author: DOYLE, J.

text:
    JOHN PATTERSON v. STATE.
    No. A-947.
    Opinion Filed June 15, 1912.
    (124 Pac. 942.)
    1. CONSTITUTIONAL LAW — -Validity of Statute — Determination-Power of Court. The courts cannot annul or pronounce void any act of the Legislature upon any other ground than that of repugnancy to the Constitution of the United States or of the state.
    2. SAME — Police Power. The police power of the state extends to the protection of the lives, limbs, health, and safety of all persons, and the protection of all property within the state, and by which persons and property are subjected to all kinds of restraints and burdens in order to promote and preserve the public safety, welfare, and prosperity of the state.
    3. SAME — Mines and Minerals — Due Process of Law — Equal Protection of the Laws. It is a proper and appropriate exercise of the police power of the state to regulate the use and enjoyment of mining properties, and mine-owners and operators are not deprived of their property, privileges, or immunities without due process of law, or'denied the equal protection of the laws, by the provisions • of article 7, c. 67, Comp. Laws 1909, prescribing general rules, regulations, and safeguards for the protection of miners.
    4. SAME — Mining Laws — Due Process of Law — Equal Protection of Law. The provisions- of the Oklahoma mining laws, classifying the mines of the state and pescribing duties, prohibitions, and penalties for any owner, operator, or mine foreman of mines in the state where ten or more men are employed therein, is a valid exercise of the police power, and not in contravention of the fourteenth amendment of.the Constitution of the United States, either as an interference with the right of contract or as discriminating in favor of mines where less than ten men are employed. St. Louis Consolidated Coal Co. v. Illinois, 185 U. S. 203, 22 Sup. Ct. 616, 46 L. Ed. 872; McLean v. Arkansas, 211 U. S. 539.
    (Syllabus by the Court.)

      Appeal from Latimer County Court; Cliff V. Perry, Judge.

    John Patterson was convicted of violating the mining laws, and appeals.
    Affirmed.
    The plaintiff in error was convicted in the county court of Latimer county of the crime of allowing and permitting as mine foreman, miners, and employees, other than shot firers, to remain in the mine while shots are being fired, and was sentenced in accordance with the verdict of the jury to pay a fine of $250.
    Hon. Pete Hanraty, W. K. Patterson, and Aldro Negri were the witnesses introduced by the state. Their testimony and exceptions taken thereto is set out in plaintiff in error’s brief as follows :
    “Pete Planraty testified, in substance: Live at McAIester, Am chief mine inspector. Have been such since statehood. Know defendant, Patterson. Am acquainted with the mines known as Cambria, have been in them. This mine is owned by the Kali Inla Coal Company. Mr. Denman signed the records in my office for that company. The mine is No. 1. It is a slope and a coal mine. On the night of March 25, 1910, I received a telephone from somebody at Cambria that an explosion had occurred there. I suppose it was about 1 o’clock in the night. I called up Mr. Clark and we got ready and went to the mine. I went there and got the inspector of district No. 2. Mr. Clark and I got together in McAIester, and went to Haileyville, and went to this mine on the morning of March 26th. When we got there, we got ourselves and lamps ready to make the examination, and I called for the miners’■ committee, and none of the committee was there. Other parties, miners, went down in the mine with us. Clark and myself were along with the mine foreman, John Patterson. The defendant, John Patterson, was the mine foreman at that mine. He was in charge of the work at that time as mine foreman. He was known as such. The records of my office show that he signed his name ‘John Patterson, Mine Foreman.’ When we went into the slope, the slope turns around first north and then south. The entrances start about the middle of the slope. You go down from the top towards the bottom of the mine, and you find the entries. They run east and west. The one that the explosion occurred in is what I term the ‘eighth east entry.’ In other words, the bottom of the slope. I made an examination between 9 and 10:30 o’clock that morning. I found a trip of empty cars up the slope from the one near the eighth entry. Found empty car by the eighth entry. We went to the place where the explosion took place and examined there for gas, and then went straight across the other entry, and found some gas. We then examined things in the air course.- We found dust on the walls and railing of the inside of the mine. We then went on down the slope and got to the frog, and, as there was water there, we did not eo through. Examined for gas, but did not find but very little. Then turned to the entry where the explosion took place and examined it, and found there had been two shots that caused the explosion. One I should judge was caused by too much powder. (Defendant objected, and court sustained objection.) I have worked at everything in mines, fired shots, and began a special study of explosions. I have written a book of that, which is all over the United States, and, I suppose, the world. From my experience I judge that this was a shot with too much powder, and the other one, I think, was caused probably by the dust, as the dust will sometimes catch fire and cause an explosion. When a shot explodes, it causes dust that will catch fire when there is too much powder, and that is what I think caused the second shot to explode. I found gas across from the explosion a little further up. I examined at front entries, and did not find any gas. We went down the slope, and then came back up examining and found the gas at the eighth entry. That is about all that I sáw. I found that the explosion originated in the eighth entry west. I havé had practical experience as a miner. Since I was nine years of age, I have worked at the mines everywhere from drive and trapper to shot firer. The ‘windy shot,’ as miners term it, is a shot with too much powder.”
    The witness was then asked to give his opinion as to where the explosion originated. The defendant objected to this, and the court overruled the objection, and an exception was saved. The witness then said:
    “The explosion originated at this place in the lower part of the mine, which is called the ‘eighth west entry,’ and shot out of the air course. We examined all of the parts of the mine and found dust caused from the explosion, and found some fire damp. The eighth entry west is where the explosion originated on the night previous to the examination. The shots that were fired in the lower air course caused this explosion. The reasons that make me hold this opinion are that I found dust on the railing and the top had dust on it. If the explosion had not occurred there, there would not have been such condition of the mine. I made a test as required by law. I have the same in my records in my office. I always carry my safety lamp, and I test for the gas with that. I found the gas in the eighth west entry where the explosion originated.”
    When asked if he examined the slope, the witness said:
    “It was in the shape that windy shots leave a place when they hit it. There was a good deal of dust up the trip of cars, and looked as though it had -went up the slope a little ways. Did not find any gas anywhere else to amount to anything. When I went out to wash up, the defendant was with me.”
    There was no cross-examination of said witness, and the above was all of his evidence.
    The state then introduced W. K. Patterson. This witness •testified as follows:
    “I live at Coalgate. Am district mine inspector. Know defendant, Patterson. Plave visited the mine of the Kali Inla Coal Company several times. Visited this mine on March 23 and on March 25, 1910. On March 23d there were 109 miners, and 21 men who were working on top, according to Patterson’s figures. Mr. Patterson was mine foreman at the time I was there on March 23d. I went down the main way, and then down to the eighth east entry, and so did John Patterson. AVe went through this entry. I did not go through the eighth west. Mr. Patterson failed to take me there. My next trip was on the morning of March 28th. I examined these two entries at that, time. -I found some little gas, and it was 37 feet of the air course, and it was 87 feet. This was 50 feet more than the law required. I have had 42 years experience as a miner. Plave done most all kinds of work. Plave never filled the position of shot firer.”
    The said witness was then asked the extent of his experience as to studying the explosions in mines. The defendant objected. The court overruled the objection. The defendant excepted. The witness then continued:
    “In some mines in firing the shots, the shot firer will not tamp the shot enough, and if it has enough powder, and when the fuse is lighted and the fire reaches the powder, it will cause a windy shot, and the dust caused from this will ignite and cause an explosion when it does this. My opinion on the matter is that the shots had not been tamped enough, and that they exploded and went towards the air course. (This statement was objected to and exception saved.) You can tell the effects of the explosion by the way things were in the air course and slope. I examined for gas, and found some in the front of the eighth east entry. I understand that the instrument of writing handed to me is a report sent to my office from Mr. Patterson. It is the original report that came to our office. The report is as follows: ‘Report of Accident. On Friday, March 25th, at about •9:30 p.m ., four men were fatally injured in mine No. 1 (Slope) operated by Bache & Denman at Cambria, Okla., to wit Louis d’Alpo, a miner, age 28, married, wife and one baby. Via Aneciton, miner, age 28, single. Andrew Planshinelli, miner, age 20, single. Petrod Farnetti, rope rider, age 21, single. An explosion of some kind occurred in the mine, and on investigation an Italian claims that he found three men six feet below tire trip, and that he put them in the car. There were about cars on the trip, and the bodies were placed in the lower car. The rope rider was found about 100 feet below the eighth east entry, ail were dead. The miners were all working together,- two-m one entry and one in the other entry. They were driving the eighth east air course and entry. There was only these four men in the mine. The entry was iñ about 120 feet from the switch. Statment made by John Patterson, mine foreman, March 28, 1910.’ I had no conversation with John Patterson, the defendant, on March 23d with reference to men remaining, in the mine while shots were being fired. I did have a conversation with him on March 26th. (The defendant objected to this testimony. Objection overruled and exception saved.) I asked John Patterson •if any men stayed in the mine, and he said yes. I asked him who fired the shots, and he said the men fired their own shots. That is, these men that were killed. I also asked him if there was any fire boss, and he said no. I asked him if the men remained in the main when shots were being fired, and he said they fired their own shots and fired when they got ready to fire.”
    On cross-examination the said witness said:
    “Part of this conversation occurred in the mine nad part of it in the washing room on top of the mine where I was washing. John Patterson said in that conversation that he did not know that the men were in the mine. He did not tell me that the men were not to go in the mine on that night. He said that some entry was out of order, and that he had ordered the work stopped. Pie did tell me that he did not know that the' men were there on that night. I was not there at the time of the explosion. All the information I had I got from the investigation, and from what others told me. I got the information from Mr. Patterson that this was in the nighttime — the night shift. That work was at night. The entry was driven only at night I suppose. Mr. Patterson told me that these four men were the only ones in. the mine at the time of. the explosion. I don’t know whether the foixr men were the total or not. I do not know whether the 109 and 21 men were all that worked there. These four were all that were supposed to be in the mine that night. Mr. Patterson also stated that the fire runner was in there running fire and the other men were working that made five in all.”
    The above was all the testimony of said witness. The state then introduced Aldro Negri, who testified through an interpreter. He testified as follows:
    “I live at Cambria. Know defendant, Patterson. I was digging coal at Cambria last March. I was fire runner on March 24th and March 25th. I was working then for another fellow who was the regular fire runner. I recall the night that the explosion occurred. I was between the sixth east and sixth west and on the slope. I was in the mine at the time the explosion occurred. The'others in the mine were Louis d’Alposs, Via Anexiton, Andrew Gashinelli, and Pedtre Farnetti. Farnetti was rope rider. The others were digging coal. They were turning the entry. The eighth west entry. I was in the eighth east, and met these fellows. First I knew of the explosion I heard a big noise and wind, and then knocked me down. By 'big* wind’ I mean explosion. I saw rope rider with the other fellows at time of explosion. I saw all of them near the eighth east and eighth west entry. These men that were killed were about 10 feet from the car. This refers to the three men that were working in the entry. I did not see the rope rider. I heard the wind, and then in three seconds I was knocked down. I do not understand English. As soon as I got up, I went out and got my friends, and we came back, and got the men. At time of explosion I was coming up the slope. I was near the seventh west entry. I was there looking for fire. I was in the place of the other fellow. At the time I met these men, they were going down the slope towards the eighth east entry. I met them about 10 minutes before the explosion. After I met them, I went up to the seventh east entry. I went in the seventh east entry to the face of the entry. That was about 600 feet. It is about 300 feet from the seventh east entry to the sixth east entry. Explosion occurred when I was a little on the top of the sixth east entry. The explosion knocked me out against the sixth east. Ten minutes before that I saw the men going down. I knew them then. After explosion I called the other fellows, and then I had to come out on account of bad smoke. I did not find the men then. I went down three times. The bodies were near the entry close to the slope between the slope and the entry. I did not see them work. Found two of the men on top of the rail and one on bottom of rail. Did not see the rope rider. I went into the mine on that night before these men. I had been running fire four nights. Three of these men had been working over nights. (Defendant saved an exception to the introduction of that evidence.) One of the men had not worked any other night. Between the eighth east and eighth west it is about 150 feet. When I met these men going down before the explosion, they all had miners’ lamps on. Miners’ lights.”
    The witness was asked if they were safeties, and he said, “Just miners’ lamps.”
    The above was all of the evidence in the case. The defendant offered no evidence.

      Jones & Lester and Read & McDonough, for plaintiff im error.

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

The information charges a violation of the provisions of article 2, c. 54, of the Mining Laws (act approved April 6, 1908).

The information, omitting the formal parts, is as follows:

“In the name and by the authority of the state of Oklahoma. Now comes W. P. McGinnis, the duly qualified and acting county attorney, in and for Latimer county, state of Oklahoma, and gives the county court of Latimer county, state of Oklahoma, to know and be informed, that John Patterson did, in Latimer county, and in the state of Oklahoma, on or about the 25th day of March in the year of our Lord, one thousand nine hundred and ten and anterior to the presentment hereof, commit the crime of allowing and permitting miners and employees other than shot firers to be and remain in the mines while shots are being fired in the manner and form as follows, to wit: That said defendant, John Patterson, being then and there mine foreman of the Kali Inla Coal Company at its mine No. 1 at Cambria, in Latimer county, Okla., and as such mine foreman being then and there the officer and agent of the said Kali Inla Coal Company in charge of its mine No. 1 as aforesaid in said county and state aforesaid, did on the date aforesaid, and in the county and state aforesaid unlawfully and wrongfully allow and permit Via Aneciton, Andrew Gehinetti, and Louis D. Alposs, they being then and there miners and employes other than shot firers of the Kali Inla Coal Company, at its mine No. 1 at Cambria, in said county and state aforesaid, to be and remain in said mine No. 1 aforesaid at the time of the firing of shots therein, and they, the said Via Aneciton, Andrew Gehinetti, and Louis D. Al-poss, not being then and there the regularly and duly employed shot firers of the said Kali Inla Coal Company at its mine No. 1 at Cambria in said county and state aforesaid, and' the said mine No. 1 of the Kali Inla Coal Company at Cambria in said county and state, being then and there a coal mine employing ten and more miners to work therein, contrary,” etc.

The defendant filed a demurrer thereto, which was overruled by the court and exception allowed.

The questions presented require a consideration of the following sections of article 7, c. 67, Comp. Laws, 1909, entitled: “General rules, regulations and safeguards for the protection of miners”: Section 4381, Comp. Laws 1909 :

“The operator shall employ a competent and practical inside overseer for each and every mine employing ten or more persons inside, to. be called mine foreman (who shall have charge of the inside operations of the mine), and shall see that the provisions of this, act are strictly enforced. * * *”

Section 4394:

“Rule 1. The mine foreman shall attend personally to his duties in the mine and carry out all the instructions set forth in this act, and see that the regulations prescribed for each class of workmen under his charge are carried out in the strictest manner possible, and see that any deviations from or infringements of any of them are promptly adjusted.* * * Rule 6. He shall, on blank forms provided by the chief mine inspector for the purpose, within ten days after their occurrence, report to the. mine inspector, all fatal and serious accidents occurring in or about the mines, giving age, nationality, and occupation of the injured persons, together with the facts as to the families or dependants, affected, et cetera, but he shall, as hereinbefore provided, give immediate notice of all fatal accidents.”

Section 4395:

“All owners, lessees, operators or any other persons having the control and management of any coal shaft, drift, slope or pit in this state, employing ten or more miners to work therein shall employ shot firers at operator’s expense, to fire the shots therein. Said shots shall be fired at the end of each shift, but not until all miners and other employees, working therein, are out of said mine.”

Section 4398:

“No shot firers shall enter any mine, for the purpose of* firing shots, nor shall any shots be fired until all employees shall have left the mines. * * *”

Section 4401:

“The neglect, failure or refusal to perform any of the duties required by any section of this act, by any firm, association, corporation, person or parties required to perform them, shall be a misdemeanor, and where the duty so neglected, failed or refused to be performed is by the terms of this act required of a corporation, then its officer or agent in charge of the mine, shall be guilty, as hereinbefore provided for in this section, and, except as herein otherwise provided, shall upon convection thereof, be punished by a fine of not exceeding five hundred dollars, or imprisonment in the county jail, for a period not exceeding six months, or both such fine and imprisonment. Provided, that nothing in this act shall be construed so as to relieve any person, firm, company or corporation from liability or damages in a civil action.”

The first contention of counsel for plaintiff in error is that the information is fatally defective, in that it does not state facts sufficient to constitute an offense under the statute, “because it is not alleged that the duty which is alleged to be violated was under the terms of the act required of a corporation.” This allegation is not necessary, because it is specifically alleged that the defendant John Patterson was then and there acting as mine foreman of the Kali Inla Coal Company then and there in charge of the mine, and the neglected duty unperformed is specifically made a part of the mine foreman’s duties by section 4394, supra. The penalty section (4401, supra) is very broad and comprehensive in its terms, including all sections of the act, and provides punishment for any firm, association, corporation, person, or parties required to perform them. The law is that in all mines in this state where ten or more persons are employed to work therein the duty is imperative to employ shot firers to fire all shots therein when all other employees are out of the mine. The contention is destitute of merit, and the demurrer was properly overruled.

The principal contention of counsel for plaintiff in error is that the mining act in question is unconstitutional and void, and in violation of the fourteenth amendment of the Constitution of the United States.

The party who wishes to pronounce a law unconstitutional takes upon himself the burden of proving beyond all doubt that it is so. Every legislative act is presumed to be constitutional, and the courts should not declare an act to be unconstitutional unless it is clearly so. n

The police powers of a state extend to the protection of the lives, limbs, and health of all persons, and the protection of all property, within the state, and by which persons and property are subjected to all kinds of restraints and burdens for the protection of life, person and property, in order to secure the general comfort, health, and prosperity of the state.

There can be no question that this legislation is a proper and appropriate exercise of the police power. The plain purpose of the act is to protect, so far as legislative enactments may, the lives and persons of the men employed in the mines of this state while they are in the mines. The mining of coal is unquestionably dangerous and hazardous work, and in this state it is a productive industry of vast importance. Thousands of men are engaged in that character of work, and a proper safeguard'of their lives and health is a matter of humane necessity. No subject can be mentioned where there is a more positive necessity for the exercise of the police power than in seeking to subserve their safety. This duty has been recognized and entered upon as evidenced by our mining laws, intended to insure, as far as practicable, the safety and health of the miner while engaged in his dangerous and hazardous occupation.

The question as to whether the act in so far as it discriminates as to operators of coal mines is a proper exercise of the police power is passed upon in the case of St. Louis Consolidated Coal Co v. Illinois, 185 U. S. 203, 22 Sup. Ct. 616, 46 L. Ed. 872, and the principle announced is directly applicable. Speaking of a similar provision of the mining laws of Illinois, the Supreme Court of the United States says:

“This is a species of classification which the Legislature is at liberty to adopt, provided it be not wholly arbitrary or unreasonable, as it was in Cotting v. Kansas City Stockyards Company, 183 U. S. 79 [22 Sup. Ct. 30, 46 L. Ed. 92], in which an act defining what should constitute public stockyards, and regulating all charges connected therewith, was held to be unconstitutional, because it aplied only to one particular company, and not to other companies or corporations engaged in a like business in Kansas and thereby denied to that company the equal protection of the laws. In the case under consideration there is no attempt arbitrarily to select one mine for inspection, but only to assume that mines, which are worked upon so small a scale as to require only five operatives, would not be likely to need the careful inspection provided for the larger mines, where the workings were carried on upon a larger scale or at a greater depth from the surface, and where a much larger force would be necessary for their successful operation. It is quite evident that a mine which is operated by only five men could scarcely have passed the experimental stage, or that precautions necessary in the operation of coal mines of ordinary magnitude would be required in such cases. There was clearly reasonable foundation for a discrimination here.”

In the case of Lindsley v. S. 61, 31 Supt. Ct. 337, 55 L. Ed. 369, it was held that the equal protection clause of the fourteenth amendment admits of a wide exercise of discretion, and only avoids a classification which is purely arbitrary, being without reasonable basis; nor does a classification having some reasonable basis offend because not made with mathematical nicety or resulting in some inequality. See, also, Wilmington Star Mining Co. v. Fulton, 205 U. S. 60, 27 Sup. Ct. 412, 51 L. Ed. 708. In the case of McLean v. State, 81 Ark. 304, 98 S. W. 729, 126 Am. St. Rep. 1037, 11 Ann. Cas. 72, the Supreme Court of Arkansas, construing a statute containing a similar classification, said:

“The act applies to more men are employed underground.’ It may be fairly inferred from this language that the Legislature considered as mines only those places that had been developed to the extent of requiring the labor of ten or more men underground in the work of mining coal. Those places where the development work had not been carried on to the extent of requiring the labor of ten men underground were evidently regarded by the Legislature as only in the prospective or experimental stage. We have no right to asstime from the act that the Legislature intended to discriminate against them, but rather that they were not included because they did not need the protection afforded the class mentioned. Similar laws have been enacted in several of the coal producing states, and, where tested, have received the sanction of the highest courts of the state, as a valid exercise of police power. State v. Peep Splint Coal Co., 36 W. Va. 803, 15 S. E. 1000 [17 L. R. A. 385] ; State v. Wilson, 61 Kan. 34, 58 Pac. 981 [47 L. R. A. 71].”

On appeal to the United States Supreme Court to reverse the judgment of the Supreme Court of Arkansas the judgment was affirmed. McLean v. Arkansas, 311 U. S. 539.

We are clearly of opinion that there is nothing in the statutes under consideration that is in contravention of the fourteenth amendment to the Constitution of the United States.

The evidence of the defendant’s guilt is undisputed. None of the other alleged errors committed by the court in giving and refusing instructions, or in passing upon the admissibility of evidence, are tenable, and they do not require special notice.

Finding no error, the judgment appealed from is hereby affirmed.

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


source: Caselaw Access Project

author: FURMAN, P. J.

license: Public Domain

text:
    WOODIE WATSON v. STATE.
    No. A-1087.
    Opinion Filed June 15, 1912.
    (124 Pac. 329.)
    1. JURY — Right to Trial by Jury. It is the duty of courts to enforce a rigid and vigilant observance of the statutes designed to preserve inviolate the right of trial by jury.
    2. TRIAL — Instructing Jury. Under Comp. Laws 1909, see. 6865, providing that after the jury have retired for deliberation, if they shall desire to be informed on a point of law, they must be conducted into the courtroom, and the information given in the presence of or after notice to the counsel for both parties, it is reversible error for the judge to follow the bailiff to the jury room, and there instruct the jury as to the effect of a verdict rendered by them; none of the counsel being present.
    (Syllabus by the Court.)

      Appeal from District Court, Latimer County; Malcolm B. Rosser, Judge.

    Woodie Watson was convicted of an assault with intent to rape, and his punishment was assessed at a fine of $500 and imprisonment in the county jail of Latimer county for one year, and he appeals.
    Reversed and remanded for new trial.

      Andrezvs & Day, for appellant.

      Smith C. Matson and E. G. Spillman, Asst. Attys. Gen., for the State.
   FURMAN, P. J.

The Attorney General has filed the following confession of error in this case:

“The information in this case charges the defendant with assault with intent to rape Vera McCarty on or about the 31st of July, 1910, in Latimer county, state of Oklahoma. Trial was duly had before the district court of said county, and defendant was found guilty. The cause was brought up to this court on appeal from the judgment and sentence of the district court. The evidence in the record clearly establishes the guilt of defendant, and it is with great reluctance that this office feels constrained to enter a confession of error. The record referred to is best shown by a verbatim statement of the trial judge incorporated in and made a part of the record: ‘The jury retired about 4 o’clock on Saturday afternoon in charge of the bailiff and under instructions allowing them to return a sealed verdict' and I returned home to spend Sunday at Poteau. I returned to Wilbur-ton, arriving here about 7 o'clock and reached the courthouse about 8 o’clock p. m., and, on reaching the courthouse, the bailiff informed me that the jury wanted to see me as soon as I got here. I told the bailiff to ask the jury what they wanted. He returned, and stated to me that they .wanted to know whether or not a term in the penitentiary would deprive a man of his citizenship. I told him to tell them it would, and I studied a minute, possibly two minutes or a minute and a half, and I followed the bailiff to the door of the jury room, and, standing within the door, told them that a sentence in the penitentiary would deprive a man of his citizenship. The next morning about 10 o’clock the jury brought in a verdict of guilty, fixing the punishment at a $500 fine and a year in jail. Neither the defendant nor his counsel were present, nor were they notified of the communication of the court to the jury on Sunday afternoon as' herein stated. It is also agreed here in open court that the above statement may be attached to the case-made and made a part of the record therein. Malcolm E. Rosser, District Judge.’ The able and learned judge who tried the case realizes keenly the force and effect of his course, and, if it were necessary to explain any of his official acts, it might be said that this case illustrates the fallibility of the human mind, however gifted, when called upon to act suddenly in an emergency. Section 6865, Comp. Laws 1909, reads: ‘After the jury have retired for deliberation, if there be a disagreement between them as to any part of the testimony, or if they desire to be informed on a point of law, arising in the cause, they must require the officer to conduct them into court. Upon their being brought into court the information required must be given in the presence of, or after notice to the county attorney and the defendant or his counsel, or after they have been called.’ See, also, section 6868 prohibiting communication by the jury with ‘any person’ except the bailiff and limiting such communication in his case. Our statutory and organic laws are framed to preserve the right of jury trial inviolate, and even though, as in this case, an unworthy defendant go unwhipt of justice, its provisions cannot be disregarded on that account. The evils arising from the invasion of a right extended to the accused by written and unwritten law would far outweigh any harm arising from temporary immunity given an undeserving person. These rights have been since Magna Charta the ‘metwand’ of all constitutions, the sedulous care and jealous concern of innumerable charters and Bills of Rights, and in this case voiced and emphasized by statutory declaration.”

We have heretofore passed upon this question. In the case of Ridley v State, 5 Okla. Cr. 523, 115 Pac. 628, Judge Doyle, speaking for this court, said:

“The eleventh assignment alleges misconduct of the jury and clerk of the county court, as set forth by affidavits in support of the motion for a new trial, which are not controverted. It appears from said affidavits: That while the jury were deliberating upon their verdict some member of the jury knocked on the door of the jury room, and when it was opened a member of the jury spoke to T. B. Wilkinson, the clerk of the court, and said, ‘Five of us agree. Do we have to sign it?’ and said clerk answered, and said, ‘The five that had agreed had to sign it.’ That thereupon the door to said jury room was closed, and after a short while the jury returned into court «with a verdict signed by five jurors. Our statutes provide (section 6858, Snyder’s St.) : ‘After hearing the charge, the jury may either decide in court, or may retire for deliberation. If they do not agree without retiring, one or more officer must be sworn to keep them together in some private and convenient place, without food or drink, except bread and water, unless otherwise ordered by the court, and not to permit any person to speak to or communicate with them nor do so themselves, unless it be by order of the court, or to ask them whether they have agreed upon a verdict and to return them into court when they have SO' agreed, or when ordered by the court.’ And (section 6865, Snyder’s St.) : ‘Af,ter the jury have retired for deliberation, if there be a disagreement between them as to any part of the testimony, or if they desire to be informed on a point of law, arising in the cause, they must require the officer to conduct them into court. Upon their being brought into court the information required must be given in the presence of, or after notice to the county attorney and the defendant or his counsel, or after they have been called.’ The question presented is whether such misconduct is sufficient to require the court to set the verdict aside and grant a new trial. It is of the most importance that jurors and court officials should be held to a strict observance of the provisions of law prescribing their procedure and duties, and their conduct should be such that no possible suspicion can attach to* them of having acted in a manner prejudicial to the accused, or in his favor. If there was a disagreement between them, or if they were doubtful as to how they should proceed,' they should have required the officer in charge to conduct them into court, and the necessary information would be given by the court in the presence of the parties. It will be presumed, in the absence of anything to the contrary, that the rights of the defendant were prejudiced by the action of the jury and clerk of the court in disregarding and failing to observe the requirements of the statute. Courts cannot be too strict in compelling a rigid and vigilant observance of the provisions of the statutes designed to preserve inviolate the right of trial by jury and the purity of jury trials. We deem it unnecessary to consider the other assignments. For the reason herein set forth, the judgment will be reversed, and the cause remanded to the county court of Stephens county.”

We think that the confession of error filed by the Attorney General should be sustained. This case illustrates the fact that the wisest and best judge, when acting on the spur of the moment during a trial, sometimes makes a mistake. The judgment of the lower court is reversed, and the cause is remanded for a new trial.

ARMSTRONG and DOYLE, JJ., concur.


text:
    ROY GASTINEAU v. STATE.
    No. A-314.
    Opinion Filed June 15, 1912.
    1. INTOXICATING LIQUORS — Interstate Shipments. A person living in the western part of the state of Oklahoma which formerly comprised the territory of Oklahoma has the right, under the interstate commerce clause of the Constitution of the United States, to ship intoxicating liquors into this state and convey them to his home or place of business for his own use, and this right cannot be interfered with or abridged' by any state law.
    2. SAME — Interstate Conveyances. A state has the undoubted right to regulate the intrastate conveyance or shipment of intoxicating liquors, but cannot interfere with or regulate the interstate shipment or conveyance of such liquors.
    (Syllabus by the Court.)

      Appeal from Dewey County Court; S. M. Byers, Judge.

      Robert B. Adams and Harry B. Smith, for the appellant.

      Bred S. Caldwell, for the state..
    Appellant was convicted for a violation of the prohibitory liquor law, and appealed.
    Reversed.
    In the early part of 1910 an opinion was prepared in this case, but it was inadvertently mislaid and lost and never delivered. The matter has recently been called to our attention. This statement is made to explain -why a cause pending so long on our docket has just been decided.
   FURMAN, P. J.

The evidence adduced at the trial of this cause discloses the following facts: ‘Roy Ogden, a resident of Seiling, Dewey county, Oklahoma, ordered from the Old Distilling House, of Kansas City, Mo., four quarts of whisky to be shipped to him in Oklahoma. When the goods arrived at the express office at Canton, Oklahoma, the consignee, Roy Ogden, gave to Roy Gastineau, the defendant below, who was a freighter, or common carrier, a signed written order on the express company for the liquor and requested said defendant to bring same to him at his home. The defendant Gastineau accordingly presented the order, procured the whisky, and was in the act of transporting the same from the office of the express company at Canton to the consignee’s home near Seiling, Oklahoma, when he was stopped by the deputy sheriff, served with a search warrant, and the liquor confiscated. Defendant was afterwards arrested, tried, and convicted of the offense of transporting spirituous liquors from one point within the state to another, in violation of the prohibitory law of Oklahoma. Defendant’s motion for a new trial and in arrest of judgment having been overruled, he brings the case here by petition in error and case-made.

The recent decision of the Supreme Court of the United States with reference to interstate shipments of.liquor into that portion of the state which formerly comprised the Indian Territory has no application to that portion of the state which formerly comprised Oklahoma Territory. Under the repeated decisions of the Supreme Court of the United States, a citizen living in the western part of the state of Oklahoma has the right, under the interstate commerce clause of the Constitution of the United States, to ship liquor into'the state to his residence or place of business for his own use, and this right cannot be interfered with or abridged by any state law. We considered this question fully in the case of Titsworth v. State, 2 Okla. Cr. 272, and we there said:

“The Constitution of the United States declares that Congress shall have power ‘to regulate commerce with foreign nations, and among the several states, and with the Indian tribes.’ To ‘regulate’ means to control. So it is seen that the power of regulating or controlling commerce between the states is vested exclusively in Congress, and that no state has the power to pass any law upon this subject, or which would in any manner interfere with or abridge the right of one of its citizens to purchase in another state any article of commerce which could be lawfully sold in the state where the purchase is made, and bring it to his home in his own state for his personal use. This has been decided so often that no person who is -well informed upon this subject will question the rule above stated. This matter has been'passed upon by the Supreme Court of Oklahoma in Schwedes v. State, 1 Okla. Cr. 245, 99 Pac. 804, and by the Criminal Court of Appeals in the cases of Houston Hudson v. State, ante p., 161, 101 Pac. 275; Webb High v. State, ante, p. 161, 101 Pac. 115; and Josh McCord v. State, ante, p 214, 101 Pac. 280. The cases above referred to contain such a thorough discussion of this matter, and quote from such an overwhelming weight of authorities, that it is not necessary to repeat what will be found in them. If we are in error touching this matter, it will be an easy thing for the enforcement officer of this state to make a test case in a civil proceeding, and carry it to the Supreme Court of the United States for final determination. If that tribunal sees fit to reverse its former decisions, we will be bound by such action, and cheerfully follow it. But, until this is done, we feel constrained to adhere to the decisions as they stand now.

“If the decisions of the Supreme Court of the United States are wrong, application should, and can, be made to that court for a reversal of these decisions. It is a waste of time, money, and labor to appeal to this court to set aside anything which that court has decided. The Supreme Court of the United States, of necessity, must be the final judge of the construction of the United States Constitution. Otherwise we would have a hydro-headed judicial system in which 47 independent appellate courts could construe this instrument as they pleased, which would result, not only in confusion, but in civil war. Each tribunal would be supported by the military force of the government which it represented. This would result in death and destruction to our form of government. Certainly no reasonable person desires this court to adopt a policy which would bring about such serious consequences as this. It would be treason itself. One thing can he dependend upon, and this is, that this court will not make any such insane attempt. Under the Constitution of the United States, and the decisions of the Supreme Court of the United States, it is clear that any resident of Oklahoma can purchase intoxicating liquors in another state, and ship them into this state, and to points of destination, for his own personal use, and that such shipments constitute interstate commerce, and that any state law to the contrary is void. But these shipments lose their character as interstate commerce as soon as they reach the point of their destination, and any further shipment of such liquors is subject to state control. The exact language of the Supreme Court of the United States is as follows:

“ ‘Equally established is the proposition that the right to send liquors from one state into another, and the act of sending the same, is interstate commerce, the regulation whereof has been committed by the Constitution of the United States to Congress, and hence that a state law which denies such a right, or substantially interferes or hampers the same, is in conflict with the Constitution of the United States. * * * But the right of persons in one state to ship liquor into another state to his residence for his own use is derived from the Constitution of the United States, and does not rest on the state law. Either the conditions attached by the state law unlawfully restrain the right, or they do not. If they do, then they are void.’

“And again, the court, speaking of the right of every citizen of a state to purchase and have shipped to him liquors for his own use, says:

“ ‘But the right arises from the Constitution of the United States; it exists wholly independent of the will of either the lawmaking or executive power of the state; it takes its origin out of the state of South Carolina, and finds its support in the Constitution of the United States. Whether or not it can be exercised depends solely upon the will of the person making the shipment, and cannot be, in advance, controlled or limited by the action of the state in any department of its government.’ (Vance v. Vandercook, 170 U. S. 439, 18 Sup. Ct. 674, 42 L. Ed. 1100)”

This question was passed upon again by the Supreme Court of the United States in the case of L. & N. Ry. Co. v. P. W. Cook Brewing Co. The opinion was delivered on the 22nd day of January, 1912, and will be found in the Supreme Court Reporter, vol. 32, p. 189. This case construed the statute of Kentucky which made it a crime to ship intoxicating liquors into local option or dry counties in that state, and the Supreme Court of the United States held:

“That beer and other intoxicating liquors are a recognized and legitimate subject of interstate commerce, and that it is not competent for any state to forbid any common carrier to transport such articles from a consignor in one state to a consignee in another state.”

The court went further and said:

“Valid as the Kentucky legislation undoubtedly was as a regulation in respect to interstate shipments of such articles, it was most obviously never an effective enactment in so far as it undertook to regulate interstate shipments to dry points. Pending this very litigation, the Kentucky Court of Appeals, upon the authority of the line of cases above cited, reached the same conclusion. Cincinnati, N. O. & T. P. R. Co. v. Com., 126 Ky. 563, 104 S. W. 394.

“The obligation of the railroad company to conform to the requirements of the Kentucky law, so far as that law prohibited interstate shipments, is clear, and to this extent its circular notification was commendable. But the duty of this company, as an interstate common carrier for hire, to receive for transportation to consignees upon its line in Kentucky from consignors in other states, any commodity which is an ordinary subject of interstate commerce and such transportation, could not be prohibited by. any law of the state of such consignee, inasmuch as any such law would be an unlawful regulation of interstate commerce not authorized by the police power of the state. It is obvious, therefore, that in so fár as the Kentucky statute was an illegal regulation of interstate commerce, it neither imposed an obligation to obey, nor affords an excuse for refusal to perform the general duty of the railroad company as a common carrier of freight.”

It is admitted by the prosecution that a citizen of Oklahoma may ship intoxicating liquors into, the western portion of the state for his own use as interstate commerce, but that when it reaches the depot its character as interstate commerce ceases, and it cannot be taken from the depot to the home or place of business of the consignee. It is illogical to say that the right to ship to the depot exists, but that such shipment cannot be carried to the home of the consignee and there kept for his own personal use. In effect, this would be a denial of the right to ship intoxicating liquors to the depot, for what benefit would the right to ship such liquors to the depot be if the consignee, or some one authorized by him to so do, could not take the liquors from the depot to the home or place of business of the consignee? It is a well-established and familiar principle of law that a right to do a certain thing carries with it the right to do all other things necessary to the complete enjoyment of the right •expressly granted. It might just as well be said that a farmer had the right to ship his cotton-or grain out of the state on the railroad, but that he could not convey it from his home to the ■depot for shipment. But this is not an open question, because in the case of Vance v. Vandercook, 170 U. S. 439, the Supreme Court of the United States in express language declared:

“The right of a person in one state to ship liquors into another state to his residence for his own use is derived from the Constitution of the United States, and does not rest on the state law.”

We are therefore compelled to hold that the conviction of' appellant in this case was illegal, and it is ordered that the judgment be reversed, and the cause be remanded.

ARMSTRONG and DOYLE JJ., concur.


author: ARMSTRONG, J.

text:
    WM. BRISCO v. STATE.
    No A-1159.
    Opinion Filed June 15, 1912.
    (124 Pac. 626.)
    APPEAL — Review—Questions of Fact. In the absence of prejudicial errors of law, this court on appeal will not disturb the finding of the jury on controverted questions of fact.
    (Syllabus by the Court.)

      Appeal from District Court, Bryan County; Summers Hardy, Judge.

    William Brisco was convicted of manslaughter, and appeals.
    Affirmed.

      McPherren & Abbott, for plaintiff in error.

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

The plaintiff in error, William Brisco, •was .convicted in the district court of Bryan county at the January, 1911, term, on a charge of murder and convicted of manslaughter. His punishment was fixed by the court at imprisonment in the state penitentiary for a period of ten years.

The homicide out of which this charge grew occurred at a negro picnic in the farmhouse of a negro named Shelton. The-accused is a white man, and deceased, Albert Simon, a full-blood Choctaw.

The material portions of the testimony introduced on behalf of the state at the trial are as follows: The deceased and one-Sam Billy had gone to the picnic in a buggy belonging to deceased. At about 11 o’clock accused arrived at the picnic grounds and went up to the buggy. The accused and deceased then went south from the picnic grounds and were gone about half an hour, when they returned to the picnic grounds. Thereafter accused, the deceased, and Sam Billy went to the accused’s house. The purpose of going to accused’s is thus stated by Sam Billy:

“Q. How did you three go to Brisco’s house? A. Well, Simon-and Brisco said to me to drive this buggy for them. I told them all right. I did. Q. What did you go to Brisco’s house for? A. He said, ‘Go down there’ —• Q. Who said? A. Brisco said, ‘Got some chock over there.’ He wanted us to go down there and get it. Q. For what ? A. He said he wanted us to go down there to get this beer for that night- — picnic night. Q. Wanted to get this beer for that picnic night? A. Yes, sir. Q. What to do with? A. He said going to sell him. * * * Q. When you got to Brisco’s house what did' you do? A. I stayed in the buggy. Q. What did the others do? A. Went in the yard. Q. Flow long did they stay? A. Didn’t stay no time. Q. What did they do there? A. They went and got the chock — -jug of beer. Q. How many jugs did they get? A. Got a couple of jugs. Q. What did they do with the jugs? A. Brought them in the buggy. *• * * Q. When they got back in the buggy where did you then go ? A. I turned around to-go back to the picnic grounds, towards in that way. Q. Did you stop any place? A. No, sir. Q. Where did you get out of the buggy? A. We got out of the buggy at fellow named Shelton’s house. * * * Q. Going up there to Shelton’s house from Brisco’s house tell the first that took place between this defendant and Simon. A. They had a talk, but I didn’t pay any attention; they had a little cutting up between them. Q. What was ‘cutting up’? A. These two parties; Brisco says he has some Choctaw beer. If any officer came over ■after this beer going to hurt him, and Simon told him no he wouldn’t. He says, ‘If McPherson a little officer come over there, he was going to shoot his brains out.’ Q. That is what Brisco said? A. Yes. Q. What did ,Simon say? A. He says, ‘You can’t do it.’ Q. What was said about money, if anything? A. No, sir. Didn’t say anything about money. I think not. But was something about money when we came back. Q. What did he say coming back ? A. Pie says he got big pile of money. Q. What did Simon say? A. He want his money. Q. What did Simon say to Brisco about his money? A. lie says he owe him $2.50, I believe. I don’t know. Q. Simon told him that? A. Yes. Q. What did Brisco say? A. He says he has big pile of money in his pocket right then. Wasn’t going to pay him right then. Q. What else was said? A. Didn’t say nothing. That is all he said. Q. What— Then when he drove up there to Shelton’s house what did they do when they got there? A. He was drinking pretty sharp as we come up. Q. Who was drinking? A. Three of us. Q. What were you drinking? A. Choctaw beer. Q. That is what you call it? A. That is what it was. Q. Where did you get it ? A. Brisco .gave it to us.”

When they arrived at Shelton’s, Brisco told them to carry the beer into the house.

There was only one witness who heard and saw what was :said and done by the parties in the difficulty which resulted in the fatal shooting. This person was George Rogers, a witness for the •state. After testifying that he saw the three persons come up in the buggy and as to what they did, witness Rogers testified:

“Q. What was said by these parties? A. Then about the next word that I paid any attention to this gentleman called Mr. Shelton to take Simon away from there. Q. Where were you standing and what were they doing at the time he called to Shelton to take Simon away from there? A. Standing in the hall. Q. What direction did that hall run? A. Run east and west. Q. How close were they to you at the time you heard them make that statement? A. About five or six feet, I guess. Q. Do you know what had been said just before that? A. No, sir. Q. Had you heard anything said? A. Np, sir. Q. Had you seen Albert Simon do anything before that time? A. No, sir. Q, what was Albert Simon doing besides talking at that time? A. He wasn’t doing anything at the time he called to him to take him away; only just talking. Q. Who was he talking to, Albert Simon? A. Talking to Mr. Brisco. Q. And Mr. Briscohollered to Mathew Shelton to come and take him away? A. Yes. Q. Had he done anything át all up to that time that you seen? A. Not up to that time. * * * After Mathew Shelton went and took hold of Albert, he said something to Albert and took him out. What was the next thing that occurred— what did Brisco do? A. Walked past me and went into the south room, inside of the boys’ room. Q. How long was he gone there? A. For a minute or maybe not so long. Q. What did he do when he came back, if anything? A. When he come out of that room, he came out with a six-shooter stuck out of his pants like that (indicating), and his vest kind o’covered it; held it that way. Q. What part of the pistol did you see, if any? A. Seen the handle. Q. When he came out holding the-pistol, what did he do? A. Went to the west end of the hall where he could see up on that porch; walked and looked out and stepped back. Q. Flow was he holding his hand then? A. Still' had his hand just that way holding the pistol, and the other one of course was down. Q. That was his right hand holding it?' A. Yes. Q. Flow long did he stand there about this corner of the hallway? A. Walked there and looked out and stepped back in the hallway where I was. Q. How close was he to you when he stepped back? A. Probably six or eight feet. Q. What was the next thing you saw? A. Next thing I saw was Mr. Sam Billy and Simon. Simon come right on in and come right on to Mr. Brisco. Billy stopped at the corner of the porch. Q. Flow far did Albert come up to where Brisco- was? A. Probably six or eight feet. Q. When he got up to Brisco what did he do ? A. Never said a word, just hauled back and struck at him. Q. What did he strike at him with, if anything? A. With his left hand. Q. What occurred ? A. Fie struck twice left-handed. I know he struck once with his right hand, and the next thing I seen Mr. Brisco pulled that pistol out with his arm up defending like that, and he had it in that position (indicating) like, looked like he held it there for a minute or a minute and a half, when he did pull it down, stuck it under his arm, and fired. O. What then occurred? A. Mr. Simon struck two licks left-handed and one right-handed like, and about that time the second shot fired and he turned and hollered and run out. Q. How far was Sam Billy from where this fight was taking place? A. I couldn’t tell you. At that time, when it commenced, he was in eight or ten feet of him. Q. What was he .doing, if anything? A. All I could see — standing, peeping in, and looking. Q. When this second gun fired, where did Albert Simon go? A. He run out and went off outside. I never did see him after he went out of the hall until they brought him back in there. Q. What, if anything, did Albert Simon have in his hand when he was striking? A. Didn’t have anything that I seen at all but his fist. Q. Were you in a position to see? A. Yes, right at them. Q. Were you looking? A. Yes. Q. Did he have anything? A. If he had anything I never did see it. Q. You saw his hand? A. Yes. Q. Who else was with you then, if any one? A. If anybody else was — • if anybody else saw it except Sam Billy, I never seen them. Q. Where was Mathew Shelton? A. In the north room. Q. In this room where the defendant had gone into and come out with the pistol? A. In the south room. In the boys’ room where Mr. Brisco had gone. Q. Did Brisco have any gun, any pistol, when he went in the south room? A. If he did I never seen it. Q. How was he dressed? A. Had on Ids vest, didn’t have on any coat. Had on his vest and pants like any other man. Q. If he had had a pistol at the same place that he had it when he came out, tell the jury whether you would have seen it? A. Yes. If he had had it anywhere like "he had it when he came out, of course I would have seen it. * * * Q. Point it out? A. Here is the north room. You turned right in there. Mr. Brisco was standing right here, probably five or six feet from where you go in the hall. He backed back three or four feet. About that time Simon had got there. That threw him about three or four feet from where I was sitting. When they got up there and commenced to scrap, I sat there and never did get up until he pulled his gun. When he pulled the gun I got up and stepped right around this way. Mr. Simon about that time backed against the north wall of this hall, turned and scrambled and got in that shape, and when he fired the first shot Mr. Simon was out here and throwed Mr. Brisco around here, and he was against the south wall then, and when he got around here I got right in behind Mr. Brisco and standing about three feet of him when he fired the second shot. When he fired this shot this man came back here where he came in. Hast I seen of him he went out like he did when he came iii, and went out of my sight * * * Q. Plow many licks did Albert Simon strike Brisco before Brisco presented the gun up in that manner? A. He struck I know two licks with his left and one with his right. Q. Where did these licks strike him? A. He was striking at him. He wasn’t striking him very much because he was knocking them. * * * Q. AVhen Brisco got this gun and came out there he went northwest — to the northwest corner of the hallway and looked out. How far did he move? A. About five feet. Q. What side of the hallway was he when he moved back? A. On the north north side. Q. What side of the hallway was you on, north or south side? A. Sitting on the north side. Q. From where Brisco was, and from where you were, tell the jury whether or not Brisco would have had a better chance to see around that northwest corner of the house than you would have had ? A. No, sir; not from where he was standing. Q. When he was standing there on the north side of this hallway, Albert Simon came on in the hallway? A. Yes, sir. Q. When he came on in the hallway, how was Brisco standing relative to the north wall of the hall ? A. Standing right against the north wall of the hall looking the way Simon came in. Q. Tell'whether or not in that position he could have seen any further around the front porch than you could have? A. No, sir. Q. Could he have seen any more of Sam Billy than you could? A. Not a bit. Q. He could have seen just what you did? A. That is all he possibly could. Q. All you could see was what? A. Just his head peeping around the corner. Q. That is all you saw? A. Yes, sir. Q. I will ask you to state whether or not if Albert Simon had put his hand in his breast? A. If he had his hand in the breast I didn’t see it. Q. Could you have seen it? A. Yes. Q. You were standing there? A. Yes. Q. Did he do' that? A. If he did I didn’t see it. Q. Would you have seen it? A. I would have certainly, if he had. * * * Q. What did Sam Billy do at the time of this difficulty other than what you have told about having his head around? A. Never done nothing more than what I 'told you I seen. Q. Did he say anything? A. He never did say a word. If he did I never heard it. I told you as near as I can tell all I seen. Q. Tell the jury whether or not when you got up and walked behind Brisco you were in as good a position to see Sam Billy as this defendant? A. Yes. I was. * * * Q. Did you see them search Albert Simon? A. Yes. Q. Tell what he had on; if any weapons. A. All that I seen them get off him was his watch. Q. Who searched him? A. Mr. Cordell. Q. Bob Cordell? A. Yes. All I seen was a watch. He didn’t have a pocket knife. If he did I didn’t see it.”

Constable Cordell testified: That he was about 250 yards from Shelton’s at the time the shots were fired; that he ran up to the house; that he got there in four or five minutes. As to whether deceased was armed, witness said:

“Q. Did you make any examination of his pei'son x-elative to whether or not he had anything on him — a weapon, dr anything of that kind? A. Yes. I examixied all of his pockets; we taken all of his clothing off — practically all except his underwear. Q. What did you find? A. Didn’t find anything except a watch he had on. * * * Q. Did he make any statement to you relative to his conditioxi? A. Yes, he told me he thought he was going to. die. * * * Q. Did he tell you about how long he thought he would live? A. He said he thought he was going to die immediately. Q. After making this statement, did he make any further statement to you about how this affray happened? A. Yes. I asked him how it occurred, and he said, ‘Brisco got my money and then shot me,’ or ‘killed me,’ ox-something to tliat effect; I don’t know just what word he used. Q. Did he make -any statement? A. Not relative to the fight or difficulty alone. * * * Q. What was his size compared with the size of Mr. Brisco, the defendant? A. I don’t think there was very much difference, if any, in the weight of - the two men; some difference- in the heighth of them. Q. Which one was the taller? A. Mr. Bidsco is some the tallest. Q. Simon was possibly a little fleshier? A. Yes, more of a chunkier build. Q. Did you find any beer or anything of that kind there? A. There was two jugs setting on the porch right in the hallway that seemed to have contained some kind of malted liquor.”

This witness with others pux-sued the accused for a mile or a mile and a half and surrounded him in a thicket and arrested him.

Witness Ben Weldon testified that between the 1st and 12th of May, 1910, the accused told him that he intended to kill Albert Simon.

Witness T. H. Jenkins testified:

“Q. Where did you have your first conversation with him in regard to Albert Simon? A First time I remember having a conversation with him was about the 14th or 15th of Febraary. We come fx-om our fish nets. I had never met Albert Simon. Wasn’t personally acquainted with him. Q. Where did yoxt see Albex-t Simon at that time? A. I didn’t see Albert Simon, we come from the place Albert Simon had broke his buggy down. He says, ‘That is Albeit and Joe’s buggy. I would like to have come up with him.’ That night we was talking about the Indians, Albert Simon and Joe; I didn’t know the other Indian’s name only Joe; I never learned his name. On the road he says to me: ‘Them Indians are bad Indians. Joe snapped a pistol in my face on the road from Dennison one day.’ He says, ‘I can kind of control Albert when he is drunk; Joe is a little hard to control.’ He says, ‘If either one of them was to fool with me I would never give him the show of a dog. I would kill him just as I would a dog.’ That is the words he said. Q. Albert Simon was the one he said? A. Yes. Q. That other-one Joe? A. Never learned his name, only Joe. Q. That is not Billy? A. No, sir; fellow that went with Simon. Q. Did you have any conversation with him in regard to Albert Simon? A. Yes. On the morning of the 27th of February I was going down from Mr. Carr’s, going down to my place; I was camped on the river. I spent the night of the 26th up tO' Mr. Carr’s. That morning he had been drinking and called me out to one side, out behind the lot, he said to me, says, ‘You are going to stay with me, are you?’ I says, T have always, done that, yes.’ He says, ‘They aint going to get my cow.’ I had been over to Mr. Carr’s to see about a note. He was $6.75 due on it. I says, ‘I’ll loan you the money to pay it off’ — due on the 25th of April. — he says, ‘You are going to stay with me. Albert is in the house. He has got $800. If you will stay with me we will get it.’ I made an excuse to go away from him. He says, ‘come and go in the house and I will make you acquainted with him.’ I did. That is the first acquaintance with him. I made an excuse to go down to the river, and I never saw Mr. Brisco for several days afterwards. Fie was drunk at the time I met him afterwards. That is all that he said about it.”

The material portions of the testimony introduced on behalf of the accused at the trial are as follows:

Witness Ben Shelton testified that he saw the parties at the Shelton house; that he heard noise in the hall; that he heard Brisco say, “Go away Simon.” That he opened the door and saw Sam Billy going off the porch. Further:

“Q. You know what Simon was doing when the second shot was fired? A. Yes. Q. What was he doing? A. He was using both hands ? Q. Could you tell whether or not he was using both hands? A. Yes, in sight, them both was up. Q. That was after the first shot ? A. Yes. * * * Q. Did Simon have anything in his hand? A. Not a thing. Q. Did you hear either of them say a word ? A. No, sir. Q. What did Simon do ? A. The last firing? Q. Yes. A. He staggered up against the wall, he couldn’t do anything. Q. Where did he go? A. Went out of the house and jumped over and went into the woods and fell. Q. How far was that from the house? A. I guess 100 yards. Q. What direction was it? A. I don’t know. What do you mean? Q. What did Brisco do? A. I don’t know. I was turned from them when they ran out. One of them run out. Billy was peeping around the corner of the house. I only looked to see what the trouble was.”

Witness Harriet Shelton testified that she was in the kitchen at the time of the difficulty; that she heard Brisco tell her husband to “come and take Albert away from there.” That after Shelton took Albert away, Albert came back in the house; that she heard Brisco say, “Go away, Albert”; that she went to the kitchen door, peeped out, and saw the blaze of the pistol.

The accused testified that he and deceased were friends up to the time of the difficulty; that he went to the picnic grounds and saw deceased there; that he, deceased, and Sam Billy ate dinner with several others, and drank beer with the crowd; accused denied that he had any conversation about money with deceased as they drove to Shelton’s, but did have such conversation as they got to Shelton’s; that he went in to get a drink; that deceased asked for' $2.50, and he denied owing it; that he told deceased not to start any trouble, that they would get arrested; that deceased said, “Damn the marshal and damn you; I would kill you”; that Sam Billy standing near said, “I will help you”; that he told Shelton to come and take Albert away; that he went into the south room and saw a pistol, and that he picked it up and walked back to the porch; that he saw deceased and Billy standing north of the gate talking; that he saw the deceased “take something out of here and stick it here — bulk of something; I couldn’t tell what it was”; that Simon and Billy came onto the porch and he told them to go away. The following testimony was then given:

“Q. What occurred then? A. First thing I. knew he was hammering on me. Q. What occurred then? A. He cut me. Q. Yes? A. I shot him. Q. How many times had he struck you? A. I disremember just how many times he did strike me. Q. Why can’t you recollect it? A. He must have struck me four or five times. Q. Why-were you calm or frightened ? A. I was frightened. Q. What was he doing when you got out your pistol ? Started his hand in here. Q. What hand was that? A. Right hand.”

He testified further that Sam Billy was peeping around the corner; that he left-after the fatal shooting and went to the woods; that he was afraid the crowd would hurt him. Accused denied the statement of witness Weldon that accused said he would'kill deceased if deceased fooled.with him, and denied the testimony of witness Jenkins.

On cross-examination accused stated that four years previous deceased had drawn a gun on him, and that they were friendly.' — •

“Q. Didn’t you stay with him on that night? A. Yes. * * *. Q. Always been friendly? A. Yes. Q. You were jolly; as you stated a few minutes ago, he didn’t mean anything by that? A. No, sir. Q. You took it as a joke? A. Yes, sir. Q. You were friendly, that day and afterwards? A. Yes._ Q. You were both drunk that day? A. I don’t claim I hadn’t taken a drink.”

The accused denied that he went to his house to get Choc- . taw beer, but says Simon went and got some beer.—

“Q. After he came back, what did he have? A. Had some beer. Q. What kind of beer? A. Said it was Choctaw beer. Q. Did you drink any of it? A. I did. Q. The rest of the boys? A. Yes. Q. What else did you do? A. All ate there and drank and had a good time. Q. You were feeling pretty good? A. I couldn’t tell you. Q. You get drunk and have a good time? A. Yes.”

Accused said as they went to Shelton’s there was no disturbance; that the)»- were drinking the Choctaw beer and were pretty full. As the reason for going to Shelton’s accused said:

“Q. When you got in the buggy, why did you go up to Shelton’s house? A. After some water. Q. Didn’t you leave your own house; didn’t you have any water there? A. That didn’t do me, I wanted some more.”

Accused denied taking the jugs of beer out of the buggy, but says that there were two jugs in the buggy. That when they got in the house accused and Simon got drinks of water. That accused then went into the room, got the pistol, and came back in a minute; that he had seen a pistol in the back buggy seat during the day, and that Simon had it in his hip pocket one time at the picnic grounds. As to whether accused could see Simon and Billy when he (accused) came out of the room, he said:

“Q. After you had been in the room and came out and looked out towards that front gate, what did you hear them say, if anything? A. I couldn’t see them. Q. When they were out in the yard? A. I heard them — they were going to kill the whole thing. * * * Q. When they said that, you saw them? Were they looking at you? A. Coiddn’t see them. Q. He had nothing in his hands when he came on to you; struck you with his left hand, and then right hand? A. I don’t know what he had in his hand. Q. Couldn’t you see his hand? A. It wasn’t open. Q. Did he have a pistol in his hand? A. If he did I never did see it. Q. Did he strike you with his right hand-before you fired the gun, or after? A. He had struck me one lick with his right hand before I fired the gun. Q. He had put his hand into his breast before you fired some little bit? A. No, sir; not very long. Q. He had put his hand in there before you fired. Then he took it out and struck you with his fist, and all of that was done before you fired? A. Yes. Q. How long after he put it in the second time before you fir.ed? A. I don’t know just right now. Q. When you fired the first shot his hand was in his breast? A. Yes. Q. He was hitting you with his left fist after you fired? A. Yes. Q. You fired again, his hand still in there? A. I fired the two shots might near • together. Q. How far were they apart? A. It wasn’t long. Q. Then the second shot he hollered and ran? A. He didn’t run. Q. What did' he do? A. He staggered off. Q. You put the pistol up against him and fired ? A. It wasn’t right against him I don’t think. Q. How close to his stomach was the barrel of your gun? A. It wasn’t right against him. Couldn’t have been far. Q. You meant to kill him? A. I aimed to keep him from killing me. I thought he was going to kill me. Q. You aimed to kill him? That was your intention? A. Of course I did; I wouldn’t have shot him if I hadn’t. Q. You wouldn’t have shot him if you hadn’t? A. I thought he was going to kill me. Q. After you fired the second shot, what did you do then? A. Walked into the room. Q. Did you have any bruised places on your head? A. Yes. Q. Any skinned place? A. I don’t know as any skinned place on my head.' A little place on my arm. Stayed sore a long time after I was put in jail. O. Sam Billy didn’t even get in the hallway when you were scrapping? A. tie was on the porch. Q. Never did come in the hallway during the time you were fighting? A. No, sir. Q. He was on the outside on the front porch, and all you could see was— A. Yes. Q. You didn’t see him do anything? A. I had about ■all I could tend to on the other side. Q. didn’t you see anything? A. No, sir. Q. You didn’t see him make any move toward you; you didn’t see him come in and atempt to hit you with anything? A. He looked like he was standing in pretty good shape to do it. Q. He didn’t touch you? A. No, sir. Q. He didn’t make an attempt to come towards you after the fight started? A. He was coming there. Q. He was standing there peeping around this corner you have said? A. Yes. Q. Did he come anywhere?' A. That is all the farther he come.”

Witness Cleveland Ross testified that deceased’s reputation was pretty bad, but on cross-examination admitted that the statement was based upon some trouble with the Sims boys which they told him about.

Witness H. N. Roberts testified that the reputation of deceased was “not very good,” but admitted on cross-examination that, “I don’t consider it bad.” The deceased was sort of a fussy man; never wins a fight. Further that accused and deceased were about the same size; accused being a little taller.

Witness Lon Griffin testified that deceased was a kind of “fussy” man; not dangerous.

Witness George Marsh testified that deceased was “fussy.”

Witness Milt McPherson testified that accused was tallef than deceased; Simon was fleshy.

Witness Mathew Shelton testified that, at the time witness started from the house immediately after the shooting, he met parties about 100 yards, from the house; that Sam Billy was at the southeast corner of the kitchen when he left.

Witness Ben Shelton testified that he was there when deceased was searched; that he had'no weapon of any kind on him, not even a pocketknife.

Witness John Brown testified that he met Shelton about 50 yards from the house tunning; that Shelton said, “Yonder goes the man.” That when deceased was searched he had no weapon on him, only a watch.

Witness Bob Cordell testified that accused had on a shirt and vest; “shirt was buttoned all the way.”

Witness George Rogers testified that Brisco carried the two jugs of beer from the buggy to the house; gave them to Mathew Shelton, who put them in the north room.

Witness Jack Kelly testified that he was deputized by Bob Cordell to assist in arresting accused. That he ran him a half or three-quarters of a mile; that accused was running and looking back all the time until he was caught.

On surrebuttal, witness Mathew Shelton testified that he did not see accused take the jugs to the house. That he does not know where the jugs were when the difficulty took place. Witness Ben Shelton testified that Sam Billy did not assist in taking deceased into the house after he was killed.

Upon the foregoing facts a conviction for murder would have been sustained. We have carefully examined the assignments of error and briefs of counsel, and find no prejudicial errors of law.

The judgment of the trial court is affirmed.

FURMAN, P. J., and DOYLE, J„ concur.


text:
    SHERIDAN WILLIAMS v. STATE.
    No. A-718.
    Opinion Filed June 22, 1912.
    (124 Pac. 330.)
    LARCENY — Horse Stealing — Sentence—Instructions. Act of Congress approved February 2, 1903 (chapter 350, United States St. at L., vol. 32, part. 1, p. 792), provided that a violation thereof: “Shall be punished by a fine of not more than one thousand dollars or by imprisonment for not more than fifteen years, or by both such fine and imprisonment. ’ ’ Held, that on a trial for a violation thereof the court erred in instructing the jury that the minimum punishment was five years imprisonment.
    (Syllabus by the Court.)

      Appeal from District Court, Latimer County; Malcolm B. Rosser, Judge.

      Sheridan Williams was convicted of grand larceny, and appeals.
    Reversed.
    /. B. Whitehead, for plaintiff in error.
   DOYLE, J.

The plaintiff in error, Sheridan Williams, was convicted in the district court of Latimer county, and sentenced to ten years’ imprisonment in the penitentiary on an indictment returned by a grand jury at the March, 1909, term of said district court, charging him with stealing one certain bay horse, the property of one C. Thurston, on or about August 11, 1907. The judgment and sentence was entered October 20, 1909. From the judgment of conviction and from an order denying his motion for a new trial, he appeals.

The offense is alleged to have been committed before statehood, and the indictment is based upon the act of Congress approved February 2, 1903, as follows:

“Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, that any person, whether an Indian or otherwise, who shall hereafter be convicted in the Indian Territory of stealing any horse, mare, gelding, filly, foal, mule, ass, or jenny, or of stealing, or marking, killing, or wounding with intent to steal, any kind of cattle, pigs, hogs, sheep, or goats, shall' be punished by a fine of not more than one thousand dollars, or by imprisonment for not more than fifteen years, or by both such fine and imprisonment, at the discretion of the court.” (U. S. St. at L., vol. 32, part 1, p. 792.)

Of the various assignments of error it is only necessary to notice those based upon two of the instructions given by the court as follows:

“(3) Whoever shall be convicted of stealing any horse or mare, or other animal of the horse kind, is guilty of a felony, and upon conviction shall be imprisoned in the penitentiary not less than five nor more than fifteen years.”

To which instruction the defendant excepted.

“(7) If you convict the defendant, it will be your duty to assess his punishment at imprisonment for the period of not less than five nor more than fifteen years.”

To which instruction the defendant excepted.

On the oral argument of the case the Attorney General confessed error’on the ground that the court erred in misdirecting the jury as to the minimum punishment prescribed by said act of Congress. Colbert v. State, 4 Okla. Cr. 487, 113 Pac. 561. 'We are of opinion that the confession of error should be sustained. A defendant is entitled to have the jury assess the punishment on a correct statement of the law fixing the punishment. The defendant in the case at bar had the right to be tried under this act of Congress, and the trial court should have by proper instructions declared the punishment in pursuance of its provisions. For the failure ’of the trial court to so instruct, the judgment must be reversed.

We do not deem it necessary to review the other errors assigned. For the error confessed, the judgment is reversed.

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


text:
    S. V. CAMP v. STATE.
    No. A-1165.
    Opinion Filed June 22, 1912.
    (124 Pac. 331.)
    1. LARCENY — Grand Larceny — Evidence of Value, (a) In a trial for grand larceny, where the offense was not committed' by taking property from the person of another, the evidence must establish beyond a reasonable doubt that the value of the property taken exceeded $20.
    (b) Where property was taken on a number of different occasions,-each separate taking constituted a separate and distinct offense, and a person cannot be convicted of grand larceny upon proof that the entire property taken on such different occasions exceeded $20 in value.
    2. EVIDENCE — Evidence of Accomplice — Corroboration. Where the entire evidence in a case shows that a witness who was an accomplice testified for the state, a conviction upon his testimony will be set aside unless it is corroborated by other evidence tending to connect the defendant with the offense committed.
    (Syllabus by the Gourt.)

      .Appeal from District Court, Custer County; Jas. R. Tolbert, Judge.

      S. V. Camp was convicted of larceny and appeals.
    Reversed and remanded.

      Thomas W. Conner, N. Rummons, and O. J. Logan, for appellant.

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

First. At the March, 1909, term of the district court of Custer county, Okla., an indictment was returned against S. V. Camp and Ben Plughes for grand larceny, alleged to have been committed during the month of February, 1907. The indictment charged said defendants with larceny of a quantity of clothing, the property of one Jeff D. Simpson, of the reasonable value of the sum of $20.

Upon the trial of this case J. D. Simpson testified that in 1907 he was engaged in the dry goods business in Arapaho, Custer county, Okla.; that some time in February, 1907, he discovered some goods were missing from his store. On cross-examination the witness testified as follows:

“Q. Mr. Simpson, can you tell the court or jury that any particular number of those goods or any value of them were taken at any one time? Or that they were taken all at one time? A. Well, the shoes as I stated before [counsel interrupting the witness]— Q. Now, wait a moment. Just answer the questions. Can you tell the court or jury? A. I was just fixing to tell you, Mr. Jones. They were taken at a half a dozen times. There had been a continuous round of robberies ever since it commenced. Q. Well now, that is all.”

Clyde Schwab testified for the state that he was a clerk in the employment of witness Simpson. He testified that he first remembered missing goods from the store in November, 1906. This witness testified that he could not testify that all of the goods lost were taken at the same time. His testimony on this subject was as follows:

“Well, we missed goods at different times. Maybe one time we would miss a lot of goods, and maybe several days later would be looking for something else, and there had been goods taken there, too. I could not say whether they were all taken at once or taken at different times.”

We have examined the record carefully, and fail to find any testimony that the value of the property taken at any one time exceeded $20. Counsel for appellant made this point in their brief, and insisted that, under the evidence, appellant should not have been convicted for more than petit larceny. It was therefore the duty of the attorney for the state, if there was any evidence in the record showing that goods had been taken at any one time worth exceeding $20, to call our attention to it. As he has not done so, and as we have been unable to find such testimony, we feel that we should sustain the' contention of counsel for appellant, and hold that the testimony in this case does not support a verdict for grand larceny.

Our statute upon this subject is as follows:

“Sec. 2593. Larceny Divided. — Larceny is divided into two degrees; the first of which is termed grand larceny, the second petit larceny.

‘Sec. 2594. Grand and Petit Larceny. — 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.” (Comp. Laws 1909.)

Second. The only evidence in the record which connects appellant with the theft of the goods charged in the indictment is that of the state’s witness Charles White. The record shows that White pleaded guilty to horse stealing in the district court of Cook county, Tex., in 1909, and was sentenced to the penitentiary for the period of two years. In 1903 he pleaded guilty in the United States court for the Southern District of the Indian Territory sitting at Ada to an indictment charging him with grand larceny, and he was again sentericed to the penitentiary for the period of two years. In 1907 he was convicted of arson in the territorial court of Oklahoma, and sent to the penitentiary for twenty years. It was also in evidence that he had been convicted of other offenses at other places. We cannot understand how a jury could be induced to send any man to the penitentiary upon the unsupported testimony of such a witness. From reading the entire record we are satisfied that, if the state’s witness White was not himself the thief who robbed the store of J. D. Simpson, he was at least an accomplice in such offenses. Under these conditions, a conviction could not be legally had upon his testimony unless corroborated by other testimony tending to connect the defendant with the offense committed.

Section 6836, Comp. Laws 1909, is as follows:

“A conviction cannot be had upon the testimony of an accomplice unless he be corroborated by such other evidence as tends to connect the defendant with the commission of the offense, and the corroboration is not sufficient if it merely show the commission of the offense or the circumstances thereof.”

We find no such corroboration in the record. It matters not how anxious a jury may be to believe an accomplice, the law is that they cannot convict upon his evidence unless corroboi'ated by other testimony tending to connect the defendant with the offense committed. This is the plain mandate of our statute, and it is our sworn duty to see that it is enforced. If the law considers an accomplice as infamous and will not allow a conviction upon his unsupported evidence, how much more infamous is a man who is not only an accomplice in this case, but who has time and again pleaded guilty to grand larceny, and also been convicted and sent-to the penitentiary for twenty years for arson? We are loath to disturb.the verdict of a jury, but we feel that justice and the statute requires that this verdict should be set aside. The evidence as a whole is altogether insufficient to sustain the conviction of appellant.

The judgment of the lower court is reversed, and the cause remanded.

ARMSTRONG and DOYLE, JJ., concur.