author: EURMAN, J.

text:
    MONTEL HAGER v. STATE.
    No. A-1767.
    Opinion Filed July 5, 1913.
    (133 Pac. 263.)
    1. WITNESSES — -Mode of Examination. Police court methods in the examination of witnesses in courts of record in Oklahoma will not be tolerated.
    2. SAME — Cross-Examination—Insulting Insinuations. Great latitude should be allowed in the cross-examination of witnesses, and they may be interrogated in a proper manner with reference to • any matter which may tend to affect their credibility, but they should not be asked questions which are full of insulting insinuations and intimations that they are guilty of some other crimes than that for which they are upon trial.

      3. APPEAL — New Trial — Misconduct of Prosecuting Attorney. Where-the record shows that counsel for the state in a prosecution of a person charged with crime has been guilty' of conduct calculated to arouse prejudice or passion against the defendant and to prevent the accused from having a fair and impartial trial, a conviction had will be set aside, and a new trial granted.
    4. SAME — Harmless Error — Extent. of Doctrine. The doctrine of harmless error will not be extended to such an extent as to deprive a defendant of a fair trial.

      Appeal from County Cotirt, Pottawatomie County; Ross F. Lockridge, Judge.

    Montel Hager was convicted of giving away whisky, and appeals.
    Reversed.

      S. P. Preeling and I. C. Saunders, for appellant.

      C. J. Davenport, Asst. Atty. Gen., for the State.
   EURMAN, J.

Appellant was prosecuted for giving away whisky; and, being upon the stand as a witness in his own behalf, was subjected to the following cross-examination:

“Q. You kept whisky at the camp ever since you have been employed haven’t you? (Objected to as incompetent, irrelevant, and immaterial, which objection was overruled by the court. Defendant excepts). A. I have not. Q. Been furnishing the convicts whisky? (Objected to as incompetent, irrelevant, and in»material, which objection was overruled, by the court. Defendant excepts.) A. I have not. Q. Do you remember the occasion about two weeks ago of holding up the Indian agent out by the slaughter pens and drawing your gun; you was drunk and made him get out of your way? By S. P. Freeling: The defendant objects as incompetent, irrelevant, and immaterial. By the Court: Objection overruled. To which ruling of the court the defendant excepts. Q. You'had a camp out there didn’t you? A. Where was it? Q. Out there by'the slaughter pens at that bridge across the Canadian river, between here and Shawnee? A. No, sir; I didn’t. Q. The county had a camp there? A. Yes, sir. Q. You had charge of it? A. No, sir. Q. You was there as guard? A. Yes, sir. Q. Who had charge of the camp? A. G. T. Redding. Q. You don’t remember seeing the Indian agent come along there last fall? A. I don’t think I did. Q. Was you ever drunk? A. No, sir; I don’t think I was, not at the bridge. Q. Was you ever drunk any place else when you were on the road as guard? S. P. Freeling: Defendant objects as incompetent, irrelevant and immaterial. The Court: Objection overruled. To which ruling of the court the defendant excepts. A. I have drank some. Q. Along in the winter, didn’t you drive one of the county’s teams in town and stop in front of the courthouse and fall off the wagon? You was so drunk you fell- down there? S. P. Freeling: Defendant objects as incompetent, irrelevant, and immaterial. The Court: Objection overruled. To which ruling of the court the defendant excepts. A. I don’t know. Q. You was so drunk you don’t know? A. I don’t remember. Q. If you had done it, you would have remembered it, wouldn’t you ? A. Well, I don’t know. Q. You don’t know whether you did or whether you didn’t? S. P. Freeling: Defendant objects as repetition. By the Court: Objection overruled. To which ruling of the court defendant excepts. A. I couldn’t say. To the best of my recollection I didn’t. I wouldn’t answer positively. Q. How long have you been working for the county ? A. In what capacity? O. In connection with the road camp. A. I think it was the last part of last March. Q. March, 1911? A. Yes, sir. Q. When did you quit? A. The 13th day of February. S. P. Freeling: Defendant objects as incompetent, irrelevant, and immaterial. By the Court: Objection overruled. To which ruling of the court defendant excepts. A. I was arrested charged with giving the'boys whisky. O. Did you resign? A. I did not. Q. How were your connections with the road camp severed? A. The way it was commenced I presume. Q. By the same authority that placed you there? A. I don’t know how it was.”

We cannot indorse this method of treating a defendant.

In the case of Will Harris v. State, 9 Okla. Cr. 658, 132 Pac. 1121, this court endeavored to emphasize its views as to the necessity of treating a defendant fairly at every stage of his trial. See, also, Thompson v. State, 9 Okla. Cr. 5.25, 132 Pac. 695, decided at the last term of this court. In the case of Jelts v. State, 1 Okla. Cr. 734, 123 Pac. 1130, this court said:

“There is other prejudicial cross-examination disclosed by the record. This court has always been exceedingly liberal with the prosecuting attorneys of this state, and endeavors always to uphold every proper conviction brought here on appeal. But a prosecuting attorney should not permit his high officfe to be prostituted in the interest of malice or oppression. He should not be guilty of indulging in the character of examination disclosed by this record. It does not make any difference how guilty a man is, he ought to be tried in a fair and impartial manner, and according to law. Prosecuting attorneys are not charged with the duty of securing convictions by improper methods. They should see that substantial justice is meted out in the manner provided by law, and no conviction should be sought or demanded unless it can be had by compliance with the safeguards and rules established to prevent oppression. A conviction had under the circumstances disclosed by the record under consideration cannot be sustained.”

The doctrine of harmless error will become intolerable if absolute fairness is not accorded defendants upon trial. The idea which some prosecuting attorneys and trial judges appear to entertain, that, when a defendant is upon trial charged with a criminal offense, he has no rights which courts and prosecuting attorneys are bound to respect, has no foundation in justice or in law. Every man is presumed to be innocent until his guilt has been established in a fair trial to the satisfaction of the jury beyond a reasonable doubt.

It is true that great latitude should be allowed attorneys in cross-examining witnesses, but their questions should not contain insulting insinuations and intimations that a defendant is guilty of some other crime. See Watson v. State, 7 Okla. Cr. 590, 124 Pac. 1101. In that case this court said:

“When the record discloses that counsel for the state, in the prosecution of a person charged with crime, has been guilty of conduct calculated to arouse the prejudice or passion of the jury and prevent the accused from having a fair and impartial trial, a conviction had should be set aside by the trial court, and a new trial awarded.”

The cross-examination in the case at bar is full of insinuations and intimations that appellant was guilty of a number of offenses, which could not be otherwise than prejudicial to appellant, and upon this ground alone the judgment of the trial court will be reversed and the cause remanded for a new trial. This court stands squarely for the doctrine of harmless error, but it is equally committed to the doctrine that fairness must prevail in the trial of criminal cases. We will not tolerate police court methods in courts of record. Trial courts should confine the cross-examination of witnesses to legitimate subjects of inquiry, and should not permit a witness to be brow-beaten or asked insulting questions.

The judgment of the trial court is reversed, and the cause is remanded for a new trial.

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


source: Caselaw Access Project

author: DOYLE, J.

license: Public Domain

text:
    CHARLES NICHOLS v. STATE.
    No. A-1729.
    Opinion Filed July 8, 1913.
    (133 Pac. 256.)
    EVIDENCE — Evidence of Accomplice — Corroboration. To allow a conviction to stand upon the testimony of an accomplice not corroborated by any other evidence tending to connect the defendant with the commission of the offense would be in direct violation both of the letter and spirit of section 5884, Rev. Laws 1910, Procedure Criminal. The requirement of the law in this respect cannot be satisfied by any amount of corroborate evidence which does not tend to connect the defendant with the commission of the offense charged.

      Appeal from County Court, Craig County; S. F. Parks, Judge.

    Charles Nichols was convicted of violation of the prohibitory law, and appeals.
    Reversed and remanded.

      Bdw. H. Brady, for plaintiff in error.

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

The plaintiff in error, Charles Nichols, and one Roscoe Barney were jointly charged by information, filed February 15, 1911, with the unlawful sale of one pint of whisky to Lee Wilson, on the 11th day of February, the same year. On April 3d, plaintiff in error appeared, waived arraignment, and entered a plea of not guilty, and the case was set for trial on the next day. April 4th, the court on a motion of the state granted a severance and the state elected .that plaintiff in error be first tried. Thereupon he filed an application for continuance. The affidavit in support of his application states that Ad Holden, who resides at Centraba, Craig county, is a material witness in his behalf, and if present would testify that he was with this defendant from 9 o’clock in the morning of said day until 9 or 10 o’clock that evening, and knows that this defendant did not sell, barter, give away, or otherwise furnish any intoxicating liquor to Lee Wilson, and that this defendant was not at the place where it was claimed that he sold the liquor, and that said testimony is true and that said witness can be secured by the next term of court, and that said facts cannot be proven by any other witness; that when the case was set for trial the day before he caused a subpoena to be issued and delivered to the sheriff; that Centraba is 22 miles distant from Vinita and the roads between are now almost impassable, and that the sheriff has been unable to serve said subpoena, and the defendant has not had sufficient time to secure this evidence. Which application was overruled and exception allowed.

Wesley Mowrey, the first witness for the state, testified that he was fourteen years of age; that on February 11th between 1 and 8 o’clock p. m. he was with Lee Wilson at the Star barn in Centraba, and there met Roscoe Barney, and Lee Wilson bought a, half pint of whisky from Roscoe Barney; that he- did not know the defendant Charles Nichols.

Lee Wilson testified that he was fourteen years of age, did not know the defendant Charles Nichols, but knew Roscoe Barney; that on Sunday evening he, with Wesley Mowrey, was at the Star barn and asked Roscoe Barney if he could get them some whisky and he said he thought he could get a little from Nick; that he gave him 50 cents and he went to the Johnston Hotel and returned with a half pint of whisky and gave it to them.

Thereupon the state asked for a dismissal of the case as to the defendant Roscoe Barney, and it was so ordered by the court. Roscoe Barney was then called as a witness on behalf of the state and testified that he lived at Centraba; had worked five or six months at the Star livery barn for Frank Nix. That Lee Wilson and Wesley Mowrey came to the barn about 8 o’clock that evening and they wanted whisky, and he went over to the hotel and called Mr. Nichols out and got a half pint of whisky from him, paid him 50 cents for it, and brought it back and gave it to the boys. On cross-examination he stated that he left the county about that time.

Charles Nichols, the defendant, as a witness in his own behalf, testified that he lived on his farm six miles west of Cen-traba, and he never did at any time sell or furnish whisky to Roscoe Barney, that he never did see Lee Wilson until he testified as a witness in this case, and knew nothing about Roscoe Barney selling or furnishing whisky to Lee Wilson.

The jury returned a verdict finding the defendant guilty as charged in the information. Motion for new trial was duly filed, and overruled on April 8, 1912, at which time the court pronounced judgment, and sentenced the defendant to be confined in the county.jail for four months and to pay a fine of $500. From the judgment the defendant appealed by filing in this court, May 23, 1912, his petition in error with case-made.

We have not been favored by either a brief or oral argument in behalf of the defendant. The petition sets forth 29 assignments of error, and from our examination of the record it would seem that each and all are well taken. However, it suffices for the disposition of this appeal to say that the verdict and judgment are not supported by the law and the evidence. There was no evidence adduced that tended to connect the defendant with the commission of the offense charged, except that of his code-fendant, who upon his own testimony is an accomplice, and a verdict of guilty upon the uncorroborated testimony of an accomplice is contrary to law and the evidence. Thompson v. State, 9 Okla. Cr. 525, 132 Pac. 695; Head v. State, 9 Okla. Cr. 356, 131 Pac. 937.

Our view of the evidence necessarily disposes of and determines the case; however, it is apparent from the record in this case that the most simple and plain rules of evidence and procedure were disregarded upon the trial. A record of this kind, we should not pass by in silence, lest our silence should be interpreted into an indorsement of, or indifference to, such practices.

We think it was an abuse of discretion to permit the severance and to overrule the application for a continuance upon the showing made. But assuming that the action of the court on these matters did not constitute error, owing to the charity which may be indulged in on account of the mistaken view on the part of the county attorney that he might be able to connect the defendant with the sale of the whisky to these boys by Roscoe Barney, after they had testified positively that Lee Wilson bought the whisky of Roscoe Barney the county attorney should have known that he could not make a case against the defendant on the uncorroborated testimony of an accomplice, and for this reason the court erred in permitting the county attorney to dismiss the case against Roscoe Barney, as clearly it was a miscarriage of justice to grant immunity to Roscoe Barney, when the evidence of his guilt was undisputed. The rule of law forbidding a conviction upon the testimony of an accomplice unless he be corroborated by such other evidence as tends to connect the defendant with the commission of the offense is, under the statute (section 5884, Rev. Laws 1910), positive and peremptory.

The state only demands the punishment of a citizen when his guilt has been clearly established according to the forms and rules of law prescribed for ascertaining his guilt. • It is not to shield the guilty, but to protect the innocent that courts are steadfast in upholding the forms and rules of law by which it may be lawfully determined who are guilty. A fair trial is a legal trial, or one conducted in-all material things in substantial conformity to law. And one of the first lessons which a county attorney should learn is that the state does not expect and will not tolerate the use of any unfair means or methods to secure the conviction of one charged with crime. If a conviction of the defendant cannot be had fairly, then the state does not ask for a conviction, because such a conviction would be tainted with, if not founded upon, injustice and wrong. An unfair trial in a criminal case is a reproach upon the administration of public justice and casts grave responsibility not only upon the prosecuting attorney, but also- upon the trial judge.

Because the evidence, independent of the testimony of the codefendant Roscoe Barney, does not tend to connect the defendant with the commission of the offense charged, the judgment of the county court of Craig county herein is reversed and the cause remanded with direction to dismiss.

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


text:
    R. C. BENSON v. STATE.
    No. A-1654.
    Opinion Filed July 8, 1913.
    (133 Pac. 271.)

      INTOXICATING LIQUORS — Appeal — Verdict — Evidence—Sufficiency. While it is well settled that this court will not disturb the verdict on account of the evidence when there is evidence to support it, the converse rule is equally well settled that it is not only the province, but the duty, of the court to set aside such a verdict when it is contrary to the evidence, or where there is no evidence to support it. The performance of this duty on the part of the court is the exercise of legal discretion and judgment as to the sufficiency of the evidence to overcome the legal presumption of innocence, to which every one is entitled who is put upon his trial for an offense. (See opinion for evidence held insufficient to support the verdict and judgment.)

      Appeal from County Court, Murray County; Harry W. Fielding, Judge.

    R. C. Benson was convicted of violating the prohibition law, and appeals.
    Reversed.

      Kendrick, Davis & Smith, for plaintiff in error.

      Chas. West, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen. (Herbert M. Peck, of counsel), for the State.
   DOYLE, J.

Plaintiff in error, R. C. Benson, was. convicted in the county court of Murray county. 'On the 8th day of February, 1912, judgment was entered, and he was sentenced to be imprisoned for 60 days in the county jail and to pay a fine of $100.- From the judgment he prosecutes this appeal.

The record shows that on November 29, 1911, G. E. Mook made complaint before G. P. Dickinson, justice of the peace in and for the town of Davis in said county, against R. C. Benson, charging the said Benson with the crime of selling spirituous liquor on the 26th, 27th, and 28th days of November. Upon said complaint the justice issued a warrant for said Benson. He was arrested and immediately gave bond for his appearance before the county court. On December 2d the justice filed with the clerk of the county court a transcript of the proceedings. On January 31, 1912, an information was filed in the county court, charging that R. C. Benson did on or' about the 26th day of November unlawfully sell, barter, give away, and otherwise furnish spirituous liquor, to wit, whisky and alcohol, to Ed. Gray-son, contrary to, etc. Which information was signed, “E. W. Fagan, County Attorney, by Ira M. Roberts, Assisting County Attorney,” and the same was verified by Ira M. Roberts. Trial was had on February 5th on the said information which resulted in a verdict of guilty.

Ed. Grayson, the first witness for the state, testified that he lived at Davis, and was acquainted with the defendant. Plis testimony as shown by the transcript -is then as follows:

“Q. Do you remember going with Mr. Mook down to the house of R. C. Benson? A. Yes, sir. Q. State when that occurred? A. He said he didn’t have anything; said possibly he would have in some, or something like that; don’t remember; quite a while ago; but I went down to get some, and he didn’t have it. I did this bn his account. Q. Tell the jury if on or about the 26th day of November, 1911, don’t care about the exact date just so within a year, did you see Mr. Benson personally, and did be furnish you any whisky or alcohol in any amount? A. I have told the jury all I know about the whisky I bought. Q. Answer the question. A. No. Q. About that time, did Mr. Benson give you a drink of alcohol? A. He gave me a drink of alcohol. I suppose it was him; at that time I didn’t know him, until some time ago. And one night he gave me a drink of alcohol out of a bottle. It must have been in July, somewhere along there; don’t remember what time it was, but quite a while ago. He gave me a drink one night. Q. Did you pay him for that, or did he just give it to you? A. Didn’t pay him for it. Q. Did he give it to you? A. Yes, sir. Q. In Murray county, state of Oklahoma? A. Yes, sir. Q. About what day? A. Couldn’t tell you to save my life — two or three months before Christmas — July or August. 'Q. 1911? A. Yes, sir.”

Cross-examination:

“Q. You say in the month of July Curley gave you a drink of alcohol? A. Don’t remember whether it was July or August. It was several months ago in the summer. Q. Did you know it was alcohol? A. It tasted like it to me. Q. You don’t know it was alcohol? A. No, sir; only tasted it.”

G. II. Mook testified that he was a deputy sheriff and knew the defendant for several months; that during that time he was a restaurant cook. He then stated:

“I had information brought to me from certain parties that the defendant was selling whisky, and I tried to catch him, tried most every way I could think of, and I got after Mr. Grayson. He had a drink or two, and I was satisfied was wanting more whisky, and I says to him, ‘I will lay out in the dark.’ At that time Mr. Benson was boarding at Bus Caton’s house, west of the railroad track, and I says, ‘Will lay out in the grass where I can hear the conversation and see the transaction between you and the defendant, and he won't know' I am there.’ So he went up, and this night the defendant seemed to be under the influence of whisky pretty strong, and he had to talk very rough to him to get him woke up, so he asked him if he had any whisky or alcohol, and he said lie didn’t, but would have some in tomorrow. We walked back up town, and that is about all to it.”

On cross-examination he stated:

“I don’t remember the date, I judge it to be along in August or September, something like sixty days before I made the complaint.”

The state rested. Thereupon the defendant demurred to the evidence and moved to be discharged, which was overruled by the court, and exception allowed.

R. C. Benson, the defendant, as a witness in his own behalf testified that he was a cook in a city cafe at Davis; that he did not give witness Grayson a drink of whisky or alcohol in the month of July or of August, or at any other time; that he was confined in the county jail of Murray county during the months of July and August and was released some time in September; that some time in November Grayson came to where he was boarding and woke him up and asked him for whisky, but he did not give him any. On cross-examination he stated that he was in jail for carrying beer across the street.

This was all the evidence in the case. The only question of moment presented is the sufficiency of the evidence to support the verdict and judgment.

It is well settled that this court will not disturb the verdict on account of the evidence when there is evidence to support it. The converse rule is equally well settled that it is not only'the province but the duty of the court to set aside such a verdict whén it is contrary to the evidence, or where there is no evidence to support it.

Section 5937, Rev. Laws 1910, Procedure Criminal, provides that a new trial shall be granted “when the verdict is contrary to law or evidence.” Under this provision the responsibility of determining whether or not there has been adduced before the jury a sufficient amount of legal and competent evidence to render it safe to allow the verdict to stand is imposed upon the trial court in the first instance and on appeal upon this court.'

The performance of this duty on the part of the court is the exercise of legal discretion and judgment as to the sufficiency of the evidence to overcome the legal presumption of innocence to which every one is entitled who is put upon his trial for an offense.

We are of opinion that the verdict and judgment in this case is clearly contrary to the evidence, and that the trial court erred in refusing to advise the jury to acquit the defendant.

We have fully set forth the proceedings with a view of illustrating the necessity of an observance of proper procedure in cases of this kind. The justice of the peace had no jurisdiction to entertain a complaint charging an unlawful sale of intoxicating liquor, and the evident purpose of such procedure was to create claims for official fees.

The information recites that the county attorney’s name was signed by an “assisting” county attorney. Our Procedure Criminal (section 5694, Rev. Laws 1910) provides that:

“The county attorney shall subscribe his name to informa-tions filed in the county, superior or district court.”

And section 1563, Rev. Laws 1910, provides that:

“In all counties having a population of not over twenty-five thousand the board of county commissioners may, in their discretion, allow one assistant county attorney.”

The information here shows that the county attorney’s name was signed by an “assisting” county attorney. No doubt a county attorney may employ assistants in various ways not involving official discretion or responsibility, but he cannot authorize his name to be signed to informations by a person other than his duly appointed and qualified assistant. The law has carefully guarded the administration of public justice from any interested or unauthorized intermeddling. It may be that the attorney who signed the information as “assisting” county attorney was the “assistant” county attorney. However, the proper practice is that the assistant county attorney should designate his office by using the statutory words.

Because the verdict is contrary to the evidence, the judgment is reversed.

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


text:
    John McGarrah v. State.
    No. A-1723.
    Opinion Filed July 12, 1913.
    (133 Pac. 260.)
    1. PROSECUTING ATTORNEYS — Authority and Duties — Delegation to Assistant. A county attorney is vested with a personal discretion and responsibility as a minister of justice, and not as a mere licensed attorney, and he must act impartially, as well in refraining from prosecuting as in prosecuting. He must guard the real interests of public justice in behalf of all concerned, and he is disqualified from becoming in any way entangled with private interests or grievances connected with the private practice of law, and, while he may employ assistants in various ways not involving his official discretion or responsibility, he cannot delegate this discretion except to an assistant, duly appointed and qualified as provided by law.
    2. INDICTMENT AND INFORMATION — Execution—Signature of Assistant County Attorney. An information signed in the name of the county attorney by a duly appointed and qualified assistant county attorney is valid.
    3. PROSECUTING ATTORNEYS — Assistants — Authority'—Statutory Provisions. Under the statute (section 1563, Rev. Laws 1910) authorizing county attorneys with the assent of the board of county commissioners to appoint not to exceed four assistants in counties having a population of over 60,000, at salaries fixed by the statute to be paid by the county, an additional assistant appointed and paid by the county attorney himself is not a legally constituted assistant county attorney.
    4. INDICTMENT AND INFORMATION — Misdemeanor—Signature of Assistant County Attorney. The conviction of a person under an information charging a misdemeanor, not signed by the person designated by law, is void for want of jurisdiction in the trial court.

      Appeal from County Court, Oklahoma County; John W. Hayson, Judge.

    John McGarrah was convicted of violating the prohibitory law, and appeals.
    Reversed and remanded.

      Pruiett, Sniggs & Wilson, Harris & Nowlin, and Kenneth C. Crain, for plaintiff in error.

      Chas. West„ Atty. Gen., and Smith C. Matson and B. G. Spilman, Asst. Attys. Gen., for the State.
   DOYLE, J.

This appeal is prosecuted from a conviction had in the county court of Oklahoma county, in which plaintiff in error was found guilty under an information which charged that he did have , in his possession intoxicating liquors with the intent to sell, barter, give away, and otherwise furnish the same in violation of law. On the 8th day of January, 191.2, he was sentenced in accordance with the verdict of the jury to be confined in the county jail for a period of six months and to pay a fine of $500.

It is first assigned as error that the court erred in refusing to quash the information and in overruling the defendant’s objection to the introduction of any evidence, upon the ground of the insufficiency of the information, and particularly because the same was not signed and preferred by the county attorney. Said information is signed and verified as follows:

“Sam Hooker,

“County Attorney Oklahoma County.

“State of Oklahoma, Oklahoma County — ss.:

“I, H. M. Peck, being duly sworn on my oath, declare that the statements set forth in the above information are true. H. M. Peck.

“Subscribed and sworn to before me this 15th day of Aug. 1911. James S. Powers, clerk County Court. [Seal.]

“I have examined the facts in this case and recommend that a warrant do issue. Sam Hooker, County Attorney, by H. M. Peck, Deputy County Attorney.”

In this connection counsel contend that the proof showed that H. M. Peck, who signed the county attorney’s name thereto, was not a legally appointed assistant county attorney of Oklahoma county.-

The defendant called Sam Hooker, county attorney, who testified that he as county attorney did not sign the information; that he had five assistant county attorneys and appointed PI. M. Peck in January, 1911; that Mr. Peck does not draw a salary from the county; that he personally paid him for his services as an assistant.

H. M. Peck was called as a witness by the defendant and testified that he qualified as an assistant county attorney on the 9th day of January, 1911, having been designated as an assistant county attorney by the board of county commissioners.

It is elementary that there can be no conviction or punishment for a crime without a proper and sufficient accusation, and in the absence thereof the court acquires no jurisdiction whatever, and, if it assumes jurisdiction, such trial and conviction are a nullity. It is essential to the validity of an information charging a misdemeanor that it be signed by the county attorney, as his signature is expressly required by the statute.

Section 5694, Rev. Laws 1910, provides:

"The county attorney shall subscribe his name to informa-tions filed in the county, superior or district court.”

An unqualified reading of the words of the statute would make it necessary for the county attorney himself to subscribe his own name to all informations; but it has been held that the county attorney need not himself subscribe his name to an information, as it is sufficient if it be done by his legally appointed assistant. Fooshee v. State, 3 Okla. Cr. 666, 108 Pac. 554. As is said in Reed v. State, 2 Okla. Cr. 589, 103 Pac. 1042: “The laws of this state only prohibit persons other than the county attorney, or his deputies/ from performing such acts in the prosecution of crimes as are strictly official, such as appearing before and advising the grand jury;” signing and preferring informations; “approving complaints, etc. The assistance of private counsel in the trial of criminal cases is not prohibited. This is a matter entirely in' the discretion of the county attorney, who has complete control in conducting public prosecutions, subject only to the supervision of the court upon the trial.”

With reference to the office of county -attorney our statutes provide:

Section 1557, Rev. Laws 1910:

. “The county attorney shall not engage in the private practice of law, but in addition to his annual salary, which shall be the same as that of the county judge, he shall receive twenty-five per cent, of all forfeited bonds and recognizances by him collected ; nor shall any county attorney while in office be eligible to or hold any judicial office whatever; but if the county attorney of one county shall be requested to go to another county, or from one part to another part of his county to transact any business as county attorney, he shall be paid by his county the amount of his necessary expenses in transacting such business, in addition to the salary.”

Section 1558, Id.:

“The district court, whenever there shall be no county attorney for the county, or when the county attorney shall be absent from the court, or unable to attend to his duties, or disqualified to act, may appoint, by an order to be entered in the minutes of the court, some suitable person to perform for the time being the duties required by law to be performed by the county attorney, and the person so appointed shall thereupon be vested with all the powers of such county attorney for the purpose. Such attorney shall be paid a reasonable compensation for his services by the county for which he is so- appointed.”

Section 1563, Id.:

“In all counties having a population of not over twenty-five thousand the board of county commissioners may, in their discretion, allow one assistant county attorney at a salary of not to exceed seventy-five dollars per month; and in counties having a population of over twenty-five thousand they shall allow one assistant county attorney a salary of not to' exceed one hundred dollars per month; and in counties having a population of over thirty-five thousand and not over sixty thousand they may, in their discretion, allow one additional assistant county attorney ■at a salary of not to exceed seventy-five dollars per month; and in counties having a population of over sixty thousand, two additional assistant county attorneys at a salary of one at one hundred and fifty dollars and one at one hundred dollars per month; such salaries to be pa-id monthly out of the county treasury by order of the board of county commissioners.”

The contention of counsel for the defendant is that the sections above quoted construed together limit the appointing power of the county attorney to the number of deputies prescribed by section 1563, and that, as the proof shows that H. M. Peck was apparently not one of the number appointed within these limits, he was not at the time of signing this information a legal assistant county attorney of Oklahoma county.

This court will take judicial notice of the fact that Oklahoma county is a county having a population of over 60,000. The section quoted only authorizes the allowance of four assistants. The county attorney testified that Mr. Peck, who signed his name to the information in this case, draws no salary from the county, but was paid by the county attorney himself. PI. M. Peck was evidently, therefore, not a salaried assistant county attorney, and we think he cannot be regarded as a legally constituted assistant county attorney of Oklahoma county, and the signing of the county attprney’s name to an information by a person other than a duly appointed and qualified assistant is not a defect or imperfection in matter of form only, within the curative provision of the statute, section 5747, Id., which provides :

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

We know of no rule of law whereby a public officer may delegate power or authority involving official discretion or responsibility, except as prescribed by the statute. The law has very carefully guarded the administration of public justice from any interested or unauthorized intermeddling. The county attorney is a very responsible officer, selected by the people and vested with a wide personal discretion, intrusted to him as a minister of justice. There are many reasons why a power of this kind should be confined to the prosecuting officer. He is expected to be impartial in abstaining from prosecuting, as well as in prosecuting, and to guard the real interests of public justice in favor of all concerned.

It is therefore of the highest importance to the public that this power should be carefully exercised, and that the responsibility should rest upon the officer to whom it is confided.

By section 1557, supra, a county attorney is disqualified from becoming in any way entangled with private interests, or grievances connected'with the private practice of law. The office of county attorney is quasi judicial, and the county attorney and his legally appointed assistant must be exclusively the representative of public justice, and stand indifferent as between the defendant and any private interest. No doubt a county attorney may employ assistants in various ways, not involving his official discretion or -responsibility; but our laws have only allowed his official discretion to be delegated where assistant county attorneys have been provided for by the statute. The public have a right to insist upon the performance of public duties that are strictly official in the prosecution of crime by county attorneys and assistants duly appointed and qualified as provided by law, and we think it would be directly contrary to public policy to allow or permit any general delegation of the county attorney’s power or responsibility in this respect.

It is our opinion that, the county attorney’s name not having been subscribed to the information by himself or by a legally constituted assistant, the court acquired no jurisdiction to try the case, and the conviction and sentence of the defendant are void.

It also appears that the evidence is insufficient to support the verdict and judgment.

The judgment of the county court of Oklahoma county is therefore reversed, and the cause remanded thereto to be disposed of as required by law.

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


text:
    LEVI YOTA v. STATE.
    No. A-1691.
    Opinion Filed July 12, 1913.
    (133 Pac. 257.)
    APPEAL — Death of Appellant — Abatement. In a criminal prosecution, the purpose of the proceeding being to punish the defendant in person, the action must necessarily abate upon his death; and where it is made to appear to the court that a plaintiff in error has died, pending the determination of his appeal, the cause will be abated.

      Appeal from District Court, Latimer County; W. H. Broivn, Judge.

    Levi Yota was convicted of grand larceny, and brings error.
    Prosecution abated.

      Charles H.-Hudson, for plaintiff in error.

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

Plaintiff in error, Levi Yota, was tried on an indictment by 'which he was charged with the theft of $123, the personal property of Sophia Carr; and on the 14th day of October, 1911, in accordance with the verdict of the jury, he was, by the court, sentenced to be imprisoned in the penitentiary for a term of eighteen months. To reverse the judgment an appeal was perfected by filing in this court on April 11, 1912, a petition in error with case-made.

Since the appeal was taken, and before the final submission of the cause, to wit, April 15, 1913, he departed this life, as shown by the affidavits of Ben Hoklotubbu and Silas Pusley, who depose and say that they personally knew and were well acquainted with the plaintiff in error, Levi Yota, for twenty years during his lifetime, and that he died at his home near Blanco, Pittsburg county, Okla., on said date. These affidavits are attached to and made apart of the suggestion of the death of the plaintiff in error, made by the Attorney General, and filed in this court on July 3, 1913.

In a criminal action, the purpose of the proceeding being to punish the defendant in person, the action must necessarily abate upon his death. It is therefore considered that the proceedings in this prosecution do abate.

It is so ordered.

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


text:
    M. B. VIERS v. STATE.
    No. A-1619.
    Opinion Filed July 19, 1913.
    (134 Pac. 80.)
    1. GRAND JURY — Motions to Set Aside Indictment — Summoning Talesmen. The statute (section 3690, Rev. Laws 1910) requires that each jury list shall be made up of names of qualified taxpayers, to be selected, as near as practicable, in due proportion to the voting strength from all parts of the county; that sueh names shall be placed in the jury box. Section 3692, Rev. Laws 1910, expressly provides that if a grand jury is ordered, the first names drawn, not to exceed 24, shall be summoned as grand jurors, and the grand jury shall be impaneled from said persons. Section 5714, Id., provides that wnen a vacancy exists in the grand jury panel, the court must order the names of additional jurors to be drawn from the jury box in the same manner as the original grand jurors were drawn. In this case the record shows that upon the assembling of the persons summoned as grand jurors whose names had been drawn from the jury box, the court excused a number of those so summoned, leaving an insufficient number to complete the grand jury panel. Thereupon the court directed that an open venire be issued to the sheriff for four talesmen to be summoned from the body of the county to complete the grand jury panel, and one member was summoned from the bystanders. Held, that the court had no power to order grand jurors to be summoned from, the body of the county, and that a motion to set aside the indictment on this ground should have been sustained.
    2. PROSECUTING ATTORNEYS — Assistant County Attorneys — Statutory Provisions. Under the statute (section 1563, Rev. Laws 1910) authorizing county attorneys in counties having a population between 25,000 and 35,000, to have one assistant, an additional assistant, appointed by the county attorney with the assent of the board of county commissioners, is not a legally constituted assistant county attorney.
    3. SAME — County Attorneys — Duties—Delegation of Discretion. The county attorney is a quasi judicial officer, and he and his legally appointed assistant represent public justice exclusively, and stand indifferent as between the defendant and any private interest; and, while the county attorney may employ assistants in various ways not involving his official discretion or responsibility, he ■cannot delegate this discretion, except to an assistant duly appointed and qualified as provided by law.
    4. GRAND JURY — Effect of Appearance of Unauthorized Persons— Indictment. Under section 5726, Rev. Laws 1910, the county attorney, or an assistant duly appointed and qualified as provided by law, may at all times appear before the grand jury, "but no other person is permitted to be present during their sessions, except the members and a witness under examination, and no person is permitted to be present during the expression of their opinion and the giving of their votes upon any matter before them; and, when a special assistant county attorney, not legally appointed, appears before them for the purpose of performing the duties devolving upon the county attorney, indictments found by such grand jury, which were considered when such attorney was before them, on proper motion should be set aside.

      Appeal from County Court, Tulsa County; N. J. Gubser, Judge.

    M. B. Viers was convicted of violating the prohibitory law, and appeals.
    Reversed.

      Davidson & Williams, for plaintiff in error.

      Chas. West, Atty. Gen., and Smith-C. Matson, Asst. Atty. Gen., for the State.
   DOYLE, J.

Plaintiff in error was convicted in the county court of Tulsa county upon an indictment.presented by a grand jury in the district court, which was duly transferred from the district court to said county court, wherein the defendant was charged with having unlawfully sold to one J. W. Turley, one glass of whisky, and in accordance with the verdict of the jury he was sentenced to confinement in the county jail for 90 days, and to pay a fine of $250. An appeal was perfected by filing in this court, February 21, 1912, a petition in error with case-made.

It appears from the record that upon his arraignment in the county court the defendant filed his duly verified motion to set aside the indictment, in part as follows:

“Because the grand jury that found and presented the purported indictment herein was illegal, and all its acts and doings, including the finding and presenting of this purported indictment, are void, for the reason that all the names of the persons constituting the said grand jury were not drawn from the jury list made out by the jury commissioners on the 9th day of January, 1911, and were not summoned as by law required. Charles Stout, one of the panel of said grand jury, was an illegal member of the same for the reason that his name is not on the jury list made out by the jury commissioners of Tulsa county, Okla., on the 9th day of January, 1911, or any time since, and because his name was not drawn from the jury box filled by said commissioners, as required by law, and because he was not summoned or impaneled'as a member of said grand jury as provided by law; that prior to and during the entire session of the grand jury which found and presented this purported indictment, one Luther James was the duly appointed, qualified, and acting assistant county attorney of Tulsa county, Okla., in force during the session of said grand jury; that the said county attorney of Tulsa county, Okla., had no authority to appoint or have more than one assistant county attorney; that during the deliberations of the grand jury that found and presented the purported indictment herein, one Phillip Kates was present in the grand jury room with said grand jury, pretending to act as assistant county attorney of Tulsa county, Okla., and examined witnesses before said jury, including witnesses upon whose testimony the purported indictment herein was found, and advised the grand jury as to their duties generally and specially, and that they should find and return an indictment against the defendant upon said testimony; that said Kates was not assistant county attorney of Tulsa county, Okla., at said time, and had no authority to be present in the grand jury room while the grand jury was in session, or examine witnesses before it, and by reason of these facts said purported indictment against the defendant was vitiated and was illegal and void.”

Thereupon it was stipulatedi and agreed by and between the county attorney and counsel for the defendant, in part as follows :

“It is agreed that the name of Charles Stout, one of the panel of said grand jury, is not in the jury list made out by the jury commissioners of Tulsa county, Okla.,-on the,9th day of January, 1911, or at any time since, and that his name was not drawn from the jury box filled by said commissioners; that the Honorable L. M. Poe directed that a panel of four grand jurymen be issued, and that said Charles Stout was summoned on said panel, and was placed upon said grand jury by said L. M. Poe.

“The following order was made by the Hon. L. M. Poe, as judge of the district court of Tulsa county, Okla.: ‘The State of Oklahoma, to the Sheriff of Tulsa County — Greeting: You are hereby commanded to summon (4) four good and lawful men having the qualifications of jurors, from the body of Tulsa county, to be and appear before the Honorable L. M. Poe, judge of the district court of Tulsa county, state of Oklahoma, forthwith, to then and there serve as grand jurors in the above-entitled cause in said court. Of this writ you will make due return as the law directs, and hereof fail not. Witness my hand and seal of the said court at Tulsa, Oklahoma, this 5th day of June, 1911. By order of the Judge.’

“Indorsed on the back thereof is the following: ‘Sheriff’s Return. Received this writ on the 5th day of June, 1911,' and served the same by summoning: 1. Chas. Stout. 2. C. S. Olley. 3. Dean Hogan. 4. Chas. Vandiver — all good and lawful men from the body of the county. Wm. McCullogh, Sheriff, by L. L. Hall, Deputy.’

“(9’) It is further agreed that prior to and during the entire session of the grand jury, which found and presented this purported indictment, one Luther James was a duly appointed, qualified, and acting assistant county attorney of Tulsa county,’ Okla.; that during the deliberations of the grand jury that found and returned the purported indictment herein, one Phillip Kates was present in the grand jury room with said grand jury; that said Kates examined witnesses before said grand jury, including witness upon whose testimony the purported indictment herein was found, and advised the grand jurors with respect to their duties generally and specially; that said Kates, at the time he was rendering the services aforesaid, was claiming to act as assistant county attorney of Tulsa county, Okla.; that Pat Malloy, the county attorney of Tulsa county, Okla., had appointed, in writing, the said Kates an assistant county attorney of Tulsa county, Okla.; that the appointment of said Kates was made after the appointment of said James, and while the said James was an assistant county attorney of Tulsa county, Okla.; and that the said Luther James was, at all the times named or mentioned in this stipulation, an assistant county attorney of Tulsa county, Okla. It is further agreed that at all times set forth in this stipulation Tulsa county, Okla., had a population of not more than 35,000 inhabitants.

“Any notice that may be required by section 6738 of Snyder’s Compiled Laws of Oklahoma, Edition of 1909, is hereby waived. [Signed] Pat Malloy, County Attorney for Tulsa Co. [Signed] Davidson & Williams, Attys. for Defendant.,”

Upon said date, and after the filing of the stipulation, the state, through Pat Malloy, as county attorney, and the defendant, through Ins counsel, Davidson & Williams, entered into a further stipulation as, to additional facts upon which said mo-lion should be heard, and said stipulation was dictated into the record, and is in words and figures as follows, to wit:

“Additional Stipulation. It is hereby stipulated and agreed that stipulation No. 9 of the original stipulations be amended so as to show the following facts with reference to the authority of Phillip Kates, who appeared before said grand jury, and who performed the duties therein mentioned and set forth: That Pat Malloy was at all times herein mentioned, the duly qualified and acting county attorney for Tulsa county, Okla.; that on the 5th day of June, 1911, the said Pat Malloy appointed the said Phillip Kates as deputy county attorney for Tulsa county, Okla.; that said appointment was in writing, and said instrument of appointment was duly filed in the office of the county clerk for Tulsa county, Okla., together with his oath of office, which the 'said Phillip Kates on the said date took; that said appointment of the said Phillip Kates was not revoked until subsequent to the final report of the grand jury; that during the session of said grand jury, and beginning on the 5th day of June, there was held'a term of the district court for said county; that on said 5th day of June, and until the —— day of June, 1911, continuously, said district court was engaged in the trial of criminal cases; that in all of said cases the county attorney’s office represented the state of Oklahoma; that the state of Oklahoma was the plaintiff in all of said cases; that from the 5th day of June, 1911, until the 15th day of June, 1911, the county court for Tulsa county, Okla., was continuously engaged in the trial of criminal cases; that the state of Oklahoma was the plaintiff all of the cases on trial by said court; that the state of Oklahoma was represented at the trial of said cases by the county attorney’s office; that the said Luther James and the said Phillip Kates were the only persons who performed or exercised any of the duties of a deputy county attorney for Tulsa county during said time; that prior to the appointment of said Phillip Kates as deputy county attorney the said Pat Malloy orally took the matter of said appointment up with the board of county commissioners then in session, and the said board of county commissioners, without resolutions, orally stated that the said Phillip Kates might be appointed with their consent; that thereafter, on the first Monday in July, the said board in session regularly allowed the said Phillip Kates the sum of $37.50 as his compensation for services rendered as such deputy county attorney. This stipulation in no wise controverts the statements of the original stipulation No. 9, but is merely in addition thereto.”

The court overruled the motion to set aside the indictment and allowed an exception. This action of the court is assigned as error.

The objections advanced in the motion to set aside, concisely stated, are two, namely: First, that the grand jury was not drawn and impaneled as provided by law, in that the grand jury panel was completed from an open venire, and not from the jury’ box; second, because of the fact that a special assistant county attorney was permitted to be present during the sessions of the grand jury.

Our Procedure Criminal provides (section 5780, Rev. Laws 1910) :

“The indictment or information must be set aside by the court in which the defendant is arraigned, and upon his motion in any of the following cases:

“First. When it is not found, indorsed, presented or filed, as prescribed by the statutes, or when the grand jury is not drawn and impaneled as provided by law, and that fact is known to the defendant at or before the time the jury is sworn to try the cause: Provided, that the defendant shall be conclusively presumed to know matters of record.

“Second. When the names of the witnesses examined before the grand jury are not made to appear on some part of the indictment, as provided in this chapter.

“Third. When a person is permitted to be present during the session of a grand jury while the vote on the finding of the indictment .is being taken, or when it is shown that after the grand jury was first impaneled any member or members thereof, were discharged and their places filled by persons not regularly drawn from the jury list, as provided by law, and that they were admitted into the grand jury or took part in their deliberations, or that the grand jury was not impaneled anew as a whole body in open court.”

Our Constitution provides (section 18, Bill of Rights) :

“A grand jury shall be composed of twelve men, any nine of whom concurring may find an indictment or true bill. A grand jury shall be convened upon the order of a judge of a court having the power to try and determine felonies, upon his own motion ;-or such grand jury shall be ordered by such judge upon the filing of a petition therefor signed- by one hundred resident taxpayers of the county; when so assembled such grand jury shall have power to investigate and return indictments for all character and grades of crime, and such other powers as the Legislature may prescribe: Provided, that the Legislature may make the calling of a grand jury compulsory.”

When the power to call a grand jury is exercised by a district judge, on, his own initiative, or upon the filing of proper petition therefor, the statute provides the procedure to be followed, and our jury law is in part as follows:

Section 3689, Rev. Laws 1910, provides:

“It shall be the duty of the judge of the district court, for each county, to appoint, on of before the first day of January of each year, three discreet, honorable and reputable persons, one from each county -commissioner’s district, having the qualifications of jurors as prescribed in this chapter, not more than two of whom shall be of the same political party, and who shall not be interested in any cause, civil or criminal, pending in any court of this state, which persons shall constitute a board of jury commissioners for the district and county court.”

Section’3690, Id., provides that said jury commissioners shall select a list of names, one each for the district court and county court, which list shall be selected from the names of the tax rolls of said county, and that “each jury list shall be made up of names of persons from the various municipal townships in the county in proportion, as nearly as practicable, to the voting strength of such township.”

Section 3691, Id., provides for two-separate certified lists'of the names drawn for the said courts: One to be delivered to the clerk of the district court; the other to be delivered to the judge of the county court.

Section 3692, Id., provides the mode and manner of drawing jurofs for the district court, and it is therein provided, that:

“Upon the completion of said drawing, said clerk, or his deputy, shall issue separate venires for the grand and petit jurors, returnable at such a time as the judge in his order may direct. The first names drawn, to the number stated in the judge’s order, not to exceed twenty-four, if a grand jury is ordered, shall be summoned as grand jurors, and the grand jury shall be impaneled from said persons. If the judge so directs, the persons summoned for the grand jury panel and not used may be transferred to the petit jury panel. Additional and other drawing of as many names as the court may order may be had at any such time as the court or judge may order for the completion of a grand or petit jury panel, or for the impaneling of a new grand or petit jury, during any term of court, if, in the judgment of the court, the same shall be.necessary; or, if, for any cause, the court, in its discretion, shall deem other jurors necessary.”

Section 3693, Id., provides:

“At any time during the term of any court, after the petit jury has been drawn and summoned in the manner herein provided for, when, for the trial of any cause, civil or criminal, the regular panel of jurors shall appear to be insufficient, the jury may be completed from talesmen, or the court may direct that an open venire be issued to the sheriff or other suitable person, for such number of jurors as may be deemed necessary, to be selected from the body of the county, or from such portion of the county as the court may order: Provided, that no person shall serve as a talesman oftener than once a year.”

Section 3701, Id., provides:

“A substantial compliance with the provisions of this chapter shall be sufficient to prevent the quashing or setting aside of any indictment of a grand jury chosen hereunder, unless the irregularity in drawing, summoning or impaneling the grand jury resulted in depriving a defendant' of some substantial right, but such irregularity must be specifically presented to the court on or before the cause is first set for trial. A substantial compliance with the provisions of this chapter shall be sufficient to prevent tíre setting aside of airy verdict rendered by a jury chosen hereunder, unless the irregularity in drawing and summoning or impaneling the same resulted in depriving a party litigant of some substantial right: Provided, however, that such irregularity must be specifically presented to the court at or before the time the jury is sworn to try the cause.”

Section 5714-, Id., Procedure Criminal, provides as follows:

“A member of the grand jury may, for ill health of himself or immediate family, or other cause rendering him unable to serve, be discharged before the term is ended or the labor of the grand"jury completed; or if the judge becomes satisfied that any grand juror, is willfully refusing to discharge his duty, the court may order his discharge. In either event, or in case of the death of one or more grand jurors, as many names as the court may order shall be drawn from the jury box in the same manner the original grand jurors were drawn, and from the names so drawn there shall be summoned as many grand jurors as can be found and are able to attend as necessary, and if found they shall be summoned in the order in which their names were drawn from the box. If the number be not thus obtained there shall be another drawing in the same manner. When a sufficient number so drawn appears to' fill the panel, the grand jury shall in open court be reimpaneled, but subj ect to challenge and be charged and sworn in the same manner as when the grand jury was originally impaneled.”

It will be observed that under the statute the grand jury must be composed of persons whose names have been drawn from the jury box. Section 3692, supra, expressly provides that the first names drawn, not to exceed 24, if a grand jury is ordered, shall be summoned as grand jurors, and the grand jury shall be impaneled from said persons. It permits the transfer of names summoned as grand jurors to the petit jury panel when they are not selected on' the grand jury, but it does not permit the transfer of names on the petit panel to the grand jury panel when not used on the petit jury. It provides specifically for additional and other drawings under order of the court to complete a grand or a petit jury panel. Section 3693, supra, expressly provides that the petit jury panel may be completed from talesmen, or the court may direct that an open venire be issued for such number of jurors as may be deemed necessary. The language of this section leaves no reason to doubt that it applies only to petit jurors, and not to grand jurors.

The record shows, upon the assembling of the persons summoned as grand jurors, whose names had been drawn from the jury box, under the order of the court, that the court excused a number of those so summoned, leaving an insufficient number to complete the grand jury panel of twelve men. The court then directed that an open venire be issued to the sheriff for four talesmen to be summoned from the body of the county to complete the grand jury panel, and one member of the grand jury, Charles Stout, was summoned from the bystanders and served as a member of the grand jury in the finding and returning of this indictment. The grand jury must be selected, drawn, and impaneled as provided by law. The grand jury does not by our law consist of twelve men congregated by the mere order of the court. It consists of twelve men selected, drawn, and impaneled according to the requirements of the law, and if the law is not followed, it is an incompetent grand jury. Our law provides that any one indicted by such a grand jury may question their power by a motion to set aside the indictment, and he can not be required to answer to a charge against him unless it has been preferred according to the forms of law. The importance of securing fair-minded, impartial, intelligent men for grand jurors, who without bias or prejudice will weigh the evidence, and be governed by it alone, cannot be overestimated. To secure such grand jurors, the statute requires the names of qualified taxpayers to be selected in due proportion from all parts of the county, to be placed in the jury box. There is a sound reason for this. The petit jury panel cannot very well be packed against a defendant on tidal, the defendant by his counsel may examine a petit jury panel minutely as to qualifications, bias, or prejudice, and may challenge for cause, and in addition is entitled to his peremptory challenges allowed by law, but in the case of a grand jury panel, the parties to be investigated by the grand jury rarely ever know, in advance, of their investigation, and have no opportunity to examine the grand jury panel as to bias or prejudice, or to challenge for cause or peremptorily, and this is one reason why it is not permitted, under the law, to select members of the grand jury from the body of .the county, under an open venire.

It will also be noticed that section 5714, supra, provides for the filling of all vacancies that may occur at any time in the grand jury panel, and that when a vacancy exists the court must order the names of additional jurors drawn from the jury box in the same manner as the original grand jurors were drawn, and they shall be summoned in the order in which their names were drawn from the box, thus confirming our conclusion that the drawing and impaneling of the grand jury must be of persons whose names shall be drawn from the jury box, and that the grand jury panel cannot be completed or vacancies filled from talesmen. The statutory direction is clear and explicit.

It is our opinion that the court had no power to order an open venire to complete the grand jury, and this action of the court was in disregard of the law, and did not constitute a substantial compliance with the provisions of the jury law as contemplated by section 3701, supra. The grand jury which returned this indictment .not being composed entirely of persons whose names were selected by the jury commissioners and drawn from the jury box, the motion to set aside the indictment should have beén sustained on this ground alone.

We are also of opinion that the second objection was well taken. Section 1563, Rev. Laws 1910, provides that:

“In all counties having a population of not over twenty-five thousand the board of county commissioners may, in their discretion, allow one assistant county attorney at a salary of not to exceed seventy-five dollars per month; and in counties having a population of over twenty-five thousand they shall allow one assistant county attorney a salary of not to exceed one hundred dollars per month.”

While it appears that Phillip Kates, Esq., had been appointed by the county attorney for a limited time to assist the county attorney’s office in its stress of business, and to attend to the business that the county attorney and his legally appointed assistant could not attend to by reason of the excessive demand on their time, and. thát the board of county commissioners sanctioned Mr. Kates’ appointment, that did not constitute him a legally appointed assistant county attorney. In the case of McGarrah v. State, ante, 133 Pac. 260, it is said:

“We know of no rule of law 'whereby a public officer may delegate power or authority involving official discretion or responsibility, except as prescribed by the statute. The law has very carefully guarded the administration of public justice from any interested or unauthorized intermeddling. The county attorney is a very responsible officer, selected by the people, and vested with a wide personal discretion, intrusted to him as a minister of justice. There are many reasons why a power of this kind should be confined to the prosecuting officer. He is expected to be impartial in abstaining from prosecuting, as well a's in prosecuting, and to guard the real interests of public justice in favor of all concerned. It is therefore of the highest importance to the public that this power should be carefully exercised, and that the responsibility should rest upon the officer to whom it is confided. By section 1557, Rev. Laws 1910, a county attorney is disqualified from becoming in any way entangled with private interests, or grievances connected with the private practice of- law. The office of county attorney is quasi judicial, and the county attorney and his legally appointed assistant must be exclusively the representative of public justice, and stand indifferent as between the defendant and any private .interest. No doubt a county attorney may employ assistants in various ways, not involving his official discretion or responsibility; but our laws have only allowed his official discretion to be delegated where assistant county attorneys have been provided for by the statute. The public have a right to insist upon the performance o'f public duties that are strictly official in the prosecution of crime by county attorneys and assistants duly appointed and qualified as provided by law, and we think it would be directly contrary to public policy to allow or permit any general delegation of the county attorney’s power or responsibility in this respect.”

Our Procedure Criminal provides (section 5726, Rev. Laws 1910) :

“The grand jury may at all reasonable times ask the advice of the court or of the county attorney. The county attorney may at all times appear before the grand jury for the purpose of giving information or advice relative to any mat ter cognizable before them and may interrogate witnesses before them whenever he thinks it necessary; but no other person is permitted to be present during their sessions except the members and a witness actually under examination and no person whosoever must be permitted to be present during the expression of their opinions or the giving of their votes upon any matter before them.”

Under section 1558, Rev. Laws 1910, the district court may appoint, by an order to be entered in the minutes of the court, some suitable person to perform for the time being the duties required by law to be performed by the county attorney, when the county attorney is absent from the court, or unable to attend to his duties, or disqualified to act, or where the office is vacant, but no other power of appointment is given under the law. There is no authority vested in the board of county commissioners to appoint or assent to the appointment by the county attorney of other assistants than those provided for by law. Hence Hr. Kates was not a legally constituted assistant county attorney.

It is the plain policy of the law to permit no one in the grand jury room except the comity attorney, or an assistant duly appointed and qualified as provided by law.

In Hartgraves v. State, 5 Okla. Cr. 266, 114 Pac. 343, 33 L. R. A. (N. S.) 568, Ann. Cas. 1912D, 180, Furman, P. J., delivering the opinion of the court, said:

“We believe that it is the plain' meaning of the laws and Constitution of Oklahoma that a regularly elected or appointed officer shall conduct all criminal prosecutions. It is true that it is entirely proper and legitimate for counsel to be employed to assist the county attorney in open court in the prosecution of a criminal case, but even then the county attorney should never lose control of the case, and such assistant counsel should discharge only such duties in the prosecution of the cause as are assigned him by the county attorney. But it is highly improper for counsel employed to prosecute a case to be permitted to go into the grand jury room where the defendant cannot be heard and has no one to represent him. This duty should be performed alone by the proper officer of the law. The case of Fooshee v. State, 3 Okla. Cr. 677, 108 Pac. 554, does not conflict with the views here expressed. In that case the attorney who appeared before the grand jury was the regular appointed deputy county attorney of Carter county, and his appointment was a matter of record in the county attorney’s office of that county. We therefore hold that the trial court erred in not sustaining the motion made by the defendant to set aside the indictment.”

See, also, State v. Maben, 5 Okla. Cr. 581, 114 Pac. 1122.

If the county attorney was overworked by reason of having two courts in session, engaged in the trial of criminal cases, and a grand jury on his hands at one and the same time, he should have directed his legally constituted assistant to' attend the grand jury, or have attended the grand jury himself and performed his duties there. Plis duties in the grand jury room are the most important duties he has to perform, and those most rigidly enjoined upon him by the law.

There are other provisions of our statute which may be invoked whenever required by the necessities of public justice. Under section 8056, Rev. Laws 1910, the Governor is given the power to employ counsel to protect the rights or interests of the state in any action, civil or criminal, and the counsel so employed under the direction of the Governor may prosecute offenses against the laws of the state, and may institute and conduct proceedings before grand juries. Under section 8057 the Attorney General, when requested by the Governor or either branch of the Legislature, may appear for the state in the nisi prius courts and prosecute offenses against the laws of the state, but no such.question arises in this case.

For error of the court in overruling the motion to set aside the indictment, the judgment herein is reversed.

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


author: ARMSTRONG, P. J.

text:
    JACK FLYNN v. STATE.
    No. A-1779.
    Opinion Filed July 19, 1913.
    (133 Pac. 1133.)
    EVIDENCE — Evidence of Accomplice — Corroboration. To allow a conviction to stand upon the testimony of an accomplice, not corroborated by any other evidence tending to connect the defendant with the commission of the offense, would be in direct violation both of the letter and spirit of section 5884 (Rev. Laws 1910), Procedure Criminal. The requirement of the law in this respect, cannot be satisfied by any amount of corroborative evidence which does not tend to connect the defendant with the commission' of the offense charged. Nichols v. State, ante, 133 Pac. 256.

      Appeal from County Court„ Garvin County; W. B. M. Mitchell, Judge.

    Jack Flynn was convicted of violating the prohibitory law, and appeals.
    Reversed.

      Thompson & Patterson, for plaintiff in error.

      Smith C. Matson and C J. Davenport, Asst. Attys. Gen., for the State.
   ARMSTRONG, P. J.

The plaintiff in error, Jack Flynn, was convicted at the January, 1912, term of the county court of Garvin county on a charge of selling intoxicating liquor, and his punishment fixed at imprisonment in the county jail for a period of six months and a fine of $500.

The sole and onfy proof having any bearing on the issues joined in this cause is by an accomplice, Click Cunningham, who testified that he, Cunningham, sold the whisky in question to J. W. Mitchell, and that he, Cunningham, was working for the plaintiff in error, Jack Flynn. There is absolutely no corroboration whatever of the story told by Cunningham.

In the case of Chas. Nichols v. State, ante, 133 Pac. 256, in an opinion by Doyle, J., we said:

“ * * * There was no evidence adduced that tended to connect the defendant with the commission of the offense charged, except that of his codefendant, who upon his own testimony is an accomplice, and a verdict of guilty upon the uncorroborated testimony of an accomplice is contrary to law and the evidence. Thompson v. State, 9 Okla. Cr. 525, 132 Pac. 695; Head v. State, 9 Okla. Cr. 356, 131 Pac. 937. Our view of the evidence necessarily disposes of and determines the case; however, it is apparent from the record in this case that the most simple and plain rules of evidence and procedure were disregarded upon the trial. A record of this kind we should not pass by in silence, lest our silence should be interpreted into an indorsement of or indifference to such practices.”

And again:

“The rule of law forbidding a conviction upon the testimony of an accomplice unless he be corroborated by such other evidence ás tends to connect the defendant with the commission of the offense is, under the statute (section 5884, Rev. Laws 1910), positive and peremptory. The state only demands the punishment of a citizen, when his guilt has been clearly established according to the forms and rules of law prescribed for ascertaining his guilt. It is not to shield the guilty, but to protect the innocent that courts are steadfast in upholding the forms and rules of law by which it may be lawfully determined who -are guilty. A fair trial is a legal .trial, or one conducted in all material things in substantial conformity to law.”

The prosecuting witness in the case at bar had been confined in j ail for some time, and admitted on the stand that he had ■ agreed to give the testimony which he did give on the trial in consideration of his release from jail and the discontinuation of prosecution against him by the county attorney. As aforesaid, he admitted making the sale himself, and he is the only person who in any way, directly or indirectly, connects the plaintiff in error with the transaction. Such a conviction is'not warranted by law and cannot be upheld.

There are numerous other assignments, but we find it unnecessary to consider them.

If the plaintiff in error had been prosecuted for maintaining a place wherein intoxicating liquors were illegally kept for sale, the story told by the prosecuting witness could possibly be corroborated by some of the testimony offered by the state; but upon the specific charge of sale' there is not a single line of corroboration.

The judgment is reversed, and the cause remanded, with directions to grant a new trial.

DOYLE and FURMAN, JJ., concur.


text:
    J. C. TEAGUE v. STATE.
    No. A-1675.
    Opinion Filed July 19, 1913.
    (133 Pac. 1134.)
    INTOXICATING LIQUORS — -Evidence—Sufficiency. To sustain a conviction, it should appear not only that the offense was committed, but the evidence inculpating the defendant should be so to a degree of certainty, transcending mere probability or strong suspicion.

      Appeal from County Court, Noble County; ■L. B. Robinson, Judge.

    J. C. Teague was convicted of violating the prohibitory law, and he appeals.
    Reversed and remanded.

      A. Diiff Tillery and Henry S. Johnston, for plaintiff in error.

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

Plaintiff in error was convicted, and in accordance with the verdict of the jury was on the 3d day of February, 1912-, sentenced to be confined for 30 days in the county jail, and pay a fine of $50, under an information which charges that he did “unlawfully have in his possession certain malt liquors. to wit, ten pint bottles of Old Heidelberg beer, with the intent of him, the said J. C. Teague, to sell, barter, give away, and otherwise furnish the same.” The petition contains various assignments of error, the majority of which relate to the admission of alleged incompetent evidence; however, it is only necessary to consider the one that the verdict and judgment were contrary to law and the evidence.

John L. McGehee testified that in serving a search warrant he found ten bottles of beer in a room occupied by the defendant’s father. Tom Wetsel, deputy sheriff, testified that he assisted in serving the warrant, and they found ten bottles of beer and 25 empty beer bottles. There were some records offered of the Wells Fargo Express Company in connection with the testimony of Ray Norris, who testified that he became the agent of said express company about two months after said case was filed, and found said records in the office. John Ryan testified that he was cashier at the Santa Fe freight office at Perry, and identified two freight delivery receipts for two casks of beer, delivered in the month of June, 1911. Thereupon the state rested, and the defendant demurred to the evidence, and moved the court to direct a verdict of not guilty. The demurrer and motion were overruled, and exception allowed.

J. A. Teague, on the part of the defense, testified that his age was 78 years; that he was the father of the defendant, and had lived for two years in the room where the beer was found; that he had used beer all his life; that the beer found by the sheriff and deputy sheriff was for his personal use.

There was no evidence offered in any way tending to prove an unlawful intent. In a prosecution for having possession of intoxicating liquor with intent to sell, barter, give away, and otherwise furnish, the evidence should be of such character as to overcome prima facie the presumption of innocence. If. the evidence raises a mere supposition, or, admitting all it tends to prove, the defendant’s guilt is left doubtful or dependent upon mere supposition, surmise, or conjecture, the court should advise the jury to acquit the defendant.

It is our opinion that the verdict and judgment is contrary to the law and the evidence. The judgment of the county court of Noble county is therefore reversed, and the cause remanded thereto, -to be disposed of as provided by law.

DOYLE and FURMAN, JJ., concur.


text:
    ROSE SMITH v. STATE.
    No. A-1625.
    Opinion Filed July 19, 1913.
    (133 Pac. 1136.)
    ADULTERY — Instructions—Weight of Evidence. The jury must be left free to determine for themselves whether the evidence is sufficient to satisfy the law, and an instruction which advises them on that subject invades the province of the jury to determine the weight and sufficiency of the evidence. (See opinion for a statement in the charge of the court held to be a comment on the weight of circumstantial evidence and erroneous.)

      Appeal from District Court, Greer County; G. A. Brown, Judge.

    Rose Smith was convicted of adultery, and appeals.
    Reversed and remanded.

      John S. Maxwell, for plaintiff in error.

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

This appeal is prosecuted from a conviction had in the district court of Greer county on the 23d day of January, 1912, in which plaintiff in error was found guilty of adultery, and her punishment assessed id accordance with the verdict of the jury at imprisonment in the penitentiary for a period of one year.

The record shows that when the judgment was pronounced she waived her right of appeal. The record further shows, by her verified application filed January 29th, that the waiver of her right of appeal was made by her under a misunderstanding of her rights, and for the further reason that she had no means with which to employ counsel and pay the expenses of an appeal in said cause. That thereupon the court denied her application to furnish record of the proceedings in said cause at the expense of Greer county, but allowed said cause to be reopened for the defendant to perfect her appeal, and fixed the amount of her appeal bond in the sum of $500, to be given within ten days. Notice of appeal and acceptance of service thereof by the county attorney was filed with the clerk of the district court on January 29th. On January 31st there was filed a written waiver of appeal with the clerk of the district court which recites:

“1, Rose Smith, do hereby waive and abandon my said appeal or notice of appeal as aforesaid and ask that the clerk of the district court of this county immediately issue a commitment to the sheriff of this county so that I may at once be transferred to the state prison at McAlester.”

This was done in the absence of her counsel, and he on his oath states that he had no knowledge of this waiver until after her commitment in the penitentiary at McAlester. On February 13, 1912, there was filed in this court a petition in error with transcript attached, and, upon the application of plaintiff in error to be admitted to bail pending the determination of her appeal, it was ordered by this court that she be released from the penitentiary upon giving an appeal bond in the sum of $500. The Attorney General' has filed a motion to dismiss the appeal on the ground that the record does not show the service of a notice of appeal upon the clerk of the district court. The record shows that such notice was filed with the clerk. That is sufficient. The motion to dismiss the appeal is overruled.

The first and second assignments of error are the usual ones that the court erred in overruling the motion for a new trial, and that the verdict was contrary to the law and the evidence.

The third assignment is that:

“The court erred in ruling out competent and legal evidence offered on the part of the defendant to prove that she was of unsound mind and not legally responsible for her acts.”

The fourth is based upon an exception taken to instruction No. 5 of the court’s charge to the jury.

The concluding assignment is an averment that:

“Said court erred in allowing the clerk to issue an erroneous commitment herein after said cause had been reopened on motion and affidavit of the defendant, and before the time fixed by the court for giving an appeal bond had expired, and without any further order of the court permitting such commitment to be issued.”

The judgment in this case must be reversed for an error apparent on the record and duly excepted to. The charge of the court clearly invaded the province of the jury. It contains a statement which can be considered naught save a direct comment on the weight of the evidence. After a proper instruction upon circumstantial evidence in a case where the state relied solely upon such evidence, the learned judge added:

“That the defendant, Rose Smith, on or about the 1st day of September, 1911, or at any time within three years prior to October 3, 1911, the date of filing the information, in Greer county, in the state of Oklahoma, did have voluntary sexual intercourse with one Mat Moore, a male person, and that the said Mat Moore, was then and there married to another woman, to wit, Sallie Moore, and was not the husband of the defendant, Rose Smith, and you further believe and find from the evidence that this prosecution against the defendant was commenced by said Sallie Moore by complaint made by her (the said Sallie Moore) and that said Sallie Moore at the time of making said complaint was the wife of Mat Moore, as alleged in the information herein, and that this prosecution against the defendant is being carried on by said Sallie Moore, then the requirements of the law as to the sufficiency of circumstantial evidence will be sustained, and ini that event you should find the defendant'guilty of adultery as charged in the information, and so say by your verdict.”

The weight of circumstantial evidence is not for the consideration of the court in its charge to the jury, but for the exclusive consideration of the jury in rendering their verdict, and the statement, “then the requirements of the law as to the sufficiency of circumstantial evidence will be satisfied,” is erroneous as invading the province of the jury, who are the exclusive judges of the weight and sufficiency of the evidence. It is our opinion. that the exception to this instruction, as a comment upon the weight and sufficiency of the evidence, was well taken, and that the defendant was thereby prejudiced.

The other errors assigned present questions of some gravity and importance, but as this appeal is taken on a transcript of the record, without a transcript of the evidence, those questions cannot be considered, except to say that it is evident that the defendant’s waiver of her right of appeal made out of court, and in the absence of her counsel, was not sufficient to justify the officers in issuing a commitment and causing the defendant to be incarcerated in the penitentiary before the expiration of the time fixed by the order of the court for giving an appeal bond. Counsel had been appointed by the court to represent the defendant upon her trial, and after her conviction other counsel had been employed by the father of the defendant, and they should have been notified. And in view of the facts shown upon an application for writ of habeas corpus in this court for the release of the defendant from the penitentiary, wherein it was averred that prior to this prosecution the defendant had been a resident of ■Caddo county, residing with her parents, and had been adjudged a feeble-minded woman and a proper person to be admitted to the Oklahoma institution for the feeble-minded at Enid, but had not been transported thereto because the superintendent of said institution had notified the clerk of the county court of Caddo county that at that time there was no room for any more inmates, the inference is irresistible that such waiver was secured by undue influence as averred in the affidavit of her counsel attached to the record. Owing to the fact that an appeal was pending, and pending the hearing plaintiff in error was released upon her appeal bond, the application for writ of habeas corpus was abandoned.

Where a woman, feeble in intellect, is charged with crime, she should not be permitted to waive any right secured to her by law, except upon the advice of or in the presence of her counsel. We are constrained to say that the vindication of public justice does not require that a feeble-minded woman, more sinned against than sinning, shall be imprisoned in the penitentiary on a charge of adultery, where it is shown that, before the time of the commission of the offense charged, she had been found to be a feeble-minded woman and a proper person to be committed to the institution for the feeble-minded.

The judgment of the district court of Greer county is reversed, and the cause remanded thereto to be disposed of as required by law.

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


text:
    CARE OELKE v. STATE.
    No. A-1576.
    Opinion Filed July 19, 1913.
    (133 Pac. 1140.)
    1. INDICTMENT AND INFORMATION —- Information for Misdemeanor — -Sufficiency. An information charging a misdemeanor, preferred and signed by a legally constituted assistant county attorney, is sufficient to sustain a conviction, where no objection is made by motion to set aside, or by demurrer thereto.
    2. SAME. Where an information charging a misdemeanor states an offense, and is sworn to positively by the county attorney, it is sufficient to authorize a warrant for the arrest of the defendant, and is sufficient to authorize the county court to put the defendant upon his trial.
    3. TRIAL — Credibility of Witnesses — Question for Jury. The credibility of the witnesses is the exclusive province of the jury to determine, and if they believe a witness has been impeached, the law does not require them to believe him, it matters not how much his evidence may have been corroborated; and it is error for the trial court to take this right away from them by its instructions.
    4. SAME — Verdict—Correction—Instructions. Where upon the request of the defendant the court instructs the jury that, in the event they find a verdict of guilty, they may assess and declare the punishment in their verdict, it is the duty of the court to require the jury, if they find a verdict of guilty and fail to agree upon the punishment, to so say by their verdict; and, if the jury render a verdict not in form, the court should with proper instructions direct them to reconsider it.

      Appeal from County Court, Canadian County; W. A. Maurer, Judge.

    Carl Oelke was convicted of a misdemeanor, and appeals.
    Reversed, and new trial granted.

      Forrest & Sansom, for plaintiff in error.

      Chas. West, Atty. Gen., and Smith C. Matson and B. G. Spil- ■ man, Asst. Attys. Gen., for the State.
   DOYLE, J.

This appeal is prosecuted from a conviction had in the county court of Canadian county on the 11th day of November, 1911. The judgment and sentence of the court was that the defendant be confined at hard labor in the county jail for a period of six months, and that he pay a fine of $500.

The information, omitting title and indorsements, is as follows :

“Nqw comes W. E. Bennett, assistant county attorney of Canadian county, state of Oklahoma, who prosecutes on behalf of the state, an'd gives the court to know and be informed that one Carl Oelke, late' of the county of Canadian and state of Oklahoma, on or about the 3d day of July, in the year of our Lord one thousand nine hundred and eleven, at and within the said county and state, did then and there willfully and unlawfully sell malt liquor, to wit, beer, to John Carnahan and J. S. Wat-sqn, said sale being made at one and the same time, and constituting a single transaction, contrary to the form of the statute in such case made and provided, and against the peace and dignity of the state.

“W. E. Bennett,

“Assistant County Attorney. “The State of Oklahoma, Canadian County — ss.:

.. , “Personally appeared J. L. Trevathan who, being first duly sworn, on his oath says that the statement contained in the above information is true.

“J. L. TREVATHAN.

“Subscribed in my presence, and sworn to before me, this ITth day of August, 1911.

. • “[Seal.] “J. O. Beeukr,

“Clerk County Court.”

The evidence was substantially as follows: J. S. Watson, the first witness called, testified that he bought two bottles of beer at the Belmont Hotel, and John Carnahan paid for it, and he and Mr. Carnahan drank it. On cross-examination he stated that he was employed in gathering evidence in the enforcement of the prohibitory law, and his compensation depended partly upon his success; that he had been drinking before he went to the defendant’s place. John Carnahan testified that he was a fanner, living near Calumet; that he went to the Belmont Hotel with Watson and bought a couple of bottles, and they drank it, and he was then asked if it tasted like beer, and answered: “No, sir; I do not think so.” He was then asked if it tasted more like beer than anything you could think of, and answered: “No, sir.” J. L. Trevathan, county attorney, who verified the information, was called as a witness for the defense, and testified that he had no personal knowledge of the commission of the offense charged; that his verification was based on the testimony of said witnesses before a court of inquiry.

It' will be observed -that the name of the county attorney does not appear in the body of the information, nor is the name of the county attorney subscribed thereto, as required by section 5694, Rev. Laws 1910. We have held that an information signed in the name of the county attorney, by a duly and legally appointed assistant county attorney, satisfies the law, and is sufficient. McGarrah v. State, ante, 133 Pac. 260. That W. E. Bennett, assistant county attorney, was acting under and by the directions of the county attorney appears from the fact that the information is verified by the county attorney, and the record shows that the county attorney in person prosecuted the case. We think the omission of the name of the county attorney in the body of the information is a technical defect which did not affect the substantial rights of the defendant, and the error was waived by failing to file a proper motion or demurrer thereto. The proper practice is for the assistant county attorney to sign the name of his principal to the information, yet we think it is sufficient when signed by and in the name of a legally constituted assistant, when no objection thereto before verdict is made. Where an information charging a misdemeanor is sworn to positively by the county attorney, it is sufficient to authorize a warrant for the arrest of the defendant, and is sufficient to authorize the county court to put the defendant upon his trial, even though the county attorney had no personal knowledge of the commission of the offense charged.

The record shows that the defendant requested that the court-instruct the jury that, in the event they found a verdict of guilty, they should assess and declare the punishment in their verdict. The jury returned a general verdict, finding the defendant guilty, but'did not say by their verdict that they were unable to agree upon the punishment to be inflicted, and the court imposed the maximum punishment. Section 5926, Rev. Laws 1910, provides:

“If the jury render a verdict not in form, the court may, with proper instructions as to the law, direct them to reconsider it, and it cannot be recorded until it be rendered in some form from which it can be clearly understood what is the intent of the jury.”

We think it was the duty of the court to require the jury to render a formal verdict, showing that they were unable to agree upon the punishment.

It also appears that an instruction was given, which by repeated decisions of this court has been held to constitute reversible error in a close case. Rea v. State, 3 Okla. Cr. 269, 105 Pac. 381; Foster v. State, 8 Okla. Cr. 139, 126 Pac. 835.

For the errors indicated, the judgment of the lower court is reversed, and a new trial granted.

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