text:
      Ex parte BUD WRIGHT.
    No. A-1287.
    Opinion Filed August 1, 1911.
    (116 Pac. 1113.)
    1. PUNISHMENT — Intoxicating Liquors — Constitutional and. Statutory Provisions. Act March 9, 1909 (Sess. Laws 1909, c. 12, art. 4), providing that the punishment for selling intoxicating liquors to a minor shall be imprisonment in the penitentiary for not less than one nor more than five years, is unednstitutional.
    2. COURTS — Jurisdiction—Misdemeanor. The offense of selling intoxicating liquors tó a minor is a misdemeanor, of which the district court has no jurisdiction.
    3. SAME — Transfer of Causes. An information charging a misdemeanor filed in the district court cannot be transferred to the county court, but must be dismissed.
    (Syllabus by the Court.)
    Application by Bud Wright for writ of habeas corpus.

    Granted,. and prisoner ordered discharged.

      B. L. Spriggs, for petitioner.

      Smith C. Matson,, Asst. Atty. Gen., for the State.
   PER CURIAM.

The petitioner, Bud Wright, was tried and convicted in two cases upon an information filed in the district court of the Fifth judicial district sitting in and for McCurtain county, of the crime of selling intoxicating liquors to a minor, and sentenced to be imprisoned in the state penitentiary at Mc-Alester for a period of five years in each of said cases. Judgment and sentence was pronounced and was executed by delivering the petitioner to the warden of the state penitentiary at Mc-Alester, where he has been and is now confined. Petitioner avers that said imprisonment is illegal and unauthorized because the act of the Legislature approved March 9, 1909 (Sess. Laws 1909, p. 164) under which said proceedings were had is unconstitutional and void, and petitioner prays for a writ of habeas corpus that he may be discharged without delay from said unlawful imprisonment. The Attorney General appearing for the respondent, R. W. Dick, warden.of the state penitentiary at Mc-Alester, confesses on the part of the state that a writ of habeas corpus be granted as prayed for.

In the case of Nowakowski v. State, infra, 116 Pac. 351, it was held by this court that the statute in question is unconstitutional and void and the offefise charged in the information is only a misdemeanor of which a district court has no jurisdiction.

In the case of Wychoff v. State, infra, 116 Pac. 355, it was held that the district court has no power to receive, file, or take cognizance of an information charging a misdemeanor; and an information charging a misdemeanor filed in the district court cannot be transferred to the county court, but must be dismissed. See, also, Evans v. State, infra, 116 Pac. 356; Kester v. State, infra, 116 Pac. 356; Meek v. State, infra, 116 Pac. 356.

Under the foregoing decisions of this court the district court of McCurtain county did not upon the information filed in said cases acquire jurisdiction to try, convict, and sentence the petitioner for a felony under the statute in question.

It therefore follows that petitioner is unlawfully imprisoned under said judgment of conviction and commitment at the state penitentiary at McAlester.

Wherefore a writ of habeas corpus is allowed, and it is ordered that the petitioner, Bud Wright, .be discharged from said judgment and commitment, and that respondent, the warden of the state penitentiary, upon receipt of a certified copy of this opinion from the clerk of this court, immediately discharge said petitioner. •


source: Caselaw Access Project

author: DOYEE', J.'

license: Public Domain

text:
    J. J. PUTMAN v. STATE.
    No. A-294.
    Opinion Filed August 29, 1911.
    (117 Pac. 460.)
    1. JUDGMENT — Determining Issues — Plea in Abatement. See. 6755, Snyder's Stat., provides that a plea of former conviction of the offense charged may be interposed either-with or-without the plea of not guilty. Sec. 6773 provides that an issue of faet arises upon a plea of former conviction. Sec. 6873 provides that upon a plea of former conviction a verdict must be either “for the state,” or “for the defendant,” and sec. 68.79 provides that “no judgment of conviction can be given'unless the jury expressly find against the defendant, upon the issue, -or judgment be given against him on a special verdict. ’ ’ Held, that, where a -plea of not guilty and also a plea of former conviction of the same offense have • been interposed, there must be a verdict on both pleas before a judgment of conviction can be pronounced and entered.
    2. SAME. Where the defendant enters a plea of “not guilty,” and also a plea of “former conviction of the same offense”, he is entitled to have both pleas passed upon by the jury before judgment can properly be pronounced and entered, and a judgment of. conviction will be reversed if the jury fails to find a verdict on the latter plea/ unless the record shows that it was waived or withdrawn.
    (Syllabus by the Court.)

      Appeal froin County Coiirt, Washita Coimty; R. L. Shean, Ridge.

    J. J. Putman was convicted of the crime of selling intoxicating liquor, and appeals.
    Reversed.

      Smith & Wagner, for plaintiff in error.

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

J. J. Putman was convicted of-the crime of unlawfully selling whisky and whs sentenced to' be' imprisoned in the county, jail for a term of thirty days, and to pay a fine of one hundred dollars, and in default of the payment of said fine that he be further imprisoned until ■ the same is satisfied according to law.

Motions for new trial and in arrest of judgment were overruled, exceptions allowed, and the judgment and sentence was entered on the 23rd day of February, 1909. From which judgment an appeal was taken by filing in this court on August IS, 1909, a petition in error with case-made attached.

The information charges that:

“The said J. J. Putman did on said 5th day of December, 1908, unlawfully and wilfully sell, barter, and furnish intoxicating liquor, to wit, whisky to one Taylor Igo, said whisky being sold, bartered and furnished said Igo late in the afternoon of said 5th day of December, 1908.”

Upon arraignment the defendant entered a plea of not guilty, also a plea of former conviction of the- same offense. Which plea the record shows was as follows:

“Comes now the defendant herein, and pleads that he has already been tried and convicted of the offense charged in this information by the judgment of the county court of Washita county rendered at Cordell, said county and state, on the 27th day of January, 1909, that the information in both cases charged the defendant with having unlawfully sold, furnished or given to one Igo on the 5th day of December, 1908', in Washita county, Oklahoma, whisky, both informations charging the same offense to have been committed by and between the same parties, and the same county on the same date, and that the offenses charged in both informations are one and the same.”

In support of the plea of former conviction of the same offense the defendant offered in evidence the records of the court showing the information, plea, trial and judgment thereon. Which judgment of conviction was by this court affirmed on April 25, 1911. 115 Pac. 1132, 5 Okla. Cr. 698.

The first information charged as follows:

“The said J. J. Putman did on the said 5th day of December, 1908, unlawfully, wilfully sell, barter and furnish intoxicating liquor, to wit, whisky, to one Taylor Igo, said whisky being sold, bartered and furnished said Igo near the middle of the day on the said- 5th day of December, 1908:”

A trial wa's had and the jury returned a-verdict of guilty, and assessing the penalty without returning a verdict on the plea of former conviction. Of the various assignments of error it is only.necessary to consider'-the first: ¡ . .

‘■‘That the court erred in overruling defendant’s motions for new'trial and in arrest of judgment.” 1

One of the grounds of the motion for a new trial and'the motion in arrest of judgment is as follows:

“For the reason that said verdict of the jury is not a sufficient verdict, not in accordance with the law in such cases made and provided,-is not a finding on the issues in this case; is not such a verdict as-will-sustain'a judgment and sentence, it being a general verdict on the single plea of ‘not guilty’ and no verdict of the jury at all on the issue and .plea of ‘former conviction’ entered in said cause.”

The provisions of Procedure Criminal pertinent to the question presented are as follows:

Sec. 6755, Snyder’s Stat. 1909, provides:

“There are three kinds of pleas to an indictment. A plea of; 1st, Guilty; 2nd, Not guilty; 3rd, A former judgment of conviction or acquittal-of the offence charged, which may be pleaded either with or without the plea of not guilty.”

Sec. 6764:

“When the defendant shall have been convicted or acquitted upon an indictment the conviction or acquittal is a bar to another indictment for the-offense charged in the former, or for an attempt to commit the same, or- for an offense necessarily included .therein, of, which he might have been convicted under that indictment.”

Sec. 6773:

“An issue of fact arises, ,1st, upon a plea of not guilty, or, 2nd, upon a plea of former conviction or acquittal of the same offense.”

Sec. 6873:

“A general verdict upon a plea of not guilty, is either ‘guilty’ or ‘not guilty,’ which imports a conviction or acquittal of the offense charged in the indictment. Upon a plea of a former conviction or acquittal oí thé sárrie off ense, it‘is either “for the''state’, or ‘for the defendant.’ ”

And sec. 6879 -in part'provides':’

“No judgment of conviction can be given unless the jury expressly find against the defendant, upon the issue, or judgment be given against him on a special verdict.”

The record shows that the issues upon both pleas were submitted to the jury, and-that the jury returned a verdict on the plea of not guilty only_ and. made no finding on the issues raised upon the plea of former conviction and the evidence offered in support thereof.

It is our.opinion that the defendant was. entitled to have both of his pleas passed upon by the jury, and a verdict returned on each plea before a judgment of conviction could.be properly pronounced and entered in the case,against him. For, this reason the court committed reversible error -in 'Overruling defendant’s motion in arrest of judgment.''

Our Criminal Procedure upon this subject is substantially the same as the Penal Code of. California. ■ ■ -

In the case of People v. O’Leary, 16 Pac. 884, it .was held:

“The rule is well settled in this státe that if,',in a criminal case, there be a plea of not guilty, and also a plea 'of former conviction or acquittal, the defendant .is entitled to a verdict on each plea, and until there-is such a verdict there can be no judgment of conviction. People v. Kinsey, 51 Cal. 279; People v. Helbing, 59 Cal. 567; People v. Fuqua, 61 Cal. 377.”

In the case of People v. Tucker, 47 Pac. 111, that court holds that

“Where defendant pleads ‘not guilty,’ and “once in jeopardy,’ a conviction will be set-aside if thdjury fail to find on the latter plea, unless the record shows that it was waived or withdrawn.”

People v. Hamberg, 84 Cal. 468, 24 Pac. 298, and People v. Eppinger, 109 Cal. 294, 41 .Pac. 1037, are of the same general tenor, and to the same effect.

As the judgment must be reversed for the reason stated, we deem it unnecessary to-give special consideration to the other errors assigned.

Judgment reversed and cause remanded to the county court of Washita county.

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


author: DOYEE, J.

text:
    WARD SIES v. STATE.
    No. A-485.
    Opinion Filed August 31, 1911.
    (117 Pac. 504.)
    1. EVIDENCE — Circumstantial Evidence — Sufficiency. Where the evidence is wholly circumstantial, and the facts and circumstances in evidence are of such a character as to fairly permit an inference consistent with innocence, it cannot be regarded as evidence sufficient to support a conviction.
    2. SAME. The facts and circumstances proved must not only be consistent" with and point to the guilt of the defendant, but they must be inconsistent with his innocence.
    (Syllabus by the Court.)

      Appeal from Jefferson County Court; C. M. Bond, Judge.

    Ward Síes was convicted of selling whisky illegally, and he appeals.
    Reversed.

      J. W. Harper, for plaintiff in error..

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

Plaintiff in error was convicted of the crime of selling whisky to one Euther E. Busby, and sentenced to imprisonment for 30 days in jail and to pay a fine of $50. Judgment was entered.on October 15, 1909, from which judgment an appeal was taken by filing in this court on December 14th a petition in error with case-made.

The record shows the testimony of Euther Busby, the first witness for the state, as follows:

“Q. I’ll ask you if you ever obtained any intoxicating liquors from Ward Sies? A. No, sir. Q. On or about the 12th of June of this year? A. No, sir. Q. Did you turn over a pint of whisky to J. D. Tolleson? A. Yes, sir. Q. Where did you get that? A. I found it in a box back behind there. Q. Where, back of Ward Sies’ place? A. Well, sorter back of Carter’s real estate office. Q. What kind of money did you pay for that? A. I didn’t pay him any money. Q. What kind of money did you leave where you'got the whisky? A. I couldn’t say. Q. You don’t remember whether it was a $1 bill? A. No, sir; I couldn’t say. Q. Who did you see when you got that ? A. Not any one. Q. You didn’t see anybody? A. Not that I remember of. Q. But you come through Ward Sies’ place of business? A. No, sir. Q. Did you see Ward about the time you got it? A. No, sir; I think not, not that I remember of. Q. Well, if you did, you would remember it, wouldn’t you? A. I think so; yes. Q. What did you do with the money? I’ll ask you if it is not a fact that Jake Tolleson gave you a $1 bill to get whisky with? A. Jake Tolleson gave me some money, but I don’t remember about the kind of money. Q. Do you know whether that money Avas marked? A. No, sir. Q. You got a pint of whisky with the money he gave you ? A. I got a pint with some' money. I don’t know whether it was the same money Jake Tolleson gave me or not.”

He further testified that the defendant, Ward Sies, conducted a restaurant near witness’ place of business, and that the defendant would come into his place to get change, and that witness frequently went into defendant’s place to get change, and that Tolleson Avas somewhat intoxicated when he gave him the money.

. Jake Tolleson testified that he gave Luther Busby a marked dollar bill to buy whisky, and Busby went and brought him back a pint of Sunny Brook whisky; that the next time he saw the marked dollar hill R. B. Pitts had it.

R. B. Pitts and Hugh Treadwell testified that they marked a dollar bill and gave it to Jake Tolleson, and that a few hours after they gave the bill to Tolleson they found the same bill in a pocketbook in a drawer under the counter in the defendant’s place of business.

The defendant moved the court to direct a verdict of acquittal, which motion was denied.

The defendant testified that he never sold any whisky in his life; that he knew nothing about the b.ottle of whisky that Busby testified to; that he did not know how he received the dollar' bill that he gave to Pitts; that he -was conducting a restaurant business and taking in change all‘the time. And the day in question was á very busy day in his business. When Pitts and Treadwell came into his place of business and asked him if he had a dollar bill, he looked in his money drawer, and found a dollar bill, and handed it to Mr. Pitts.

It is contended on the part of plaintiff in error that the verdict is contrary to law and the evidence in the case. We are of opinion that this contention is well founded. The defendant is presumed to be innocent until proven guilty beyond a reasonable doubt, and no inference of guilt can be founded upon circumstances except such as naturally or necessarily follow from the facts. If the facts and circumstances are of such a character as to fairly permit an inference consistent with innocence, they cannot be regarded as sufficient evidence to support a conviction. The general rule in criminal cases is that, where the evidence is circumstantial, the facts shown must not only be consistent with and point to the guilt of the defendant, but must be inconsistent with his innocence. The only proof in the case connecting the defendant with the transaction testified to was the finding of a marked dollar bill in his possession. It is not even shown that the marked dollar was ever paid for whisky, and it is not disputed that he received this dollar in the usual course of his business. Where the evidence only raises a mere suspicion of the guilt of the defendant, it is insufficient to sustain-a conviction. Suspicion is not proof, and the court should direct a verdict of acquittal.

There being no evidence to support the verdict, the judgment is reversed.

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


author: DOYLE, J.

text:
      Ex parte MILLARD BEVILLE.
    No. A-1278.
    Opinion Filed September 5, 1911.
    (117 Pac. 725.)
    1. PRELIMINARY EXAMINATION — Order of Commitment — Nature of. A preliminary examination before a committing magistrate, is not a trial, and an order of commitment issued thereon is not “a, process issued on a final judgment.”
    2. HABEAS CORPUS — Jurisdiction—Legality of Commitment — Probable Cause. The courts exercise a supervising jurisdiction over the proceedings of a committing magistrate by means of habeas corpus, and inquire into the legality of the commitment and the question of probable cause.
    3. BAIL — Refusal—Commitment for Murder. Evidence examined, and held sufficient to justify the refusal of bail to petitioner committed to answer for the crime of murder.
    (Syllabus by the Court.)
    Application of Millard Beville for writ of habeas corpus.

    Denied.

      Harris & Breslin, for petitioner.

      Smith C. Matson, Asst. Atty. Gen., for respondent.
   DOYLE, J.

Millard Beville fifed in this court on July 21, 1911, a petition wherein he alleges that he is illegally restrained of his liberty by David H. Chenault, sheriff of Texas county, and that his illegal confinement and detention consists in this, to wit: That a warrant of commitment was, illegally issued, by W. fl. Ater, a justice of the peace, in and for Guymon township, Texas county, upon a preliminary examination had upon a .complaint wherein petitioner was charged with the-crime of murder, and that under the evidence- introduced on said examination defendant was entitled to have been discharged from custody for .the reason that said evidence .was insufficient to show .the commission of the crime of murder, or probable cause to believe the defendant to be guilty of the crime of murder, which it is alleged will more fully appear from the transcript of the testimony taken upon said examination, which is annexed to and made a part of his petition. Wherefore petitioner prays that a writ of habeas corpus be granted, and that he be discharged from custody, and further prays that if the court should be of opinion that the evidence is sufficient to hold petitioner upon 'the charge of murder that he be admitted to bail, fixed at a reasonable amount, for the reason that the proof of guilt is not evident nor the presumption thereof great.

The testimony taken upon the examination tends to show the following facts: Anderson Gray and the defendant resided in Turner township, Texas county, their homes being about one mile apart. Mrs. Minnie Gray, wife of Anlerson Gray, left her home about midday, on July 15, 1911, and on horseback went to the home of the petitioner, and there attempted to turn loose some live stock that petitioner had taken up. Shortly afterwards she was found by her husband lying in the road about 100 yards from petitioner’s home. She was placed in a wagon and carried home. She died the following day.

Dr. T. C. Campbell testified that he was a duly licensed and practicing physician; that he lived near Shelton, Texas county; that on July 15th he was called to the home of Anderson Gray, and there found Mrs. Gray apparently unconscious, her head was swollen, her eyes discolored. There were also several contusions on her body, arms, and hands, and she seemed to be paralyzed as the result of the injuries to her head.

Dr. W. H. Rangston testified that he was a practicing physician, and with Dr. Hays on July 17th made a post mortem examination of the’ body of Mrs. Gray, that they found the skull fractured and blood clots in the región of the right and left temples.

Beunah Yarbrough testified that she was driving by the home of the petitioner on the 15th day of July, and saw Mrs. Gray get off a horse, and go towards his corral with a hammer in her hand, and Millard Beville came out of his house and struck her on the heád with a club; that when he struck her she fell; that witness then shut her eyes and drove on to Mrs. Dunnings, and from there she could see Mr. Beville and Mrs. Gray moving about in the road; that Mrs'. Gray drove the cows out of the corral, and started towards her home.

Anderson Gray testified that he was 58 years old, and had lived in Turner towmship about 6 years; that on the afternoon of July 15th he was hauling water, and he found his wife lying in the road, her horse standing nearby; that her skull seemed to be broken, her eyes were black, and she was in an unconscious condition; that he put her on his wagon, drove to his home, and sent for a physician.

Valasto Poplok testified that her age was 15 years, and her home was about 10 miles from Mr. Gray’s; that on July 15th she was staying at Mr. Gray’s, and was with him when he found his wife lying in the road; that when he put her on the wagon Mrs. Gray said, “That dog beat me. -In the section line. He beat me on the head six times,” and that Millard Beville was then standing in the road with a club in his hands.

There was no testimony offered upon the examination on the part of the defendant.

A preliminary examination before a committing magistrate is not a trial, and an order of commitment issued thereon is not “a process issued on a final judgment.” The courts exercise a supervising jurisdiction over the proceedings of an examining magistrate by means of habeas corpus, and inquire into the legality of the commitment and the question of probable cause. Ex parte Johnson, 1 Okla. Cr. 414, 98 Pac. 461; Ex parte Turner, 3 Okla. Cr. 163, 104 Pac. 1071. The foregoing summary of the testimony presented is conclusive of the fact that the committing magistrate was fully warranted in committing petitioner for trial for the crime of murder.

As to the contention on the part of petitioner that he is entitled to be let to bail for the reason that the proof of his guilt is not evident nor the presumption thereof great, it is sufficient to say without further comment upon the evidence adduced that, considering his petition as an application for bail, the petitioner has not brought himself within the rule of this court, which places the burden upon the applicant to show that he is illegally resrained of his liberty. In re Dykes and Standifer, and cases therein collated, infra, 117 Pac. 724.

Upon’ á consideration of all the evidence presented’ in support of‘the application, we-are of opinion ’that it is insufficient'to create a’ reasonable doubt of petitioner's guilt of the Crime of murder.

■It’is therefore considered‘and adjudged that the writ be denied and bail refused.

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


text:
    T. J. CROWELL v. STATE.
    No. A-620.
    Opinion Filed September 5, 1911.
    (117 Pac. 883.)
    1. ’ JUDGMENT — Modification—Verdict—Appeal. Where the information was for stealing two mules, under section 2606, Snyder’s Stat., ,, . and the verdict was guilty, as charged in the information, the fact " that the court adjudged the defendant guilty of grand larceny .■)<; -.¡was not 'reversible error,- since the word “larceny,” if properly ,.,- used, could not injure the defendant, the record furnishing a eom- ‘ píete protection against another prosecution for the same offense, „;i;L - and the-judgment will on appeal 'be modified and corrected-under , section 6955, Snyder’s Stat,, so as. to conform to the charge in the information and the verdict.
    2. LARCENY — Theft of Animáis — Evidence—Felonious Intent. Sec- - tion-2606, Snyder-’s Stall, which provides:'.' “That if any person shall steal any stallion, m,are, e.olt, gelding,, ridgeling, or any ass, genet, or mule, or any bull, cow, calf, steer or stag he shall be guilty • • of a- felony' and ■ on conviction thereof shall' be punished ■ by confinement in the state penitentiary for a term (of) not less than one nor more than ten years” — creates a separate and distinct offense from section 2591 defining larceny to be’“.the taking of personal, property accomplished, by fraud or stealth, and with intent to deprive another thereof. To support a conviction under - . section 2606, -it-is'necessary to prove a felonious intent on the part of the taker to deprive the owner thereof, and to convert the same to his (the taker’s) own use, which specific proof is not necessary "' to support a conviction under the géneral larceny' statute.
    3. ’ CRIMINAL LAW — Crime—-Definition of ■ Offense. ■ ' The definition , of an. act made an offense by statute,- but not definefl by. it, may be ascertained by reference to the common law.
    (Syllabus by the Court.)

      Appeal from District Court,' Wagoner County; John H: King', Judge.

    T. J. Crowell was convicted ..of larceny, and brings error.
    Modified and affirmed.

      R. C. Allen, J. C. Graves, and Kistler & Haskell, for plaintiff in error.

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

Plaintiff in error was tried and- convicted upon an information, the charging part of which is as follows:

“That T. J. Crowell and John Brown did, in Wagoner county and in the state of Oklahoma, on-or about the 29th day of July, in the- year of our Lord one thousand-1 nine hundred and nine, and anterior to the presentment hereof, commit. the crime of stealing mules, .in the manner and form as. follows, to wit: That the said T. J. Crowell and John .Brown,' in the county and state aforesaid, on or about the day, mo'htli,'and year aforesaid, did unlawfully- and 'feloniously steal,- take, and carry awáy two mules, a inore accurate description1 of which to this informant is unknown, of the value of two hundred an.d fifty dollars, the property of one W. M. Denton, .with, the felonious intent to deprive the owner, the s.aid W.- M. D,enton, thereof, and to convert the same to their, said T. J. Crowell’s and John Brown’s, own use, contrary to the form of the statutes in such cases made and provided, and against the peace and dignity of the state.”

Upon a separate trial of. this defendant, the jury returned the following verdict: >, •

“We, the jury, duly impaneled and ’sworn- in the above-entitled cause, upon our oaths find the defendant guilty .as. charged in the information, and assess his punishment at imprisonment in the state penitentiary for a term of eight years.”

The judgment of the court contains.the following recital:

“And now on this 2d day of October, 1909, the same being the 18th judicial day óf the regular September, 1909, term of said court, comes the defendant in person, in custody of the sheriff, into open court to receive the judgment and sentence of the court upon the verdict of the jury heretofore returned and entered, finding the defendant guilty of grand larceny and assessing his punishment at imprisonment in the state penitentiary for a term of eight years.”

The record discloses that the defendant filed a general demurrer to the information, “for the reason that the same does not state facts sufficient to constitute a public offense.”

It is now contended for the first time:

“That the information, in alleging the value of the mules, charges two separate and distinct offenses, to wit, grand larceny and larceny of live stock, and that for this reason the verdict of the jury is insufficient to support the judgment of conviction, and the fact that the defendant failed to demur to the information for duplicity can in no way cure any uncertainty there may be.in the verdict of the jury or in the judgment and sentence of the court.”

In support of this contention, counsel cite the cases of Hughes v. Territory, 8 Okla. 28, 56 Pac. 708, and Sullivan v. Territory, 8 Okla. 499, 58 Pac. 650.

Larceny is defined by our statutes as follows:

Section 2591, Snyder’s Stat.:

“Larceny is the taking of personal property accomplished by fraud or stealth, and with intent to deprive another thereof.” Section 2593 provides:
“Larceny is divided into two degrees; the first of which is termed grand larceny, the second petit larceny.”

Section 2594 provides:

“Grand larceny is larceny committed in either of the following cases: 1. When the property taken is of value exceeding twenty dollars. 2. When such property, although not of value exceeding twenty dollars in value, is' taken from the person of another. Larceny in other cases is petit larceny.”

Section 2595 provides:

“Grand larceny is punishable by imprisonment in the state prison not exceeding five years.”

Section 2606, Snyder’s Stat. (Sess. Laws Okla. Ter. 1895, c. 20, art. 1, § 1, entitled, “An Act for the better protection of stock raisers”), is as follows:

“That if any person shall steal any stallion, mare, colt, gelding, ridgeling, or any ass, genet, or mule, or any bull, cow, calf, steer, or stag, he shall be guilty of a felony and' on conviction thereof shall be punished by confinement in the state penitentiary for a term (of) not less than one nor more than ten years.”

The Supreme Court of Oklahoma Territory, in the case of Hughes v. Territory, supra, construing these statutes, held that section 2606, supra, creates a distinct-and separate offense from larceny as defined by the general statutes, and does not make the stealing of the animals therein named grand larceny, without regard to value. Mr. Justice Burwell, in the opinion of the court, said:

“The contention of counsel for the appellant is that when the Legislature said ‘that if any person shall steal any stallion, mare, colt,1 etc., ‘he shall be.guilty of a felony,’ it meant the same as if it had said, ‘that if any person shall steal.any stallion, mare, colt,’ etc., ‘he shall be deemed guilty of grand larceny.’ In other words, it is contended that the word ‘steal,’ in act of 1895, is synonymous with the word ‘larceny-,’ as used in the act of 1893; the only difference being that the act of 1895 makes the stealing of all domestic animals named in the act grand larceny, without regard to value. This contention cannot be sustained. The Legislature has modified the meaning of the word ‘larceny,’ as used in the crimes act, so that the taking of personal property, accomplished by fraud or stealth, and with intent to deprive another thereof, is larceny, regardless of whether or not it was taken for the purpose of depriving the owner thereof, or for the purpose of converting it to the use of the taker. Therefore, while stealing and larceny at common law were synonymous terms, our statute has given the word ‘larceny’ a much broader meaning than it then -had; while ‘steal’ or ‘stealing’ has not been defined by our statutes, and must be construed according to its common-law meaning. This view is supported by the authorities. Bish. St. Crimes, •§ 413: ‘If a statute, in general terms, provides that “whoever shall be guilty of larceny” shall be punished in a manner pointed out, the offense which -it creates is the same in its entire extent and its limitations as larceny at common law, for example, since larceny at the common law cannot be committed by taking and carrying away, in one transaction, anything which pertains to the realty, it c'annot under the statute. Therefore, under a statute, it is not larceny to take and carry away, with a felonious mind, copper pipe which was attached to the freehold. * * * The doctrine, in brief, is that where the indictment is really upon the statute, instead of being at the common law, while the statute is simply looked to on the question of the punishment, it must be in the common-law form, but conclude against the form of the statute.’ And again, in section 363 of the same work, it is said: ‘Still, there is constant occasion to refer to the common law to ascertain the meaning of the statute in respect of the act; for we have seen that, if a statute employs a word or phrase which has already been used in the common law or in another statute, it is to be understood in the meaning previously determined. Thus, there are no common-law crimes against tbe United States; yet the acts of Congress, instead of minutely defining particular crimes, often make it penal, for example, to commit robbery or larceny or arson and so on, employing words of a well-known common-law meaning. In such a case the court looks to the common law to ascertain the nature and limits of the offense. And a robbery under the statute differs in no respect from a robbery purely at common law.’
“Taking into consideration the rule of construction as enunciated by Mr. Bishop, we must conclude that when the Legislature used the word ‘steal’ in the act of 1895, under which the defendant was indicted, tried, and convicted, it had in mind the crime of stealing or larceny as it existed at the common law, and not larceny as defined by our Statutes of 1893. And this is made more apparent when we take into consideration the reasons for the enactment of the law. The act is entitled ‘An act for the better protection of stock raisers.’- Cattle-stealing had become so common, particularly in the western part of the territory, that it became necessary for the Legislature to pass a law which would more fully protect those who had herds of cattle in the western counties, the general law on larceny being inadequate. By this act a new crime was incorporated into our statute — one that was independent of our statutory crime of larceny. Had it been the intention' of the Legislature to simply make the stealing of these domestic animals grand larceny, without regard to value, it would have said so, and the punishment prescribed in grand larceny would have been inflicted upon those convicted of the offense; but the Legislature deemed this crime of stealing domestic animals a more serious offense than grand larceny. In fact, the punishment prescribed therefor, is twice as great as that provided for in grand larceny, except larceny from the person, in which case the punishment is the same, and larceny from a dwelling house or vessel, • in ■ which event it might be eight years. .One convicted of larceny under the statute cannot, except in cases of larceny from the person or from a dwelling house or vessel, be sentenced to a term 'of more than five years in the penitentiary, no matter how great the value of the property taken; but, on the other hand, one who steals a calf, even if it is not worth more than a dollar can be sentenced to a term of ten years in the penitentiary. There is a reason for this difference. The persons who steal cattle and other domestic animals, as a rule, steal them from the owners thereof, with the intent to appropriate the same to their own use. They steal for gain — for the purpose of selling and profiting thereby. In fact, the persons that the statute was more particularly intended to punish were the persons who w,ere stealing cattle and other domestic animals as a means of livelihood; and the law on larceny, as divided into degrees under the Statutes of 1893, was wholly inadequate. Many of the animals stolen were not of the value of more than $20; and therefore the law did not prevent the commission of the crime, and the punishment for petit larceny was not sufficient to prevent the larceny of such animals. Hence the creation of the statute of 1895. But the two acts are entirely different. The one has no reference to the other in any way. They are separate and distinct crimes. By construing them in this way, each is a perfect act within itself; but by construing the act of 1895 to be grand larceny, without regard to value, you destroy the degrees of larceny as fixed in the statute, when applied to certain kinds of personal property, viz., domestic animals. This cannot be done without disregard of well-known' rules of statutory construction, which are, first, that statutes in pari materia are to be construed together; and, second, that an existing statute is not repealed by the passing of a subsequent one pertain-1 ing to the same matter, unless the two are so inconsistent that they cannot stand together, in which case the later one prevails. If, however, the act of 1895 is to be given the construction herein suggested, then the domestic animals named in the act may be either the subject of larceny, as defined in the-1893 statutes, or, if taken under such circumstances and conditions as would constitute larceny at common law, it would constitute the crime of stealing, under the act of 1895. To illustrate: If the property were of the value of $20 only, or less, the offender could be punished for petit ■ larceny; if of the value of more than $20, he could be punished for grand larceny, or, if the facts were strong enough to warrant it, he could be indicted and tried under the statute of 1895, which mákes the stealing of 'the domestic animals named therein a'felony, no matter what the'value of the property stolen may be. This view is not unsupported by the authorities. Kollenberger v. People [9 Colo. 233], 11 Pac. 101; Brown v. State [34 Neb. 448], 51 N. W. 1028; State v. Arnold [31 Neb. 75], 47 N. W. 694.
“The only difference between the crime of stealing a domestic animal under the act of 1895 and larceny at the common law is that this act abolishes the degrees of the crime, and makes the stealing of any of these animals a felony, without regard to the amount of their value. By this, however, we do not mean to convey the idea that a thing which has no value can be stolen, although there are some authorities which hold that it is neither necessary to allege nor prove value,, except for the purpose of fixing the degrees of the crime. But this question is not now before us. Several of the other states have passed laws similar to the act of 1895, which have been construed by their" respective courts, but the wording of those statutes in every case is so different from the One before us that the decisions of the courts thereon fail to assist us in the construction of the act referred to above. When these two acts are construed in the way above pointed out, they are in perfect harmony, and can be measured by correct legal rules. But if the act of 1895. only makes the stealing of the animals named therein grand larceny, as defined by our Statutes of 1893, then the degrees of larceny cease to be measured by the value of the property stolen, and our statutes on larceny would be inconsistent and wholly wanting in any fixed rule.”

The decision in this case is approved and followed by this court. The effect of the act (section 2606, súpra) is not to take the stealing of any of the animals therein named out of the general provisions of the crimes act relating to larceny, but to leave it to be prosecuted under either act. To this extent their provisions are _ concurrent.

The information clearly and distinctly charges a violation of section 2606, and contains the necessary averments charging larceny under the common law.

“At common law larceny is usually defined as the wrongful or the fraudulent taking and carrying away, by any person, of the personal goods-of another, from any place, without any color of right, with a felonious intent to convert them to the taker’s own use, and making them his own property without the consent and against the will of the owner.” (Am. & Eng. Ency. vol. 18, p. 459.)

When a prosecution is predicated upon section 2606, to support a conviction, the ownership of the animals stolen must be alleged and proved, and it is necessary to allege and prove a felonious intent on the part of the taker to deprive the owner thereof and to convert the same to his (the taker’s) own use, which specific proof is not necessary to support a conviction under the general larceny statute. That was done in this case. The allegation of value in the information is not material, and may be rejected as mere surplusage, which does no harm. But one offense — the larceny of live stock, as defined by section 2606— is charged in the information, and the objection to the verdict on the ground that it is too general is not well taken.

It is also urged that the judgment is insufficient, in that it does not show that the defendant was informed by the court, or by the clerk under its direction, of the nature of the information, and his plea and the verdict thereon, as required by statute, and that the judgment is insufficient, in that it shows the court adjudged the defendant guilty of grand larceny; five years’ imprisonment being the maximum punishment for this offense. Section 6910, Snyder’s Stat., provides:

“When the defendant appears for judgment, he must be informed by the court, or by the clerk under its direction, of the nature of the indictment, and his plea and the verdict, if any thereon.”

The record in this cause does not contain the instructions given, and is otherwise incomplete. Upon this record we are unable to determine whether or not this requirement of the statute was complied with. We will not presume that it was not done. There was no objection made or exception taken in the court below to the proceedings had. All presumptions favor the regularity of the proceedings before the trial court. We find that the judgment recites, that “upon the verdict of the jury heretofore returned and entered, finding the defendant guilty of grand larceny and assessing his punishment at imprisonment in the state penitentiary for, a term, of eight years.” It. is evident that this was merely a clerical mistake in designating the character of, the larceny; the jury having found the defendant guilty as charged in the information, which offense was the larceny of live stock. No. particular form of words is prescribed by our criminal procedure in pronouncing and entering a judgment of conviction in,a criminal case.

Section 6911 provides that defendant may show cause against judgment. Section 6912 provides:

“If not sufficient cause be alleged or appear to the court why judgment shall not be pronounced it must thereupon be rendered.”

Section 6919 provides:

“When judgment upon a conviction is rendered, the clerk must enter the same upon the minutes, stating briefly the offense for which the conviction has been had, and must immediately annex together and file .the following papers, which constitute a record of the action: 1st. The indictment (or information) and a copy of the minutes of the plea or demurrer. 2nd. A copy of the "minutes of the trial. 3rd. The charges given or refused, and the indorsements; if any,' thereon; and, 4th. A copy of the judgment.”

• That statute expressly declares this to -be the record of the action, and this is the record which would have to be produced in support of.a plea of former jeopardy, and, if this record furnishes facts sufficient' to • protect the defendant against another prosecution for the same offense, it cannot in reason be claimed that the record is defective in any matter of substance. Section 6957 provides: ■ •

“On an appeal the court must give judgment without regard to technical errors or defects, or to exceptions which do not affect the substantial rights of the parties.” . .

The words “grand larceny,” mistakenly used in entering judgment, could not. in any way have misled or injured the defendant. The information,, plea, minutes of the trial, verdict, and judgment taken, together furnish the defendant complete protection against another prosecution for the same offense; and, while this. mistake does not affect, any of the substantial rights of the defendant, under the power .granted to this .court by section 6955, Snyder's Stat., which provides, “The. appellate court may reverse, affirm or modify the judgment appealed from,” the judgment appealed from will be reformed and modified by striking out the word “grand” before “larceny,” 'and adding the words “of live stock” after the word “larceny,” making the recital read, “finding the defendant guilty of larceny of live stock,” as charged in the information.'

Finding no substantial errors in the record, the júdgment of the district 'court of Wagoner county, as modified, is hereby affirmed.

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


author: PER CURIAM.

text:
    JOHN ANTONELLI et al. v. STATE.
    No. A-849.
    Opinion Filed September 5, 1911.
    (117 Pac. 654.)
    1. COURTS — Superior Courts — ’’County Courts.” The superior courts created by act approved March 6, 1909 (Laws 1909, c. 14, art. 7),. are not “county courts” as the term is used in section 19 of the Bill of Bights, even where exercising jurisdiction concurrent with the county courts.
    2. JURY- — Jury Trial — Number of Jurors — Constitutional Law. Under section 19 of the Bill of Bights, which provides that trial by jury shall remain inviolate, and that a jury for the trial of civil and criminal cases in courts of record,’ ofh'er than county courts, shall - consist of twelve men, but in county courts shall consist of six men, the provision in act approved March 6, 1909 (Laws 1909, c. 14, art. 7), establishing superior courts, that all misdemeanor cases shall be tried by a jury of six men, instead of twelve, is void.
    3. JURY — Jury Trial — Number of Jurors — Waiver. Defendant upon trial in a superior court for a misdemeanor may waive his right to trial by a constitutional jury of twelve men, and upon his written consent in 'person or by attorney may be tried by a jury of six men, but such waiver must be expressly shown by the record.
    "(Syllabus by the Court.)

      Appeal from Superior Court of P.ittsburg County; P: P.. Brewer, Judge.

      John Antonelli and Paul Antonelli were convicted of a violation of the liquor law, and they appeal.
    Reversed and remanded.

      Leighton B. Worthley, for plaintiffs in error.

      Simth C. Matson, Asst. Atty. Gen., for the State.
   PER CURIAM.

The plaintiffs in error were informed against, tried, and convicted in the superior court of Pittsburg county for a violation of the prohibition law. The trial was had before a jury composed of only six men. The record does not show that the defendants waived their right to a trial by a jury of twelve men.

In the case of Hill v. State, 3 Okla. Cr. 686, 109 Pac. 291, it was held that the superior courts created by act approved March 6, 1909 (Laws 1909, c. 14, art. 7), are not “County Courts,” as the latter term is used in section 19 of the Bill of Rights, even when exercising jurisdiction concurrent with county courts, and the provision in the act prescribing “that all misdemeanor cases shall be tried by a jury of six men instead of twelve” is unconstitutional and void.

The only statute prescribing how a jury may be waived is section 5808, Snyder’s Stat. This provision of the Civil Code provides that a jury trial may be waived with the assent of the court “by written consent, in person or by attorney, filed with the clerk; by oral consent, in open court, entered on the journal.” In the case of Dalton v. State, infra, 116 Pac. 954, it was said:

“We are of opinion that it is incumbent on the state to show by the record that the defendant waived his right to a constitutional jury, and consented to be tried by a jury of six men. This is the law in civil cases, and it certainly cannot be said in reason that in criminal cases where the defendant’s liberty is at stake an express waiver of the right to be shown by the record is unnecessary. We are not willing to establish such a rule.”

It is not necessarv to consider the other assignments of error.

The judgment is reversed, and the cause remanded to the superior court of Pittsburg county, with direction to grant a new trial. ■


text:
    JULIUS N. STUMPF v. STATE.
    No. A-996.
    Opinion Filed September 5, 1911.
    (117 Pac. 648.)
    APPEAL AND ERROR — Time of Appeal — Extension of Time — Necessity. Though accused in a misdemeanor case procured orders expending the time for making and serving' a ease-made, as required by Comp. Laws 1909, sec. 6951, where the appeal was not taken within 60 days from judgment, and he did not procure an order extending the time for taking an appeal, pursuant to section 6948, requiring misdemeanor appeals to be taken within 60 days, and authorigiag^Ehe trial court for good cause to extend the time for ^^-appeSlnot exceeding 60 days longer, the appeal will be dismissed; it being necessary to comply with both statutes.
    (Syllabus by the Court.)

      Appeal from Oklahoma County Court; James S. Twyford, Special Judge.

    Julius M. Stumpf was convicted of violating the prohibitory law, and appeals.
    Appeal dismissed.

      Taylor, Pruiett & Sniggs, for plaintiff in error.

      Smith C. Matson, Asst. Atty. Gen., for the State.
   PER CURIAM.

Plaintiff in error was convicted in the county court of Oklahoma county on the 11th day of July, 1910, on a charge of selling intoxicating liquor, and on the 8th day of October thereafter was sentenced to .serve six months in the county jail, and pay a fine of '$500. From the date of judgment and sentence plaintiff in error was given 40 days to make and serve case-made. No time was fixed within which to file the appeal in this court. On the 17th day of November thereafter an additional order was made extending the time within which to make and serve case-madé for a period of 30 days' from the 17th day of November. On the'16th day'óf December thereafter another order was made extending the time within which to make and serve case-made 30 days from the 17th day of December. Neither of these orders made an extension of the time within which the appeal should be perfected in this court.

The Attorney General has filed the following motion to dismiss the appeal:

“First. Because there is- no judgment-of the court incorporated in the case-made . of conviction against this plaintiff in error from which an appeal may be taken. (See page 55 Record.) 'Second. Because the pretended caseAnade shows'that, if any judgment was rendered in this case, it was rendered on the 8th day of October, 1910, as plaintiff in error was sentenced on that date, and no: time was then given in which to' file case-made in the Criminal Court of Appeals. This being á conviction for a misdemeanor, the appeal must be. taken within 60 days after the judgment is rendered, unless the trial court extend the time not to exceed 60 days. There was no extension of time allowed and the notices of appeal (see Record pages 60 and 61) were not served on the county judge and county attorney until December 15, 1910, more than 60 days after the rendition of judgment, and the case-made was not filed in this court until January 16, 1911, long after the time for taking the appeal as allowed by section 6948, Snyder’s • Compiled Daws of Oklahoma 1909, .had expired.”

The grounds set forth in the second paragraph appear to be well taken. Section -6948 of Snyder’s Statutes contains the following: ' '

“In misdemeanor cases the appeal, must be,taken'within sixty days after the-judgment is rendered; provided, however, that, the trial court or judge may, for good cause shown, extend the time in which such appeal may be taken not exceeding sixty days. In felony cases the appeal must b'e taken within six months after the judgmeht is rendered,'and a transcript in both felony and misdemeanor cases -must be filed as hereinafter directed.”

Under ■ this statute an appeal must be taken in this court within 60 days from the date of judgment by the trial-court, unless the time is'for good cause shown extended by the trial court. In this case the court extended the time within which to make and serve case-made, but made no order relative to the time within which the appeal should be perfected’. The court could not limit the time to less than 60 days within which to take the appeal, but could extend it for good cause shown, not to exceed 120 days. This' it was not askecl to do, and did not do.

Section 6951, Snyder’s Statutes, among other things, provides. that:

“ * * * party desiring to have any judgment or order of the district court (superior county court), or county court, or judge thereof, reversed by the Supreme Court (Criminal Court of Appeals), may make a case containing a statement of so much of the proceedings and .evidence or other matters in the action as may be necessary to present the errors complained of to the Supreme Court (Criminal Court of Appeals). The case so made, or copy thereof, shall within thirty days after the judgment or order is entered, be served upon the opposite party, or his attorney, who may, within three days thereafter, suggest amendments thereto in writing, and present the same to the party making the case, or his attorney. The case and amendments shall be submitted to the judge, who shall settle and sign the same and cause it to be attested by the clerk or county judge, and the seal of the court to be thereto attached. It shall then be filed with the papers in the case. Such original case-made shall be filed with the petition in error. The exceptions stated in the case shall have the same effect as if they had been reduced to writing, allowed and signed by the judge at the time they were taken. The court or judge may, upon good cause shown, extend the time for making a case and the time within which the case may be served. * * * ”

These two provisions are in separate sections of the statute, neither making any reference to the other. This court has repeatedly held that these are plain mandatory provisions and must be complied with before this court acquires jurisdiction to review the judgment of the trial court on appeal. Plaintiff in error secured the order provided for in section 6951, but failed to secure that provided for in section 6948.

It is just as essential to have the order of the trial court extending the time within which to perfect the appeal as it is to have the time extended within which to make and serve case-made.

The motion of the Attorney General to dismiss on this ground is sustained. The appeal is accordingly, dismissed.


text:
      Ex parte W. L. DYKES. Ex parte BOB STANDIFER.
    No. A-1271.
    No. A-1272.
    Opinion Filed September 11, 1911.
    (117 Pac. 724.)
    1. HABEAS CORPUS — Application for Bail — Burden of Proof. Upon an application to the Criminal Court of Appeals for bail by writ • of habeas corpus after commitment for a capital offense by an examining magistrate, the burden is upon the petitioner to show facts sufficient to entitle him to bail, when those facts do not appear from the evidence adduced on the part of the prosecution.
    2. BAIL — Refusal—Reasonable Doubt. If upon a consideration of all the evidence introduced on' the application for bail the cpurt is of the opinion that it is insufficient to create a reasonable doubt of the petitioner's guilt of a capital offense, bail will be refused.
    3. SAME Murder — Evidence. Evidence examined, and held to justify the refusal of bail to the petitioners in custody, each upon two separate charges of murder.
    (Syllabus by the Court.)
    Applications of W. E. Dykes and Bob Standifer for writs of habeas corpus to be admitted to bail.
    Applications denied.
    /. S. Ratliff, H. O. Newmon, W. I. Cruce, and A. C. Cruce, for petitioners.

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

W. E. Dykes and Bob Standifer filed their separate petitions in this court on July 21, 1911, alleging their unlawful imprisonment and restraint in the county jail of Johnston county, by J. M. Williams, sheriff of said county.

Attached to and made a part of each petition is a transcript of the proceedings had before Butler Boyd, a justice of the peace in and for Tishomingo township, Johnston county, upon complaints filed, wherein said petitioners and one Crawford, a fugitive from justice and not apprehended, were jointly, charged with the murder of one Campbell Henderson, committed in said county on or about May 25, 1911, and with the murder of Monroe Wolfe, in said county on the same date, also a copy of the commitments issued May 30th, upon said preliminary examinations, committing said petitioners without bail upon each offense so charged to await the action of the district court thereon. On filing said petitions it was ordered that a rule to show cause why bail should not be granted be served upon-the Attorney General and the county attorney of Johnston county, and the hearing before the court was set for August 1st. On that date the cause was submitted to the court upon the testimony taken. On Sepr tember 5th the court after fully considering the applications, including the testimony taken upon the preliminary examinations, made and entered an order in each cause refusing bail.

'Upon the hearing it was contended on the part of the petitioners that they -were entitled to bail upon the testimony taken upon the examinations, for the reason the proof is not evident or the presumption great that they are guilty of the capital offense charged in the complaints. This contention is without merit. The determination and conclusion of the court, in each cause is based upon the settled rule of this court that upon an application for bail by writ of habeas corpus after commitment for a capital offense the burden is upon the petitioner to show facts sufficient to entitle him to bail, when those facts do not appear from the evidence adduced on the part of the prosecution. In re Thomas et al., 1 Okla. Cr. 15, 93 Pac. 980; Ex parte Johnson, 1 Okla. Cr. 414, 98 Pac. 461; Ex parte Watson, 1 Okla. Cr. 595, 99 Pac. 161; Ex parte Smith, 2 Okla. Cr. 24, 99 Pac. 893; In re Fraley, 3 Okla. Cr. 719, 109 Pac. 295; In re Bollin, 3 Okla. Cr. 725, 109 Pac. 288.

It would serve no useful purpose to review the testimony, and to do so would probably be prejudicial to the petitioners. The claim that the condition of the health of petitioners is such that the court should exercise its discretion, and for this reason admit to bail, is also without merit. It also appeared upon the hearing that upon an application to the district court of Johnston county or the judge thereof bail was denied. The determination of the district court in this matter has our unqualified approyal.

It is the opinion of the court that the petitioners upon their applications here made are not entitled to bail. Bail is therefore refused in each cause.

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


author: FURMAN, P. J.

text:
    JIM LEWIS v. STATE.
    No. A-647.
    Opinion Filed September 19, 1911.
    (117 Pac. 722.)
    LABCENY — Grand Larceny — Punishment. Grand larceny is punishable by imprisonment in the state penitentiary not exceeding five years, and it is error for the court to instruct the jury that, in case they convict a defendant of grand larceny, the punishment cannot be less than confinement in the penitentiary for one year.
    (Syllabus by the Court.)

      Appeal from District Court, Atoka County; A. T. West, Judge.

    Jim Lewis was convicted of grand larceny, and appeals.
    Reversed and remanded.
    /. B. Whitehead, for appellant.

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

Appellant, Jim° Lewis, - was prosecuted by indictment in the district court of Atoka county on the 9th day of September, 1909, charging him with the crime of grand larceny, the stealing of a pocketbook and $66.35 of money, of the personal property of one Luster Martin. Trial was had on the 10th day of September, 1909, and a verdict of guilty returned; the jury fixing the punishment at imprisonment in the penitentiary for a period of one year and one day.

After the jury had retired to consider of a verdict, they returned into court and through their foreman inquired, of the court what the minimum punishment would be under the law, should they find the defendant guilty. The court, over the objection and exception of appellant, instructed the jury as follows :

“Gentlemen of the jury: In the event you should find the defendant guilty, the least punishment provided by the statute will be imprisonment in the state penitentiary for not less than one year, nor more than five years.”

The jury thereupon retired to deliberate upon their verdict, and afterwards returned into court the following verdict:

“We, the jury drawn, impaneled, and sworn in the above-entitled cause, do upon our oaths find the defendant, Jim Lewis, guilty as charged in the indictment, and assess his punishment at one year and one day in the state penitentiary.”

Appellant assigns the giving of this instruction as error, both in the motion for a new trial and in the petition in error.1

The trial court erred in giving the instruction complained of. Section 2595, Snyder’s Comp. Laws of Okla. 1909, is as follows:

“Grand larceny is punishable by imprisonment in the state-prison not exceeding five years.”

No minimum punishment is fixed by the statute above quoted, and there is no statute of this state that provides that, where imprisonment in the penitentiary is fixed as the punishment for crime, the minimum term of such imprisonment shall be not less than one year, as instructed by the trial court. It was within the province of the jury to assess as punishment in this instance any fixed period of time not exceeding five years. It might have been as low as one hour, or even one minute.

It is but just to the judge who gave this instruction to state that prior to statehood the law in force in the section where this cause was tried did provide that in all such cases the minimum punishment was as stated by the court. The trial judge doubtless had the old law in mind when he gave the instruction complained of. The Attorney General has confessed that the instruction given was erroneous.

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

DOYLE and ARMSTRONG, JJ., concur.


author: ARMSTRONG, J.

text:
    ANSON W. MOREY v. STATE.
    No. A-970.
    Opinion Filed September 19, 1911.
    (117 Pac. 774.)
    APPEAL AND ERROR — Dismissal. An appeal will not be considered by this court, when the plaintiff in error is a fugitive from justice and cannot be made to respond to any judgment or order which may be made in the case; and, on proper motion and showing by the Attorney General, the appeal, when such conditions are disclosed, will be dismissed.
    (Syllabus by the Court.)

      Appeal from ■District Court, Okmulgee County; W. L. Barnum, Judge.

    Anson W. Morey was convicted of manslaughter, and appeals.
    Dismissed.

      Crump, Skinner & Bailey and Stanford & ‘Cochran, for plaintiff in error.

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

Plaintiff in error was convicted at the June, 1910, term of the district court of Okmulgee county of the crime of manslaughter, and sentenced to serve 10 years in the state penitentiary on the 1st day of July, 1910. Bail was fixed at $10,000. This was given, and plaintiff in error was discharged from custody pending the appeal. Counsel have perfected their appeal and filed their brief, as provided by the statute and the rules of this court.

On July 6, 1911, the Attorney General filed a motion to dismiss the appeal, which motion is as follows:

“Because the said plaintiff in error, Anson W. Morey, is now and has been for more than a year last past a fugitive from justice from the'state of Oklahoma, and that his present residence is unknown; that since this appeal has been pending in this court plaintiff in error has committed another offense, amounting to a felony, against the laws of this state, and immediately after the commission of such offense fled without the bounds of this state and beyond the jurisdiction of this court, and his whereabouts is now unknown, as appears from the affidavit of J. W. Childers, county attorney in and for Okmulgee county, Oklahoma, which is hereto attached, marked /Exhibit A,’ and made a part of this motion, and the affidavit of Sam Higginbotham, deputy sheriff of Okmulgee county, Oklahoma, and the affidavit of J. W. Sullins, one of the board of county commissioners of Okmulgee county, Oklahoma,, hereto attached and marked 'Exhibit B,’ and 'Exhibit C,’ respectively, and made a part of this motion.”

The allegations of the motion to dismiss have not been controverted, and under the rulings of this court we have no alternative, except to dismiss the appeal. The question here raised was determined in the case of Tyler v. State, 3 Okla. Cr. 179, 104 Pac. 919, 26 L. R. A. (N. S.) 921. See, also, Jacobs v. State, 3 Okla. Cr. 648, 108 Pac. 429, Tydings v. State, 4 Okla. Cr. 659, 112 Pac. 759, and Tanner v. State, 5 Okla. Cr. 298, 114 Pac. 360.

Following the rule laid down in the above cases, the appeal in this case is dismissed.

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


text:
      Ex parte JAKE HARRY.
    No. A-1361.
    Opinion Filed September 19, 1911.
    (117 Pac. 726.)
    1. HABEAS CORPUS — Scope of Inquiry — Cause of Detention. Under the statute, providing that no court or judge shall inquire into the legality of any judgment or process whereby the party is in custody, or discharge him when the term of commitment has not expired, where the process is issued on a final judgment, the court will only examine the record to determine whether thij term of commitment has expired, and, if not,'the writ will be denied.
    2. HABEAS CORPUS — G-rounds—Irregularities. Where a judgment and sentence has been rendered and entered and the person sentenced is in custody thereunder, defects in the order of commitment are not available in a habeas corpus proceeding.
    3. COSTS — Imprisonment for Nonpayment. The power to punish by fine and imprisonment until such fine is paid does not include the power to add to such fine the costs of prosecution, and adjudge that, upon a failure to pay such costs, they shall be satisfied by imprisonment as a part of the fine.
    4. FINES — Punishment—Working Out Fine. Under Snyder’s Comp. Laws 1909, see. 7794, providing that any person working on the public road in lieu of payment of fine and costs shall be allowed a credit of $1 per day on such fine and costs, where a prisoner works on the county road, he is entitled to a credit of $1 per day in addition to the $2 allowed by section 6917 for imprisonment in satisfaction of the fine.
    5. COSTS — Constitutional and Statutory Provisions. Snyder’s Comp. Laws 1909, see. 7794, providing that any person working on the public road in lieu of payment of fine and costs shall be allowed a credit of $1 per day on such fine and costs, in so far as it relates to costs, is void.
    (Syllabus by the Court.)
    Application by Jake Harry for writ of habeas corpus.

    Writ denied.

      B. B. Blunt, for petitioner.

      Smith C. Matson, Asst. Atty. Gen., and A. V. Coopege,t Co. Atty., for the State.
   DOYLE, J.

Petitioner, Jake Harry, was convicted of the crime of unlawfully selling intoxicating liquor in the county court of Delaware county, and is now in custody on process issued on the final judgment of that court. On September 8th he filed in this court a petition for a writ of habeas corpus, alleging his restraint and imprisonment to be illegal for the reason that under the order of commitment issued to the sheriff in said cause he has served out the term of imprisonment adjudged against him by the county court.

A certified copy of the commitment is attached to his petition as an exhibit, and is as follows:

“State of Oklahoma, Delaware County. State of Oklahoma v. Jake Harry, Defendant. The State of Oklahoma to the Sheriff of Said County, Greeting: Whereas, on the 13th day of July, 1911, at the July term of the county court in and for the county and state aforesaid, the above-named defendant, Jake Harry, was by the judgment of said court convicted of the crime of selling liquor and on the 15th day of July, 1911, was by said court adjudged to pay a fine of $50.00 and serve a sentence of thirty days in jail. Now, therefore, you are hereby commanded to take said Jake Harry into your custody and confine him in the j'ail of said county for a period of thirty days. In testimony whereof, witness my hand and seal this 15th day of July, 1911. -, County Judge.”

Then follows a printed memoranda with the figures written in:

“Pay a fine assessed at $50.00 and the costs of prosecution taxed at $60.35, and to stand committed to the jail of said county in default of the payment of said fine fór a period of 30 days.”

Also the following indorsement:

“Received the within writ on this 15th day of July, 1911, and executed on the 15th day of July, 1911, by locking Jake Plarry in county jail. G. W. Hogan, Sheriff.”

Petitioner alleges that on the 15th day of August, 1911, his term of imprisonment expired under the commitment. A stipulation was filed signed by counsel for petitioner and A. V. Coopege, county attorney, appearing for respondent, G. W. Hogan, sheriff, waiving the presence of the petitioner and respondent, and submitting the cause upon the facts as shown by the petition.

The commitment in this case does not conform to the requirement of the statute, which is as follows: Section 6920, Snyder’s Stat., provides:

“When a judgment, except of death, has been pronounced, a certified copy of the entry thereof, upon the minutes, must be 'forthwith furnished to the officer, whose duty it is to execute the judgment, and no other warrant or authority is necessary to justify or require its execution.”

Section 6921 provides:

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

Section 6922 provides:

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

The petition does not contain a copy of the judgment, and it will be assumed, nothing to the contrary appearing in the petition or exhibits attached thereto, thjat the judgment pronounced directed that the defendant be imprisoned until the fine imposed be satisfied according to law, although it is evident that the judgment was not so entered. While no particular form of language is prescribed by our criminal procedure act for pronouncing and entering a judgment of conviction in a criminal case, a proper judgment when pronounced and entered should recite that at the time appointed by the court for pronouncing judgment the defendant appeared, and that he was informed by the court or by the clerk under its direction of the nature of the charge against him, his plea thereto and the verdict thereon, and that he was then asked whether he had any legal cause to show why judgment should not be pronounced against him; that thereupon the defendant was adjudged to be guilty of the offense charged as found by the jury, or by the court, where a jury is waived, or upon a plea of guilty when so entered; and that where the jury assess the punishment he be punished as has been determined by the jury, otherwise as by the court, as provided by law. Where a defendant is adjudged to pay a fine and that he be imprisoned until the fine is satisfied, the extent of such imprisonment should be specifically stated, and a proper commitment should contain a full recital of the judgment as entered.

Section 6207, Snyder’s Stat., provides:

“No court or judge shall inquire into the legality of any judgment or process, whereby the party is in custody or discharge him when the term of commitment has not expired in either of the cases following: * * * 2nd. Upon any process issued on any final judgment of a court of competent jurisdiction.”

Under this provision of the statute we can only look to the record to see whether a judgment was rendered. We have no power to reform, correct, or modify the same unless the .record is before the court on appeal. In re McNaught, 1 Okla. Cr. 528, 99 Pac. 241; Ex parte Mingle, 2 Okla. Cr. 708, 104 Pac. 68.

It would appear from the memoranda on the commitment that the defendant was also committed for the nonpayment of costs. While a defendant may be imprisoned for nonpayment of fine, he can. not be imprisoned for nonpayment of costs. Section 6917, Snyder’s Stat., provides:

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

Under this provision of the statute, the petitioner, in addition to the sentence of thirty days’ imprisonment, could only be imprisoned for a period not to exceed 25 days to satisfy the fine.

The roads and highways act provides (section 7794, Snyder’s Stat.) :

“Any person working upon the public road in lieu of payment of fine and costs shall be allowed a credit of one dollar ($1) per day on such fine and costs.”

Where a prisoner works upon the county road, he is entitled to a credit upon the fine of $1 per day in addition to the $2 allowed under section 6917, supra, in satisfaction of the fine. In so far as this provision relates to costs, it is void, _ The imposing of the payment of. the costs of the prosecution as a part of the fine imposed is unauthorized by the statutes. Costs are unknown to the common law, and our statutes only authorize imprisonment for the nonpayment of the fine imposed, and' the power to punish by fine and imprisonment until such fine is paid does not include the power to add to such fine the costs of the prosecution, and adjudge that, upon a failure to pay such costs, they shall be satisfied by imprisonment as a part of the fine.

The only question for our determination is, Has the judgment and sentence in the case been executed and satisfied? Presuming that the judgment in this case was properly rendered, the term of commitment should expire not later than September 9, 1911. We therefore find that the temí of commitment did not expire until one day after the filing of the application.

For this reason, the application will be denied.

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


author: ARMSTRONG, J.-

text:
    BURT GRANT v. STATE.
    No. A-686.
    Opinion Filed September 23, 1911.
    (117 Pac. 1100.)
    INDICTMENT AND INFORMATION — Duplicity. An information which attempts to charge separate offenses against an accused not based upon the same transaction is duplicitous, and should be set aside, unless the state elects to go to trial upon one specific count, and dismisses the others.
    (Syllabus by the Court.)

      Appeal from Pottawatomie County Court; B. D. Reasor, Judge.

    Burt Grant was convicted of violating the prohibitory law, and appeals.
    Reversed and remanded.

      L. G. Pitman and B.' B. Hood,, for plaintiff in error.

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

From the transcript filed in this case ft appears that the plaintiff in error, Burt Grant, was convicted on the 23d day of March, 1909, in the county court of Pottawatomie county on 'an information in said court by the county attorney, which' information contains four counts, and is as follows :

“Comes now V. R. Biggers, the duly qualified and acting county attorney in and for Pottawatomie county, state of Oklahoma, and gives the county court of Pottawatomie, and state of Oklahoma, to know and be infonned that the above-named defendant, Burt Grant, late of Pottawatomie county, did in Pottawatomie county, and in the state of Oklahoma, on or about the 19th day of November, in the year of our Lord one thousand, nine hundred and eight, and at the building known as the-Reeble hotel, city of Shawnee, unlawfully, knowingly; and wilfully keep and maintain a place in which there was received and kept spirituous, vinous, fermented, and malt liquors and imitations thereof and substitutes therefor, to wit,' whisky, beer,- ale, and wine, for the purpose of selling, bartering, giving away, and otherwise furnishing the same, contrary to the form of the statutes in such cases made and provided, and against the peace and dignity of the state of Oklahoma.”

Second count:

“And now comes the said V. R. Biggers, county attorney as aforesaid, and gives the said county court further to know and be informed that the above-named defendant, Burt Grant, late of Pottawatomie county, did, in Pottawatomie county, and in the state of Oklahoma, on or- about the 19th day of November, in the year of our Lord one thousand, nine hundred and eight, unlawfully, knowingly, and wilfully ship and in some way carry spirituous, vinous, fermented, and malt liquors and. imitations thereof and substitutes therefor, to wit, whisky, beer, ale, and wine, from a place in the city of Shawnee, unknown to your informer, a place within the county of Pottawatomie and state of Oklahoma, to a building known as the Reeble hotel in the city of Shawnee, being another place within the county of Potwatomie and state of Oklahoma, contrary to the form of the statutes in such cases made and provided, and against the peace and dignity of the state of Oklahoma.”

Third count:

“And now comes the said V. R. Biggers, county attorney aforesaid, and gives the said county court further to know and be informed that the above-named defendant, Burt Grant, late of Pottawatomie county, did, in Pottawatomie county and in the state of Oklahoma, on or about the 19th day of November, in the year of oür Lord one thousand, nine hundred and eight, unlawfully, knowingly, and wilfully have the possession of spirituous,, vinous, fermented, and malt liquors and imitations thereof and substitutes therefor, to wit, whisky, beer, ale, and wine with the intention' then and there to sell, barter, give away, and, otherwise furnish the same, contrary to the form of the statutes in such cases made and provided, and against the peace and dignity of the state of Oklahoma.”

Fourth count:

“And now comes the said V. R. Riggers, county attorney, as aforesaid, and gives the. said county court further to know and be informed that the above-named defendant, Burt Grant, late of Pottawatomie county, did in Pottawatomie county, and in the state, of Oklahoma, on or about the 19th day of November, in the year of our Lord, one thousand, nine hundred and eight, unlawfully, knowingly,, and wilfully sell, barter, give away, and otherwise furnish spirituous, vinous, fermented, and malt liquors and imitations thereof and substitutes therefor, to wit, whisky, beer, ale, and wine, and E. A. Pierce, John Garrett, and divers other persons unknown to your informant, contrary to the form of the statutes in such cases made and provided, and against the peace and dignity of the state of Oklahoma.”

In the case of DeGraff v. State, 2 Okla. Cr. 519, 103 Pac. 538, involving an identical question, this court said:

“An information or indictment must charge but one offense; but when the same act may constitute different offenses, or the proof may be uncertain as to which of two or more offenses the accused may be guilty, the different offenses may be set forth in separate counts in the 'same indictment or information, but in' such cases the information or indictment must show upon its face that the separate counts are all based upon one and the same transaction.”

The court says further:

“The offenses of maintaining a.place where liquors are kept for the purpose of sale, and of transporting liquor from one place in the state to another place therein, and of knowingly having the possession of liquor for the purpose of sale, and of selling such liquor, are ail separate and 'distinct offenses, and are based upon the separate acts, and cannot be joined in the same 'information or indictment.”

See, also, the case of Sturgis v. State, 2 Okla. Cr. 362, 102 Pac. 57.

Following the rule announced in the De Graff case, supra, the judgment of the trial court in this case is reversed, and a new trial awarded.

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


text:
    A. G. KELLY v. STATE.
    No. A-753.
    Opinion Filed September 23, 1911.
    (117 Pac. 887.)
    NEW TRIAL — Improper Argument of Prosecuting Attorney — Comment on Accused’s Failure to Testify. Comp. Laws 1909, sec. 6833, providing that comment by counsel on- the failure of accused to testify ' shall be ground for new trial, is mandatory; and where the prosecuting attorney, in his argument on the merits, comments on accused’s failure to testify, a new trial must be granted.

      Appeal from McClain County Court; B. B. Glaseo, Judge.

    A. G. Kelly was convicted of having possession of intoxicating liquors with the unlawful intent to sell the same, and he appeals.
    Reversed and remanded.

      W. H. Woods, for plaintiff in error.

      Smith C. Matson, Asst. Atty. Gen., for the State.
   PER CURIAM.

Plaintiff in error was convicted of the crime of having possession of intoxicating liquors with the unlawful intent to sell the same, and was sentenced to be confined in the county jail for a period of 90 days, and pay a fine of $200. Judgment and sentence was entered on January 24, 1910. An appeal was taken by filing in this court on May 8, 1910, a petition in error with case-made.

Of the various assignments of error it is necessary to consider only one, as upon that the defendant is entitled to a new trial. It appears from the record that the defendant did not testify in his own behalf, and one of the grounds of the motion for a new trial was:

“Because of the misconduct of the county attorney, over the objection of the defendant, in commenting upon defendant’s failure to request to become a witness on his own behalf.”

And for this reason it is assigned as error that the trial court erred in refusing to grant a new trial. The record shows that the language used was clearly a comment on defendant’s failure to testify in his own behalf. Our statute expressly forbids a reference to the fact that the defendant failed to testify on his own behalf. Section 6833, Snyder’s Stat., provides:

“In the trial of all indictments, informations, complaints, and other proceedings against persons charged with the commission of a crime, offenses, and misdemeanors before any court or committing magistrate in this state, the person charged shall at his ow'n request, but not otherwise, be a competent witness, and his failure to make such request shall not create any presumption against him nor be mentioned on the trial, if commented upon by counsel it shall be ground for a new trial.”

This provision of criminal procedure is mandatory, and it is not within the discretion' of the trial court to refuse to grant a new trial upon the application of the defendant, where such comment is made by counsel for the state. The comment was made by the prosecuting attorney in his argument to the jury upon the merits of the case. For this reason a new tidal must be granted. Brown v. State, 3 Okla. Cr. 442, 106 Pac. 808. It is evident that the comment was inadvertently made; but, whether intentional or inadvertent, the statute is mandatory in requiring that a new trial be granted on the defendant’s motion therefor.

For this reason the judgment of the county court is reversed," and the cause remanded with direction to grant a new trial.


text:
    BERT AUSTIN v. STATE.
    No. A-810.
    Opinion Filed September 23, 1911.
    (117 Pac. 1098.)
    1. APPEAL AND ERROR — Time for Making Case — Service—Authority of Judge Pro Tempore. A county judge pro tempore, at the time of entering judgment, is authorized to fix the time for making a ease and the time within which the ease may be served, and fix the time for filing the petition in error and case-made in the Criminal Court of Appeals within the statute; but such judge ■ cannot thereafter extend such time for making and serving such ease-made. If an extension of time for making and serving such case-made is necessary, it must be granted by the regular county judge.
    2. COSTS — Failure to Pay Costs — Imprisonment. Our statutes do not authorize imprisonment for a failure to pay the costs of the prosecution.
    (Syllabus by the Court.)

      Appeal from Ottawa County Court; A. C. Wallace, Pudge pro tempore.

    Robert Austin was convicted of a violation of the prohibition law, and appeals.
    Dismissed.

      O. F. Mason, for plaintiff in error.

      Fred $: Caldwell, for the State.
   DOYLE, J.

Plaintiff in error was convicted of a violation of the prohibition law, and was sentenced to be confined in the county jail for a term of 30 days and pay a fine of $50 and the costs of the prosecution, taxed at $27.70, and that in default of the payment of said fine and costs he be further committed for one day for each two dollars of said fine and costs.

Judgment and sentence was entered on April .26, 1910. Defendant was allowed 30 days in which to make and serve a case-made. On May 26th he made application to A. C. Wallace, county judge pro tern., for an extension of time of two days in which to make and serve his case-made, which application was allowed by the special judge. The record shows that the case-made was served on the 28th day of May. An appeal was taken by filing in this court, on June 25, 1910, a petition in error with case-made attached.

On August 9, 1910, Fred S. Caldwell, counsel for the Governor, filed a motion to strike the case-made, and dismiss the appeal, for the reason that said case-made was not served within the time named in the judgment, and that the said A. C. Wallace, as judge pro tem., was without power to grant an extension of time within which plaintiff in error might serve his case-made. There has been no response to this motion. In the case of Dobbs v. State, 5 Okla. Cr. 475, 114 Pac. 358, Furman, P. J., in the opinion said:

“Under our system a special judge who presides at the trial of a case may fix the time within which a case-made may be prepared and served; but after he vacates the bench and loses control over the docket he has no power to grant an order extending such time. This has never been an open question in Oklahoma. For a full citation and discussion of all the authorities on this question, see Rasberry v. State, 4 Okla. Cr. 613, 634, 103 Pac. 865, 112 Pac. 759. If additional time is desired for preparing and serving a case-made, application should be made either to the regular judge of the district court, or to such judge as may he then presiding in said district, and is therefore the court; or the appellant may file a transcript of the record in this court within the time originally granted, and, having thus perfected his appeal and this court having acquired jurisdiction of the case, we have power, under section 6077 of Snyder’s Comp. Laws of Oklahoma 1909, to grant the defendant such time as he may require to perfect and serve his case-made.”

Under the uniform holding of this court heretofore, the motion to strike the case-made must be sustained.

It further appears that the record proper is not properly certified' to by the clerk of the county court or the judge thereof. A certificate of the settlement of a case-made, signed by a judge pro tem., does not constitute a certificate of a transcript of the record, which can only be made upon the certificate of the clerk of the county court, or the regular judge thereof. For this reason there is neither a case-made nór a transcript before the court, and the motion to. dismiss the appeal must be sustained. We would suggest, however, that it is apparent that the part of the judgment and sentence, imposing the payment of the costs of the prosecution as a part of the'.fine imposed, and imprisonment therefor, is erroneous. Our statutes only authorize imprisonment for the nonpayment of the.fine imposed, and the power to punish by fine and imprisonment, until such fine be paid, does not include the power to add to such fine the costs of the prosecution, and adjudge that upon a failure to pay such costs they shall be satisfied by imprisonment, as a part of the fine. In re Harry, infra, 117 Pac. 726.

For the reasons stated, the motion to dismiss the appeal is sustained, and said purported appeal is hereby dismissed.

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


text:
    A. J. LITTRELL v. STATE.
    No. A-786.
    Opinion Filed September 23, 1911.
    (117 Pac. 1101.)
    APPEAL AND ERROR — -Failure to File Briefs — Affirmance. Where an appeal is taken to reverse a judgment of conviction, and no briefs are filed or oral argument made, the judgment of the trial court will be affirmed for failure to prosecute the appeal, unless prejudicial error appears on the face of the record.
    (Syllabus -by the Court.)

      Appeal from Wagoner County Court;. W. T. Drake, Judge.

    A. J. Littrell was convicted'of violation of the prohibition law, and appeals.
    Affirmed.

      Leon B. Prank, for plaintiff in error-

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

The plaintiff in error was convicted in the county court of Wagoner-county for: the.crime -of-having in his possession intoxicating liquors with the unlawful intent to violate the provisions of the prohibition law, and was sentenced to serve a term of 30 days in the county jail, and pay a fine of $150. The judgment and sentence was entered on February 5, 1910, from which judgment the defendant appealed by filing in this court on June 4, 1910, a petition in error with case-made. No briefs have been filed, and no counsel appeared in this court on behalf of the plaintiff in error. The Attorney General has filed a motion to affirm for want of prosecution.

We have examined the record, and no prejudicial error is apparent. The judgment as entered is somewhat irregular, but sufficient, we believe, to give this court jurisdiction on the appeal The motion to affirm is sustained, and the judgment of the lower court is- hereby affirmed. The clerk of this court will forthwith issue a mandate to the county court of Wagoner county directing said court to enforce its judgment and sentence against the plaintiff in error.

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


text:
    C. L. CUMMINS v. STATE.
    No. A-803.
    Opinion Filed September 23, 1911.
    (117 Pac. 1099.)
    1. OBSTRUCTING JUSTICE — Resisting Officer — Evidence. In order to sustain a charge of resisting an officer in the discharge of his official duty by forcibly attempting to take away property levied upon under a civil warrant, it is necessary for the proof to show some act of aggression on the part of the accused from which the court and jury can reasonably infer forcible resistance or interference with the execution of such warrant.
    2. TRIAL — Direction of Verdict — Insufficiency of Evidence. When, in the trial of a criminal cause, there is no proof produced' which tends reasonably to sustain the charge, it is the duty of the court to advise the jury to return a verdict in favor of the accused.
    3. APPEAL AND ERROR — Insufficiency of Evidence — Reversal. When an appeal is taken to this court, and the record shows that no offense was committed and the prosecution is unjust, the cause will be reversed and remanded, with directions to dismiss.
    (Syllabus by the Court.)

      Appeal from Kingfisher County Court; John M. Graham, Judge.

    C. U. Cummins was convicted of resisting an officer, and appeals.
    Reversed and dismissed.

      Blair & Shutler, for plaintiff in error.

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

Plaintiff in error was prosecuted by in-, formation in the county court of Kingfisher county on a charge of unlawfully and wilfully resisting an officer in the discharge of his official duty by forcibly attempting to take away property levied on by said officer under a tax warrant, and was convicted, and sentenced to pay a fine of $150. The proof shows that the plaintiff in error is a farmer living near Kiel, in Kingfisher county, and that he failed to pay his taxes for the years 1907 and 1908. Two tax warrants were issued for the amounts due, which were $2.72 for the 1907 taxes, and $2.98 for the 1908 taxes, and placed in the hands of the sheriff of Kingfisher county for collection. Undersheriff Isaac Hawkins was sent out on the 13th of January, 1910, to collect the same, and took with him a man named Moore. They met the plaintiff in error in the afternoon of the 13th about 300 yards from his home, returning from Kiel driving a team of mules to a light wagon. He stopped and the officer started to read the tax warrants, whereupon plaintiff in error advised him that he had no money with which to pay the taxes, according to the officer’s contention, and there was no use to read them. According to the contention of plaintiff in error, he said that he had no money with him, but told the officer to come on to the house and he would pay it. He started to drive away, whereupon the officer took hold of the team and declared a levy upon them. Some words passed. Plaintiff in error got out of the wagon and started to leave, going towards home, whereupon Hawkins directed Moore to take charge of him. When Moore took hold of plaintiff in error, the officers contend that he endeavored to strike him. Tie denies this. Hawkins walked up and struck him with a heavy pistol over the eye, knocking him against the wagon wheel, and causing the blood to flow freely. They then tied his hands with a leather strap, and started away with him and the team. After they reached Kiel, plaintiff in error removed the strap from his wrists, whereupon the officers tied them behind him, carried him on to Kingfisher, and put him in jail.

The. officers had no warrant for the arrest of plaintiff in error, and appear to have taken charge of him without provocation or authority, and assaulted him and beat him up unnecessarily when he was leaving the scene of the levy. Plaintiff in error is not charged with resisting arrest, but with forcibly attempting, by violence, to take away property levied upon. There is not a line of proof in this record on the part of the state to justify such a charge. The whole conduct of the officers involved in this transaction is very reprehensible. An.officer in the discharge of his official duty is entitled to all the protection of the law, but he has no lawful right to assault, insult, and beat up a citizen out of malice as the circumstances in this case indicate was done. One who is an officer charged with a public duty should be more severely dealt with for such conduct than an ordinary citizen would be for the same grade of law infraction. In the first place, it is unreasonable for a sensible officer to levy on a mule team to satisfy an execution for less than $6. The action of the officers in assaulting and arresting plaintiff in error after having made the unreasonable levy cannot be justified upon any theory under this record. If anybody violated the law and subjected themselves to prosecution, it was the officers, and not him. According to their own testimony, they assaulted the plaintiff in error, arrested him without authority of law, and confined him in jail without the slightest justification, without a warrant, and without commitment from any court. Such unreasonable conduct cannot be tolerated.

In order to sustain a charge of resisting an officer in the discharge of his official duty by forcibly attempting to take away property levied on under a civil warrant, it is necessary for the proof to show some act of aggression on the part of the accused from which the court and jury can reasonably infer forcible resistance or interference with the execution of such warrant, and, when there is no such proof, the trial court should advise the jury to return a verdict in favor of the person on trial. An unjust prosecution of a citizen of this state should not be permitted by the officers of the law, and, when the record on appeal shows that the accused committed no offense under the facts proved, and that the prosecution is unjust, this court will reverse and remand a judgment of conviction, with directions to dismiss the cause.

The judgment of the trial court is reversed and remanded, with directions to dismiss.

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