author: BEETT, J.

text:
    WALTER LAVOY WALLIN v. STATE.
    No. A-10623.
    March 12, 1947.
    Rehearing Denied April 30, 1947.
    (182 P. 2d 788.)

      Eobert E. Eittenhouse, of Oklahoma City, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., and Sam H. Latti-more, Asst. Atty. Gen., for defendant in error.
   BEETT, J.

The defendant, Walter Lavoy Wallin, was charged by information in the court of common pleas of Oklahoma county, Okla., with the crime of contributing to the delinquency of a minor, in words substantially as follows, to wit:

“* * * contributing to the delinquency of a minor in manner and form as follows: That is to say, the said defendant in the County and State aforesaid, and on the day and year aforesaid, then and there being, knowingly and willfully cause, aid- abet and encourage one Nancy King, a female under the age of eighteen years, to wit, of the age of nine years, to become a delinquent child, in manner and form as follows: That is to say, the said defendant did wilfully, lewdly, and lasciviously, in such manner as to be offensive to decency and calculated to excite vicious and lewd thoughts to the said Nancy King, by calling the said Nancy King to his car and exposing his privates, with the willful and unlawful intent to excite vicious or lewd thoughts in the mind of said Nancy King.”

The information was filed on November 15, 1944, and to which the defendant entered a plea of not guilty. ■

Thereafter, the defendant was permitted by the court to withdraw his plea of not guilty for the purpose of filing a demurrer to the information. Upon presentation thereof, the demurrer was overruled, and thereupon, the defendant again entered his plea of not guilty. On December 18, 1944, the cause came on for trial, at which time the defendant withdrew his plea of not guilty and entered his plea of guilty to the crime charged in the information. Sentence was deferred until December 21, 1944. On the 19th day of December, 1944, the defendant filed his motion for a new trial as well as a motion in arrest of judgment. The motion for new trial, in substance, alleged the insufficiency of the information to charge an offense, and, if it did charge an offense, it showed on its face the defendant, if guilty would be guilty of indecent exposure, a felony, and not the misdemeanor alleged, of contributing to the delinquency of a minor.

The motion in arrest of judgment, in' substance, suggested that at the time the defendant committed the alleged offense and at the time of the filing of motion in arrest of judgment, said defendant was of such unsound mind that he could not be legally held for the commission of the offense charged in the information; that he was so mentally deranged that he does not know and cannot ascertain the difference between the rightfulness and wrongfulness of his acts, and particularly of the acts contained in the information. The suggestion was made that an inquiry be made upon the sanity of the defendant.

Thereafter, and on the 21st day of December, 1944, both the motion for new trial and the motion in arrest of judgment, after a hearing, were overruled by the court, from which ruling this appeal was perfected. On this record, the defendant makes two contentions:

First. That the court of common pleas of Oklahoma county was without jurisdiction over the person of this defendant or the subject matter of said action for the reason that the information filed herein purports to charge the defendant with a misdemeanor under the laws of the State of Oklahoma, and said court has no jurisdiction to try, hear, or determine the issues in a criminal prosecution where the facts alleged make out a felony.

Second. That it was error for- the court to overrule the motion in arrest of judgment and refuse to the defendant a trial by jury to determine the sanity of said defendant at the time of passing judgment and sentence upon said defendant.

This case is one of first impression and therefore of more than ordinary importance, in the interpretation of the juvenile statutes.

In his first assignment, the defendant contends that the charging part of the information is insufficient to bring him within sections 856, and 857, Title 21 O. S. 1941, which sections define contributing to the delinquency of a minor. The pertinent portion of section 856 is as follows :

“Every person who shall knowingly or willfully cause, aid, abet, or encourage a minor to be * * * or to become a delinquent child, * * * shall, for the first offense, be guilty of a misdemeanor. * * *”

§ 857, the pertinent part thereof, reads as follows:

Subd. 1. “ ‘Every person/ as used in this Act, shall include human beings, without regard to their legal or natural relationship to such minor, * *

Subd. 2. “ ‘Minor’ or ‘Child/ as used in this Act, shall include male or female persons who shall not have arrived at the age of eighteen (18) years * *

Subd. 3. “ ‘Encourage/ as used in this Act, in addition to the usual meaning of the word * *

The defendant contends that the information does not charge an offense Avithin the foregoing statutes, but it charges the defendant with an offense defined under the provisions of § 1021 of Title 21 O. S. 1941, to wit, indecent exposure — the pertinent portion of which reads as follows: Every person who willfully and lewdly either:

“First. Exposes his person, or private parts thereof, in any public place, or in any place where there are present other persons to be offended or annoyed thereby * * * is guilty of a felony and upon conviction therefor shall be punished, * * * etc.”

It is true, the facts pleaded in the information would support a case of indecent exposure, a felony. This fact, however, will not bar the state from charging a misdemean- or if the facts upon which the case is based are within the statutes defining a misdemeanor.

We are of the opinion that the charge in the information is well grounded. This conclusion is based upon the wording of sections 856 and 857, Title 21 O. S. 1941, and the evil at which the statute is directed; the usual meaning of the terms of the statutes as well as the object of its protection. § 856 reads in part as follows:

“Every person who shall knowingly or willfully * * * encourage a minor to be * * * or to become a delinquent child, * * * shall * * * be guilty of a misdemeanor * *

§ 857 reads in part:

“ ‘Encourage,’ * * * in addition to the usual meaning of the word, * *

We must therefore look to the usual meaning of the word “encourage,” since the statute, as applied to the facts in this instance, must be construed upon the usual and not the special meaning which has been given to it in subsequent, definitive portions of the statute. Webster’s New International Dictionary defines “encourage,” among other meanings, as follows: “to foster, to animate, to incite, to embolden, to stimulate, to promote, to instigate, to advance,” etc. Hence, under the statute, any willful suggestion, act, or course of conduct on the part of a person, knowingly committed, which would tend to foster, animate, incite, stimulate, embolden, instigate, promote, or tend to advance a child to become a juvenile delinquent, is within the statute. Clearly, the act complained of in the information herein comes within the definition of “encourage.” What was done would tend to incite, to advance, and to suggest evil and degrading sex thoughts in the mind of the child before AAdiom the exposure was committed. Certainly the act would not advance the juvenile mind to goodness, but, on the contrary, to immorality. Most assuredly, it would tend to corrupt the child’s mind and contribute in some measure to lewd and lascivious thoughts and conduct on her part. In any event, it leaves the impression of the exposure on the juvenile mind, which certainly opens the avenue that may lead to delinquency. At these possibilities, the statute is directly aimed. The conduct herein complained of was clearly within the definition of “encouraging and contributing to juvenile delinquency.” We believe the plain meaning of these statutes is sufficiently broad to encompass the facts alleged, even though the defendant could have been charged with the commission of a felony for “indecent exposure” had the prosecutor elected so to do.

The statutes of the State of Illinois are similar to the statutes of Oklahoma. The foregoing conclusion is supported by People v. Friedrich, 385 Ill. 175, 52 N. E. 2d 120; also People v. Gruhl, 320 Ill. App. 489, 51 N. E. 2d 615, appealed to the Supreme Court of Illinois, 388 Ill. 52, 57 N. E. 2d 371, 372, wherein the Supreme Court of Illinois said:

“The argument that the information is insufficient to sustain a conviction for contributing to the delinquency of a child because it, at most, alleged the crime of ‘indecent exposure/ is without merit. A single act may constitute a violation of more statutes than one. People v. Goldberg, 327 Ill. 416, 158 N. E. 680; People v. Singer, 288 Ill. 113, 123 N. E. 327.”

The fact that the prosecutor may have elected to charge the defendant with a lesser instead of a greater offense does not invalidate the information where the charge, based on the facts, might have been laid under either the lesser or greater statute. The prosecutor, in many instances, has the right of election.

In construing this act, we must keep in mind that the purpose of the juvenile delinquency statutes is to protect the youth of the state from those evil and designing persons who would lead them astray. We are not inclined in the slightest to impair the usefulness and strength of these statutes by placing upon them a narrow, limited, and strict construction. In this connection, see People v. Cohen, 62 Cal. App. 521, 217 P. 78; also, People v. Kinser, 99 Cal. App. 778, 279 P. 488, 490, wherein the court said that the provisions of the juvenile delinquency acts “* * * are intended to be preventative and protective * * *.” Also, State v. Adams, 95 Wash. 189, 163 P. 403, 405, wherein the court' said:

“It seems clear to us from the language of the section, viewed in the light of the wholesome and beneficent purpose of the whole enactment, that it was the intention of the Legislature to place before the children of the state a strong shield of protection.
“* * * The fundamental idea of the juvenile court law is to protect children, and to prevent them from becoming impressed with the character of dependency or delinquency. It is not a statute of reform, but a statute of prevention. In re Lundy, 82 Wash. 148, 143 P. 885, Ann. Cas. 1916E, 1007.”

Placing this interpretation upon the juvenile delinquency statutes of the State of Oklahoma, we are therefore of the opinion that the acts complained of in the information are clearly within the statutes and within the definition of “encourage” and that the charge in the information is well grounded.

Such protective statutes should be liberally construed. A liberal interpretation of the juvenile delinquency statutes arms the state with a two-edged sword, to protect children not delinquent from the suggestions of delinquency, as well as for the punishment of those who might commit such acts as to a child already delinquent. In this connection, it is not necessary that delinquency result from the acts tending to contribute to delinquency. As was said in People v. Gruhl, supra:

“A child who is the subject of the crime of contributing to the delinquency of a child need not be or become a delinquent child, but the crime is complete when acts are committed which directly tend to render the child delinquent.”

See, also, State v. Harris, 105 W. Va. 165, 141 S. E. 637; also, People v. Cohen, supra; also, State v. Adams, supra; State v. Johnson (Mo. App.) 145 S. W. 2d 468; People v. Kinser, supra; also, People v. Hemma, 94 Cal. App. 25, 270 P. 457. We therefore find no merit in the defendant’s contentions as to the insufficiency of the information.

The defendant’s final contention is that the court erred in failing to grant him a jury trial to inquire into the sanity of the defendant, prior to the pronouncement of judgment and sentence. This contention is wholly inconsistent with the defendant’s plea of guilty entered the day before he filed his motion in arrest of judgment. The record fails to disclose even the slightest suggestion of insanity at any time prior to the plea of guilty and before the motion in arrest of judgment was filed. This motion in arrest of judgment, however, suggested insanity both at the time of the commission of the offense and at the time of filing the motion in arrest of judgment. Of course, the matter of insanity at the time of committing the offense was a matter of defense which might have availed the defendant, had it been raised at the proper time. But, the motion herein, standing without any verification, not even by the attorney who prepared the motion, was clearly insufficient under the circumstances herein involved, to raise a doubt in the court’s mind. However, the court proceeded to hear evidence upon this issue to determine whether or not the suggestion was well founded. The record discloses that on the offer of proof, the defendant wholly failed to make out a case which would raise a doubt in the mind of the court as to the legal insanity of the defendant either at the time of the commission of the offense or at the time of filing the motion in arrest of judgment and the hearing thereon.

Two witnesses were called in support of the defendant’s motion in arrest of judgment: The defendant’s mother and Doctor C. W. Harper. The defendant’s mother, on cross-examination, testified that the defendant told her that, “he knew it was wrong but he couldn’t keep from doing it.” Doctor C. W. Harper, testifying on behalf of the defendant, on cross-examination in response to the following questions, gave the following answers:

“Q. In questioning him, he recognizes that that is bad and wrong to do in the presence of little girls, doesn’t he, Doctor? A. Sure. Q. And he knows it is wrong and realizes it and wants to refrain from doing these things? A. That’s right. Q. You do know that all the time you are talking to him and questioning him, he recognizes that that act is ivrong? A. Yes. Q. And indecent and immoral? A. Yes.”

Had the question been raised, before the plea of guilty, as to the insanity of the defendant at the time of the commission of the offense, this testimony of Doctor Harper would have been sufficient to conclude the inquiry on that issue.

As to the plea of insanity at the time of filing the motion in arrest of judgment and hearing thereon, Doctor Harper testified as follows:

“Q. What day did you examine the defendant? A. The 18th, after the trial the other day, for treatment of Ms headaches. Q. The 18th. This is the 21st. Would you say that the defendant is sane or has a tendency to be insane at this time? A. Well, he is rational now, I think.”

Moreover, Doctor Harper testified that though he had treated the boy off and on up to and including the 18th, he had never concluded from his observation and examination of the defendant that the defendant was insane and that he never questioned the boy’s sanity until the charge herein was made. None of the witnesses, testifying in behalf of the defendant and none of the supporting evidence in the form of doctors’ reports, brought the defendant within the definition of legal insanity. The proof failed to establish legal insanity either at the time of the commission of the offense (belatedly raised herein), or at the time the motion in arrest of judgment was filed and the hearing thereon was had. The record wholly fails to bring the defendant within the rules laid down in Bingham v. State, decided by Judge Jones, of this court, ón June 23, 1946, and found in 82 Okla. Cr. 5, 165 P. 2d 646, 654, the latest and correct pronouncement of the law upon this question. We believe it would not have been an abuse of discretion for the court to have ignored the unverified motion, under the circumstances, since he had a right to look to the source of the information and rely on his observation of the defendant, “and come to a proper conclusion from all of the facts and circumstances,” in determining, “whether there is a doubt in his mind as to the sanity of the defendant,” Bingham v. State, supra. We find the court, acting wisely and in a precautionary manner, heard the proof on the issue of insanity, both at the time of the commission of the offense and in praesenti. The proof of insanity at the time of committing the offense, as a defense, was waived by the defendant by the plea of guilty. Thé proof of present insanity was the only issue rightfully raised in this record by the motion in arrest of judgment. But, the evidence of insanity in prasenti and at the time of the offense was insufficient to raise even a shadow of doubt in the court’s mind as to either issue.

The record appears to bring the case, as to insanity, within this statement from the Bingham case, supra, as follows, to wit:

“In other words, there must exist reasons to believe that the claim of insanity, made on behalf of the accused is genuine and not simulated as a-means of defeating or delaying the law’s penalties in cases where all other means of evading punishment would seem hopeless.”

It appears from the record and the evidence therein contained that the plea of insanity herein was not well founded. We therefore are of the opinion that the court did not abuse its discretion in refusing to grant a jury trial on the question of the defendant’s insanity. We think the court’s conduct in this instance was not arbitrary but was wise and judicious.

Finding the defendant’s contentions without merit and no error appearing in the record, the judgment and sentence of the trial court is affirmed.

BAREFOOT, P. J., and JONES, j., concur.


source: Caselaw Access Project

author: JONES, J.

license: Public Domain

text:
    JAKE BOCK v. STATE.
    No. A-10676.
    May 7, 1947.
    (180 P. 2d 669.)

      Hughes & Hughes, of Hobart, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., for defendant in error.
   JONES, J.

The defendant, Jake Bock, was charged in the county court of Kiowa county with the crime of unlawful possession of intoxicating liquor, was tried, convicted and sentenced to serve 30 days in the county jail and pay a fine of $200, and has appealed.

Several officers of Kiowa county, armed with a search warrant, made a search of the residence of the defendant. Concealed in a trap in the top of a clothes closet were found nine pints of Hiram Walker whisky. The defendant did not testify but his wife testified in his behalf that the liquor was not being kept for the purpose of illegally disposing of same, but was for their own personal use.

The issue raised by the evidence was properly submitted to the jury. By their verdict, they decided the issue adversely to the defendant. Since there is ample, competent evidence to sustain the finding of the jury on this disputed question of fact, this court will not interfere with such finding.

The trial court gave all the instructions requested by the defendant and they were even more favorable to the defendant than was required under the law.

Finding no error in the record, the judgment and sentence of the county court of Kiowa county is affirmed.

BAREFOOT, P. J., and BRETT, J., concur.


author: BAREFOOT, P. J.

text:
    FRANK GRIFFIN v. STATE.
    No. A-10713.
    May 7, 1947.
    (180 P. 2d 844.)
    Lewis F. Oerke, of Lawton, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., Sam H. Lattimore, Asst. Atty. Gen., and Ralph H. Cline, Co. Atty., of Lawton, for defendant in error.
   BAREFOOT, P. J.

The defendant, Frank Griffin, was charged in the county court of Comanche county with the crime of operating a motor vehicle while under the influence of intoxicating liquor; was tried, convicted and sentenced to pay a fine of $200 and to serve six months in the county jail, and has appealed.

Counsel for defendant states in his brief that the only error presented by this appeal is that the judgment and sentence is excessive, and the verdict of the jury was rendered by reason of passion and prejudice.

The statute under which defendant was charged is Tit. 47, O. S. 1941 § 93, as amended. By the terms of this statute, the first offense is a misdemeanor, and the punishment to be assessed is a fine of not to exceed $500, or confinement in the county jail for a period of not to exceed one year, or by both such fine and imprisonment.

The facts in the instant case were that the complaining witnesses, D. P. Broyles and Bill Freeland, were employees of the Nash Finch Company, in the city of Lawton. On July 11, 1945, they were using a truck belonging to the company for the purpose of going to the Indian Mission, about one and a quarter miles north of the city of Lawton and adjacent to the Fort Sill military reservation, to get an employee of the company and take him to work. They were traveling on U. S. Highway No. 277, going north, and when opposite the Mission, turned to the left across the highway to enter a side road. Both of the occupants of the truck testified that Broyles, the driver of the truck, held out his hand signaling the left turn. The defendant and two occupants of his car testified that no signal was made. Just as the turn was made and the back wheels of the truck were on the west side of the pavement, the truck was hit by a Pontiac automobile, driven by defendant. Defendant’s wife and Mrs. Wiley Griffin were in the car with him. No damage was done to the truck, and very little to the defendant’s car.

Evidently after the collision both cars stopped, and it is unnecessary to further state the facts, except as they apply to the issue here involved.

The driver of the truck went to the Indian Mission and notified the patrol officers of the accident. They could not come to the scene immediately, as they were in the south part of the county, and they notified the Military Police at Fort Sill and asked them to go to the scene and take charge. It is what happened thereafter that the defendant contends caused the prejudice against him, and that the state contends was the proper cause for the punishment inflicted.

The two military police officers, the two patrol officers, and the two occupants of the truck all testified that defendant was unruly and obstinate. That he cursed and swore and called one of the parties and one of the military police officers a damn liar. That he refused to permit his car to be moved by the police out of the way of the traffic until the Highway Patrol officers arrived, and refused to move it himself. The Highway Patrol officers testified that he attempted to interfere with them in their investigation. That when he was placed under arrest, he continued to annoy them. Defendant, who was a negro, made several statements with reference to race prejudice. One of the Military Police testified that he said: “No white son-of-a-bitch is going to tell me to move my car”; and also stated that “he would be glad when the Japs won this war so that the colored people would have equal rights as the whites”; and that he stated: “I am just a colored man and don’t have a chance.”

All four of the officers testified that defendant was under the influence of intoxicating liquor and several of them testified that he was drunk. Some of them testified that at one time he staggered and fell into a ditch by the side of the road. Others testified that they conld smell liquor on his breath.

From the above statement of the evidence, it cannot be doubted that it was sufficient under the law to sustain the conviction of the defendant. The only question is, Was it such as to have prejudiced the jury to that extent that the verdict could be said to have been rendered by reason of passion and prejudice? It cannot be denied that it is a heavy sentence, taking into consideration the undisputed evidence that no one was injured, and very little property damage resulted. Also, the fact that the truck was turning directly across the highway at the time of the collision, and that the evidence was contradictory as to whether the driver of the truck held out his hand and signaled a left turn. And the driver of the truck and his companion would not testify that defendant was drunk, but only that they observed a strong odor of whisky, and that defendant walked unsteadily and they saw him stumble and fall in the ditch by the side of the highway.

If the judgment is excessive, it is because of the testimony concerning the action of the defendant at and following the collision, and the statements he made to the occupants of the truck and the officers who were making the investigation and who made the arrest.

We have carefully considered all of these matters, and have reáched the conclusion that justice demands that the judgment and sentence be modified to a fine of $100 and 90 days in the county jail.

As so modified, the judgment and sentence of the county court of Comanche county is affirmed.

JONES and BRETT, JJ., concur.


text:
    CHARLES PERRY v. STATE.
    No. A-10672.
    May 14, 1947.
    (181 P. 2d 280.)

      Hal Whitten, of Oklahoma City, for plaintiff in error.
    Randell S. Cobb, Atty. Gen., and Jess L. Pullen, Asst. Atty. Gen., for defendant in error.
   JONES, J.

The defendant, Charles Perry, and Bertha Clifford were jointly charged upon complaint of Franklin Hiram Clifford, husband of Bertha Clifford, with the crime of adultery in a complaint filed before a justice of peace of Oklahoma county. Subsequent to the preliminary examination, an information was filed in the district court of Oklahoma county charging them with said crime of adultery. Thereafter, the county attorney filed a motion to dismiss the action against both of the defendants but upon objection of the husband, Franklin Hiram Clifford, the action was continued as to the defendant, Charles Perry, and dismissed as to Clifford’s wife, Bertha. The defendant, Perry, was tried to a jury, convicted, with the sentence left to the court. Perry was thereupon sentenced to serve two years in the State Penitentiary, and has appealed.

Counsel for defendant have presented many assignments of error. Most of them have substantial merit, but in the view which we have taken of the case it is not necessary to discuss all of them.

Franklin Hiram Clifford and Bertha Clifford were married in 1926. Two boys and two girls were born to that marriage and were living at the time this prosecution was instituted. The defendant, Charles Perry, age 48, was a veteran of both World Wars. After being honorably discharged from the Army, he commenced work for an ordnance company in March, 1944. Franklin Clifford enlisted in the Army on October 14, 1943.

Subsequent to the enlistment of Franklin Hiram Clifford in the Army, his wife commenced working at the same ordnance plant where the defendant was employed. In April, 1944, the defendant and Mrs. Clifford became acquainted; later they were seen together on different occasions. On December 29, 1944, Franklin Clifford was discharged from the United States Army as a psychopathic case. He returned to live with his family, but later trouble developed between him and Mrs.. Clifford, and in January, 1945, Mrs. Clifford made arrangements with her husband to go to Arizona. Mrs. Clifford got in touch with the defendant, Perry, and he came on the train with Mrs. Clifford and her two daughters to Oklahoma. They commenced living together at a farmhouse near Choctaw in Oklahoma county, shortly after they came to Oklahoma. They were known in the neighborhood as Mr. and Mrs. Perry and the two girls enrolled in school under the name of Perry.

On February 5, 1945, Franklin Clifford, who had followed his wife, located her and the defendant at their home near Choctaw. He went to the house shortly after dark, walked in and shot the defendant twice. One of the bullets from the pistol entered his right temple and came out through his left jaw, causing a paralysis to the defendant’s right arm and right leg which had continued up to the date of the trial of the case out of which this appeal was taken. He was also shot in the stomach. The defendant, Perry, was taken to the Oklahoma City General Hospital where he remained about four weeks. Clifford was incarcerated in the county jail and a charge of assault with intent to kill was filed against him. The preliminary hearing was postponed pending the outcome of the injuries sustained by Perry. When Perry had recovered sufficiently to be able to leave the hospital, the case against Clifford was set for a preliminary hearing. Both the state and the defendant issued subpoenas for Perry and he appeared at the preliminary hearing under the compulsion of the subpoenas which were served on him. Counsel who were employed to represent Clifford placed Perry upon the witness stand purportedly to testify as a witness in behalf of Clifford. He was asked if he had ever had sexual intercourse with Mrs. Clifford and Perry stated that he had on two different occasions. Based upon this statement of Perry, Clifford and his counsel made a demand on the county attorney that adultery charges be filed against Perry and Mrs. Clifford.

Subsequently the assault with intent to kill charge was dismissed against Clifford. Thereafter, the county attorney filed a motion to dismiss the adultery charge against the defendant, which motion reads as follows:

“Comes now Warren H. Edwards, the duly elected, qualified and acting County Attorney of Oklahoma County, State of Oklahoma, and moves the court to dismiss the above entitled cause for the following reasons, to-wit: ■
“The County Attorney is of the opinion that the facts in this case are not sufficient upon which to base a conviction and that the evidence is not sufficient to prove the defendants guilty beyond a reasonable doubt; that this action was instituted by Franklin Hiram Clifford, the aggrieved husband, and the available evidence points to the fact that the said Clifford is not of mentally sound mind; that at the preliminary hearing the two minor daughters of the complaining witness testified to facts tending to disprove the act of adultery, and that later one of these witnesses testified under oath to the contrary and admitted that her testimony at the preliminary hearing was false. To a large extent proof of the guilt will depend on the veracity of these minor children and we do not think their evidence is dependable. Further investigation shows that the complaining witness Clifford and his wife have become reconciled and are now living together or planning so to do, and that the wife of the complaining witness, Bertha Clifford, will not testify against the defendant to actual adultery; that the only definite proof of adultery was given by the defendants, Charles Perry and Bertha Clifford, at the preliminary trial of Franklin Hiram Clifford wherein Clifford was charged with the crime of assault with a dangerous weapon and that said witnesses were by the said Clifford’s attorney and by the Magistrate compelled to testify about acts of adultery and in violation of their constitutional rights without having been warned that they could refuse to give testimony incriminating themselves and without being represented by counsel, and that by reason thereof their admissions cannot be used against them and in all probability render them immune from prosecution upon said charge.”

Counsel who represented Clifford at his preliminary hearing on the assault charge was hired as a special prosecutor by Clifford in the adultery case. After the state, acting through the county attorney, had filed the written motion to dismiss, special counsel for Clifford on Clifford’s behalf objected to the cause being dismissed as to the defendant, Perry; but stated that Clifford and his wife had become reconciled, had started living together again, and agreed that the case could be dismissed as to Mrs. Clifford. When the motion to dismiss was presented to the trial court, the action was dismissed as to Mrs. Clifford but ordered continued against the defendant, Perry. The trial court stated that in view of the statute (21 O. S. 1941 § 871) under which this action was brought, the right of the county attorney to determine whether the action should be dismissed was placed in the husband or wife as the case may be, who caused the prosecution to be instituted, and that the action could not be dismissed without the consent of Franklin Clifford. The court further stated that but for the provision of the special statute under which the prosecution was instituted, he would have dismissed the action in accordance with the motion filed by the county attorney. Thereafter, the defendant filed a motion to abate and dismiss in which several grounds were alleged, among them being the following:

“The charge complained of has been condoned by Franklin Hiram Clifford, husband of Bertha Clifford, with whom the defendant is charged with having committed adultery.”
“The charge and action has been dismissed by order of the district court, herein.”
“The court has received motion by the County Attorney to dismiss the action and said action should be dismissed by reason of the condonation of the prosecuting witness, Franklin Hiram Clifford, of the act complained of, and for the further reason that prosecution of all crimes is within the control of the County Attorney, and when the County Attorney signifies that the action be dismissed by his motion, the court has the power to do so.”
“The defendant, Charles Perry, has been placed immune from further prosecution by reason of having been subpoenaed and forced to involuntarily testify in the case of State of Oklahoma v. Franklin Hiram Clifford, said defendant, Perry, having given his testimony under court subpoena in the preliminary hearing before the Justice of the Peace, Wayland McCarty, involving him in alleged acts charged herein, and that he, the said Charles Perry, being required under law to so testify in the case of State v. Clifford, immunity is granted under Artcile 2, Section 27, of the Oklahoma Constitution. That in support of this motion and plea, the defendant respectfully adopts as -though attached hereto the pleadings in the above styled action and in Case No. 17045, State of Oklahoma v. Clifford, as though fully set out herein.”
“Wherefore, defendant respectfully prays that an order of abatement be issued, this case dismissed, and that he be discharged.”

When this motion to abate and dismiss came on for hearing, counsel for- defendant introduced in evidence the order signed by the district judge on March 10, 1945, dismissing the action, which order reads:

“Now on this 10th day of March, 1945, the above entitled cause, coming on to be heard upon motion to dismiss said cause, and the court being fully advised in the premises, finds that said motion should be sustained, as to Bertha Clifford, only, and it is therefore ordered, adjudged and decreed that said cause be, and the same is hereby dismissed for the reasons as set forth in said motion.” (The words italicized were written in pencil, the rest of the order is a printed form — Reporter.)

The record discloses that at the time the order was signed by the district judge and filed with the Clerk, it constituted the dismissal of the action completely with no words limiting it to Mrs. Clifford. The record further shows that the special prosecutor stated that the assistant county attorney called his attention to the fact that the dismissal applied to the complete action without limiting it to just one of the defendants. He, the special prosecutor, took a pencil and inserted in the court’s order “as to Bertha Clifford, only”. As to what then transpired is reflected by the record as follows:

“Mr. Miskovsky: That is the order of the court, and I amended it to speak the truth. The Court: It will be amended if it is incorrectly drawn, the court at this time will enter an order nunc pro tunc because it wasn’t intended to dismiss the case as to anybody except Bertha Clifford. That is the only way it was presented to the court and that is the way it was supposed to be done. Mr. Whitten: It is our position when the case was dismissed it cannot be re-newed through the mere changing of the record by the special prosecutor without the order of the court. The Court: The only thing the court sees material on that is what the court did, and what somebody else put in the order doesn’t have anything to do with it.”

The court thereupon denied the motion to abate and dismiss filed on behalf of defendant, Perry, and his action in this regard is assigned as error. The statute under which this action was instituted provides:

“Adultery is the unlawful voluntary sexual intercourse of a married person with one of the opposite sex; and when the crime is between persons, only one of whom is married, both are guilty of adultery. Prosecution for adultery can be commenced and carried on against either of the parties to the crime only by his or her own husband or wife as the case may be, or by the husband or wife of the other party to the crime: Provided, that any person may make complaint when persons are living together in open and notorious adultery.” 21 O. S. 1941 § 871.

Under the provisions of this statute, it has been held . that an action cannot be prosecuted for adultery that is not open and notorious, except on complaint of the injured spouse. Stone v. State, 12 Okla. Cr. 313, 155 P. 701; Heacock v. State, 4 Okla. Cr. 606, 112 P. 949; Copeland v. State, 10 Okla. Cr. 1, 133 P. 258; Hagan v. State, 73 Okla. Cr. 328, 121 P. 2d 315.

The general rule is stated in 2 C. J. S., Adultery, 12, p. 480, as follows:

“Although there is authority to the contrary it is generally held that, where the prosecution is commenced on the complaint of the husband or wife, the general criminal procedure of the court is invoked and complete, and the husband or wife has no further control of the prosecution.”

In Oklahoma, the general rule above stated has been modified so that the prosecution could not be continued after it had once been filed, if the injured spouse chose to not carry on the prosecution. Lee et al. v. State, 28 Okla. Cr. 397, 231 P. 324; Taylor v. State, 29 Okla. Cr. 160, 232 P. 963.

In Taylor v. State, supra, the law is stated:

“In a prosecution for adultery, the fact that the injured spouse, who instituted the prosecution, subsequently relents and refuses to carry on the prosecution requires a dismissal of the case.”

While our statute provides that the state may not prosecute a person for the crime of adultery that is not open and notorious except that it be commenced and carried on by the injured spouse, yet it does not mean that the injured spouse will supersede the county attorney in the action and that the state no longer has any control over the proceeding. The statute and the decisions of this court above quoted interpreting the same prevents a prosecution from being carried on without the consent of the injured spouse, but it does not mean that the injured spouse can insist on a prosecution and force the county attorney, who is the representative of the state, to prosecute án action where he is of the opinion after a study of the facts and an investigation that in his opinion the facts are not sufficient to justify the institution of an action.

By statute, it is provided that no complaint charging a person with any criminal offense may be filed without the endorsement of the county attorney. 22 O. S. 1941 § 258.

In McGarrah v. State, 10 Okla. Cr. 21, 133 P. 260, 262, this court in discussing the power and duties of a county attorney stated:

“We know of no rule of law whereby a public officer may delegate power or authority involving official discretion or responsibility, except as prescribed by the statute. The law has very carefully guarded the administration of public justice from any interested or unauthorized intermeddling. The county attorney is a very responsible officer, selected by the people and vested with a wide personal discretion, intrusted to him as a minister of justice. There are many reasons why a power of this kind should be confined to the prosecuting officer. He is expected to be impartial in abstaining from prosecuting, as well as in prosecuting, and to guard the real interests of public justice in favor of all concerned.
“It is therefore of the highest importance to the public that this power should be carefully exercised, and that the responsibility should rest upon the officer to whom it is .confided.
“By section 1557, supra, a county attorney is disqualified from becoming in any way entangled with private interests, or grievances connected with the private practice of law. The office of county attorney is quasi judicial, and the county attorney and his legally appointed assistant must be exclusively the respresentative of public justice, and stand indifferent as between the defendant and any private interest.
“The public have a right to insist upon the performance of public duties that are strictly official in the prosecution of crime by county attorneys and assistants duly appointed and qualified as provided by law, and we think it would be directly contrary to public policy to allow or permit any general delegation of the county attorney’s power or responsibility in this respect.”

In State v. Snelson et al., 13 Okla. Cr. 88, 162 P. 444, the syllabus reads :

“The statutes of Oklahoma make it the duty of county attorneys to guard the interests of the state and public, and specifically confer authority upon them to commence criminal actions on behalf of the state.
“Held, that the provisions of section 8099, Rev. Laws 1910 [74 O. S. 1941 § 179], making it the duty of the commissioner of charities and corrections to prosecute certain offenders, does not confer additional authority upon the Commissioner of Charities and Corrections, but only imposes a duty upon him, to prosecute such offenders through the regular channels existing for the prosecution of criminal offenses.”

In the body of the opinion, this court in construing a provision of the statute authorizing the Commissioner of Charities and Corrections to prosecute such actions stated :

“All this section does is to impose upon the Commission of Charities and Corrections the duty to prosecute the classes of offenders specified through the regular channels existing for -the prosecution of offenders.”

A “prosecutor” is defined as:

* * * One who instigates a prosecution, by making an affidavit charging a named person with the commission of a penal offense, on which a warrant is issued or an indictment or accusation is based.’ [34 Words and Phrases, Perm. Ed., p. 632]; Eady v. State, 10 Ga. App. 818, 74 S. E. 303.”
“And section 8099, Rev. Laws 1910, we think, does not even attempt to confer additional authority upon the Commissioner of Charities and Corrections, but only imposes a duty upon him, which is to be performed through the regular and existing channels for the prosecution of offenders.”
“Before the Commissioner of Charities and Correction could legally indorse complaints and informations, and institute criminal actions on behalf of the state, that authority would have to be specifically conferred by statute; and, until that is done, he only has a duty imposed by statute to be performed in the same way as other ‘prosecutors’; and, as other ‘prosecutors’ must submit to the judgment of the county attorneys of the state as to whether or not the parties complained of are offenders against the penal statutes of the state.”

We think the trial court in the instant case was under a mistaken impression of the law of the case when he held that he could not dismiss the action as to the defendant, Perry, on the motion of the county attorney, over the objection of Clifford. To hold that the injured spouse should have the absolute control of the criminal action which is instituted and to be able to determine absolutely whether it should be dismissed or carried on, would be to open the door of a treasure room for a hoard of blackmailers. We have already put it in the power of the complaining witness to control the question as to whether the prosecution could be carried on, but we will not equip them with a new weapon by saying that they can force the prosecution to be continued even though the state through its legal representative is of the opinion that the action should be dismissed. In no other class of litigation is the opportunity for blackmail already so great, and to increase it by putting into the power of the complaining witness, not only the institution, but the entire destiny of the prosecution, is to close our eyes to a grievous situation and add to its immense possibilities for those who are evilly disposed.

A criminal action may not be dismissed except on order of the court, the county attorney not being vested with such authority. 22 O. S. 1941 § 815. However, under the provision of this statute the county attorney may move that the action be dismissed, and since he is the legal representative of the state charged with the responsibility of investigating and prosecuting all public offenses, the trial judge will ordinarily accept his recommendation and dismiss the action.

In Adams v. State, 21 Okla. Cr. 448, 209 P. 189, 191, it is held:

“ ‘The court may, either of its own motion or upon the application of the county attorney, and the furtherance of justice, order an action or indictment to be dismissed; but in that case the reasons of the dismissal must be set forth in the order, which must be entered upon the minutes.’ Rev. Laws 1910, § 6099. This is a judicial function, made so by statute, that cannot be delegated to the county attorney.”

In Kerker v. Superior Court, 38 Okla. Cr. 111, 259 P. 146, this court held that a dismissal cannot be made by the county attorney, but must be made by order of the court.

We next come to a consideration of the order which was made by the court at the time the motion to dismiss was presented to him. Apparently it was the intention of the court to dismiss the action as to the wife of Franklin Clifford, only. The order as signed by the court contained no such limitation but constituted an effective dismissal of the case. When the Special Prosecutor subsequent to the filing of the court’s order of dismissal noticed that it was effective as to both of the defendants, and he was of the opinion that such order was not in accordance with the intention of the court, he should have taken it to the trial court for correction by the court. His insertion with a pencil notation of the words “as to Bertha Clifford, only” was improper, unauthorized, and deserving of a reprimand.

It is contended that the admission of the record of the testimony of Perry at the preliminary hearing o,n the assault with the intent to kill charge filed against Cliifford was error.

When the transcript of the record identified by the reporter was offered in evidence, counsel for defendant objected to its competency on the ground that it was obtained by compulsion and that its admission was contrary to the constitutional rights of the defendant. When this objection was interposed, a hearing was had in the absence of the jury. The defendant testified that he was subpoenaed by the state to appear as a witness to testify against. Clifford. That he would not have appeared at the hearing except under compulsion by reason of the subpoena being served upon him. That at the time he appeared as a witness, his wounds were still bandaged and he was under the influence of a sedative given him by a physician to alleviate his suffering. That he did not have counsel to represent him at the time he appeared as a witness and did not know that he had a constitutional right to refuse to answer any questions that might incriminate him. The objection to the admission of this evidence was overruled and the transcript of his evidence given at the preliminary hearing of Franklin Clifford was read to the jury. The proof showed that after the state had rested its case in the preliminary hearing against Clifford on the assault charge, Clifford’s counsel had Perry, who had not been used by the state as a witness, sworn and asked him the questions, the answers to which incriminated Perry of the crime of adultery committed with Mrs. Clifford. Perry testified that he was a man with only a fourth grade education and had never been in a courthouse before. He knew nothing of his constitutional rights but thought when he was subpoenaed to appear as a witness that he was forced to appear and answer any questions that might be asked him truthfully, even though such questions were of an incriminating nature. He was outside of the courtroom when his name was called as a witness and he stated he did not know when he took the witness stand who was even placing him on the stand or for which side he was testifying.

We are confronted here with an unusual situation, the parties suffering a complete reversal of positions. Clifford was the defendant and taking advantage of his lights as defendant, he employed counsel and procured a statement from a witness under compulsion and then clothed with special power given him by statute forced the county attorney to commence a prosecution against the witness who had testified for him and switched his position from defendant to that of prosecutor with the principal source of proof against the man whom he was prosecuting being the confession secured by reason of evidence given in defense of the person that is now prosecuting him.

The Oklahoma Constitution provides that “no person shall be compelled to give evidence which will tend to incriminate him, except as in this Constitution specifically provided * * Art 2, § 21, Okla. Const.

Art. 2, Sec. 27, provides:

“Any person having knowledge or possession of facts that tend to establish the guilt of any other person or corporation charged with an offense against the laws of the state, shall not be excused from giving testimony or producing evidence, when legally called upon to do so, on the ground that it may tend to incriminate him under the laws of the state; but no person shall be prosecuted or subjected to any penalty or forfeiture for or on account of any transaction, matter, or thing concerning which he may so testify or produce evidence.”

In construing the above two sections of the Constitution, this court stated in the case of Ex parte Gudenoge, 2 Okla. Cr. 110, 100 P. 39:

“Section 27 of the Bill of Bights (Bunn’s Ed. § 36) removes the protection of the constitutional privilege as set forth by section 21 of the Bill of Bights (Bunn’s Ed. §30), and said section 27 must be construed as declaring that no evidence obtained from a witness by means of a judicial proceeding shall be given in evidence or in any manner used against him or his property or estate, in any court of the state, in any criminal proceeding, or for the enforcement of any penalty or forfeiture.”
“The • manifest purpose of the constitutional provisions, both of the United States and of this state, is to prohibit the compelling of testimony of a self-criminating kind from a party or witness.”
“No statute, which leaves a party or witness subject to prosecution after he answers the criminating question put to him, can have the effect of supplanting the privilege conferred by the Constitution. To be valid the statute must afford absolute immunity against future prosecution for the offense to which the question relates.”

In Scribner v. State, 9 Okla. Cr. 165, 132 P. 933, 939, Ann. Cas. 1915B, 381, it is held that sections 21 and 27, supra, are inseparably connected with each other, relate to the same subject matter and must therefore be construed together as though constituting but one section. The law of that case as stated in the syllabus provides:

“Section 21 of the Bill of Bights of the Constitution, which, among other things, provides that ‘no person shall be compelled to give evidence which will tend to incriminate him, except as in this Constitution specifically provided,’ simply protects each person in the right of silence. It does not mean that he shall not be allowed or permitted to give testimony which may tend to incriminate him. The right of silence is one which may be waived, either by contract or by tbe voluntary act of the witness, and is waived if the right is not asserted in apt time.”

In the body of the opinion it is stated:

“There being no case directly in point, we are forced to rely on the evident meaning of the immunity of our Constitution, and upon general principles in deciding the question now before us. The language of our Constitution is broad and comprehensive, and covers all persons, whether natural or artificial, and is applicable to all criminal prosecutions without limitation. In other words, the immunity clause is just as broad and no broader than the right or privilege of silence which it invades, and which is contained in section 21 of the Bill of Rights of our Constitution. If there had been no right of silence, there would be no necessity for granting immunity. The two rights preserved in our Constitution are in all respects equal and cannot be logically divorced or distinguished from each other. The object of granting immunity evidently was to assist the state in procuring credible evidence which otherwise could not be secured, and thereby enforcing the law. Its purpose is to suppress crime and to protect society, and it would be a gross perversion of this purpose to so construe this provision as to make it the means of protecting crime and defeating the enforcement of justice.* * *
“This court is unequivocally of the opinion that criminal laws are enacted and courts are established solely and exclusively for the purpose of suppressing crime, and thereby protecting society, and it is from this viewpoint that we construe all statutes and constitutional provisions. We are therefore of the opinion that before any witness is entitled to immunity under the provisions of our Constitution on account of self-incriminatory testimony which he may have given, such person must comply fully with the spirit of all of the provisions which the Constitution contains on this subject. The privilege of silence is one which may be waived, and which is waived if objection is not made in apt time. If a witness answers questions in such a manner as to incriminate himself he should not be granted immunity unless, in the language of the Constitution, he has been ‘compelled to give evidence’ which incriminates him and has ‘so testified.’ But it may be suggested that a witness may testify without having knowledge of his legal rights in the premises. As a matter of first impression, and viewing this question alone from the standpoint of an individual defendant, it does appear to be unjust to hold that a defendant can waive a right of which he has no knowledge, and that common fairness would require that before a defendant could waive this right he should be informed by the officers of its existence. A little reflection, however, will show that this is an exceedingly narrow and superficial view which is inconsistent with the principles of the law and contrary to the highest considerations of public policy. It would be exceedingly unjust to the state and to society, for whose protection laws are enacted and courts are established, to hold that the action of the county attorney or a member of the grand jury, in inadvertently asking an improper question or, through ignorance or otherwise, neglecting to advise á witness of his rights, should operate as an acquittal of one guilty of crime, when as a matter of law and fact an acquittal of crime cannot be rendered except in a court of competent jurisdiction, after the evidence has all been heard and the jury have had the legal questions involved submitted to them by the judge.”

In Tague v. State, 15 Okla. Cr. 55, 174 P. 1106, it is held:

“Before any person can secure immunity under section 27 of the Bill of Rights of our Constitution, on account of incriminatory evidence given by him before any court of competent jurisdiction, such witness must have claimed his privilege of silence, and be denied that privilege by the court, and forced to testify over his objections, and must also in good faith disclose all the facts pertaining in the matter inquired about truthfully.”

See, also, Eden v. State, 54 Okla. Cr. 265, 21 P. 2d 775; Rudolph v. State, 32 Okla. Cr. 265, 240 P. 761; Hunter v. State, 63 Okla. Cr. 24, 72 P. 2d 399.

The answer made by the defendant in response to the questions of Clifford’s attorney at the preliminary examination of Clifford constituted a confession of the defendant Perry’s guilt of the crime of adultery.

In Smith v. State, 77 Okla. Cr. 142, 140 P. 2d 237, it is stated :

“Confessions are either voluntary or involuntary. If voluntary, they may be admitted in evidence. If involuntary, they are inadmissible.
“A voluntary confession is one made by an accused freely and voluntarily, without duress, fear or compulsion in its inducement, and with full knowledge of the nature and consequences of the confession.” To the same effect, see Lyons v. State, 77 Okla. Cr. 197, 138 P. 2d 142, 140 P. 2d 248; Id., 322 U. S. 596, 64 S. Ct. 1208, 88 L. Ed. 1481.

We are of the opinion that the constitutional right of the defendant to immunity on account of incriminatory evidence given by him before a court is a privilege that may be waived in accordance with the decisions herein-above quoted.

In Ex parte Meadows, 70 Okla. Cr. 304, 106 P. 2d 139, Ex parte Bradley, 72 Okla. Cr. 107, 113 P. 2d 611, 615, and in many other cases this court has held that a person may waive the rights guaranteed to him by the Bill of Rights of our Constitution; the rule is well stated thus:

“Courts indulge every reasonable presumption against a waiver of fundamental constitutional rights, and do not presume acquiescence in their loss”; and the question as to “whether one accused of crime has waived his right * * * must depend in each case upon the particular facts and circumstances surrounding that case, including the background, experience, and conduct of the accused.”

The assistant county attorney who was present at the preliminary examination and observed the defendant’s physical and mental condition and knew the facts concerning his forced attendance to testify was of the opinion that the defendant, Perry, did not waive his constitutional right to immunity on account of incriminatory evidence given by him in said hearing and so stated in the written motion to dismiss filed by him with the district court. This attitude of the county attorney, whose only desire was to see that justice was done, is commendable and carries great weight with this court in determining whether the accused had effectively waived his constitutional right to immunity, and further whether the confession made by him was without compulsion in its inducement and with a full knowledge of the nature and consequences of the confession.

It is our conclusion that this statement of Clifford’s should not have been admitted in evidence against him and was the major factor in causing the jury to return a verdict of guilty.

In our view of the case, the Special Prosecutor was guilty of grossly improper argument to the jury and there are other assignments of error all of which with one exception will not arise on a re-trial of this case. This exception concerns the effort of the Special Prosecutor to introduce proof before the jury that the defendant had pleaded guilty when arraigned before justice of the peace. In his opening statement to the jury, the Special Prosecutor stated that defendant entered a plea of guilty when taken before Judge Wayland McCarty, a justice of the peace, after he had been apprised of the charge lodged against him. The trial court sustained the objections of counsel for defendant to such statement with this statement, ’’that will be ruled on when the evidence is offered, it will be withheld from the jury’s consideration at this time.”

The record discloses that the Special Prosecutor placed Clint Miers on the witness stand to testify concerning the alleged plea of guilty by the defendant when arraigned before the justice of the peace. The court did not make a ruling on the objections by counsel for defendant, but said “the court will reserve ruling on that.” The witness was not recalled by the Special Prosecutor and the evidence of what Perry said in the justice of the peace court upon arraignment was never given to the jury.

In Heath v. State, 23 Okla. Cr. 382, 214 P. 1091, 1093, it is stated:

“Upon a plea of guilty, no trial upon the question of the defendant’s guilt can be had. His plea stands in the place of the verdict of a jury finding him guilty, and for this reason we think that a withdrawn plea of guilty, for which, by authority of law and of the court, a plea of not guilty is substituted would not be admissible in evidence against the defendant as a confession nor as an admission against interest. In our opinion the rule supported by reason and authority is that a withdrawn plea of guilty, for which a plea of not guilty is substituted by authority of court, is not admissible in evidence against the defendant.”

This question was also considered at length in the case of Frantz v. State, 70 Okla. Cr. 214, 105 P. 2d 561, 564, in which Judge Barefoot speaking for the court stated :

“Other decisions support the petitioner’s contention that a plea of guilty withdrawn by leave of court is not admissible on the trial of the issue arising on the substituted plea of not guilty. * * * We think that contention is sound. A plea of guilty differs in purpose and effect from a mere admission or an extra judicial confession; it is itself a conviction. Like a verdict of a jury it is conclusive. More is not required; the court has nothing to do but give judgment and sentence. Out of just consideration for persons accused of crime, courts are careful that a plea of guilty shall not be accepted unless made voluntarily after proper advice and with full understanding of the consequences. When one so pleads he may be held bound. * * * But, on timely application, the court will vacate a plea of guilty shown to have been unfairly obtained or given through ignorance, fear or inadvertence. Such an application does not involve any question of guilt or innocence. * * * The court in exercise of its discretion will permit one accused to substitute a plea of not guilty and have a trial if for any reason the granting of the privilege seems fair and just. * * *
“ ‘The effect of the court’s order permitting the withdrawal was to adjudge that the plea of guilty be held for naught. Its subsequent use as evidence against petitioner was in direct conflict with that determination. When the plea was annulled it ceased to be evidence. By permitting it to be given weight the court reinstated it pro tanto. Heim v. United States, supra, [47 App. D. C. 485] 493, [L. R. A. 1918E, 87]. The conflict was not avoided by the court’s charge. Giving to the withdrawn plea any weight is in principle quite as inconsistent with the prior order as it would be to hold the plea conclusive. Under the charge, if the plea was found not improperly obtained, the jury was required to give it weight unless petitioner was shown to be innocent. And, if admissible at all such plea inevitably must be so considered. As a practical matter, it could not be received as evidence without putting petitioner in a dilemma utterly inconsistent with the determination of the cov,rt awarding him a trial. Its introduction may have turned the scale against him. “The withdrawal of a plea of guilty is a poor privilege, if, notwithstanding its withdrawal, it may be used in evidence under the plea of not guilty.” White v. State, supra, [51 Ga. 285], 289, 290. It is beside the mark to say, as observed by the Circuit Court of Appeals, that petitioner knew better than any one whether or not he was guilty and that under the evidence of a plea of guilty was a reasonable thing. These suggestions might bear upon the weight of admissible evidence but they have no relation to the admissibility of a withdrawn plea.
“ ‘Courts frequently permit pleas of guilty to be withdrawn and pleas of not guilty to be substituted. We have cited all the decisions, state and federal, which have come to our attention, that pass on the question here presented. The small number indicates that in this country it has not been customary to use withdrawn pleas as evidence of guilt. Counsel have cited no case, and we have found none,, in which the question has been considered in English courts.’ ”

Because of the errors above noted, this case will have to be reversed. As to whether the prosecution should be dismissed is a matter addressed to the sound discretion of the trial court. It is our opinion, in view of the motion to dismiss filed by the county attorney, that the action should be dismissed, but the trial court is in a better position to render judgment on this matter than we are and he is not subject to criticism if in his discretion he directs the prosecution to proceed against the defendant. ■

The record discloses that the trial was handled throughout by the Special Prosecutor hired by Clifford. The witnesses were all examined by him. The opening statement to the jury and principal argument were delivered by him. Special counsel hired by private interests should never supersede the county attorney in the prosecution of a criminal case. As to the rights and duties of a Special Prosecutor, we direct attention to the statement by this court in the case of Cole v. State, 83 Okla. Cr. 254, 175 P. 2d 376.

The judgment of the district court of Oklahoma county is reversed.

BAREFOOT, P. J., and BRETT, J., concur.


author: BRETT, J.

text:
    A. E. BREWER v. STATE.
    No. A-10691.
    May 14, 1947.
    (180 P. 2d 848.)
    C. B. Wood, of Fairview, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., and Haskell A. Hollo-man, Asst. Atty. Gen., for defendant in error.
   BRETT, J.

A. E. Brewer was charged, tried and convicted in the district court of Major county, Okla. of the crime of assault with a dangerous weapon, on Irvin Lantz in Fairview, Okla. The jury fixed his punishment at one (1) year in the county jail. From the judgment and sentence based thereon, and the court’s action in overruling the defendant’s motion for a new trial, he appeals.

Numerous assignments of error are set forth, but only two are urged. The defendant’s first proposition is that the court erred in giving instruction No. 7. He argues this proposition in three contentions, based on instruction No. 7, as follows, to wit:

“You are instructed that before the Defendant would be justified in striking the prosecuting witness, it must appear that at the time and place of the difficulty the prosecuting witness did some overt act indicating an intent upon his part then and there to injure the defendant or to do him great bodily harm; and if you find from the evidence that at the time of the altercation the prosecuting witness, Lantz, did no overt act at or toward the defendant which caused the defendant to believe that the prosecuting witness then and there intended to and was about to make an assault upon him and was intending to and was about to take his life or cause him great bodily harm, then and in such event the plea of self defense would not be available to the defendant in this case.
“On the other hand, if you find from the evidence that at the time and place where the altercation occurred, the prosecuting witness, Lantz, did some overt act indicating an intent upon his part then and there to assault the defendant and kill or do him some great bodily harm, and that the defendant, from the standpoint of the defendant, had reasonable grounds to believe and apprehend danger at the hands of the defendant, and that the defendant struck the prosecuting witness under the apprehension of the presence of danger or death or great bodily harm to himself, then, and under such circumstances the plea of self defense would be available to the defendant, and under such circumstances, you should acquit him.”

The defendant’s first contention under proposition No. 1 is that instruction No. 7 places the burden on the defendant, in that it fails to instruct that the burden is on the state to prove the defendant guilty, beyond a reasonable doubt. Second: It fails to instruct on the defendant’s theory of self-defense. Third: It intimates that a conviction is expected to be returned.

As to the instruction No. 7 placing the burden of proof on the defendant, in view of instruction No. 2, this contention is without merit. Instruction No. 2 reads as follows, to wit :

“You are instructed that to this information the defendant has entered Ms plea of not guilty, which plea puts in issue every material allegation set forth in the information, and places upon the State of Oklahoma the burden of proving the allegations of the information, and all the material part thereof, by competent evidence to your satisfaction, beyond a reasonable doubt; and you are instructed that there is no presumption in this case against the defendant; that he is presumed to be innocent of the charge laid in the information until the same is proven to your satisfaction beyond a reasonable doubt and that such presumption of innocence rests and remains with the defendant throughout the trial, until it is overcome by competent evidence to your satisfaction, beyond a reasonable doubt, and that such burden of proof never shifts from the state, and the defendant is never required to prove his innocence nor to establish any fact tending to show the same.”

Instruction No. 7, in our opinion, constitutes a substantial statement of the law of self-defense, as applied to this case. We cannot follow the defendant’s contention that it places the burden of proof on him. While instruction No. 7 makes no statement that proof of guilt must be beyond reasonable doubt, such omission, in light of instruction No. 2, is not reversible error. In a criminal case, the court must instruct the jury on the rule of reasonable doubt, but in so instructing, the court is not obligated to repeat over and over the words, “beyond a reasonable doubt,” where from the instructions as a whole it is apparent to the jury that every material issue must be established beyond a reasonable doubt, Adams v. State, 62 Okla. Cr. 167, 70 P. 2d 821, 826, wherein this court quoted from Edwards v. State, 24 Okla. Cr. 169, 216 P. 947, at page 948:

“ ‘Particular emphasis is placed on objections to the language used in instruction No. 17, because of an omission to use, at two or three places in the instruction, the words, “beyond a reasonable doubt.” The question of reasonable doubt was clearly treated and stressed in other instructions, and an instruction will not be held erroneous for a failure to repeat and reiterate, over and over again, the term “beyond a reasonable doubt” when it appeal’s that in that and other paragraphs of the instructions the court has made it clear to the jury that every issue of fact raised must be proved beyond a reasonable doubt. Davis v. State, 16 Okla. Cr. 377, 182 P. 909; Seigler v. State, 11 Okla. Cr. 131, 145 P. 308; Nutt v. State, 8 Okla. Cr. 266, 128 P. (165) 168; Spencer v. State, 5 Okla. Cr. 7, 113 P. 224; Cole v. State, 18 Okla. Cr. 430, 195 P. 901.’
“In the case of Cole v. State, the last case cited above, the court says: ‘The principle of reasonable doubt at this late day is so firmly intrenched in the criminal jurisprudence of this country, and is so well known by jurors generally, as certainly not to require constant repetition of the rule in every paragraph of the charge, * * V ”

Watson v. State, 28 Okla. Cr. 244, 230 P. 521, cited by the defendant, does not support his contention in this regard for it specifically holds:

“It is not necessary to repeat over and over, in every instruction, that each issue must be established beyond a reasonable doubt, where from the instructions as a whole it is made clear that every issue must be so established; but the trial court should so frame his instructions that the jury will understand that the question of reasonable doubt applies to every material issue in the case.”

No other interpretation can be placed on instruction No. 2 than that every issue raised against the defendant must be established beyond a reasonable doubt. The phrase “beyond a reasonable doubt” was repeated in other of the court’s instructions in addition to its treatment of reasonable doubt in instruction No. 2, and it clearly appears from the instructions as a whole that every issue was required to be so established. We therefore are of the opinion that the defendant’s contention in regard to the court’s instruction No. 7 is without merit.

In this connection, his second contention covering instruction No. 7, that this instruction failed to instruct on the defendant’s theory of self-defense, must be read in light of instruction No. 6, which reads as follows, to wit:

“You are instructed that one of the defenses of the defendant herein is that of self defense. In this connection you are told that if a person is assaulted by another in such a way as to induce him to a reasonable belief that he is in danger of losing his life or suffering great bodily harm, he will be justified in defending himself, even though the danger is not real, but only apparent. Such person will not be responsible criminally if he acts in self defense from real and honest convictions as to the character of the danger induced by reasonable appearance, although he may be mistaken as to the extent of the actual danger. A person need not be in actual imminent peril to his life or of great bodily harm before he may injure or slay his assailant. It is sufficient if in good faith he has reason to believe from all the facts and circumstances as they appeared to him at the time he is in imminent peril.”

It is apparent from even a casual examination of instructions Nos. 6 and 7 that the theory of self-defense of the defendant was clearly before the jury and that his second contention under proposition 1 is without merit. When viewed in light of the defendant’s own testimony, we are of the opinion that the defendant was not entitled to an instruction on self-defense. A part of his testimony is as follows, to wit:

“Q. Mr. Lantz, you say, came around the car and started toward you? A. Yes, sir. Q. How far around the car did he get? A. He got to the southwest corner of it about the hind wheel on the west side of the car. That is when he saw me get the club and he started away and he started to run. Q. Which way did he run? A. Around the car the same way he came. Q. Now, Mr. Brewer, when you picked up this club, you say on the sidewalk, you started after Mr. Lantz didn’t you? A. Yes, I did. Q. When he broke and run, you say? A. Yes sir. Q. Ran back around the car? A. Yes, sir. Q. You hit him where? A. I hit him right about the back end of the car and he ran to the rear of the car and fell on his hands and knees. Q. You say you were afraid you were going to get beat up? A. No, sir. Q. You wasn’t afraid of a man running from you to beat you up? A. He was supposed to get me. Q. I will ask you whether or not you were afraid of a man running from you that he would beat you up? You were not a bit scared of him when he was running from you? A. No, sir. Q. But you hit him while he was running from you? A. I hit him as he turned around. Q. You hit him in the back of the head as he was running from you, didn’t you? A. Just as he turned around.”

We are unable to see from this testimony where the case presents one involving self-defense. The instructions complained of not only correctly stated the law, but were more than fair to the defendant, under the record.

In the defendant’s third contention under proposition No. 1, as to instruction No. 7, that this instruction intimates that a conviction was expected to be returned, we are unable to find in the language complained of any reasonable basis for such contention. We have read and re-read instruction No. 7 and are unable to follow the defendant in this contention and the same is therefore, in our opinion, without merit.

The case cited by the defendant in support of the foregoing contentions, Adair v. State, 15 Okla. Cr. 619, 180 P. 253, does not support his contention that instruction No. 7 places the burden on the defendant of proving his innocence and intimates to the jury that a conviction was expected to be returned. The Adair case presented a situation wherein the trial court clearly invaded the province of the jury. Neither is Freeman v. State, 65 Okla. Cr. 40, 82 P. 2d 1072, in point on this contention, because that, too, was a case where the court clearly invaded the province of the jury. No such situation is presented here by instruction No. 7. The defendant’s first proposition in relation to instruction No. 7 therefore is wholly without merit.

The second proposition the defendant urges is directed at instruction No. 7%, which reads as follows, to wit:

“You are further instructed that the term “overt act” as used in these instructions means something more than the mere use of words, or language, on the part of the prosecuting witness, and that before the plea of self-defense is available to the defendant, it must appear that the prosecuting witness did more than to use insulting or threatening language toward the defendant.”

The defendant contends that this instruction is erroneous likewise for the reason that no restatement is made of the phrase “beyond a reasonable doubt.” He says it is erroneous for the same reasons that he advanced concerning instruction No. 7. What we have heretofore said concerning instruction No. 7 and the court’s failure to repeat and repeat the phrase “beyond a reasonable doubt,” applies with equal force as to instruction No. 7%. It is therefore unnecessary to consider instruction No. 7%, on that ground, any further.

The defendant further complaining, says that when considered in connection with the evidence in the case, instruction No. 7y2 does not constitute a definition Of an overt act. The defendant made no request for a more specific definition of the term “overt act.” In this connection, the evidence in the case at bar discloses the following state of facts testified to by the defendant himself, on cross-examination:

“Q. Why didn’t you start your car and drive it away? A. Because I wasn’t going to take a ‘son-of-a-biteh’ off of any man. I wouldn’t do it and never will. Q. When he called you a son-of-a-bitch you made up your mind you were going to knock him in the head with the club, and that is the reason you got into it with him, is that right? A. I told you awhile ago it was. Q. And that is what caused you to pick up the club and take after him, isn’t that right? A. I answered that once.”

From the evidence, it is therefore indisputably clear that the defendant was not afraid of bodily harm at the hands of Lantz. He determined he would not take the in-suit of being called the bad name. Under the evidence, his attack on Lantz was unjustifiable by his own testimony. Under the law, his attack was likewise unjustifiable and instruction No. 7% was not erroneous but entirely proper. Violent and opprobrious epithets and verbal insults towards the defendant, however aggravating and contemptible, do not constitute justification for an assault. In substance, the effect of the court’s instruction No. 7% was to so inform the jury. Harrison v. State, 18 Okla. Cr. 403-408, 195 P. 511; Burchett v. State, 22 Okla. Cr. 81, 209 P. 970. It was a definition in terms of the law, as applied to the facts, as to what was not an overt act. While it might have been couched in terms of technical definition, when applied to the facts in this case, it could not have been more positive or accurate. It was certainly not misleading to the jury, and, therefore not erroneous. It properly concluded the court’s instructions on the defendant’s theory of self-defense. The instructions complained of in this regard were more than fair since the record wholly fails to make out a case of self-defense, even when measured by the defendant’s own testimony. The defendant’s second proposition is, likewise, without merit. The judgment and sentence of the lower court is therefore accordingly affirmed.

BAREFOOT, P. J., and JONES, J., concur.


text:
    DON HALL v. STATE.
    No. A-10727.
    May 14, 1947.
    (180 P. 2d 846.)

      Fred L. Patrick, of Sapulpa, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., and C. Wayne Stevens, Co. Atty., Kay County, of Ponca City, for defendant in error.
   BAREFOOT, P. J.

Defendant, Don Hall, was charged in the district court of Kay county with the crime of larceny after previous conviction of a felony; was tried, convicted and sentenced to serve a term of six years in the State Penitentiary, and has appealed.

This case was assigned for oral argument on January 29, 1947. On that date there was no appearance in behalf of defendant, and no brief had been filed. The case was submitted on that date, and the defendant was granted 20 days thereafter to file brief. No brief has been filed.

It is provided by Rule 9 of the Criminal Court of Appeals as follows:

“When no counsel appears, and no briefs are filed, the court will examine the pleadings, the instructions of the court and the exceptions taken thereto, and the judgment and sentence and if no prejudicial error appears will affirm the judgment.”

We have carefully examined the record in this case, and find that the defendant was charged by information filed in the district court of Kay county with the crime of larceny by stealth and fraud. That he was charged with the larceny of $600 in money from Roy B. Fields, on May 4, 1944. It was also alleged in the information that defendant had previously been convicted of burglary in the second degree in Kay county on January 23, 1936, and had served a term of three years in the State Penitentiary. That he had been convicted in Kay county on May 20, 1940, of the crime of arson by burning a public building and had served a term of three years in the State Penitentiary. That he had been convicted on September 24, 1942, in the district court of Kay county of burglary in the second degree and had served a term of two years in the State Penitentiary.

The record reveals that Roy B. Fields, who had one of his legs injured, and the defendant, were together in Ponca City on the afternoon and evening of May 4, 1944. They drove out to a resort known as “Dixie Hill” in an automoblie belonging to Mr. Fields. Mr. Fields had $600 locked in the glove compartment of his car. They entered the resort together, and in a short time the defendant went outside. In a few minutes Mr. Fields went out of the building, and saw the defendant leaving his automobile. He told the defendant he was ready to leave, but the defendant suggested they go back in and have another bottle of beer, which they did. The prosecuting witness testified that as he got in his car, because he was a cripple, he put his hand under the glove compartment, and found that a hole had been cut or knocked in the bottom of the compartment. The bottom of the compartment was of hard cardboard, or some such substance. He drove away, but stopped under a street light, unlocked the compartment, and found that the six $100 bills were missing. He then searched the defendant, and in the “ruler pocket” on the side of his overalls, found the six $100 bills and $20 in addition thereto. He testified that when he found the money, the defendant stated: “Two Hundred Dollars of that belongs to me.” They drove on to a filling station and got some gasoline, and while there, “had a little ruckus, and they called the police.”

Two city policemen went to the scene, and took the prosecuting witness and the defendant to the police station. Both officers testified that the defendant stated that a Negro had put this money in his pocket. The defendant was arrested, and when told by an officer at the police station that his story would not stand up, “he changed his story; he said the nigger didn’t give it to him, he said he taken it out of the glove compartment of the car, and that he busted it open at the bottom and got the money out of the glove compartment.” He refused to make a written statement, but made these statements voluntarily in the presence of the officers. He also admitted that Mr. Fields had told him the money was there.

The evidence also revealed the former convictions as alleged in the information.

From the above statement, and an examination of the record and the instructions given by the court, which fully presented the issues, we conclude that defendant had a fair and impartial trial.

The judgment of the district court of Kay county is affirmed.

JONES and BRETT, JJ., concur.


text:
    STATE ex rel. McDANIEL v. TURNER, Sheriff.
    No. A-10874.
    May 21, 1947.
    (181 P. 2d 296.)

      Hulsey & Hulsey, of McAlester, for plaintiff in error.
    J. M. Springer, Co. Atty., of Nowata, for defendant in error.
   JONES, J.

By this action the petitioner, Tom McDaniel, seeks a writ of mandamus, directed to the sheriff of Nowata county, ordering him to recall a holdover order placed by the sheriff with the warden of the State Penitentiary in which the sheriff asked the warden to hold the petitioner at the expiration of a term of imprisonment which the petitioner was serving in the State Penitentiary, for his return to Nowata county for trial of a criminal case there pending against him.

The petition further alleged that the petitioner had served ten years in the State Penitentiary and is eligible for parole. That the Pardon and Parole Board will not consider his application for clemency so long as there is a holdover order against the petitioner in the office of the warden at the State Penitentiary. The petition further alleges that prior to September 27, 1945, he stood charged in the district court of Nowata county with having committed the crime of escape from the county jail in case No. 3748. That said case was dismissed on the 20th day of October, 1945, for reason that petitioner had been denied his right to a speedy trial. That upon the dismissal of said case, the sheriff of Nowata county no longer had any authority to maintain the hold order against him with the warden of the State Penitentiary, since he was no longer wanted for any crime alleged to have been committed by him in Nowata county.

The cause was submitted to this court upon a demurrer to the petition.

By statute it is provided:

“The Criminal Court of Appeals shall have exclusive appellate jurisdiction, co-extensive with the limits of the State, in all criminal cases appealed from the district, superior and county courts, and such other courts of record as may be established by law.” 20 O. S. 1941 § 40.
“Said court and judges thereof shall have the power to issue writs of habeas corpus; and under such regulations as may be prescribed by law, issue such writs as may be necessary to exercise its jurisdiction; and may prescribe and promulgate such rules for the government of said court as it may deem necessary.” 20 O. S. 1941 § 41.

In construing these statutes it has been held that:

“The Criminal Court of Appeals has jurisdiction and power to issue the writ of mandamus,-directed to an inferior court, in the exercise or in aid of its appellate authority, where the same is a proper proceeding in a criminal case.
“A mandamus to an officer is said to be the exercise of original jurisdiction, but a mandamus to an inferior court is in the nature of appellate jurisdiction.” Moore v. Taylor, 24 Okla. Cr. 80, 215 P. 965; Eubanks v. Cole, 4 Okla. Cr. 25, 109 P. 736, 741.

In the body of the opinion of Eubanks v. Cole, supra, it is stated:

“Upon a careful consideration of the law, we are of opinion that this court has the jurisdiction and power to issue the writ of mandamus where the same is a proper proceeding in a criminal case. As we view it, the proceeding in this case seeks only to invoke the exercise of the exclusive appellate jurisdiction of this court. This is a court of special jurisdiction, limited in the exercise of its powers exclusively to criminal cases, and it is undoubtedly true that, except in cases where under the law this court has original jurisdiction, all exercise of power in other cases must be in virtue of its appellate jurisdiction, and the writ of mandamus can be issued only in the exercise or in aid of its appellate authority. A mandamus to an inferior court is in the nature of appellate jurisdiction. The term ‘appellate/ in the constitutional phrase, ‘a Criminal Court of Appeals with exclusive appellate jurisdiction in criminal cases/ is not used in a restricted sense, but in its broadest sense, as embracing the power and jurisdiction to review and correct the proceedings of inferior courts in criminal cases, brought before it for determination, in the manner provided by law. The statute prescribes the procedure by which such proceedings shall be brought before this court, and among the other modes prescribed the writ of mandamus may be a proper proceeding. Snyder’s St. §§ 2016, 6224 [22 O. S. 1941 § 575, 12 O. S. 1941 § 1451]. The Supreme Court of the United States, with a few enumerated exceptions, has the only appellate jurisdiction under the Constitution of the United States, and Congress has not the power to confer original jurisdiction on it. Consequently that court cannot ordinarily issue an original writ of mandamus. Marbury v. Madison, 1 Cranch, 137, 2 L. Ed. 60. However, the practice of issuing such writs as an exercise of its appellate jurisdiction and in aid of its appellate jurisdiction has been asserted and upheld in numerous cases.
“In the case of Ex parte Crane, 5 Pet. 190, 8 L. Ed. 92, which was an application for a mandamus to the circuit court of the United States for the Southern dis-strict of New York, commanding the court to review the settlement of several bills of exceptions, Chief Justice Marshall, delivering the opinion of the court, said:
“ ‘A doubt has been suggested respecting the power of the court to issue this writ. The question was not discussed at the bar, but has been considered by the judges. It is proper that it should be settled, and the opinion of the court announced. We have determined that the power exists. Without going extensively into this subject, we think it proper to state, briefly, the foundation of our opinion. In England the writ of mandamus is defined to be a command issuing in the king’s name, from the court of King’s Bench, and directed to any person, corporation, or inferior court of judicature within the king’s dominions, requiring them to do some particular thing therein specified, which appertains to their office and duty, and which the court of King’s Bench has previously determined, or at least supposes to be consonant to right and jus- . tice.’ Blackstone adds: ‘That it issues to the judges of any inferior court commanding them to do justice according to the powers of their office, whenever the same is delayed; for it is the peculiar business of the Court of King’s Bench to superintend all other inferior tribunals, and therein to enforce the due exercise of these judicial or ministerial powers with which the crown or Legislature have invested them, and this, not only by restraining their excesses, but also by quickening their negligence, and obviating their denial of justice.’ 3 Bl. Com.
“Continuing, the eminent Chief Justice makes the following distinction:
“A mandamus to an officer is held to be the exercise of original jurisdiction; but a mandamus to an inferior court of the United States is in the nature of appellate jurisdiction.”

In Moore v. Taylor, supra, it was held that this court lacked authority to issue a mandamus directing a court clerk to approve a. bond in a criminal case.

It is our opinion, after consideration of the petition, that the writ of mandamus sought by the relator would be in the exercise of original jurisdiction and would not be in the exercise or in aid of our appellate jurisdiction in criminal cases and for that reason the petition is denied.

BAREFOOT, P. J., and BRETT, J., concur.


text:
    Ex parte CLAUDE McLENDON.
    No. A-10868.
    May 21, 1947.
    (181 P. 2d 295.)
    O. A. Brewer, of Hugo, for petitioner.
    Mac Q. Williamson, Atty. Gen., and Sam H. Latti-more, Asst. Atty. Gen., for the State.
   BRETT, J.

The petitioner, Claude McLendon, was charged in Choctaw county, Okla., with the crime of murder. At the preliminary examination he was held to the district court without bail and an information was filed in the district court of Choctaw county, Okla.

Application was made to the district court of Choctaw county for writ of habeas corpus and hearing had . thereon, on March 19, 1947, and the petitioner denied bail and he is now confined in the county jail of Choctaw county, Okla.

He has filed his application in this court for writ of habeas corpus, stating that he is not guilty of the homicide as charged, and that the proof of his guilt of the charge of murder is not evident nor the presumption thereof great.

This petition came on for hearing in this court by assignment on April 30, 1947.

It is unnecessary to give a detailed statement of the testimony presented before this court. A complete transcript of the testimony taken at the preliminary hearing and upon application to the district court for writ of habeas corpus therein is attached to the petition and has been carefully examined by this court. The evidence in the transcript of the proceedings below discloses there were no eyewitnesses to the killing, and the positive proof, in relation thereto, consisted entirely of the petitioner’s testimony as to the facts of the killing. Though his testimony is conflicting, in spite of that fact, standing alone and uncontroverted, it is sufficient to raise the presumption of a probable case of self-defense.

This testimony, standing uncontroverted, is sufficient to entitle the petitioner to the writ and the same is granted and said Claude McLendon is ordered to be released from the common jail of Choctaw county, upon the giving of bail in the sum of $10,000, to be approved by the court clerk of Choctaw county, Okla.

In keeping with this order, the writ is hereby granted to the above petitioner, in compliance with the order as above stated.

BAREFOOT, P. J., and JONES, J., concur.


text:
    Ex parte GEORGE W. McCOY.
    No. A-10876.
    May 21, 1947.
    (181 P. 2d 294.)
    Earl E. James, of Oklahoma City, for petitioner.
    Warren Edwards, County Atty., of Oklahoma County, and John B. Ogden, both of Oklahoma City, for respondent.
   BAREFOOT, P. J.

Petitioner, George W. McCoy, filed in this court his petition for writ of habeas corpus, alleging that he was unlawfully restrained of his liberty by Dick Strain, sheriff of Oklahoma county, Okla.

He alleged that such restraint was by reason of petitioner being charged with the crime of murder in said county; that at a preliminary examination he was held by the magistrate without bail; that he made application to the district court of Oklahoma county by filing a petition for writ of habeas corpus, seeking to be released on bail pending his trial in such court, where he is now charged by information with the crime of murder; and that said petition and application was denied by the district court.

Attached to the petition here filed is a transcript of the evidence taken at the preliminary examination, and also the evidence taken before the district court.

At the hearing before the district court, the defendant took the witness stand and was cross-examined by the county attorney and special counsel employed to assist in the prosecution.

As this case will hereafter be tried in the district court, we refrain from commenting upon the evidence.

An examination of the record convinces us that this is a bailable case. The evidence is not such as to come within the rule that “the proof of guilt is evident, or the presumption thereof is great,” as provided by the Constitution of this state. Okla. Const, art. 2, sec. 8.

Upon the hearing before the court, an order was entered granting petitioner bail in the sum of $12,000 for his appearance before the district court, such bond to be approved by the court clerk of Oklahoma county.

It is so ordered.

JONES and BRETT, JJ., concur.