digging post holes; that the witness had seen the defendant Colby the afternoon before at the home of the witness; that the defendant Colby then introduced the defendant Stovall to the witness as Prof. Wade, and said that he was going to teach school; that defendant asked the witness to help him with the fence around the house of the witness and around the schoolhouse; that witness declined to help, telling the defendant that it would be likely to cause trouble, and witness did not want to get into any trouble; that defendants then had a shotgun with them; that defendants built a fence of hog wire on the east and south side of a lot upon which the house of the witness and the old Washington schoolhouse was situated; that prior to this, on the night of the 16th day of August, a fence had been built on the south and east side of the lot occupied by the home of the witness, and also occupied by the old Washington schoolhouse; that the fence was built there by Dr. Colby, the witness, and some other parties; that Dr. Colby had the fence built, claiming that he had a right to do so; that afterwards the fence was taken down by Mr. Foster, Mr. Jones, Mr. Irons, and Mr. Au-try; that they put the wire in a coal house; that witness had lived in the four-room house on the same lot with the schoolhouse since the 15th day of February, 1911; that witness rented the house from Mr. Glaseo; that afterwards the witness rented the house from defendant Colby; that the defendant Stovall stayed at the house of the witness the night before the homicide.
    A. H. McKinney testified that he remembered the day upon which Mr. Autry and Mr. McClendon lost their lives; that witness saw the defendants that day at the old Washington schoolhouse; that defendant Stovall was building a fence, and that defendant Colby was present, telling Stovall what to do. “As I started off, the defendant Colby said something, and I stepped a'nd asked him what he said. He replied that they were going to have Sunday school, and that the professor would teach.” Witness had previously seen these parties on Friday evening working on this fence. George Foster, one of the school trustees, forbade them to build the fence.
    Hiram Turner testified that on the morning of the homicide defendant Colby came to the home of the witness, and defendant said he wanted a pint of whisky. Witness replied that he didn’t have any. Defendant told the witness that he, the defendant, was going to the schoolhouse to fence it.
    G. S. Addison testified that he saw the defendants working on the fence at the Washington schoolhouse late Friday evening-; that the fence was finished by one o’clock that night; that George Foster came there and forbade the parties building the fence; that the' defendant Colby said he would build it and ordered Foster off the place; that defendant and Foster had a quarrel; that Foster left, saying that he would tear the fence down next day; that defendant Colby replied, “Just tear it down; that is what I want you to do.” That Foster went away.
    Bob Stone testified that he assisted in building the fence around the old Washington schoolhouse at the request of the defendant Colby; that defendant Colby was there when the fence was built; that defendant Colby was armed with a Winchester shotgun, and told the defendant Stovall to shoot the first man who put his hands on the fence to tear it down; that the defendant Colby showed Stovall the gun and how to work it and how to load it, and then gave the gun tó Stovall; that George Foster came to where the fence was being built that night and had some trouble with defendant Colby.
    Dr. J. W. Childs testified that Mr. Autry and Mr. McClendon were dead; that Autry died from the effects of a gunshot wound in the 'breast on the left side of the heart; that Mr. Mc-Clendon was pretty badly wounded; that one shot entered his eye and several entered the back of his head; that when the witness last saw Mr. McClendon, McClendon was in a dying condition.
    Frank Ferris testified that he was at the Washington schoolhouse about two o’clock in the afternoon on the day of the homicide; that he found the defendant Colby there wounded; that defendant Stovall was also there; that witness is the sheriff of McClain county; that witness found two shotguns and a sixshooter 'at the place where he found the defendants.
    G. W. Whittle testified' that Autry and McClendon were killed on Saturday; that at the.time of the killing witness was near the schoolhouse, out in a lane; that he walked over to the schoolhouse and met Mr. Autry, Mr. McClendon, and Mr. Powell, the trustees of the school; that they were all on foot; that Autry had a double-barrel shotgun; that Mr. Yoder and Mr. Powell were also armed; that these parties were going east, toward the schoolhouse; that these parties were all in their shirt sleeves; that they went in the school yard on the southwest corner of the school yard; that a hog wire fence was around the school yard and one of the top wires was bent back and the parties stepped over the fence there; that the witness passed by this place going east, and that his attention was attracted by a gunshot, which in his opinion came from the house; that immediately witness looked around and saw the defendant Colby at a window in the house, with a gun in his hands, looking out of the window. Witness heard some shooting, but he could not say how many shots were fired; that it was just like a battle; that witness saw Mr. McClendon — he was standing at a wagon on the southwest side of the house ;• witness also saw the defendant Stovall; that Stovall was in the northeast room; that someone fired from the window; that the shot came from the house; that witness was unarmed and had not taken any part in the trouble; that witness returned to the place of the shooting some 2 or 3 hours after the shooting was over and went into the north room of the- house and saw there a single-barrel shotgun, a double-barrel shotgun, and a revolver; that witness went out and found there Autry and McClendon; that McClendon was unconscious; that witness assisted in taking him home and dressed his wounds after he died.
    John Jones testified that he,was acquainted with Mr. Autry; that he is now dead; that he died from the effects of a gunshot wound on the left side of the breast near the heart; that there were 54 wounds on him.
    L. C. Graves testified that on the evening before the homicide he passed Washington schoolhouse; that there is a residence on the same lot with the schoolhouse; that as he passed the schoolhouse he heard a voice which he took to be Colby’s, giving instructions as to how to hold a gun; that something was said about a cartridge hanging; that witness heard what he took to be the rattling of a gun.
    Dr. F. L. Parker testified that about 5 o’clock on the afternoon of the shooting, witness saw Mr. McClendon — dressed his wounds; that he was then dead; that he probably died from the effects of these wounds.
    Luther Powell testified that he was present between 7 and 10 o’clock on Saturday morning at the old Washington schoolhouse when Autry and McClendon lost their lives; that witness and a number of other persons went up to the. schoolhouse when Autry and McClendon lost their lives; that witness and those with him were about 4-0 yards from the schoolhouse. Witness saw defendants break and run toward Vincent’s house. Mr. McClendon hollered to Dr. Colby 'and said, “We want to talk to you,” but defendants did not stop. Witness next saw Dr. Colby after he entered Vincent’s house; defendant was at the window, with a shotgun in his hands, and that he fired the shotgun in the direction of witness and the parties who were with him; that this was the first shot fired; that it was fired by Dr. Colby; that witness went behind a crib and did not see the other shots, but he heard them.
    W. W. Yoder testified that he was treasurer and a member of the board of directors of the Washington school district; that between 8 and 9 o’clock on the morning of the homicide, witness went to the Washington schoolhouse; that the defendants were there; that the defendant Colby was sitting on top of a desk in the schoolhouse, and defendant Stovall was at the door of the schoolhouse; that the witness did not say anything to the defendants, and they said nothing to him; that witness went about one and one-half miles beyond the schoolhouse and there met Mr. Autry, Alvey Autry, Mr. Irons, Bud Powell, George Foster, and some other parties; that they all returned to the schoolhouse; that there was a dwelling house occupied by Mr. Vincent on the same lot with the schoolhouse; that when the parties with witness were within 25 or 30 yards from the west corner of the acre of land upon which the schoolhouse and the house occupied by Mr. Vincent are situated, they saw the 'defendants; Dr. Colby was on the outside of the fence; that when the witness and those with him stepped over a gap on the .land ‘occupied by the schoolhouse and Vincent’s residence, the defendant Colby leaped over the fence, and that he and Stovall then ran into Vincent’s house; that someone hollered to Dr. Colby to stop, and told him that he wanted to talk to, him; that this was either Mr. McClendon or Mr. Autry; that defendants kept on running toward the dwelling house; that the witness and the parties with him were going toward the schoolhouse; that witness next saw the defendant Colby at the west window of the Vincent residence; that Dr. Colby immediately fired a shot with a shotgun; that the witness both heard the shot and saw Dr. Colby fire it; that this was the first shot fired in the difficulty; that Dr. Colby shot Mr. Autry in the leg; that the witness entered the schoolhouse, and that after this a number of other shots were fired; that witness saw Alvey Autry shoot at the window from which Colby had fired the first shot; that witness does not know who fired the other shots; that he couldn’t tell how many shots were fired; that after the shooting was over witness found Mr. Autry lying dead, and also saw Mr. McClendon, who was shot in the breast! That this all occurred in McClain county, state of Oklahoma.
    Byron Glaseo testified that on the afternoon prior to the homicide he saw the defendants get off of a caboose at Washington ; that the defendants were armed with a Winchester shotgun; that they got into a wagon driven by witness; that when they got into the ,wagon Dr. Colby said that the professor was going to teach school at the schoolhouse in the morning; that the witness then drove the defendants into the town of Washington and from there to the schoolhouse; that the defendants got out of the wagon, and tied the mules to the schoolhouse, and built a fence around the schoolhouse and Vincent’s house.
    J. C. Irons testified that he was present at the Washington schoolhouse when Mr. McClendon and Mr. Autry were killed; that he went to the schoolhouse about 10 o’clock with a number of others; that there was a residence on this ground occupied by Mr. Vincent; that the parties with witness entered a gap, and entered the school yard; that they saw the defendant Colby standing on the outside of the fence ; that when witness and the parties entered the school lot, defendants started to run into the house occupied by Mr. Vincent, and that either Mr. Autry or Mr. McClendon called to Colby to stop, and said they wanted to talk to him, but that Colby ran into the house; that Dr. Colby ran into the house and got a gun and shot Mr. Autry; that the witness saw the defendant fire the shot at Autry, and saw Colby fire the gun from a window, and that he saw Autry drop down; that afterwards a number of shots were fired; that the wintess was also fired at from the room with a pistol; that witness saw defendant Stovall shoot Mr. McClendon; that the defendant Stovall was in the south room of the house; that McClendon and Autry both died from the effect of the shots they received from the defendants; that the Washington schoolhouse was also used for a church; that a meeting was to begin there the fourth Sunday in August; that the fence had been erected there Wednesday night before the third Sunday in August; that this fence was taken down; that after the fence was taken down on Thursday the community were preparing to erect an arbor to hold a meeting in, and had placed poles on the ground with which to construct the arbor.
    E. L. Powell testified that he was present when Autry and McClendon were killed by the defendants at the Washington schoolhouse; that the witness and the parties who went to the schoolhouse on the morning of the homicide got .there between 9 and 10 o’clock. The witness further said:
    “We met and decided to go up there; we heard that Dr. Colby was going to be there, and we decided that we would go there and demand our rights to the schoolhouse, and without any trouble; and we decided .to let the school board go in the lead and demand the rights, to get Dr. Colby to take the fence down without any trouble, and so we put the school board in the lead and went on up there. Q. State to the court the way the school board was dressed. A. In their shirt sleeves. Q. Unarmed? A. Yes, sir; unarmed. Q. In going to take the schoolhouse, did you see anybody on the schoolground? A. Yes, sir. Q. Who did you see there? A. We saw Dr. Colby and that man (pointing to Mr. Stovall), but they were standing out at the fence. Q. What part of the fence? A. In the corner behind one of the owner posts southeast of the schoolhouse. Q. Where was you with reference to the schoolground when you saw these parties? A. We were some little piece from the gap, southwest of where the gap was — well, we was, I guess, 40 or 50 yards from the place where they were standing when they-were talking. Q. What were they doing? A. They were standing there talking. ■ Q. Were they working? A. No, sir. Q. How long did they stand there? A. Until the trustees stepped into the inside of the fence. Q. What did they do? A. He climbed over the fence. Q. What did he do? A. He ran to the dwelling house. Q. What did Mr. Stovall do? A. He ran "after him. Q. Did you hear anything said ? A. I heard Mr. Autry holler at him to ‘hold on there, Dr. Colby, we want to talk to youand some one else — it was Mr. McClendon hollered the same I think — he just hollered, ‘Dr. Colby, stop; I want to talk to you.’ Q. Did they stop? A. No, sir; they kept going. Q. Did you see these parties or either of them make that run? A. Yes, sir. Q. Did they get out of your sight? A. Yes, sir. Q. What side did they run in? A. On the southeast corner; it is made in an X shape. Q: Did they get out of your sight? A. Yes, sir; in the west window in the west room in the house. Q. Now, where was you at the time? A. I was, I guess, about 12 or 15 feet from the corner where we came in. Q. Outside or inside? A. Inside by that time. Q. Do you know who else had come on the inside? A. Several of them; Mr. Autry, myself, Jake, one-half I guess, or more; I know Mr. Autry and Jake Yoder was, for they were close to me, but I couldn’t say about the others. Q. What were you doing when you saw Dr. Colby in that west room? A. Going to the schoolhouse. Q. What way were you facing? A. Northeast. Q. How far were you from this room that Dr. Colby ran into? A. About 40 yards, I guess. Q. Was there any opening in the room to the west. A. No, sir; but the window. Q. In the west end of the room? A. The window was open. Q. The sash? A. Was raised up about half-way. Q. Now,' when Dr. Colby came in there, what did he do? A. Why, he grabbed the gun and came to. the window and shot. Q. What direction did he shoot? A. He shot out close to me, shot Mr. Autry. Mr.’ Autry was standing near me. Q. Had any shots been fired previous to that time? A. No, sir; there hadn’t. Q. After that, did you see any other shots fired? A. Yes, sir; they were continued after that for some time. Q. Who was shooting? A. There was shooting from both sides. Q. Who did you see shoot? A. Mr. Autry. Q. When did he shoot? A. He shot after he was shot. Q. What direction did he shoot? A. Toward the house. Q. Did you see Dr. Colby shoot any more? A. Yes, sir; he shot again about the time Mr. Autry shot. Q. What direction that time? A. The same as before. Q. Did you see anybody else shoot there? A. I couldn’t say that I saw the shots that were fired; they were fired every way. Two or three was fired, and I ran to the schoolhouse as soon as I could get there. Q. You remember seeing anybody shoot besides Dr. Colby and Mr. Autry? A. No, sir; there was so many I couldn’t tell. Q. Did you have a weapon of any kind? A. Yes, sir. Q. What kind? A. A single-barrel shotgun. Q. Was it loaded? A. Yes, sir. Q. What kind of shot? A. Eight. Q. What kind is a numlier 8? A. A fine shot for birds. Q. Did you shoot your gun? A. No, sir; I didn’t. Q. Did you try to? A. I tried one time. Q. At whom ? A. Dr. Colby, after he shot by me. Q. Why didn’t you shoot? A. Mr. Vincent’s little girl ran between the house and me, and jumped up and down, and I didn’t sfioot because I couldn’t have without shooting her.”
    George Foster testified that he was a member of the board 'of trustees of Washington school; that he was present at the time of the killing of Autry and McClendon by the defendants. He testified that the defendant Colby fired the first shot with a Winchester shotgun. His testimony was in all respects similar to that of previous witnesses.
    Alvey Autry testified that he was present on the morning of the. homicide, and his testimony was in all respects similar to that of preceding witnesses.
    Hiram Turner testified that the defendant Colby was at home at his house the morning before the homicide and he said to the witness that they were going to have school in the house about 8:30, and that the defendant Stovall was to be the teacher and said come up.
    Defendants placed Mrs. J. H. Vincent on the witness stand. She testified that the first shots were, fired by the parties who came to the schoolhouse; that she saw the s defendants Colby and Stovall; that they were coming toward the house when the first shots were fired and they had no weapons.
    Ella McCulla testified that she lived just across the street from the Washington schoolhouse; that she-heard a shot fired and when she went to the door she saw the defendants going

      toward the Vincent house; that the defendants at that time were unarmed; that she heard a number of shots fired.
   FURMAN, P. J.

As this case must be tried by a jury, and as we are satisfied that all of the material testimony has not been presented to us, we deem it best to refrain from discussing the evidence, further than to say that, as presented by the record before us, we do not believe the defendants are entitled to bail.

The testimony introduced, taking the most favorable view for the defendants, presents a case in which the defendants upon one side, and the trustees of Washington school district with some of the patrons of the school on the other side, armed with deadly weapons, voluntarily and willingly engaged in a mutual combat, having reason to believe that such conflict would result in death or serious bodily injury to some of the parties engaged therein. When death ensues from such a conflict, the killing is murder. See Boutcher v. State, 4 Okla. Cr. 576. There is no testimony in this record which either mitigates or justifies the homicide.

The writ of habeas corpus is therefore discharged, and defendants are remanded to the custody of the sheriff of McClain county to answer the charge of murder pending against them.

ARMSTRONG and DOYLE, JJ., concur.


text:
    DAN McLEOD v. JOHN M. GRAHAM, County Judge.

    No. A-1279.
    Opinion Filed October 10, 1911.
    (118 Pac. 160.)
    1. COURTS — Appellate Jurisdiction — Prerogative Writs. The Criminal Court of Appeals has jurisdiction and power to issire a writ of mandamus directed to an inferior court, in the exercise or in aid of its appellate authority, where the same is .a proper proceeding in a criminal case.
    2. MANDAMUS — Proceedings—Demurrer—Admissions. Where a petition for mandamus is filed in this court, and the respondent does not file an answer to said petition, but submits the case upon a demurrer, the allegations contained in the petition -for mandamus will be treated as being admitted by the respondent.
    3. MANDAMUS — Subjects of Relief — Dismissal of Criminal Prosecution. Where a’defendant is'prosecuted, either by information or by indictment, and is not brought to trial at the next regular term of the court in which said case is triable after the prosecution is begun therein, the court must order the prosecution to be dismissed, unless good cause to the contrary is shown, or unless the trial of said cause has been postponed upon the application of the defendant, or with his consent; and if the trial court, upon application of the defendant, refuses to make this order, mandamus proceedings will lie in behalf of the defendant to compel the dismissal of said cause.
    .4. MANDAMUS — Time for Trial — Grounds for Delay — Presumptions. Any delay caused by operation of the rules of law will constitute good cause for continuing a case beyond a second term of the court; but the existence of such good cause will not be presumed, but must be shown.
    (Syllabus by the Court.)
    Petition by Dan McDeocl for writ of mandamus to John M. Graham, County Judge of Kingfisher County.
    Granted.
    On the 31st day of July, 1911, relator filed the following petition for writ of mandamus in this court:
    “State of Oklahoma, Kingfisher County — ss.:
    “Comes now Dan McLeod who, upon oath, alleges and informs the court: That on the 25th day of October, 1910, M. W. Hinch, the duly elected, qualified and acting county attorney of Kingfisher county, Oklahoma, by John T. Bradley, Jr., deputy, caused a certain information to be filed in the county court of Kingfisher county, Oklahoma, charging this defendant with a violation of the prohibitory liquor law of the state of Oklahoma, as shown by said information, a copy of which, with the affidavit in support thereof and all indorsements thereon, is hereto annexed, marked ‘Exhibit A,’ the same as if set out herein in full.
    “That upon said information being filed a warrant duly issued, and he, the said Dan McLeod, was duly arrested by the sheriff of Kingfisher county, and brought before said county court and the judge thereof on the 28th day of October, 1910.
    “That on said 28th day of October, 1910, he, the said Dan McLeod, personally appeared in said county court and before the the judge thereof, to wit, the Honorable John-M. Graham, who was then the duly elected, qualified and acting judge of said county court; and on said 28th day of October, 1910, he, the said Dan McLeod, entered his plea of ‘Not guilty,’ and was by the judge of said county court admitted to bail upon giving bond for his appearance on the 14th day of November, 1911, and he, the said Dan McLeod, then and there duly filed his bond for appearance, which bond was approved by the said judge of said county court.
    “That said county court, at the times aforesaid, was in session and continued to be in session to the end of the term. And thereafter, the said county court was regularly convened and a term of said county coui't was held, commencing on the first Monday of January, April and July, 1911, with the said Honorable John M. Graham presiding as judge of said county court at each and every one of said terms of court, and the said Hon. John M. Graham is the duly elected,‘ qualified and acting judge of said county court, and was at all times heretofore mentioned and still is.
    “That he, the said Dan McLeod, personally appeared in open court at the January, 1911, and April, 1911, terms of said court to answer said charge set forth in said, information, and was ready and anxious for trial, and at each of said terms of court, demanded a trial on said information filed against him as aforesaid, and he, the said Dan McLeod, was refused a trial on said charge in open court at said January and April, 1911, terms of said court, respectively.
    “That terms of said county court were regularly opened and held at both the January and April, 1911, terms of said county court, as by law provided, and said cause of the State of Oklahoma v. Dan McLeod on said information was set for trial, and the trial of said cause was postponed and continued at both said January and April, 1911, terms of said court, by order of the court upon the application of the county attorney, without good cause shown and over objection of him, the said Dan McLeod, the defendant in said cause. That the trial of said cause on said information charging him, the said Dan McLeod with said public offense, was not postponed or continued upon the application of him, the said Dan McLeod, at any of said- terms of court, and he was at each of said terms of county court ready for and demanding trial.
    “That said cause was again set for trial by said court upon said information, for the 17th day of July, 1911; that on said 17th day of July, 1911, he, the said Dan McLeod, appeared in open court in said county court and filed his motion to dismiss said cause for the reason that two terms of said county court were held after said information was filed, and the trial of said cause was postponed for the term at both of said terms of court by the prosecution, over his objection, and without any good cause shown by the prosecution for said postponements, as appears by the record of said cause in said county court, and as more particularly appears by said motion, a copy of which, with all endorsements thereon, is hereto annexed, marked ‘Exhibit B,’ and made a part hereof.
    “That on said 17th day of July, 1911, said motion to dismiss was duly presented to the county court, and by the court overruled and the dismissal of said cause denied, as more particularly appears by the journal entry of the court thereon, a copy of which is annexed hereto, marked ‘Exhibit C/ and made a part hereof.
    “That by reason of said cause being postponed from term to term as aforesaid, and by reason of the court refusing to dismiss said cause, he, the'said Dan McLeod, has been prejudiced in his rights as guaranteed to him by the Constitution and laws of the state of Oklahoma; that his witnesses have left and he is now'without an adequate and speedy' remedy at law.
    “Wherefore, he, the said Dan McLeod, prays that an order be made ordering the Honorable John M. Graham, judge of the county court of Kingfisher county, to forthwith dismiss said cause now pending against him, the said Dan McLeod.
    his
    “Dan X McLkod.
    mark
    “Witnesses: George H. Hodgins. L. R. Weiss.
    “Subscribed and sworn to before me, after the same had been read and explained to affiant, and be declared he understood the nature and contents thereof, this 19th day of July, A. D. 1911. George H. Laing, Clerk District Court, Kingfisher County, Oklahoma.
    [Seal.]”
    Exhibit A.
    “In the County Court in and for the County of Kingfisher and State of Oklahoma.
    “Information.
    “The State of Oklahoma, Plaintiff, v.
    Dan McLeod, Defendant. .
    “Now comes M. W. Hindi, as the duly elected, qualified and acting county attorney in and for the county of Kingfisher and state of Oklahoma, duly authorized and empowered to inform 'against and prosecute, on behalf,of the state of Oklahoma, all public offenses committed and triable within the jurisdiction of the said county of Kingfisher, in the said state of Oklahoma, and as such county attorney, acting under and by virtue of the authority conferred upon him by the laws of the state of Oklahoma, informs-the court, that Dan McLeod on the 15th day of October, 1910, in the county of Kingfisher aforesaid, in the said state of Oklahoma, did wilfully and unlawfully sell to Whitelog one-half pint of whisky for the sum of fifty cents, contrary to the form of the'statutes in such cases made and provided, and against the peace and dignity of the state. M. W. Hinch, County Attorney, by John T. Bradley, Jr., Deputy.”
    “State of Oklahoma, County of Kingfisher — ss.:
    “Whitelog, of lawful age, being first duly sworn, says under oath, that he had heard read the foregoing information and knows the contents thereof, and that the statements and allegations therein contained and set forth are true.
    his
    “Whitelog X
    mark
    “Subscribed and sworn to before me this 25th day of October, 1910. Maude Smith, Notary Public. [Seal.] My commission expires Jan. 4, 1913.
    “Witnesses for state: Wolf Ahead.”
    Indorsed on the back thereof are the words and figures following: “339. State of Oklahoma, Plaintiff, v. Dan McLeod, Defendant. Information. Filed this 25th day of Oct. 1910. Mary Crosthwait, Clerk. O. K.”
    Exhibit B.
    No. 339.
    “State of Oklahoma, Kingfisher County — ss.:
    “In the County Court in and for said County.
    “Motion to Dismiss.
    . “State of Oklahoma, Plaintiff, v. Dan McLeod, Defendant.
    “Comes now the above-named defendant, Dan McLeod, and moves the court to dismiss the above-entitled cause for the following reasons, .to wit: First. That he is the defendant herein, and was arrested on the charge set forth in the information herein, and this defendant has appeared before this honorable court in person each and every time since the filing of the information, and has been ready for trial and demanding a trial of the charge set forth in the information herein, at each term of said court, and at each and every one of said terms of court a trial has been refused this defendant herein, and at each and every one of said terms of court the trial herein was continued and postponed by the prosecution over the objection of this defendant, and without any just cause or excuse therefor, as appears by the record of this court herein. Second. That this cause has at no time been continued at the request of this defendant; that more than two terms of court has elapsed and the trial of said cause was postponed without the consent of this defendant, and said cause was never postponed or continued on application of this defendant.
    his
    “Dan X McLeod. mark
    “Subscribed and sworn to before me this 17th day of July, 1911. John M. Graham, Judge of the County Court.”
    Indorsed on the back thereof are the words and figures following: “No. 339. State of Oklahoma v. Dan McLeod. Motion to Dismiss. Filed July 11, 1911. Eva M. Bennett, Clerk Co. Ct. D. K. Cunningham, Atty. for Defendant.”
    Exhibit C.
    “State of Oklahoma, Kingfisher County — ss.:
    “In the County Court in and for said County.
    “Journal Entry No_________
    “State of Oklahoma, Plaintiff, v. Dan McLeod, Defendant.
    “Now on this 17th day of July, A. D. 1911, the same being one of the regular judicial days of the July, 1911, term of said court, this cause coming on regularly for hearing in open court upon the motion of defendant to dismiss said cause for the reason that more than two terms of this court have elapsed since the filing of the information herein, the plaintiff being present by Frank P. Whistler, the duly elected, qualified and acting county attorney of Kingfisher county, and the defendant, Dan McLeod, appearing in person and by.his attorney, D. K. Cunningham. After hearing argument of counsel for the respective parties and being fully advised in the premises, said motion to dismiss is by the court overruled. ( To which ruling of the court the defendant then and there excepted, and exception allowed. John M. Graham, Judge of the County Court.”
    Indorsed on the back there are the words and figures following: “No. 339. State of Oklahoma v. Dan McLeod. Journal entry, overruling motion to dismiss. Filed July 18, 1911. Inez Fisk, Clerk County Court.”
    Upon the filing of this complaint an alternative .writ of mandamus was issued, requiring respondent to forthwith comply with the prayer of the writ, or to show cause for not doing so. Return day coming on, respondent filed the following demurrer to the petition for mandamus:
    Demurrer.
    “State ex rel. Dan McLeod, Relator, v. John M. Graham, Judge of the County Court of Kingfisher County, Respondent.
    “Comes now the above-named respondent by F. P. Whistler, the county attorney of Kingfisher county, and attorney for respondent, and demurs to the petition filed in the above-entitled cause, and for grounds of demurrer says: That said petition does not state facts sufficient to entitle relator the relief prayed for in the petition. F. P. Whistler, Attorney for Respondent.”

      D. K. Cunningham and L. R. Weiss, for relator.

      P. P. Whistler, for respondent.
   FURMAN, P. J.

(after stating the facts as above). The jurisdiction of this court to entertain mandamus proceedings in such cases as this was passed upon in Ex rel. Eubanks v. Cole, District Judge, 4 Okla. Cr. 25, 109 Pac. 736. It is therefore not necessary to discuss this question again. In the Eubanks case a' writ of mandamus was denied, because two regular terms of court had not convened since the indictment against the defendant in that case had been presented, and this court there held that the terms of court mentioned in the statute referred to regular terms of court, and did not include or apply to special terms of court.

The demurrer of respondent to the'petition of relator admits the truth of the allegations therein contained, and the case has been submitted upon this petition and demurrer.

Section 20 of article 2 of our Constitution is as follows:

“In all criminal prosecutions the accused shall have the right to 'a speedy and public trial by an impartial jury of the county in which the crime shall have been committed.”

This provision of the Constitution guarantees to every defendant charged with crime in this state a substantial right, and we should so construe the Constitution as to secure this right to each defendant, and at the same time not preclude the rights of public justice. What the Constitution means by the term “speedy trial” is found in section 7047, of Snyder’s Comp. Laws. of Okla. 1909, which is as follows:

“If a defendant, prosecuted for a public offense, whose trial has not been postponed upon his application, is not brought to trial at the next term of court in which the indictment is triable after it is found, the court must order the prosecution to.be dismissed, unless good cause to the contrary be shown.”

This statute relieves trial courts of construing the term “speedy trial” in each and every case wherein it is presented. When it is found that a defendant in any particular case has not been brought to trial at the next regular term of the court in which his case is triable, after the case has been presented therein, it is the duty of the trial court to order the prosecution to be dismissed, unless it appears that the case had been postponed or continued upon the application of the defendant, or unless the state shows good cause (that is, some legal reason) why said case has not been tried, and why said prosecution should not' be so dismissed. The evident purpose of these provisions of the Constitution and the statute is to require of the officers of the law that they exercise reasonable diligence in preparing for the trial of criminal cases, and to secure to each person charged with crime a trial as soon after the indictment or information has been filed against them as the prosecution can with reasonable diligence prepare for trial; regard being had to the terms of court.

Any delay caused by operation of the rules of law would constitute good cause for continuing a case beyond a second term of the court. Where it appears from the record that a defendant has not been brought to trial at the second term of the court after the prosecution against him has been instituted, and the record does not show that this postponement was caused by the application of the defendant, or' with his consent, then the defendant’s right, if he demands it, to have the prosecution against him dismissed becomes absolute, .unless good pause is shown by’the state why the case should be continued to a subsequent term of the court; and this showing of “good cause” will not be presumed, but must appear in the record of the trial court, or in the answer to the petition for mandamus. Whether or not the carise shown for the further continuance of a prosecution is sufficient is,addressed to the discretion of the trial court, and if the trial court abuses this discretion, it is subject to review upon appeal or in mandamus proceedings. This rule secures to a defendant his right to a speedy trial, upon the one hand, by protecting him from vexatious, capricious, arbitrary, and oppressive delays, and, upon the other hand, it does not preclude the rights of public justice; for, if good cause for a postponement of a trial exists, the requirements of the statute do not apply. Were it not for this rule, an arbitrary and capricious judge could punish a defendant indefinitely by confining him in prison, pending a final trial, or, if the defendant was on bail, such judge could harass and distress him without limit by keeping a groundless accusation hanging over his head and clouding his good name; while, on the other hand, if good cause exists why a case should be continued from term to term of the court, this cause can be made to appear in the record, and the ends of public justice will be protected.

In the case of People v. Morino, 85 Cal. 515, 24 Pac. 892, the Supreme Court of California said:

“The Legislature has provided what shall constitute a reasonable time within which a defendant shall be brought to trial.”

And then, after setting out section 1382, Pen. Code, it proceeds :

“The court below, in denying the defendant’s motion, said: ‘The question you raise I have considered before, and, under my construction of the law, it is discretionary,' and not mandatory, and I will presume the court was engaged in the trial of other causes.’ We think this is not a proper construction of the law. A party charged with crime has the constitutional right to a speedy trial, and the court has no discretionary power to deny him a.right so important, or to prolong imprisonment, without such trial, beyond the time provided by the law. The statute is imperative. The court, unless good cause to the contrary is shown, must order the prosecution to be dismissed. Here no cause for delay was shown. It zvas enough for the defendant to shozv that the. time fixed by the statute, after information filed, had expired, and that the cause was not postponed on his application. If there was any cause for holding him for a longer time without trial, it was for the prosecution to show it. The court could not presume it.”

In the later case of In re Begerow, 133 Cal. 349, 65 Pac. 828, 56 L. R. A. 513, 85 Am. St. Rep. 178, the Supreme Court of California, quoting with approval the Morino case, said:

“That case has never been called in question, and it decides some important points. First. The statute is a construction of the constitutional provision, so far as to indicate what is a reasonable time within which the case should be brought to trial, in order that the constitutional guaranty may be kept. And it may be fairly interpreted to mean that this guaranty is violated whenever 60 days is allowed to elapse without a trial (two regular terms under our statute); there being no good reason for delay, and the defendant not consenting thereto. And, in the second place, it decides that it is sufficient for a defendant, in order to make out his case upon a motion for a dismissal in the trial court, to show that he has been detained without a trial for more than 60 days (two regular terms under our statute). Upon such a showing the court should dismiss the case, unless the cause for detaining the defendant and for continuing the prosecution is shown on behalf of the people. There is no presumption in such case, at least in the trial court, that the court has acted regularly, or that good cause in fact exists.”

In Ex parte Ford (Cal.) 116 Pac. 757, this question is-considered at great length, and many authorities are cited and discussed by the Supreme Court of California. This court there says:

“A person charged with a criminal: offense has a right to a speedy trial, in order that, if innocent, he may go- free. To detain him in custody, or to compel him by the exaction of bail to dance attendance upon a court while his trial is arbitrarily postponed without his consent, is not only a wrong and injustice to him, but is a detriment to the public. The design of the statute, quoted in the opinion of the,court, is to prevent these evils. The effect of that opinion, however, coupled with other decisions in similar cases, is to deprive the statute of its intended operation, so far, at least as its enforcement by this court is concerned, and to pervert it to a use wholly foreign and inimical to its purpose. In effect, it has been held that, no matter how unjustifiably the right secured by the statute has been disregarded by the superior court, the party injured has no remedy, except by an appeal to this court; and this, obviously, is no remedy at all for an innocent man, whose trial has been unreasonably delayed, because upon his acquittal he has nothing to appeal from. The only persons who can appeal are those who have been found guilty, and they, if their convictions are otherwise illegal, have no occasion to resort .to this statute for their deliverance. The only person, therefore, who can secure its benefits through the intervention of this court is one who stands convicted under a judgment in all other respects free from error; or, in other words, one who is actually guilty of the crime charged against him. People v. Morino, 85 Cal. 515, 24 Pac. 892. It is very safe to say that the Legislature would never have enacted such a law if this were the only case in which it could be made effective. The truth is the law was enacted, like all similar provisions relating to criminal procedure, for the benefit of the innocent, and not for the sake of screening the guilty. It is true with respect to this, as with respect to all rules of procedure deemed necessary for the security of innocent men unjustly accused. Guilty men also, being deemed innocent until proven guilty, may take advantage of them; but it is a most extraordinary result that for the wanton and deliberate violation of this rule an innocent man has no remedy, while one justly convicted of a crime may by means of it evade the penalty. To me it seems there must be a mistake somewhere in the decisions that lead to such a result, and I think the mistake consists either in holding that the injured party cannot resort to a mandamus, as this opinion holds, or in holding that he cannot resort to habeas corpus, as was held upon a former proceeding by this petitioner (December 12, 1892). If an innocent man, who is kept in jail month after month while his trial is arbitrarily postponed, cannot resort to this court for relief, either by habeas corpus or by mandamus, I know of no other remedy he has. Appeal, as above stated, is no remedy, for he cannot appeal until after a trial, and the refusal to bring him to trial is the very wrong of which he complains; and, moreover, being innocent, it is to be presumed he will be acquitted, if he ever is brought to trial, and that he will have nothing to appeal from. I cannot bring myself to admit that for such a wrong there is no remedy, and consequently T feel satisfied that either habeas corpus or mandamus must lie.”

The court then goes further and holds that mandamus is the propel’ remedy in such cases. These cases present our views fully and clearly, and we regard them as decisive of this question.

The relator in this case having shown, and it being admitted by the demurrer of the respondent,- that two regular terms of the county court of Kingfisher county, wherein this prosecution is pending had convened, been held, and terminated since the information in this cause was filed therein, and the relator had entered his plea thereto and had been demanding a trial, and that postponements .of this case were not with his consent, but were over his objection, and no legal reason appearing in the record for these postponements, we are of the opinion that the peremptory mandamus should be issued.

It is therefore ordered by the court that the respondent, the Honorable John M. Graham, judge of the county court of Kingfisher county, Okla., be and is hereby directed and commanded to dismiss the prosecution in cause No. 339, wherein the state of Oklahoma is plaintiff, and the relator, Dan McLeod, is defendant.

Writ of mandamus as prayed for will issue.

ARMSTRONG and DOYLE, JJ„ concur.


author: ARMSTRONG, J.

text:
    JAMES KANAMAYA v. STATE.
    No. A-719.
    Opinion Filed October 10, 1911.
    (118 Pac. 151.)
    1. APPEAL AND ERROR — Time of Perfecting. When a person is convicted on a felony charge and -desires to appeal to this court, it is necessary for the appeal to be perfected within six months from the date of judgment. Section 6948, Snyder’s Stat. Musick v. State, 5 Okla. Cr. 608, 115 Pac. 377.
    2. APPEAL AND ERROR — Dismissal. When an appeal is attempted in this court by filing petition in error and case-made after the expiration of the six months allowed by law, this court will dismiss the same, with directions to the trial court to enforce the judgment and sentence.
    (Syllabus by the Court.)

      Appeal from District Court, McCurtain County; R. McMillan, Judge.

    James Kanamaya was convicted of murder, and appeals.
    Dismissed.
    /. E. Whiteheadi„ for plaintiff in error.

      Smith C. Matson, Asst. Atty. Gen., for the State.
   ARMSTRONG, J.

Plaintiff in error was tried at the September, 1909, term of the district court of. McCurtain county on a charge of murder, and his punishment fixed by the jury at life imprisonment. On the 9th day of October, 1909, judgment and sentence was pronounced in accordance with the verdict of the jury. The case-made for appeal was served within the time allowed by the orders of the court. The appeal, however, was not filed in this court until the 14th day of April, 1910, more than six months after the date of judgment.

Under section 6948, Snyder’s Stat. 1909, this appeal should have been filed within six months from the date of judgment in order to confer jurisdiction on this court to review the same on its merits. Musick v. State, 5 Okla. Cr. 608, 115 Pac. 377.

For the reason that the appeal was not filed within the time prescribed by the statutes, the appeal is dismissed, with directions to the district court of McCurtain county to enforce the judgment and sentence.

FURMAN, P. J., and DOYLE, J., concur.


text:
      In re OPINION OF JUDGES.
    No. A-423.
    Opinion Filed October 10, 1911.
    (118 Pac. 156.)
    COURTS — Advisory Opinions — Scope. An opinion of the Criminal Oonrt of Appeals, in response to the Governor’s requirement, as authorized by Snyder’s Comp. Laws 1909, sec. 6928, upon a statement showing a conviction requiring judgment of death, is an advisory opinion of the judges, where an appeal has not been taken from the judgment; the scope of the question being whether there has been an observation of all the formalities of law essential to the taking .of human life, and whether the trial, conviction, and sentence of death have been in accordance with the law of the land.
    (Syllabus by the Court.)
   Opinion of the Judges, rendered on request of the Governor.

Frand Edwards, by information presented and filed on August 10, 1911, in the district court of Pontotoc county by Robert Wimbish, county attorney, was charged with the murder of one William B. Gray, committed in Pontotoc county, on August 3, 1911. On said day the defendant was arraigned. It appearing that he was without means to employ counsel, upon his request the court appointed R. C. Roland, Esq., to defend him. Whereupon he entered a plea of not guilty, and filed an application for a change of venue to Seminole county, which application was confessed by the county attorney, and was granted by the court. The state and the defendant in open court thereupon agreed that the case be set for trial at Wewoka, Seminole county, on August 14th, and it was so ordered. Under the orders of the court, the clerk transmitted to the clerk of the district court of Seminole county a transcript of the record and proceedings had, and the defendant was by the sheriff of Pontotoc county delivered to the sheriff of Seminole county.

August 11th the defendant filed his verified application for an order of the court to secure the attendance of Dr. Griffin of the state insane asylum at Norman, Dr. Hartman of Ada, and Dr. Watterfield of Holdenville, as medical experts on his behalf, and it was so ordered by the court. On the day set for trial (August 14th), counsel for defendant stated to’the court that on account of the physical condition of the defendant he could not go to trial on that day, and the case was continued until the next day. The next day counsel made another similar statement, and the court appointed four physicians to examine the defendant, and report to the court their opinion as to whether the defendant was in a condition to be tried at this time. They reported that the defendant was able to go to trial. The court then continued the case, subject to call. August 17th the case was called, and a jury impaneled to try the case. August 19th the jury returned into open court their verdict, finding the defendant guilty of murder as charged, and assessing his punishment at. death. On September 5th a motion for new trial was overruled, and the court rendered judgment and sentence in accordance with the verdict.

The evidence on the part of the prosecution proved the following state of facts:

That about 8 o’clock a. m., August 3, 1911, the deceased and the defendant stopped at the home of Leslie Hewit, seven miles southeast of Rolf for'shelter from a rainstorm. The deceased was an old man, with long whiskers, and his hair was gray and long, coming down over his shoulders. They were driving a span of mules to a covered wagon, and., leading a black horse behind the wagon. After stopping about 15 minutes, they drove east on the road leading to a bridge about three miles east on the Blue river. They passed the home of B. F. Ridgeway, a quarter of a mile west of this -bridge, about 9 o’clock a. m. The wagon sheet was not pulled down as they went east. Shortly after they passed Ridgeway’s a gunshot was heard in the direction of the bridge. Inside of an hour, the outfit returned, going west, with only the defendant visible. It was about noon when it passed Mr. Hewit’s place, coming back, and the wagon sheet had been pulled down. On August 5th- the body of the deceased, in a badly decomposed condition, was found, in the brush on a branch a short distance west of Hart, Pontotoc county. There were gunshot wounds in the back of the head, where- five buckshot had entered, some of which had passed through the head, coming 'out near the eyes. There were the tracks'of a wagon turning from the road about 30 steps, and about 50 steps further was the corpse, wrapped in an oilcloth.

Long gray hairs were found sticking to the rocks and bushes from where the wagon stopped to where the corpse was found. About two miles further on, a tent, a bed, and some boxes were found in the brush, where the tracks of the same wagon had left the road. A blanket, smeared with blood and brains and long gray hair, was also found, and a musket was found hanging on a sapling, tied* with a twine string.

The defendant camped near Hart on the night of August 3d, and purchased some groceries at a store there on the morning of August 4th. Pie also wanted to buy a spade. On that day he was seen traveling in the direction of Ada, and asked several persons the road to Pauls Valley. He also offered to sell the mules. The wagon tracks were traced and followed from" where the body was found to Pauls Valley by several persons, who "reached Pauls Valley about 6 p. m., August 5th, and there found the defendant. He had sold the mules and wagon for $175, and had purchased a saddle for the black horse. The mules, horse, and wagon were identified as the property of the deceased by his brother, Jonathan B. Gray. When arrested, the defendant said that his name was Smith, and he made a voluntary statement to the effect that he met the deceased- at Owens’ Ferry the Sunday before, and started traveling with him; that the first night they camped near Butcherknife, the second night near Graham, the third night near Davis, and the fourth night near Hickory. He then said a man rode up to the wagon, and told Mr. Gray to give up his money, and Mr. Gray told him that he was a wood hauler, and made his money hauling wood, and had no money; that he (the defendant) started to run away, and this man told him to come back and stay there; that the man then shot Mr. Gray, and told the defendant to take the old man and dispose of the body, and go and dispose of the wagon and team; that he would see him some time in the future and divide the money with him; and that if he said anything about it “we would kill you”; that the man then went through a wire fence, and he asked to be taken to where the shooting occurred, near the bridge on Blue river, and he would show where the wire was cut, the posts pulled up, and the staples pulled out. Defendant was taken there to point out where the person went through the fence; but the wire was not cut, the posts not pulled up, or the staples pulled out of-the fence on either side of the road.

The defendant testified on his own behalf that his name was Frank Edwards, his age 31 years; that he was a married man, having a wife and child in Comanche county; that his wife deserted him in 1910, and that year he was hit over the head with a stove lifter; that he had a team and sold it, and blew the money all in; that he had no certain place he called his home; that about the 1st of August he was stopping at his. brother-in-law, Jim Owens’, on Red river, helping a little in running the ferry; that he met the deceased on Owens’ ferryboat on the last Sunday in July; that he started to travel with him, and they camped the first night near Butcherknife; that they came through the towns of Graham, Davis, and Sulphur Springs and Hickory. After leaving Hickory the morning of August 3d, they went east to where the bridge on Blue river, in Pontotoc county, is; that just before they reached the bridge a fellow that he knew, whose name was Ered McFarlin, came up in front of the team, and told the old man that he wanted what money he had; that the old'man told him that he did not have any money; that he hauled wood for his money; that McFarlin told defendant to get out of the wagon; that he then told the old man that he was going to kill him; that he run' around at the back end of the wagon, and the defendant started to run, and he told him if he ran he would shoot him; that he then shot the old man, and toid the defendant he would kill him, and he said: "“You can’t get away, and if you do the rest of the boys will get you, if I don’t.” He then got on his horse, and said that he did not kill the old man for his money; that he killed him because of some trouble they were into, or some of the family had been into; that he then told the defendant to take the old man and dispose of the body, and sell the wagon and team, and the next time he .saw him to divide the money with him; that he did exactly what McFarlin told him to do by unloading Mr. Gray’s body in the brush near Hart, and the trunk and bedclothing somewhere near there, and that he tied the gun up in a tree; that when he reached Pauls Valley he sold the team and wagon, and was preparing to buy a saddle, to leave Pauls Valley, when he was arrested.

Two physicians called on the part of the defendant, in answer to a proper hypothetical question, and from their observation and examination of the defendant, would not say that, in their opinion, the defendant was insane. One stated that in his opinion the defendant was sane. In rebuttal, two physicians called on the part of the state stated that from their examination and observation, and in answer to the hypothetical question, in their opinion, the defendant was sane.

The judgment of the court recites:

“It is therefore ordered, adjudged, and decreed by the court that the said Frank Edwards be hanged by the neck until dead, in Seminole county, state of Oklahoma, upon Friday, the 20th day of October, A. D. 1911, and it is ordered that the sheriff of Seminole county, state of Oklahoma, execute this judgment of death on the day and date aforesaid, between the hours of 10 o’clock a. m. and 2 o’clock p. m., within the walls or yards of the county jail at Wewoka, Oklahoma, in the manner provided by law, and make due return hereof and fail not. The defendant is notified of his light of appeal to the Criminal Court of Appeals. Tom D. McKeown, Judge of the Seventh Judicial District Court in and for Seminole County, State of Oklahoma.”

In accordance with the requirements of the statute, the clerk of the district court of Seminole county made a certified statement of the conviction and judgment and of the testimony given at the trial, and the presiding judge, Hon. Tom D. McKeown, transmitted the same to the Governor. On September 12th J. J. McAlester, acting Governor, transmitted said record to this court, requesting the opinion of the judges, as required by statute.

To this inquiry the following reply was returned by DOYLE, J-:

OPINION OF THE JUDGES.

To His Excellency, the Governor of Oklahoma:

The Judges of the Criminal Court of Appeals, responding to the official communication of Hon. J. J. McAlester, as Governor of Oklahoma, to this court, which presents for the consideration of the judges of the court a certified copy of the record of the conviction of Frank Edwards, who was, on September 5, 1911, by the judgment of the district court of Seminole county, sentenced to death in accordance with the verdict of the jury as returned upon his trial, finding him guilty of murder and assessing the death penalty, which judgment and sentence is that such execution shall take place on Friday, the 20th day of October, A. D. 1911, with the request that we give an opinion thereon as prescribed by section 6928, Snyder’s Stat., we hereby respectfully submit the following opinion of the judges:

From an examination of the records of this court, we find that no appeal has been taken in said cause. As we view the law, this provision of the statute contemplates an advisory opinion of the judges, where an appeal has not been taken from a judgment and sentence of death.

The proposition then presented would be, Has there been an observation of all the formalities of law essential to the taking of human life ? Or has the trial, conviction, and sentence of death been in accordance with the law of the land? Opinion of the Judges, 3 Okla. Cr. 315, 105 Pac. 684.

Upon a full and careful consideration of the record and the testimony, we find that the information sufficiently and correctly charges the crime of murder, and that the allegations of the information were most abundantly and conclusively sustained by the evidence adduced on the trial. There can be no reasonable doubt of the fact, in the light of the evidence, of the defendant’s guilt. The instructions in the case' are commendably complete and correctly state the law of the case, including correct instructions upon the special defense of insanity. The defendant had the benefit of counsel appointed on his request. Upon the whole record we find no error. The admissions of the defendant alone show him to be guilty of one of the most atrocious murders ever perpetrated, and when the horrible details are considered, we can but admire the fortitude and forbearance of the community where it occurred in permitting the law to vindicate itself in his punishment with its own extreme penalty.

We are of opinion that the defendant, Frank Edwards, had a fair and impartial trial, and that all the formalities of law essential to the infliction of the death penalty have been fully observed.

FURMAN, P. J., and ARMSTRONG, J., concur.'


text:
    STATE ex rel. JNO. NOWAKOWSKI v. LOCKRIDGE, County Judge.

    No. A-1292.
    Opinion Filed October 10, 1911.
    (118 Pac. 152.)
    1. JUDGES — Disqualification—Opinion as to Guilt or Innocence— “Prejudice.” The constitutional provision which guarantees to every person charged with crime a trial without “prejudice,” in so far as it relates to the judge who presides at the trial, does not include the opinion of the judge as to the guilt or innoeence of the defendant; but, in order to disqualify a judge, it must be shown that he is biased against, or entertains ill will or hostility toward, the defendant, of such a character as might prevent him from giving the defendant a fair trial; and this must be shown as a matter of fact, and not as a matter of opinion of the defendant or any other person. A judge does not try the facts of a case. He simply passes upon the questions of law presented.
    2. JUDGES — Disqualification- — -Judges as Witnesses — “Prejudice.” The mere fact that a judge may be a witness in, a case, or that he has conducted a preliminary examination which resulted in the prosecution of a defendant, in the absence of any showing of personal bias or prejudice upon the part of such judge against the defendant, does not constitute such “prejudice” as will disqualify the judge from presiding at the trial of the defendant.
    (Syllabus by -the Court.)

      Application, on relation of John Nowalcowski, for writ of mandamus against Ross F. Lockridge, County Judge.
    Writ denied.
    The brief for relator clearly stated the case as follows:
    “On the 11th day of July, 1911, John Nowakowski, the petitioner herein, was being prosecuted in the county court of Pottawatomie county, Okla., for an alleged violation of the prohibitory liquor law of the state of Oklahoma. That on or about said last-mentioned date, the petitioner herein filed his application for a change of judge in said cause, alleging that he could not have a fair and impartial trial before the Plonorable Ross F. Lockridge,' the respondent herein and the county judge of said county. The petition' and application for a change of judge, as aforesaid, were denied, and the said Plonorable Ross F. Lockridge, the respondent herein, refused to. certify his disqualification. That upon the refusal of ' the respondent to certify his disqualification the petitioner .filed in this court his petition for an alternative writ of mandamus that the respondent herein either certify'his disqualification, or show cause why he should not do so. That on the 5th day of September, 1911, the respondent herein returned into this court his answer and return to said writ. The petitioner herein set up in his petition for said writ of mandamus that the respondent herein was disqualified to sit as trial judge in the trial of petitioner for the reason that respondent had held a court of inquiry in the town of McLoud, in said county and state, and at said court of inquiry witnesses were examined as to whether the petitioner had violated the prohibitory liquor law of this state, ancf that as a result of the holding of said court of inquiry an information was filed against petitioner, charging him with the violation of the prohibitory liquor law of said state, and he was arrested for said offense, and was about to be placed upon trial before the Plonorable Ross F. Lockridge on said charge; and the petitioner contends that the Plonorable Ross F. Lockridge, in holding the said court of inquiry as aforesaid, inquiring into and having the petitioner informed against'and arrested, that the said Plonorable Ross F. Lockridge, the respondent, became so biased and prejudiced against the petitioner that the petitioner could not obtain a fair and impartial trial in said county court if the said respondent presided as trial judge therein.”
    In the' answer and return to the alternative writ of mandamus made by the respondent the following reply is made to the ground relied upon by petitioner to secure the-writ of mandamus :
    “This respondent further admits that, on or about the 8th day of July, 1911, a court of inquiry was held in the town of McLoud, Pottawatomie county, and that witnesses were sworn and examined before him, as by law provided for investigation of violations of the prohibitory laws in said community; and respondent alleges that upon taking of such testimony, it being shown that there was probable cause to believe that certain persons had violated the provisions of the prohibition laws of the said state, the county attorney of Pottawatomie county prepared informations and filed the same, charging such persons with offenses, and that John Nowakowski was one of such persons charged. But the respondent denies that the said inquiry at McLoud was held at his instigation, or for the express purpose of apprehending and placing any particular person or persons upon trial, but alleges the facts to be that a request was duly filed in the county court of Pottawatomie county, on the 6th day of July, 1911, by Chas. W. Friend, deputy county attorney of said county, requesting the respondent to hold an inquiry at the said town of McLoud, and to issue subpoenas for certain witnesses therein, and for any other witnesses that might have knowledge of violations of the prohibition laws. A copy of the said request is hereto attached, marked ‘Exhibit A,’ and made a part of this return. And thereupon, on the same day, to wit, the 6th day of July, 1911, the respondent made an order granting the said request which had been made by the said county attorney according to the provisions of the .laws of the state, and ordered that subpoenas be issued for the witnesses therein named, and other witnesses that might have knowledge of the violations of the prohibition law, requiring them to appear before the respondent on the 6th day of July, 1911, at the city hall at McLoud, Okla., at 10:00 o’clock a. m. of the said day. A copy of the said order is hereto attached, marked ‘Exhibit B.’ And the respondent especially denies that the said court of inquiry was held for the purpose of apprehending and placing the said John Nowakowski on trial for violating the prohibition liquor law of the said state, but alleges that the same was held for the purpose of inquiring into and investigating the violations of the prohibition' law generally in said community.”

      A. J. Carlton and, Baldwin & Pitman, for relator.
    /. PI. Maxey and C. P. Holt, for respondent.
   FURMAN, P. J.

(after stating the facts as above). In their brief in support of the petition for mandamus, counsel for relator state their position in the following language:

“It is the contention of the petitioner that the-holding of the court of inquiry by the respondent, as set forth in petitioner’s petition and admitted in the answer and return of the respondent, that the respondent became in law and in fact disqualified to preside as judge of the county court in the trial of this petitioner. While there are other allegations alleging disqualification of respondent, the above is the only point which we desire to press, and the one upon which we rely in this cause as a reason why the respondent is disqualified to preside as trial judge in the county court in the trial of the petitioner upon the charge aforesaid.”

If this contention be true, then every county judge who issues a warrant for the arrest of a defendant upon an information is disqualified from trying the case.

Section 6577, Snyder’s Comp. Laws of Okla. 1909, is as follows:

“When an information, verified by oath or affirmation, is laid before a magistrate, of the commission of a'public offense, he must, if satisfied therefrom that the offense complained of has been committed, and that there is reasonable ground to believe that the defendant has committed it, issue a warrant of arrest.”

In the case of De Graff v. State, 2 Okla. Cr. 519, 103 Pac. 538, this court said:

“From this it is seen that, the warrant of arrest must be based upon the information. The statute might have provided that the warrant of arrest should be issued upon an affidavit, or affidavits, which stated facts sufficient to satisfy the magistrate that an offense had been committed, and that there whs reasonable ground 'to believe that the party charged had committed it; but there is no such provision in our statute. On the'contrary, by the express language of the statute, the information is made the root and foundation of the matter, so. far as the issuance of the warrant of arrest is concerned, and this information must be verified by oath or affirmation. Another thing about this statute which must not be overlooked is that the magistrate, who issues the warrant is the person who must be satisfied that an offense has been committed, and that there is reasonable ground to believe that the defendant did commit it. This calls for the exercise of discretion on the part of the magistrate who issues the warrant. It is a judicial act on his part.”

The De Graff case was reaffirmed in Bowen v. State, 5 Okla. Cr. 605, 115 Pac. 376.

It is therefore seen that if we adopt the contention of counsel for relator, the effect would be to practically prohibit the trial of criminal cases by information in the county courts of the state, because in such cases the warrant must be issued by the county judge, and no warrant can be issued by a county judge, unless he is satisfied that the offense complained of has been committed, and that there is reasonable ground to believe that the defendant has committed it. Even if it were not for this statute, we still could not agree to the contention of counsel for relator.

In the case of Ingles v. McMillan, Judge, 5 Okla. Cr. 131, 113 Pac. 998, after a full discussion of the authorities, this court said:

“The constitutional provision which guarantees to every person charged with crime a trial without prejudice, in so far as it relates to the judge who presides at the trial, does not include the opinion of the judge as to the guilt or innocence of the defendant; but, in order to disqualify a judge, it must be shown that he is biased against, or entertains ill will or hostility toward, the defendant of such a character as might prevent him from giving the defendant a fair trial; and this must be shown as a matter of fact, and not as a matter of opinion of the defendant or any other person. A judge does not try the facts of a case. He simply passes upon the questions of law presented.”

In the Ingles case we examined every accessible authority, and did not find a single decision, where prejudice' must be proven, in conflict with the doctrine we there announced. An examination of the Ingles case will show that in a number of states it has been expressly held that a judge is not disqualified upon the ground of prejudice from presiding at the trial of a case, merely because he had previous thereto held a court of inquiry and bound the defendant over to trial.

In the case of Johnson v. Wells, 5 Okla. Cr. 599, 115 Pac. 375, an attempt was made to disqualify the county judge of Coal county upon the ground that he was a material witness for the defense; but this court refused to recognize this as being per se a ground of disqualification, and held that where this ground was relied upon the allegations contained in the petition must be such as to enable this court to determine, as a matter of fact, that such judge was thereby so disqualified. We now reiterate the statement that the mere fact that a judge may be a witness in a case does not, in and of itself, necessarily disqualify him from presiding in the trial of such case. It is true we have no statute directly providing that a judge may testify in a case over which he is presiding; but section 6494 of Snyder’s Comp. Laws of Okla. 1909 is as follows:

“The procedure, practice and pleadings in the district courts of this state, in criminal actions or in matters of criminal nature, not specifically provided for in this Code, shall be in accordance with the procedure, practice and pleadings of the common law, and assimilated as near as may be with the procedure,' practice and pleadings of the United States or Federal side of said court.”

We must therefore look to the common law to determine what the true rule is. There is no higher or safer authority on this subject than Mr. Wigmore. On page 2529, vol. 3, Wigmore on Evidence, the law upon this subject is stated as follows:

“Coming, then, to the reasons set forth in the above quotations, it will be seen that one of them at least — the inability of the judge to administer the witness’ oath to himself — is a petty obstacle (if it is one), which should rather be obviated (as it is in many jurisdictions) by a statute empowering the clerk to administer, rather than by the clumsy solution of disqualifying the judge. Furthermore, as to some of the other reasons, such as the impropriety of the judge passing upon his own claim of privilege, and the unseemliness of the judge being impeached for unveracity by the opponent, it may be said that these are the merest possibilities, that they may be trusted to be avoided through the combined good sense and discretion of counsel and judge, and that to establish a universal rule for the sake of rare contingencies is unpractical and unnecessary. The only real and remaining objections to the judge’s assuming the place of a witness seem to be in the first place, that he would be put thereby into a more or-less partisan attitude before the jury, and would, thus, as a judge, lose something of the essential traits of authority and impartiality; secondly, that his continuing power as judge would embarrass and limit the opposing counsel in his cross-examination of the judge witness, and would thus unfairly restrict the opponent’s opportunity to expose the truth; and, thirdly (though this is itself inconsistent with the first reason), that the judge’s official authority would impress his testimony upon the jury with special, and therefore unfair, weight. ‘In all these objections, there is a modicum of truth. Yet is it necessary on that account to lay down a universal prohibition? The force of the objestions would be most seen and would rise to an appreciable degree only when the judge became a principal witness, as in the case put by King Henry IV, where the judge had been an eyewitness of a murder. In all such batanees (which are rare enough), the usefulness of his testimony would be known beforehand, and his own discretion, and the parties, could be trusted to send the cause before another judge for trial. But in the ordinary instance the judge’s testimony is desired for merely formal or undisputed matters, such as the proof of execution of a certification, or of'the administration of an oath, or of a deceased witness’ former testimony. To suppose here a danger that the inconveniences above noted would occur in any appreciable degree is to be unduly apprehensive. Military commanders do not train cannon on a garden gate; and the law of evidence need not employ the cumbrous weapon of an' invariable rule of exclusion to destroy an entire class of useful and unobjectionable evidence, in order to avoid embarrassments which can easily be dealt with when they arise. Since the trial judge has no interest to subject himself or counsel or jury to these supposed embarrassments, it may properly be left to his discretion to avoid them, when the danger, in his opinion, arises, by retiring from the bench before trial, begun, or .by interrupting and postponing the trial, and securing another judge.”

This authority clearly lays down the doctrine that a judge may be a witness in a case over the trial of which he is presiding. In addition to the reasons giyen for this rule by Mr. Wigmore, suppose during the trial of a case it is unexpectedly discovered that some material fact in the case is within the personal knowledge of the presiding judge. To deny to either party the right to use the presiding judge as a witness might result in the defeat of justice. It should never be forgotten that the purpose of a trial is to discover the truth and to vindicate justice, and mere sentiment should never be permitted to interfere with this supreme purpose. The contingency above suggested arose twice in the practice of the writer of this opinion. On each occasion' the trial judge was sworn and testified as a witness, and the incident passed off without the least embarrassment to the judge, the counsel, or to either party to the case. We do not desire to be understood as holding that cases in which a judge may be a witness may not arise, in which it would be better for the judge to be disqualified from presiding at such a trial; but this matter should be determined by the circumstances of each case as they arise. We only desire to say that the mere fact that a judge may be a witness in a case does not, in and of itself, necessarily disqualify him from presiding at the trial of such case. Applying the principle hereinbefore stated to the case at bar, we hold that the fact that respondent conducted the preliminary examination which resulted in the prosecution of the relator, in the absence of any showing as to personal bias or prejudice upon the part of respondent toward relator, does not constitute such prejudice as will disqualify respondent from presiding at the trial of relator upon said charge.

The writ is therefore denied.

ARMSTRONG and DOYLE, JJ., concur.


author: DOYLE, J.

text:
      Ex parte F. T. MARTIN.
    No. A-1410.
    Opinion Filed October 14, 1911.
    (118 Pac. 155.)
    1. HABEAS CORPUS — Jurisdiction of Misdemeanor. A district court is not a ‘ ‘ court of competent jurisdiction ’ ’ .to try a misdemeanor, and is without power or jurisdiction to render a judgment of conviction in a misdemeanor case, or issue process thereon; and where a court was without jurisdiction or power to render the judgment or issue the process the imprisonment is illegal, and the courts should grant relief by habeas corpus;
    2. ESCAPE — Misdemeanor—Breaking Jail. Under section 7073, Snyder's Stat., it is merely a misdemeanor for a person imprisoned upon a commitment detaining him for trial for an offense, not capital, to break jail and escape.
    3. ESCAPE — Breaking Jail. Section 2164 of. the Penal Code and section 7073 of the Code of Criminal Procedure are not repugnant to each other.
    4. STATUTES — Repugnancy—Construction. If two acts passed by the same Legislature are repugnant to each other, ordinarily that which last received executive approval must prevail.
    (Syllabus by the Court.)
    Petition of F. T. Martin for writ of habeas corpus.

    Granted.

      E. L. Spriggs, for petitioner.

      Smith C. Matson, Asst. Atty. Gen., for the State.
   DOYLE, J.

The petitioner, F. T. Martin, was tried and convicted in the district court of the Sixth Judicial district, held in and for McCurtain county, upon an indictment returned, presented, and filed in open court on February 7, 1911. The charging part of said indictment reads:

“The said F. T. Martin was, on the 3d day of October, 1910, confined in the county jail at Idabel, in McCurtain county, Oklahoma, upon a commitment for perjury, awaiting the action of the grand jury, and on the said 3d day of October, 1910, while so confined in said jail, the said F. T. Martin did then and there unlawfully, maliciously, and feloniously, and by force, escape from said jail.”

Petitioner was sentenced to be imprisoned in the state penitentiary at McAlester for a term of one year. The judgment and sentence was entered February 27, 193.1, and on March 7th, in execution of the judgment, petitioner was delivered to the warden of the penitentiary at McAlester, where he has since been and is now confined.

On September 29th, there was filed in this court his petition, wherein it is averred that his imprisonment is illegal and unauthorized by law, because said district court was without jurisdiction to try said cause, and therefore the judgment of conviction is void, for the reason that said indictment only charged a misdemeanor, as defined by section 2023, Snyder’s Statutes, of which offense so charged the county court of McCurtain had exclusive jurisdiction.

The single question presented is, Do the facts alleged in the indictment constitute a felony or a misdemeanor?

Section 2164, Snyder’s Stat., provides:

“Every prisoner confined in any other than the state prison, who by force or fraud escapes therefrom, is punishable by imprisonment in the state prison not exceeding two years, or in a county jail not exceeding one year, to commence from the expiration of the original term of his imprisonment.”

This act was approved December 23, 1890.

Section 7073 provides:

“If any person who may be imprisoned pursuant to a sentence of imprisonment in the county jail, or any person who shall be committed for the purpose of detaining him for trial, for any offense not capital, shall break prison and escape, he shall be imprisoned in the county jail for the term of six months.”

This act was approved December 24, 1890.

Section 2022 provides:

“A felony is a crime which is, or may be, punishable with death, or by imprisonment in the state prison.”

Section 2023 provides:

“Every other crime is a misdemeanor.”

The certified copy of the indictment attached and made a part of the petition shows that at the time of the alleged escape petitioner had not been convicted of a felony, but had been c.ommitted to the county jail upon a preliminary examination for an offense not capital, there to await the action of the grand jury.

Presumably the district court assumed jurisdiction to try the case on the theory that a violation of section 2164 was charged. This provision of the Penal Code contemplates imprisonment for a specific term, and has no application to the facts as alleged in this indictment. As we view these provisions, they are not repugnant to each other, and while they were passed by the same Legislature, section 7073 is the later act, having been approved subsequently to section 2164. If there is any repugnancy the later act must prevail.

It thus follows that the acts charged in the indictment constitute merely a misdemeanor, and the district court was without jurisdiction or power to try the indictment, or to render judgment of conviction, or to issue the commitment thereon. It could .only certify said indictment and record to the county court for trial. We are clearly of the opinion that petitioner is unlawfully imprisoned under said judgment of conviction and commitment.

Wherefore, the writ'of habeas corpus is allowed, and it is ordered that petitioner be discharged from imprisonment under said judgment, sentence, and commitment, and that respondent, the warden of the penitentiary, deliver him to the custody of the sheriff of McCurtain county. It is further ordered that the clerk of this court forward forthwith the mandate in this case to the clerk of the district court of McCurtain county, and that said clerk issue to the sheriff of McCurtain county said mandate; and said sheriff is directed to present the same without delay to the warden of the penitentiary, and receive and transport said petitioner to the county jail of McCurtain county, pending the further action of the district and county courts of said county in said case.

FURMAN; P. J., and ARMSTRONG, J., concur.