text:
    AUSTIN R. GOURLEY v. STATE.
    No. A-1277.
    Opinion Filed February 8, 1913.
    (129 Pac. 684.)
    1. INDICTMENT AND INFORMATION — Information—Amendment —Objections, (a), An objection to the sufficiency of an information should be made by proper motion or demurrer before plea, but, when it is clear that the facts stated in the complaint do not constitute a public offense, an objection- to the introduction of testimony on that ground is sufficient to raise the issue.
    (b) An information should be sufficiently definite to disclose jurisdictional facts, and, when the court's attention is called to- the fact that it is not, the county attorney should be directed to make proper amendment.
    2. HIGHWAYS — Repair—Road Work — Offenses—Right to Prosecute, (a) Section 7854, Compiled Laws 1909, does not preclude the eounty attorney from prosecuting violations of the road law in any township in the eounty.
    (b) The purpose of this provision is to enable the road overseer to institute such prosecution in the township in which his road district is situated without the consent of the county attorney, and it' in no way abridges the right of the eounty attorney to use the road overseer as a prosecuting witness for violations of the road law in any other township in his county if he so desires.
    3. ■ SAME — Road Work — Persons Subject. Under the provision of section 17, e. 32, Session Laws 1909, all persons subject to road duty in this state are required to either work four days or pay five dollars, or furnish a substitute acceptable to the road overseer.
    (Syllabus by the Court.)

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

    Austin R. Gourley was convicted of violating the penal provision of the Road Law, and he appeals.
    Reversed and remanded.
    &. A. Horton, for plaintiff in error.

      'Chas. West, Atty. Gen., for the State.
   ARMSTRONG, P. J.

This is an appeal by Austin R. Gour-ley from a judgment'of the county court of Oklahoma county imposing upon him a fine of $15 for failing and refusing to work the public roads of Greeley township, Oklahoma county, as required by law.

The complaint upon which the prosecution is based is as follows:

“In the name and by the authority of the state of Oklahoma, T. I. Canady, of lawful age, being first duly sworn, on his oath deposes, and says: That in the county of Oklahoma, and state of Oklahoma, and on the-day of November, 1910, the above-named defendant, Austin R. Gourley, did then and there unlawfully and wrongfully neglect and refuse to perform road duty in Greeley township, Oklahoma county, Okla., on the 14th, 15th, 16th, 17th days of November, 1910, after having been notified as provided by law, and affiant further states that said Austin R. Gourley is a male person over 21 years of age and less than 50 years of age, and has resided 30 days in' this state, who is capable of performing labor on public highways, and said defendant is not a county charge, contrary to the form of the statutes in such cases -made and provided, and against the peace and dignity of the state of Oklahoma. T. I. Canady. Subscribed and sworn to before me this 28th day of Januaiy, 1911. J. J. Beal, Justice of the Peace. I have examined the facts in this case and recommend that a warrant do issue.

“Sam Hooker,

“County Attorney Oklahoma County.

“By William H. Zwicic,

“Deputy County Attorney.”

The objection to the introduction of testimony on the ground that the facts stated in the complaint did not constitute a public offense should have been sustained, and the county attorney permitted to amend the complaint. The complaint nowhere alleges that the accused was a resident of Greeley township,- nor does it allege he was a resident of the road district over which T. I. Canady had supervision, and subject to duty in said district. It merely alleges that he refused to work the road in Greeley township, Oklahoma county, and that he had been a resident of Oklahoma 30 days, but where he resided, and where he was subject to road duty, no one from the complaint could determine. The proof on the part of the state nowhere discloses these facts, and, even if the proof did, the complaint should clearly indicate when, where, and in what manner the offense charged was committed.

Counsel for accused urge in their brief that the justice of the peace of Oklahoma township had no jurisdiction to hear and determine this cause by reason of the fact that section 7854, Comp. Laws 1909, makes it the duty of the road overseer to file complaint before some justice of the peace of his township, and contend that, by reason of such provision, this prosecution could only have been had in the township where the offense was committed. We cannot agree with this contention. The purpose of that provision is evidently to enable the-road overseer to institute the prosecution in his township at the expense of the state without the approval of the county attorney. This provision does not preclude a prosecution by the county attorney in any other township of the county. It would, however, preclude a road overseer from instituting a prosecution in any other township in which his road district is located, at the expense of the state, without the approval of the county attorney.

Again, it is contended that the accused was not subject under the law to the payment of $5 in lieu of the four days’ work provided for in section 17, c. 32, Sess. Laws 1909, but would only be required to pay $4 under the provision of section 7859, Gomp. Laws 1909. This contention is without merit. It is clear to' our mind that a person who is subject to road duty is required to either work four days or pay $5, or furnish a satisfactory substitute.

Again, counsel urge that the provision of the law under which this conviction was had is unconstitutional by reason of the fact that the title to the bill as enacted by the Legislature did not specifically state, among other things, that it provided a penalty for violation of this provision. This contention is also without merit.

The judgment is reversed and the cause remanded to the trial cpurt, with direction to grant permission to amend the complaint, and award a new trial in harmony with the views herein expressed.

DOYLE and FURMAN, JJ., concur.


source: Caselaw Access Project

author: ARMSTRONG, P. J.

license: Public Domain

text:
    STATE v. PETER DUERKSEN.
    No. A-1302.
    Opinion Filed February 8, 1913.
    (129 Pac. 881.)
    1. TRIAL — Instructed Verdict — -Acquittal. When there is proof in the record tending reasonably to sustain the allegations of the information, a trial court has no right to advise the jury to return a verdict of not guilty, and especially is this true when there has been no testimony offered on the part of the accused.
    2. ' EMBEZZLEMENT — Conversion of Funds — Intent. When a person, occupying the relation of agent to principal, comes into possession of funds belonging to the principal and converts the same to his own use without the knowledge or consent of the principal, the law implies the fraudulent intent contemplated by the statute; and section 2612, Comp. Laws 1909, specifically provides that the fact that the accused intended to restore the property -embezzled is no ground of defense, or of mitigation of punishment, unless restored before complaint or information is filed.
    (Syllabus by the Court.)

      Appeal from District Courts Major County; James B. Cullison, Jiidge.

    Peter F. Duerksen was tried in the district court of Major county on., a charge of embezzlement, and was acquitted by the jury on advice of the trial court.
    The state appeals on the question reserved.

      Smith C. Matson, Asst. Atty. Gen., and Abijah Fairchild, Co. Atty., for plaintiff in error.

      'John V. Roberts and Garber & Kruse, for defendant in error.
   ARMSTRONG, P. J.

This is an appeal by the state on a question reserved, growing out of a judgment of acquittal entered in the district court Of Major county by direction of the trial court in a case wherein the state of Oklahoma prosecuted Peter F. Duerksen on a charge of embezzlement. The charging part of the information upon which the prosecution was based is as follows:

“That the said Peter F. Duerksen, .in said county and state, on or about the 29th day of August, 1910, was the agent of Hiram S. Aumiller for the purpose of renting and receiving the rents therefor on the following tract of land then and there owned and possessed by the said Hiram Aumiller, to wit: The south J4 of the northwest y of section' 3, in township 30, north, range 12 W. I. M., and being agent as aforesaid, by virtue of his said employment as such agent, there came into the care and control of him the said Peter F. Duerksen, for and on account of the said Hiram S. Aumiller, as rents from one Philip Wagner, on or about the said 29th day of August, 1910, the sum of $80.60, and the said Peter F. Duerksen aforesaid so received and took into his control and care the said money for and on account of the said Hiram S. Aumiller, and afterwards, to wit, on .or about the 3d day of September, 1910, at and in said county and state, the said Peter F. Duerksen, did willfully, unlawfully, feloniously, and fraudulently embezzle, convert, and appropriate the same to his own use and not in the due and lawful execution of the said trust of his, the said Peter F. Duerksen, contrary to the form of the statutes in such cases made and provided, and against the peace and dignity of the state.”

The statute iipon which this prosecution was founded is as follows:

“Embezzlement is the fraudulent appropriation of property by a person to whom it has been entrusted.” (Section 2609, Comp. Laws 1909.)

“If any person being a trustee, banker, merchant, broker, attorney, agent, assignee in trust, executor, administrator or collector, or being otherwise entrusted with, or having in his control, property for the use of any other person, or for any public or benevolent purpose, fraudulently appropriates it to any use or purpose not in the due and lawful execution of his trust, or secretes it with a fraudulent intent to appropriate it to such use or purpose, he is guilty of embezzlement.” (Sec. 2612, Comp. Laws 1909.)

“The fact that the accused intended to restore the property embezzled is no ground of defense, or of. mitigation of punishment, if it has not been restored before an information has been laid before a magistrate, charging the commission of the offense.” (Section 2618, Comp. Laws 1909.)

The material facts upon which the state relied for conviction, as disclosed by the proof introduced at the trial, are substantially as follows: The prosecuting witness, Hiram S. Aumil-ler, was a resident of the-state of Kansas and owned the quarter section'of land in Major county, Oklahoma, described in the information. He had given the defendant in error, Duerksen, a power of attorney to rent and collect the rents from such land. The place was rented by him to one Philip Wagner for the year 1910. In the fall of that year the prosecuting witness came down •to his place for the purpose of settling with Duerksen and receiving his rents. There was about one hundred dollars due him after commissions were paid. Upon this occasion the prosecuting witness was informed by his agent, the defendant in error, that he had collected the money but had used it and was not able to pay him at that time, but would endeavor to get it. A small amount of money was paid, about -ten dollars. In April following, the prosecuting witness went back to Major county for the purpose of collecting his rent. This time the defendant in error, Duerksen, could not pay, said he ought to be ashamed to ask for any more time, but that he was in adverse circumstances and couldn’t pay it; said that he wanted to borrow it, and would be glad to pay interest on it, to which the prosecuting witness' would not agree, claiming that he did not have the money to loan, and that he ■ needed it. After repeated efforts to collect the money, prosecuting witness swore out a complaint against the defendant in error on a charge of embezzlement, and after his arrest a tender of the full amount claimed was made.

At the close of the state’s testimony, which made out a complete case of embezzlement under the statute, the court gave the following instruction'to the-jury:

“Gentlemen of the jury, at this time the court informs you that the state having submitted its testimony in this case and rested, the defendant herein having filed his motion asking the 'court to direct the jury or advise the' jury to retire to your room and return a verdict o'f not guilty, and the court having carefully listened to the testimony and heard argument of counsel in their presentation of the law, is of the opinion that there is no evidence in this case warranting you in finding that a crime has been committed, and advise you and direct you that you retire and deliberate upon this case and I advise you to return a verdict of not guilty. When you have retired to your jury room it will be your duty to select one of your number as foreman, and when you have agreed upon, a verdict your bailiff will return you into court. A blank verdict will be furnished you.”

The state duly excepted to this instruction at the time and reserved the question for review by this court. It appears that the trial court assumed the position that because the accused had never denied that he received the money and converted it to his-own use, as alleged in the information, as the agent of the prosecuting witness, and repeatedly promised to pay it and afterwards tendered it to him, the state failed to prove fraud and other elements necessary to constitute embezzlement. In reaching this conclusion the court was in error. When one converts the money of another to his own use without permission from the lawful owner, thereof the law infers a fraudulent intent and punishes the act of embezzlement. The fact that a person never concealed the taking or converting of the money received, hs the money in this case was, and promises to return it, does not make the act lawful or any the less embezzlement under the statute. The trial court clearly misunderstood the law as applied to the facts in this record and erroneously advised the jury to return a verdict of not guilty. A conviction and punishment should have followed, rather than an acquittal, from the facts before us. If every person in this state who occupies a confidential relationship as agent or otherwise to other persons should be permitted to use and convert the money of his principal that might come into his hands to his own use, and then escape punishment simply because he admitted using the money and promised to pay it back, the embezzlement statute had just as well be erased from the books and the courts rallied to the support and condonement of such conduct. There will be some misappropriation of trust funds with a rigid enforcement of the law, and when such is the case the sooner and swifter the punishment the better for the public welfare. This court declines to approve a rule which places a premium on crookedness. The indiscreet handling of money by those who, by reason of a confidential relationship, come into possession of funds of another and appropriate the same to their own use is not to be tolerated and the guilty permitted to escape punishment. A man who áppropriates to his own use the funds of another received in a trust capacity is no less a thief under the law than one who in the nighttime purloins his money or other personal property and sells the same for his own benefit. Such conduct is to be condemned rather than condoned.

The action of the trial court in the case at bar was error prejudicial to the rights of the state. The contention of the county attorney at the trial, and of the state on appeal, is sustained.

DOYLE and FURMAN, JJ., concur.


author: FURMAN, J.

text:
      Ex parte R. A. METCALF.
    No. A-1303.
    Opinion Filed February 8, 1913.
    (129 Pac. 675.)
    1. PERJURY — Circumstantial Evidence. In a prosecution for perjury, the falsity of the defendant’s evidence may be established by circumstantial evidence, but the facts constituting such circumstantial evidence must be directly and positively sworn to by at least one credible witness, supported by corroborating evidence, and, taken as a whole, must be of such a conclusive character as to exclude every other reasonable hypothesis, except that of the defendant’s guilt.
    2. SAME — Evidence—Admissibility. In order to constitute perjury, it is not neeessary that the false evidence given is material to the main issue in a trial. It is sufficient if it is material to any proper matter of inquiry and is calculated and intended to prop or bolster the testimony of a witness on some material point, or to support or attack the credibility of such a witness. For'sufficient circumstantial evidence to sustain a prosecution for perjury, see opinion.
    3. INTOXICATING- LIQUORS — Possession With Intent to Sell. In prosecutions for illegal possession of intoxicating liquors for the purpose of violating the prohibitory liquor law, it is not necessary to prove that the defendant actually owned the liquors..in question. Proof that the defendant was in possession of such liquors, with the intention of violating the prohibitory liquor law, will sustain a conviction.
    4. PERJURY — Enforcement of Criminal Laws. It is the duty of prosecuting attorneys and trial judges to be prompt and vigilant in seeing that persons who commit perjury in courts of this state are speedily brought to justice.
    (Syllabus by the Court.)
    Application by R. A. Metcalf for a writ of habeas corpus.

    Writ discharged.
    The nature of the question involved requires a full statement ■of the case, for there are few, if any, more important matters than the suppression of perjury in the courts of this state. Relator was prosecuted before Hon. A. L. Squire, county judge of Ellis county, sitting as a committing magistrate, upon the following complaint:
    “Before me, A. L. Squire, ex officio committing magistrate and county judge in and for said county and state, personally appeared Frank E. Ransdell, who, being duly sworn, says that on or about the 13th day of March, in the year of our Ford one thousand nine hundred and eleven (1911), at and within the county of Ellis and state of Oklahoma, one R. A. Metcalf, late of the county and state aforesaid, did then and there commit the crime of perjury in the manner and form as follows, to wit: That the said R. A. Metcalf in the county of Ellis, state of Oklahoma, on the 13th day of March, 1911, in the county court of Ellis county, Oklahoma, sitting at Gage, Oklahoma, in said county, the- said court being otherwise called the Gage division of the county court of said Ellis county, the honorable A. L. Squire, the regularly elected, Qualified, and acting judge for said court, then and there presiding and acting, wherein the case of State of Oklahoma v. R. A. Metcalf, charged with the unlawful possession of intoxicating liquors, being No. 9 on said court docket, was then and there being tried and heard before the court .aforesaid and a jury, which had been duly selected to try said cause, and the said R. A. Metcalf was then and there produced as a witness in said cause on behalf of the defense, and was then and there duly sworn to testify truly in said case by A. L. Squire, the judge aforesaid, who was then and there duly authorized and empowered to administer oaths in such cases, and to administer said oath in that case, in manner and form as was then and there done as aforesaid. That then and there the following became material questions in said-case, to wit: Whether the said R. A. Metcalf, defendant in said case, owned, had, or was in possession of any whisky or beer in a place known as the ‘Yellow Front Restaurant’ on the east side of Main street in the town of Gage, Oklahoma, at any time from the 1st day of August, 1910, to the 13th day of March, 1911, and particularly on the 15th day of September, 1910; and whether the said R. A. Metcalf ever had control, owned, or had the management of the said Yellow Front Restaurant or had any interest in the said restaurant or run the same as an employee or otherwise; and whether the said R. A. Metcalf worked around, at, or in said restaurant, or ever received any compensation for working or clerking in said restaurant at any time, and more particularly from August 1, 1910, to March 13, 1911; and whether the said R. A. Metcalf had any knowledge of and concerning a certain partition in the wall or walls of the building known as the Yellow Front Restaurant, or had any knowledge of secret place or places in said wall or walls in which could be secreted beer and whisky or other intoxicating liquors, which, with certain beer and whisky contained in said walls and partitions and secret place, was discovered by G. M. Rader, sheriff of Ellis county, Oklahoma, and other persons, in a search made of said building on or about September 15, 1910, at any time before the same was so discovered on September 15, 1910; and -whether the said R. A. Metcalf, at any time prior to the finding of said beer and whisky on said September 15, 1910, by said sheriff, had any knowledge of beer and whisky having been secreted in said walls and partitions of said walls and building or been kept in said walls and partitions of said building; and whether the said R. A. Metcalf knew of any one getting whisky or beer so. secreted from said place and out of said walls and partitions at any time from on or about August 1, 1910, to March 13, 1911, or at any time; and whether the said R. A. Metcalf had any knowledge of whisky or beer being secreted or kept or owned in said room or rooms, or any of them, of said building or in said building known as the Yellow Front Restaurant, or had any knowledge of any one going back of the partition running north and south through said building to get whisky or beer at any time; and whether the said R. A. Metcalf-, Ed Hickman, Joe Siddens, or James Johnson, or any or either of them owned, managed, controlled, or run said restaurant during the period of time from on or about August 1, 1910, to March 13, 1911, or during any part of said time; and whether the said R. A. Metcalf ever was paid anything for working in and around said restaurant during said period of time last mentioned, by Ed Hickman or any other person, or ever received any money coming to said restaurant from sales or in the regular course of trade; and whether at the time of said search of said building by the said sheriff, G. M. Rader, after the said sheriff Rader had handed the said R. A. Metcalf the search warrant, the said Metcalf handed the said search warrant back to the said Rader or to one Daniel Rees; and whether the said R. A. Metcalf sold whisky to one John Quillen on or about September 10, 1910; and whether the said R. A. Metcalf sold to said John Quillen one pint of whisky on or about August 17, 1910; and whether the said R. A. Metcalf at any time herein mentioned had had liquor shipped to or consigned to places in Texas, and then brought back to Gage, Oklahoma; and whether a certain United States Revenue License as a retail liquor dealer, otherwise called a government stamp, for the period of time from on or about August, 1910, to July 1, 1911, was obtained by the said R. A. Metcalf, and the tax for the same paid by the said R. A. Metcalf, because the said R. A. Metcalf had been instructed to or advised by the United States Revenue Collector or revenue man, for the district of which Oklahoma is or was a part, to take out said license or stamp and pay said tax; and whether the said license or stamp was used by .said R. A. Metcalf in the business of a retail liquor dealer or not; and whether certain liquor, to wit, a cask of whisky, 24 bottles, and a barrel of beer containing 72 quarts, which were received by said R. A. Metcalf, on or a short time after the month of June, 1910, was ordered by the said Metcalf for his own personal use, or for the purpose of selling, bartering, giving away, or otherwise furnishing the same in violation of law.
    “That then and there, being a witness as aforesaid, the said R. A. Metcalf did knowingly, willfully, corruptly, feloniously, and falsely testify, depose, and. say, in substance and effect, that he (the said R. A. Metcalf) never owned at any time any whisky or beer or had any whisky or beer in the said Yellow Front Restaurant, in the town of Gage, and that the whisky and beer in said restaurant, or any portion of it, which was in the said restaurant on the 15th day qf September, 1910, at the time the same was searched by the said sheriff of Ellis county, did not belong to him, the said R. A. Metcalf, and that the said R. A. Metcalf, before the time of the said search of said building on September 15, 1910, had no knowledge of any whisky or beer being in said restaurant at any. time; that he had not at any time owned or controlled or managed or been employed at the said Yellow Front Restaurant as clerk or otherwise, and had never had any interest there at any time or any interest in said restaurant and business at any time, and that he (the said R. A. Metcalf) had never received any compensation for working there at any time from Ed Hickman or any other person, and never took the money coming to said restaurant in the course of business, and that he never at any time had a key to said building; that he (the said R. A. Metcalf), before the said restaurant was searched by said sheriff on or about September 15, 1910, did not know of the existence of a partition in the wall or walls of said building or its rooms, which made a secret place difficult of detection, in which liquor could be secreted, and had no knowledge that any whisky or beer was secreted in said partition and walls of said building and rooms, prior to the time the same was searched on September 15, 1910, and had never known of any one going back of the partition running north and south across said building to get whisky or beer from said secret place in the walls and partition of said building, which was so discovered by the said sheriff of Ellis county aforesaid mentioned on or about September 15, 1910, before the same was discovered by said sheriff, and that he (the said R. A. Metcalf), at all times prior and up to the time of the discovery of said whisky and beer in the walls and partitions of said building as aforesaid, had no knowledge of any whisky or beer being in said secret place in the walls and partitions of said building, or in the room of said restaurant where the said liquor was so discovered by said sheriff, or in any other part of said room in- which said liquor was so discovered, or in said restaurant; that at the time said restaurant was searched as aforesaid, and immediately after the said sheriff handed the search warrant to said R. A. Metcalf, he (the said R. A. Met-calf) handed it back to said sheriff or to one Daniel Rees; that James Johnson and joe Siddens were the only persons who ever worked in said restaurant.; that the said R. A. Metcalf did not sell whisky to one John Quillen on or about September 10, 1910,. and that he (Metcalf) did not sell one pint of whisky to said John Quillen on or about August 17, 1910; that he (the said Metcaif) never had intoxicating liquors shipped or consigned to him to places in the state of Texas, and after the same was delivered there brought to Gage, Oklahoma; that a United States retail liquor dealer’s license or stamp, whiCh was held by said Metcalf from the period of time from August, 1910, to July 1, 1911, was obtained by him from the United States Collector or Deputy Collector of Internal Revenue, who had advised and instructed him to obtain the same, and that the said license or stamp was not used by said Metcalf as a retail liquor dealer, and that all the liquor ever received or owned by the said R. A. Metcalf was a cask of whisky of 24 bottles and a barrel of beer of 72 quarts, both of which were ordered by the said R. A. Metcalf in the month of June, 1910, for his own personal use, and was used by said R. A. Metcalf personally and was not sold, bartered, given away, or otherwise furnished or illegally disposed of in any way, which said false testimony is more fully shown by the questions then and there asked of said R. A. Metcalf when so testifying as said witness, and the answers then and there given to said questions, by said defendant R. A. Metcalf, which questions and answers are as follows:
    “The following questions were asked and answers given: ‘Q. I will get you to state whether you ever owned any whisky or beer in the Yellow Front Restaurant in the town of Gage, Oklahoma. A. No, sir. Q. I will get you to state whether or not you ever had control or the management of the Yellow Front Restaurant in the town of Gage. A. No,' sir; only loafed around there. Q. Have any interest there? A. No, sir. Q. Neither as an employee or otherwise? A. No, sir.’
    “And the following questions were asked, and answers given: ‘Q. State whether or not if any portion of the whisky or beer that was in that building at that time belonged to you. A. Didn’t own nothing. Q. How came you to be in there at that time? A. Asleep.’
    “And the following questions were asked and answers given: ‘Q. Had any business until you took charge of the city hotel? A. No, sir.’
    “And the following questions were asked and answers given: ‘Q. Had any business of any kind during this time? A. No, sir. Q. You didn’t have any liquor in this restaurant that was searched? A. No, sir.’
    “And the following questions were asked and answers given: ,‘Q. You work around that Yellow Front Restaurant and did not receive any compensation ? A. No, sir. Q. Ever help in the business? A. Helped Joe Siddens make chile, and once in a while I would get some one a cigar. Q. Ever receive any compensation for working there? A. No, sir; I think the fact I was in there most every day.’
    “The following questions were asked and answers given: ‘Q. You there all day? A. No, sir. Q. Generally opened up in the morning? A. Never had a key. Q. Never' had a key? A.1 Don’t believe I ever did.’ • ' •
    “And the following questions were asked and answers given: ‘Q. Yet you never run the place at all? A. No, sir. Q. You, would be the'clerk in there sometimes until night? A. No, sir. Q. Help them some?. A. No, sir. Q. Never clerked in there? A. No, sir.' Q. Jimmy Johnson and Joe Siddens were the only, ones working in there? A. Yes, sir. Q. Certain? A. Yes, sir., Q. Sometimes bé the only one in front? A. I think not.’
    “And the following questibns were asked and answers given ‘Q. See anybody come back of the partition running north and south? A. No, sir.’ .
    “And the following questions were asked and answers given: ‘Q. Didn’t know anything about tlie partition being in the wall ? A. No, sir. Q. Never heard of it? A. Not until they raided "it. Q. Never knew of any one getting anything out of there? A. No, sir. Q. Not Jimmy Johnson? A. No, sir. Q. Joe Siddens? A. No, sir. Q. Ed. Hickman? A. No, sir. Q. Never knew whisky or beer was in there? A. No, sir. Q. Never knew that beer and whisky was in that room? A. No, sir.’
    “And the following questions were asked and answers given: ‘Q. Any one pay you anything for working around there? A. I might have waited on some one once in awhile. Q. Never-received any money ? A. No, sir. Q. Nevér got any money from-Ed Hickman? A. No, sir. Q. Never had been employed by Ed Hickman? A. No, sir.’
    “And the following questions were asked and answers given: ‘Q. Mr. Rader hand you the'search warrant? A. Yes, sir. Q. What did you say? A. I said “Search,” and handed it back. Q. You never told.him that you owned it or any such remark? A. No, sir.’
    “And the following questions were asked and answers given: ‘Q. Are you positive that you gave this search warrant back to Rader ? A. My remembrance is that I handed it to Rader or Rees one. Q. Didn’t Mr. Rader say that he wanted to search your place when he went .in there? A. He said he had a search warrant; I didn’t understand just what, he said; he handed me a search warrant, and I handed it to the one or the other of them.’
    “And the following questions were asked and answers given: ‘Q. Mr. Metcalf, you testified that you were around that restaurant considerable; now I will get you to state who you think was running the restaurant. A. I think Ed Hickman owned it. Q. But who do you think run it? A. I suppose Joe Siddens and Jimmy Johnson run it. Q. Which one was controlling it, Joe Sid1 dens or Jimmy Johnson? A. Both working there. Q. They were running it? A. They were running it and working there. Q. Thought Ed Hickman owned it? A. Yes, sir.’
    “And the following questions were asked and answers given: ‘Q. Ed Hickman, ever make arrangements with you to work around there? A. No, sir.’
    “And the following questions were asked and answers given: ‘Q. For what purpose did you order this liquor? A. To drink. Q. Own personal use? A. Yes, sir. Q. Whisky and beer for your own personal use to be used by you in the town of Gage, Oklahoma? A. Yes, sir.’
    “And the following questions were asked and answers given. 'Q. I will get you to state whether or not> these two shipments you have named is the only two you had shipped to you at the •town of Gage? A. Only two in my life. Q. Shipped for yout own personal use? A. Yes, sir.’
    “And the following questions were asked and answers given: ‘Q. Tell the circumstance of that license being issued. A.-Took the license out after having this shipment shipped. Q. Why ? A. The revenue man instructed me to.' Q. On account of having it shipped to you? A. Yes, sir; I was running the Arcade hotel; they got an injunction against it; some one was using whisky there, I don’t know who.’
    “And the following questions were asked and answers given: ‘Q. You took it out on account of the revenue man telling you about this? A. Yes, sir; he told me it might be better for me to take out a license on account of these shipments; I only used it for my own personal use though. Q. That is the only reason that you took it out? A. Yes, sir.’
    “And the following questions were asked and answers given: ‘Q. I will ask you if you did not on or about the 10th day of September, 1910, sell John Quillen whisky? A. No, sir. Q. Do you swear that you didn’t sell him whisky? A. Yes, sir. Q. If he swore to that, it is a falsehood? A. Yes, sir; first time I ever knew John Quillen was when Mark Bishop run a foot race. Q. Never knew him then? A. I knew his face first time I ever seen him around here. Q. I will ask you if you didn’t sell John Quil-len, on the llth day of August, one pint of whisky? A. No, sir. Q. I will ask you if you didn’t induce John Quillen to leave in order that he might not be a witness in this cause? A. No, sir. Q. Never asked him to leave? A. No, sir.’
    “And the following questions were asked and answers given: ‘Q. Isn’t it a fact that you had liquor shipped over to Texas points and had it shipped over here? A. No, sir. Q. How much whisky was it that you had shipped in ? A. 24 bottles. Q. Drink all that yourself? A. Yes, sir.’
    “In all which particulars the testimony, statements, and declarations so testified and deposed unto by the said R. A. Met-calf were then and there material matter in and to said case of State of Oklahoma v. R. A. Metcalf, charged with the unlawful possession of intoxicating liquors, as aforesaid, instituted, begun, and heard as aforesaid, and were .then and there not true, but false, and were then and there .by said R. A. Metcalf not believed to be .true, but were then and there by said R. A. Met-calf believed to be false, contrary to the form of the statutes in such cases made and provided, and against the peace and dignity of the state.
    “Wherefore he prays that a warrant may issue for the arrest of the said R. A. Metcalf that he may be dealt with according to law.
    “FRANK E. RaNSDERE.
    “Sworn to and subscribed before me this 2d day of August, A. D. 1911.
    .“[Seal.] C. H. Hormes,
    “Clerk County Court.”

      Leedy & Anderson, for relator.

      Smith C. Matson, Asst. Atty. Gen., and Frank E. Ransdell, Co. Atty., for the State.
   FURMAN, J.

(after stating the facts as above). In the trial of the case, in which it is alleged that relator committed perjury, he was charged with unlawfully having possession of intoxicating liquors found in the “Yellow Front Restaurant” in the town of Gage, Okla., with the intention of violating the provisions of the prohibitory liquor law. The state relies upon the first eight predicates of the complaint, and particularly upon the second and third predicates, which are as follows:

“Whether the said R. A. Metcalf ever had control of or had the management of the said restaurant, or had any interest in the said restaurant, or run the same as an employee or otherwise; and whether the said R. A. Metcalf worked around, at, or in said restaurant.”

That part of the testimony of the relator, Metcalf, given in the first trial, and which is applicable to these last two-mentioned predicates, is as follows:

“Q. I will get you to state whether or not you ever had control or the management of the Yellow Front Restaurant in the town of Gage? A. No, sir; only lived around there. Q. Had any interest there? A. No, sir. Q. Neither as an employee or otherwise? A. No, sir. Q. State whether or not if any portion of the whisky or beer that was in that building at that time belonged to you. A. Didn’t own anything. Q. How came you to be in there at that time? A: Asleep. - Q. Had no business until you took charge of the city hotel? A. No, sir. Q. You worked around that Yellow Front Restaurant and did not receive any compensation? A. No, sir. Q. You there all day? A. No, sir. Q. Generally opened up in the morning? A. Never had a key. Q. Yet you never run the place at all? A. No, sir. Q. You would be the clerk in there sometimes until night ? A. No, sir. Q. Helped them some? A. No, sir. Q. Never clerked in there? A. No, s’ir. Q. Jimmy Johnson and Joe Siddens were the only ones working in there? A. Yes, sir. Q. Certain? A. Yes, sir.”

It will be noticed that the relator testified positively that he never clerked in the restaurant, and that he was not the owner of the restaurant; that he was not an employee there, and was not connected with the restaurant as an employee or otherwise.

The direct and positive proof which the state has of the fact that relator was- clerking in the restaurant, and was running and operating the restaurant, is the positive testimony of the witness Daniel Rees, who testified, in direct terms, that he watched the relator every night for a month, and that he was the person clerking and waiting on the customers on the side of the restaurant where the drinks were sold, and was the only one clerking there. What more positive proof can be, that a man is working in or clerking in a place of business, than that he sells the goods and receives the money for them and is the only one who does sell the goods and receive the money for them ? Rees is corroborated by the witness Holmes, who testified to selling relator the fixtures and restaurant supplies that went into the restaurant; by the witness O. B. Lippincott, who testified to selling the relator restaurant supplies at about the time the restaurant was first opened up; by the witness W. B. Barnes, who testified to selling the relator meat for the restaurant and collecting the pay for the same from the relator on about twenty different occasions; by the witness R. E. Barker, who testified to delivering ice to the restaurant and being paid for the same by the relator; by the witness Wm. McDonald, who testified that the relator Metcalf paid the electric light bills; also by the witness C. A. Greene, who testified that the relator paid to him electric light bills for the restaurant; by the testimony of all the last-mentioned witnesses that they saw the relator around the restaurant from time to time, and going in and out of the restaurant as though it were his; also by the evidence of the witness G. M. Rader that, when he went to search the place on the 15th day of September, 1910, and presented the search warrant to the relator and told him that he had a search warrant for his place, relator told him to go ahead and search, or something to that effect; also by the statement of the relator to the party searching the restaurant that “people would get drunk and come into our place, and we get the blame for it.” What better proof can be given that a man is clerking in or employed in, or is the owner of, a place, than that he furnishes the place in the first place, waits on customers continuously while the busi7 ness is being run, pays the bills, such as electric light bills and .water bills, and is continuously seen around the place, and speaks of the place as being “my place” or “our place” ? Under this testimony, relator was clearly connected with’ and responsible for the intoxicating liquors found in the restaurant with which he was so connected. Therefore his testimony upon the'first trial was •material to the issue, and, if false, constituted perjury.

If the state produced evidence sufficient to support any one material predicate of perjury set out in the information, relator should not be discharged. Hereford v. People, 197 Ill. 222, 64 N. E. 310; Bradford v. State, 134 Ala. 141, 32 South. 742; Adellberger v. State (Tex. Cr. App.) 39 S. W. 103; State v. Anderson, 35 Utah, 496, 101 Pac. 385. It is not required that one witness swear to all the facts necessary to disclose the falsity of defendant’s testimony.. It is sufficient if the state has proved all the necessary facts by the direct and positive testimony of witnesses, and has supported the same by other corroborative evidence. People v. Green, 54 Cal. 592. In this case, however, the witness Daniel Rees gives enough direct and positive testimony which, if corroborated by other circumstances, is sufficient to sustain the finding of the committing magistrate; but that part of the evidence of the other witnesses, to the fact of their seeing the relator clerking there and paying the bills and performing the acts of an owner or an employee, is direct and positive evidence, as contemplated by the rule, because one of the material questions, in the trial of the case in which the relator is accused of committing perjury, was as to whether relator owned or was running or operating the restaurant. There is no more technical court than that of Texas, 3>-et that court holds that “the falsity of defendant's statement can be established by' circumstantial evidence; but the facts constituting such circumstantial evidence must be directly and positively sworn to by at least one credible witness, supported by corroborating evidence.” See Plumber v. State, 35 Tex. Cr. R. 202, 33 S. W. 228; Beach v. State, 32 Tex. Cr. R. 240, 22 S. W. 976; Franklin v. State, 38 Tex. Cr. R. 346, 43 S. W. 85.

In Plumber v. State, supra, the court lays down the correct rule as follows:

“The statute (Code Criminal Procedure, art. 746) requires that the falsity of a statement be established by the testimony of two credible witnesses, or by one credible witness strongly corroborated. We hold that the falsity of a statement can be established by the circumstantial evidence; that this must be done by the testimony of at least two credible witnesses, or by one credible witness strongly corroborated, as the law requires. If in all criminal cases the guilt of the accused can be established by circumstantial evidence, why cannot the falsity of a statement in a perjury case be established by the same character of evidence? The difference between other cases and perjury is this: While one witness may be sufficient to establish the guilt of the accused in other cases, the law requires two credible witnesses, or one credible witness strongly corroborated. It is not the character of the proof that is contemplated by the statute, but the number and character of the witnesses.”

The evidence in this case is sufficiently direct and positive to sustain a conviction. State v. Marsh, 73 Vt. 176, 50 Atl. 861.

Perjurj'- may be committed by willfully swearing falsely to material circumstances which tend to prove or disprove the main fact immediately in issue. Commonwealth v. Grant, 116 Mass. 17; People v. Barry, 63 Cal. 62; State v. Day, 100 Mo. 242, 12 S. W. 365; State v. Wakefield, 73 Mo. 549, and cases cited; State v. Lavelley, 9 Mo. 834; Studdard v. Linville, 10 N. C. 474; Smith v. State, 91 Ark. 200, 120 S. W. 985; United States v. Shinn (C. C.) 14 Fed. 447; State v. Miller, 26 R. I. 282, 58 Atl. 882, 3 Ann. Cas. 943; State v. Swafford, 98 Iowa, 362, 67 N. W. 284; Rahm v. State, 30 Tex. App. 310, 17 S. W. 416, 28 Am. St. Rep. 911; State v. Moran, 216 Mo. 550, 115 S. W. 1126.

In State v. Miller, supra, the Supreme Court of Rhode Island, quoting Rahm v. State, supra, lays down the correct rule:

“We think it may be laid down as the rule .that any testimony which is relevant in the trial of a given case, is so far material to the issue as to render a witness, who knowingly and willfully falsifies in giving it, guilty of the crime of perjury.”

And in State v. Lavelley, supra, the court says:

“It is not necessary that the evidence given is material’ to the main issue; it is sufficient if it is material to any proper matter of inquiry.”

And in Studdard v. Linville, supra, the court, in substance, says that, if the testimony given is of any collateral matter, and which collateral matter is material to the main issue, then the witness who falsifies is guilty of perjury.

In United States v. Shinn, supra, the court, in speaking of the materiality of testimony upon, which perjury may be predicated, says:

“But when the superfluous or collateral matter is calculated and intended to prop and bolster the testimony of the witness on some material point, as by clothing it with circumstances which add to its probability or strengthen the credibility of the witness, the case is otherwise.”

In State v. Moran, supra, the court says:

“It does not follow, because the matter testified to is not especially concerning the acts of the defendant in the commission of the offense, that such matter might not be made a subject upon which a charge of perjury might be predicated, if such matter is nraterial. It is but common knowledge that it frequently occurs in the trial of causes that inquiries are made of witnesses touching matters which do not directly concern the commission of the acts which constitute the offense, yet such inquiries and answers may be material and highly important to the end that triers of the fact may properly and intelligently weigh the testimony in the case.”

In the case of Coleman v. State, 6 Okla. Cr. 252, 118 Pac. 594, this court said:

“It is not necessary that the matter sworn to be directly and immediately material in order to constitute th'e offense of perjury. It is sufficient if it is so connected with the matter at issue as to have a legitimate tendency to prove or disprove some fact that is material from the testimony of a witness thereto. This is sufficient, and makes the testimony material. It has therefore been held that perjury may be assigned upon false statements affecting a collateral issue as to the credibility of a witness; this being material to the main issue. This was directly passed upon by the Supreme Court of Kansas in the case of State v. Park, 57 Kan. 432, 46 Pac. 713. The Supreme Court of that state there laid down the true rule as follows: ‘To constitute perjury, the false statements must be material to.the subject under consideration, or such as would tend to influence the determination of the issues to be decided. The question whether the defendant had been previously prosecuted and punished for committing grand larceny in Missouri, although in a certain sense collateral to the question on trial, can hardly be treated' as immaterial. In the trial wherein false statements are alleged to have been made, Park voluntarily became a witness in his own behalf, and he was therefore subject to the same rules on cross-examination as any other witness. He having assumed the position of a witness, it was competent for the state, upon cross-examination, to test his veracity and credibility. It is well settled in this state that a defendant may be asked questions disclosing his past life and conduct; and the state may even go to the extent of inquiring if he has ever been convicted of the same offense as that for which he is upon trial. State v. Pfefferle, 36 Kan. 90, 12 Pac. 406; State v. Probasco, 46 Kan. 310, 26 Pac. 749; State v. Wells, 54 Kan. 161, 37 Pac. 1005. Not only was the statement of the witness therefore competent, but it had an important bearing upon the credit to be given to his whole testimony; and it is generally held to be perjury to swear falsely to anything affecting the credibility of the witness himself or the credibility of another witness in the case. In Wood v. People, 59 N. Y. 117, it is held that “it is not necessary that the false statement tends directly to prove the issue in order to sustain an indictment for perjury. If circumstantially material, or if it tends to support and give credit to the witness in respect to the main fact, it is perjury.” The Texas Court of Appeals has held that perjury may be predicated on a false answer of a witness that he has never been convicted of a felony, as such answer affects his credibility, and is therefore material to the issue. Williams v. State, 28 Tex. App. 301, 12 S. W. 1103. See, also, United States v, Landsberg (C. C.) 23 Fed. 585; Washington v. State, 22 Tex. App. 26, 3 S. W. 228; 2 Bishop's New Crim. Law, sec. 1032; Clark’s Crim. Law of Canada, 389; Tiffany’s Crim. Law, 850.’ The degree of materiality is o'f no importance. Any false statement made by a witness, which detracts from or adds weight and force to testimony as to matters that are directly material, thereby becomes material itself and may constitute perjury. Section 195, 3 Greenleaf on Evi., is as follows:- ‘As to the materiality of the matter to which the prisoner testified, it must appear either to have been directly pertinent to the issue or point in question, or tending to increase or diminish the damages, or to induce the judge or jury to give readier credit to the substantial part of the evidence. But the degree of materiality is of no importance; for, if it tends to prove the matter in hand, it is enough, though it be but circumstantial. Thus falsehood in the statement of collateral matter, not of substance, such as the day in an action of trespass, or the kind of .stuff with which an assault was made, or the color of his clothes, or the like, may or may not be criminal, according as they may tend to give weight and force to other and material circumstances, lor to give additional credit to the testimony of the witness himself, or of some other witness in the case. And therefore every question upon the cross-examination of a witness is said to be material. In the answer to a bill in equity, matters not responsive to the bill may be material. But where the bill prays discovery of a parol agreement, which is void by the statute of frauds, and which is denied in the answer, this distinction lias been taken: That, where the statute is pleaded or expressly claimed as á bar, the denial of the fact is immaterial, and therefore no perjury; •but that where the statute is not set up, but the agreement is incidentally-charged, as, for example, in a bill of relief, the fact is ■material, and perjury may be assigned upon the denial.’ ”

Counsel for relator contend that the only material question in the cause'tried for illegal possession of intoxicating liquors in the count)'- court of Ellis county, where the relator, gave his testimony for which he is being prosecuted, is the question of whether or not he owned the liquor, and that the question of whether or not the relator was employed in, or worked about, the restaurant, and sold goods and collected for the same, and furnished up the restaurant and paid the bills after the restaurant wa,s being operated, is wholly immaterial. We find no provision of the Oklahoma statutes which requires the state to prove, in a prosecution for illegal possession of intoxicating liquors, that the defendant is thé owner of the liquor. The main question and issue in the trial of the cause, where this relator gave his testimony for which he is being prosecuted, was whethei; or not he was in possession of the liquor. The facts disclosed by the evidence are that, at the time the restaurant was raided by the sheriff of Ellis county and his deputies, the relator was in the room where the liquor was concealed, and was the only one in the room; that relator had taken out a United States license authorizing him to conduct the business of a retail liquor dealer; that he had just gotten up out of bed, which was in the room; that he was handed a search warrant and was told that they wanted to search his premises, and he replied to go ahead and search. At this time he was standing over close to where the liquor was afterwards discovered to be secreted in the walls of the building; but, after the making of the search, he made his escape and did not return for two days, and finally returned with the man Ed Hickman, whom the relator tried to show, in the trial for illegal possession of liquor, was the keeper of the restaurant.

In the trial of the case for illegal possession of intoxicating liquors, the relator denied that he owned the restaurant or the liquor in the restaurant; that he had anything to do with the restaurant as an employee or otherwise; or that he clerked in the restaurant. The transcript of the evidence, given by the relator in his trial for the illegal possession of the liquors, will show that nearly all of this evidence was brought out by his attorney in his direct examination. No doubt his attorney thought that this evidence was . material as to whether or not the relator was in possession of the liquor; and in this respect we agree with his counsel that nothing can be more material as to the question of whether or not a man is in possession of liquor found in the building than the fact that he was working there. It is true that the relator weakened in his cross-examination upon his statement that he never clerked in the restaurant, or was connected with it, by stating that he once in a while would get somebody a cigar, and was in the restaurant perhaps once every day; but he maintained stoutly, throughout his testimony, to the declarations made in his direct examination mentioned above, that he did not clerk there and.was not employed there, and was not the owner of the restaurant, and was not connected with it as an employee or otherwise, and never had any interest in the restaurant as an employee or otherwise.

The first predicate in.the complaint is whether the said R. A. Metcalf, relator in this case, owned, had, or was in possession of any whisky or beer in the place known as the “Yellow Front Restaurant” on the east side of Main street in the town of Gage, Okla., at any time from the 1st day of August, 1910, to the 13th day of March, 1911, and particularly on the 15th day of September, .1910. Has the state offered sufficient direct and positive testimony of the relator’s possession of this liquor ? The evidence is positive that relator worked in the restaurant either as owner or employee. If he had no guilty connection with this liquor, why had he gone to the expense of taking out a United States internal revenue license as a retail liquor dealer? The evidence is that he spoke of the restaurant as being “our” restaurant, and that, when he was told that the officers had a search warrant for his restaurant, he said, “Go ahead and search,” and that, at this time of the search by the officers, he was in the room where the liquor was stored, standing over close to it, and was the only one there, and that' he ran off as soon as the liquor was found, and could not be found by the officérs for two days. It is true that the state has not proven that he had a lease on the building, and has not shown how the liquor came to be so secreted, or where it came from. But what better proof can you have of possession than that a man is actually in charge of a place and is there, and that he has been running and operating a place for a month previous to that time; that he sold goods there every night for a month, when he was being watched, and was the only one who sold liquors, and that he was seen by the witness watching him; that on all of the occasions he would go back behind the partition, where the liquor was secreted, so that he would only have to take two steps from the door, where he would be seen leaving the front room, to where the liquor was found secreted in the walls; that he bought the fixtures and supplies used in furnishing up the restaurant ; that he paid .the bills there for meat, for electric lights, and for ice, and was the only one who ever paid any bills, with the exception of about one or two bills paid by the other parties working there. There could be no more direct and positive evidence that he was the one in charge of the restaurant than that we have offered in this case; and, if the restaurant was his, he is presumed to be in possession of all the goods in the restaurant, including the liquors. Especially is this true since the relator has paid the tax as a United States retail liquor dealer. We therefore hold that the third predicate of the complaint is supported by an abundance of legal and competent evidence, and that the first eight predicates of the complaint are also supported by sufficient evidence to justify the committing magistrate in binding the relator to the district court.

In the light of this testimony, the action of the examining court, in committing relator for trial in the district court, is approved and commended. If all of the prosecuting attorneys and trial judges in Oklahoma will follow the example set by the officers of Ellis county in this case, perjury will soon be as dangerous as it is odious, and will become a lost art in Oklahoma — a con-su.mmation most devoutly to be wished.

We should have decided this case long since, but we are simply overwhelmed with cases demanding immediate attention; and as this is the first time the question has been submitted to us as to .the, condition under which a prosecution for perjury can be sustained upon, circumstantial evidence only, and as counsel for relator has filed an exceedingly able and ingenious. brief, to avoid the possibility of piaking a mistake and rendering a decision which would have to be abandoned, we thought it best to take ample time and render sqphfan opinion as will be. a precedent for the future. When the cage was first submitted on oral argument we were, impressed with the'idea that possibly a mistake hs.d been made; but upon a careful examination apd re-examination of the record, and after considering and weighing all of the authorities and getting at what we regard as the very truth of the matter, we find that the action of the officers of Ellis county was in all respects right and proper. A critical examination of the authorities 'cited in this opinion will show that they each and all sustain the conclusion at which we have arrived. Having deliberately weighed the questions involved in this case, and having arrived at a satisfactory conclusion, we will make short work of such cases as this in the future.

The writ of habeas corpus is discharged,, and the relator is remanded to the custody of the sheriff of Ellis county, to be dealt with as the law directs.

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


text:
    ED RYAN v. STATE.
    No. A-928.
    Opinion Filed February 8, 1913.
    (129 Pac. 685.)
    1. APPEAL — Briefs—Citation of Authorities. Where decisions of the Supreme Court of Oklahoma or of this court are relied upon, the brief should cite the page and volume of the state reports upon which such decisions can be found.
    2. APPEAL — Record—Arraignment. The failure of the record te show arraignment and plea does not constitute a fatal defect, where the record shows that the defendant, without objection, announced ready, and that the ease was fairly tried. '
    3. HOMICIDE — Evidence — “Dying Declarations” — Preliminary Proof, (a) Where the proof shows that the deceased was shot in the stomach between 5 and 6 o’clock p. m., and died that •night, and that immediately after being shot he fell down' and was unable to get up again, and that he stated to persons who saw him soon after he was shot that he was a dead man and could not live, that he was going to die, such proof sufficiently shows that the deceased apprehended the certainty and imminence of his impending death, and is in itself a sufficient predicate for the admission of his statements of the circumstances of the homicide as “dying declarations.”
    (b) Where a person mortally wounded and without hope of recovery, under a solemn conviction of impending death, makes several statements at different times of material facts concerning the circumstances of the homicide, all of said statements are admissible in evidence.

      4. SAME — Manslaughter—Duty to Charge, (a) It is always the duty of the trial court to instruct on the law of manslaughter if there is any reasonable evidence that the alleged crime might have been done under circumstances that would reduce the crime from murder to manslaughter.
    (b) This court will not reverse a conviction for manslaughter, where this issue has been submitted to the jury by the trial court, upon the ground that, in its judgment, the defendant should have been convicted of murder.
    5. TRIAL — Requested. Charge — Applicability to Evidence. It is not error for the trial court to refuse to submit a special instruction, although it may be a correct statement of the law, where such instruction is not applicable to the evidence, or where the law governing the question presented has already been correctly stated to the jury in the general instructions.
    6. APPEAL — Review—Instructions—Exceptions. In the absence of exceptions to instructions given, they will only be examined for fundamental errors.
    7. NEW TRIAL — Newly Discovered Evidence — Application—Requisites. A motion for a new trial upon the ground of newly discovered evidence is fatally defective, where it does not state fully the circumstances which make it appear that such evidence, as a matter of fact, was newly discovered and could not have been discovered earlier by the exercise of proper’ diligence.
    8. APPEAL — “Injury.” The term “injury,” used to describe an error for which a reversal may be had, means án error which affected the result.
    (Syllabus by the Court.)

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

    Ed Ryan was convicted of manslaughter in the first degree, and his punishment was assessed at confinement in the penitentiary for eight years, and he appeals.
    Affirmed.
    Appellant, Ed Ryan, and the deceased, George Smith, were neighbors engaged in the occupation of mining, and lived in the vicinity of Coalgate, in Coal county, Okla. This homicide was alleged to have been committed on or about the 2d day of January, 1910; and it appears from the record that prior to the commission thereof the appellant and the deceased had had some trouble, and there existed, perhaps on the part of both of them, certain ill will and bad feeling toward the other. This had manifested itself on various occasions, as testified to by witnesses; some witnesses for the defendant testifiing as to alleged threats which amounted to nothing more than the application of epithets by the deceased towards the defendant, by which he called him •vile names, etc. On the day of the killing, which was Sunday, it appears that both the deceased and the defendant had been to the town of Coalgate, and had been drinking some. The defendant went home an hour or so earlier than the deceased, and says that during that time he was engaged in carrying water to his house from the well of a neighbor by the name of Committie. The 'Committie well was located northwest of the defendant’s house about 300 yards, and in going to this well it was necessary for the defendant to cross the highway that led from the town of ■Coalgate to the deceased’s house; the evidence showing that the ■deceased lived about a quarter of a mile further north on this road than the defendant. The killing occurred in this public highway, and there were no witnesses to the transaction except the •defendant and the deceased.
    The first people upon the scene testified that the deceased was lying on the ground from five to ten steps north and east of the gap in the fence surrounding the Committie land, and on the •path towards the well, and that the defendant was standing in the public highway some eight or ten steps south of the deceased. The witnesses for the defendant testified that there was a knife in the road a foot and a half or two feet fi-om the right hand of the deceased, and that this knife was open. Some of the witnesses for the state testified that when they got up to where the deceased was, the deceased told them that Mrs. Ryan, the wife of the ■defendant, had taken his knife out of his pocket. The testimony ' in this case is conflicting. The deceased said that the defendant waylaid him and shot him down while he was unarmed and was making no attempt to attack him. The defendant claims that he ■shot him in his necessary self-defense from an attack then being made upon him by the deceased with an open knife.

      George Trice, for appellant.

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

(after stating the facts as above). First. Counsel for appellant has filed a lengthy brief in this cause, in which he has cited a number of the decisions of this court, but has not cited the volume and page upon which these decisions will be found in the published reports of this court. We have no objection to counsel citing the Pacific Reporter, but where any decisions of the Supreme Court of Oklahoma or of this court are relied upon the brief should cite the page and volume of the state reports upon which the case can be found. This will greatly expedite our. work. We trust that the lawyers of Oklahoma will comply with this request in the future.

Second. Counsel contends that the judgment should be reversed in this cause because a plea was not entered to the indictment until after the jury had been impaneled and sworn.to try the case. The record discloses that on the 5th day of April, 1910, defendant was duly arraigned and given 24 hours in which to plead, and that thereafter, on the 11th day of April, 1910, the case was regularly called for trial, .and that the defendant appeared in person and by his attorneys and announced ready for trial, and that thereafter, on the 12th day of April, 1910, after the jury had been impaneled and sworn, the defendant refused to plead when the county attorney made his opening statement to the jury, and that the court thereupon ordered that a plea of not guilty be entered for him.

The general tendency of appellate courts now is to disregard technical objections which do not in any manner prejudice the substantial rights of the defendant. It appears that the defendant announced ready for trial without any objection being entered to his not having pleaded to this indictment; the record clearly showing that he was arraigned thereon. Some of the courts hold that where the record shows either an arraignment or a plea, but is silent as to one or the other, it may be presumed. Steagald v. State, 22 Tex. App. 464, 3 S. W. 771; Wilson v. State, 17 Tex. App. 525. Other cases also hold that the omission of the record to show arraignment and plea is not fatal, where the record shows that the issue was joined and a fair trial had without objection by the defendant. Hayden v. State, 55 Ark. 342, 18 S. W. 239; State v. Bowman, 78 Iowa, 519, 43 N. W. 302; Commonwealth v. McKenna, 125 Mass. 397; Territory v. Shipley, 4 Mont. 468, 2 Pac. 313; Allyn v. State, 21 Neb. 593, 33 N. W. 212; State v. Brown, 33 S. C. 151, 11 S. E. 641; People v. Weeks, 165 Mich. 362, 130 N. W. 699; State v. Bunker, 7 S. D. 639, 65 N. W. 34; State v. Reddington, 7 S. D. 368, 64 N. W, 170.

In State v. Reddington, supra, the Supreme Court of South Dakota, from which state our statute was taken, had the following to say :

“Considering the matters complained of in the order in which they occurred chronologically, we notice that the record nowhere states or affirmatively shows that the defendant, now plaintiff in error, was arraigned, or that he pleaded to the indictment. The statute requires that the defendant shall be arraigned (Compiled Laws, sec. 7263); that he shall plead; and that his plea shall be entered on the minutes of the’ court, or, if he refuse,, that a plea of not guilty shall be so entered. Id., secs. 7301, 7303, 7311. If the defendant was not in fact arraigned, and did not plead, it was a grave oversight on the part of the court. If he was arraigned and did plead, it was careless in the clerk not to have em tered the fact and the plea. But the practical question now is: What is the legal effect, either of such omission in fact, or of such defect in the record? There are many reported cases of high authority squarely holding that omission to plead, or failure of the record to affirmatively show that the defendant was arraigned and did plead, are, upon review, fatal to a judgment of conviction; and such seems to be the established rule of the common law. Our own judgment fortified by many thoroughly considered and well-reasoned cases .from courts commanding high respect, leads us to the conclusion that, under the law as it is in this jurisdiction, this ought no.t to be held an imperious and inelastic rule. We should say that it was error, to try a defendant without arraignment and plea, and that a .record is defective which does not affirmatively show such procedure was had; but error does not always justify reversal. Injury is presumed from error, -but the presumption is undermined, and destroyed by the positive showing by the record itself that injury did not and could not result from such error. By ‘injury’ is meant ‘effect upon the result,’ This is the well-defined doctrine of our statute, which allows the defendant to except ‘to the decision of the court .upon a matter of law by which his substantial .rights are prejudiced, and not otherwise’ (Comp. Raws, sec. 7439), and which requires this court, on writ of error, ‘to give judgment without regard to technical errors or defects, or to exceptions which do not affect the substantial rights of the parties.’ Id., sec. 7520. In this case the record does show that the defendant was present in court personally and by his counsel, and that he was ready for trial, and that the trial proceeded precisely as though the minutes of the court showed a plea of ‘not guilty.’ . In State v. Greene, 66 Iowa, 11, 23 N. W. 154, the defendant did not plead, the taking and entering of his plea having been overlooked by the court, and yet the appellate court refused to reverse a judgment of conviction. It said: ‘The case was treated, however, as though a plea had been entered. The allegations of the indictment were all regarded as having been denied by the defendant. The state was required to establish the charge in the indictment by the same character of evidence, and with the same certainty, which would have been required if the formal plea of not guilty had been entered. The defendant was permitted to introduce evidence to disprove the charge, and his counsel was permitted to argue the case to the jury on its merits, and the jury were required to determine it under the same rules which would have governed in its determination if the plea had been formally entered.’ And this ruling was followed in State v. Hayes, 67 Iowa, 27, 24 N. W. 575, and again in State v. Bowman, 78 Iowa, 519, 43 N. W. 302. In People v. Tower, 17 N. Y. Supp. 395, the record did not show arraignment, or that defendant pleaded, or that any plea was entered for him. The court held that ‘there was nothing in these omissions which tended to prejudice the rights of the defendant, and consequently they should be disregarded.” * * *

“We have drawn upon these authorities quite fully, and it is probable that further research would discover others on the same line to justify our conclusions that we ought not to follow the rigid rule of the common law under the plain instruction of our statute that judgment of conviction must not be reversed on account of error which does not prejudice the substantial rights of the defendant. Neither civil nor criminal cases are tried for the primary purpose of vindicating or exemplifying formulated rules of law or practice. The object of every trial is to get at the very right of the matter in controversy. Rules are intermediate and subsidiary to that end, and nonobservance of the incidental rule, not made mandatory by statute, which obviously did not in any manner interfere with the accomplishment of the very objective end of the trial, and so could work no injury to the defendant, is no ground for setting aside the result of such a trial. In this case the record shows that the case was regularly reached for trial; that defendant was present in person and by counsel; that he was ready for trial; that the trial proceeded and continued to verdict, without objection, in every respect as though a plea of ‘not guilty’ had been made and properly 'entered; and that the jury was instructed that the defendant had plead ‘not guilty,’ and the nature and effect of such plea fully explained by the court to the jury. Under these circumstances we hold, after much deliberation, that the failure of the record to affirmatively show arraignment and plea does not entitle defendant to a new trial.”

The views expressed above meet our entire approval,- and are in strict harmony with the statutes of this state and the policy of this court.

Granting all that is contended for by counsel for appellant, the most that could be claimed in his behalf was that a mere irregularity had occurred at the trial of the cause. Counsel did not attempt to show how this irregularity did or could have influenced the jury in finding appellant guilty. It is not claimed that any additional burden was placed upon appellant, or that he was deprived of any substantial right, so far as establishing his innocence was concerned. The objection made is purely an abstract, technical proposition. A technicality has well been defined as a microbe, which, having gotten into the law, gives justice the blind staggers. This court, from the first, announced that it would not reverse a conviction upon any technicality which did not involve a substantial right. See Campbell George v. United States, 1 Okla. Cr. 307, 97 Pac. 1052, 100 Pac. 46; Byers v. Territory, 1 Okla. Cr. 677, 100 Pac. 261, 103 Pac. 532. We have invariably held to this doctrine since. We have also repeatedly held adversely to the contention now presented by counsel for appellant. See Wood v. State, 4 Okla. Cr. 436, 112 Pac. 11; Johnson v. State, 5 Okla. Cr. 1, 112 Pac. 760; Spencer v. State, 5 Okla. Cr. 7, 113 Pac. 224; Hast v. Territory, 5 Okla. Cr. 162, 114 Pac. 261; Patterson v. U. S., 7 Okla. Cr. 272, 118 Pac. 150.

Third. Counsel next contends that the court erred in admitting the dying declaration of the deceased, upon the ground .that a proper predicate was not laid for the introduction of such testimony.

J. F. Murphy was placed upon the stand as a witness for the state. He testified that he was acquainted with the deceased, George Smith, during his lifetime and visited him just prior to ' his death. The record then proceeds as follows:

“Q. State whether or not he made any statement to you there with reference to whether or not he realized he was going to die. A. Yes; he did.. Q. What did he say? A. Do you want me to tell what happened ? Q. What he said with reference to his dying, that he was going to die. A. He said he was about dead; then that he was going to die. Q. State whether or not he made a. statement to you about what time was it, do you say? A. It was —I don’t know; 8 or 9 o’clock, somewheres along there. Q. State whether or not he made a statement to you there as to the manner in which this shooting, this difficulty, occurred — the killing. A. Yes. Q. What was the statement? (Defendant objects to the introduction of the statement, for the reason that no proper predicate has been laid for its introduction.) The Court: Is ;that all that was said? A. No, sir; that wasn’t all that was said. Q. About dying? A. That is about all he said about dying — all 'I remember that he said about dying. (Objection overruled, to which defendant excepts.) Q. His statement to you then? Mr. Trice: Did you have any more conversations with him after you got this declaration from him? A. Before I— Q. After he made this statement to you you are fixing to tell about? A. .There might have been a few more words. Q. Was the doctor there? .A. Yes. Q. Had he already probed for this bullet? A. 'Yes. 'Q. Had he got it out? A. Yes. Q. Did Mr. Smith give vent to any expression that he had >a hope of recovery? A. I don’t know that he did. Q. Did you hear him say anything that ..would indicate his hope of getting well? A. No, sir. Q. Did you hear the doctor hold out any hopes to him of recovery? A. No, sir. . Q. Did you hear anything said about his getting well? A. I don’t remember. Q. Was he under the influence of stimulants or opiates? A. I don’t know. Q. Judging from his appearance, if you could tell anything from that? A. I couldn’t tell it if he was. Q. He wasn’t at himself, but you would not ' know whether it was from the wound ? A. He seemed to be kind 'of stupid. Q. You don’t know what produced that? A. No, sir. g. What about the condition of his mind, if you had occasion observe, that ? A. His mind seemed to be good at the time he 'was talking. Q. Seemed-to be at himself? A. Yes. Mr. Wood: All right Mr. Murphy. A. You want me to tell just what occurred, what he said, I asked him? Court: Tell what he said with reference to this tragedy, and, of course, there might be some things that he said that wouldn’t be admissible. You know about what would be permissible to testify to. A. The doctor told me that if I wanted to get a statement from him I had better do it, and I asked Mr. Smith if he wanted to make a statement, and he said he did; and the way that he started — the way that he started off and the way that he told it to me he asked me, ‘Were you ever waylaid?’ I said; ‘No, sir; I never was.’ ‘Well,’ he says, T was;’ arid he says: T was going down the road home, and Ed Ryan walked out into the road and says to me, “Say, yoti are the man that stole my horses and mules, or planned it to' be done,” and said that Mr. Ryan snapped at him, and he says, ‘No, I haven’t had anything to do with stealing your mules at all,’ and said he told him — said, T am not armed, and you onghtn’t to want to take the advantage of me in this way;’ and Mr. Ryan said, ‘You liar, you did,’ and shot him, and that is about his statements to me.”

It was previously proven that the deceased was shot between 5 and 6 o’clock in the evening, and immediately fell to the ground and had to be carried home; that he was visited by a doctor about 8 o’clock that night, who found that the deceased was shot in the stomach, the ball entering a little to the right and just below the breast bone, taking a downward course and lodging near his right kidney, from which place it was extracted by the doctor. It was also proven that Smith died that night.

George King testified for the state that he saw the deceased lying by the side of the road, where he was shot, and then proceeded to testify as follows:

“Q. What statement, if any, did you,hear him make there? A. He told me — Q. With reference to whether or not he would live or die, or anything about his death, did you hear him say anything about that? A. Yes. Q. Tell what he said. A. He said Ed Ryan had killed him. Q. Had killed him? A. Had killed him. Q. Did he say anything there and then as to how long he expected to live, or did he make any statement with reference to that matter? A. Yes. Q. What did he say? A. He said that he was — when I first got there, I wanted to take him in; he told me he was cold, and I wanted to take him. Q. The house? A. Yes; and he begged me not to; said his wife was sick, and he didn’t care about getting in where she could see him and take on over him, and for me to get some more quilts and let him lie on that. Q. What more did he say, if anything? A. Well, I don’t know as he said anything more, only that he told, me — I tried tó reason with him that he wasn’t killed, I knowed, because he seemed to be strong and talked well; and I told him maybe that he wasn’t killed. I says, ‘Maybe it ain’t so bad.’ He told me he was positive he knowed he was killed. He didn’t want to go home. He told me that two or three different times, I guess. I insisted on' taking him home. Q. Said he was killed? A. Yes; knowed it, and he wouldn’t only live a very short time. Q. What statement, if any, did he make there in your hearing with reference to the manner in which this killing occurred? (Defendant objects. No proper predicate has been laid to introduce the statement. Objection overruled, to which defendant excepts). A. He told me he was waylaid and killed. Q. Did he say who did it? A. Yes. Q. Who? A. Ed Ryan. Q. Have you told all that he said with reference to the matter. A. No, sir. Q. Tell it all; just tell what he said as you remember it. A. He stated how he was shot. He said that he was going along there and was stopped, and that Mr. Ryan stopped him; and when he stopped him — I don’t recollect just exactly the words he said when he stopped him, but there was a gun fired, and he says, ‘Oh, oh, George, I didn’t aim'that,’ and George begged; he says, ‘For God’s sake, Ed, you would not murder me here,’ and then he said he just placed the gun up against him and fired the shot.”

R. L. Morgan testified for the state as follows:

“Q. Did you see him the evening when he was shot? A. Yes. Q. Where was he when you saw him? A. He was at home. Q. Who was with you there? A. I and Mr. Murphy went over there together. Q. You are deputy sheriff? A. Yes. Q. Did you hear the deceased, George Smith? * * * Who else was there at the time you were there? Do you remember? A. I don’t remember the names. I knew the parties, most of them. I believe Fussell. Q. John Fussell, witness in this case? A. I think so. Q. Any other? * * * Any doctor there? A. Dr. Filmore was in there. Another doctor. I didn’t know his name. Q. Stranger to you. Hear the deceased make any statement? A. Yes. Q. What did he say? (Defendant objects, as no predicate' has been laid.) Q. In what condition did you find him? A. He was just lying there on the bed, shot. Q. Did he make any statement as to that shooting? A. Yes. Q. What did he say? A. Said he was going to die and couldn’t live long, 1 believe is the language he used. Q. Couldn’t live long. What more did he say, if anything? A. I think Mr. Murphy asked him if he wanted to make a statement. He told him he did. He asked Mr. Murphy if he ever was waylaid and shot, and Mr. Murphy told him ‘No.’ ‘Well,’ he says, ‘I was,’ and went ahead then and said that Ed Ryan shot him. Q. Do you remember what more he said, if anything, with reference to it? A. He said he told him not to shoot him; that he wasn’t armed. Said he throwed the gun down on him, and it snapped. Said the next time the gun fired. That is the way I understood it, I think.”

W. M. Hall testified for the state as follows:

“Q. Tell the jury in the words of Mr. Smith just what he said about this difficulty. A. He said that Mr. Ryan halted him and said — Q. Tell it like Mr. Smith said it. A. I am telling it as near as I know. Q. Was it in his words? A. He said that he was halted. Q. Who said he was halted? A. Said he was halted, and he said that Mr. Ryan shot, and he said, ‘Oh, oh, I didn’t go to do that,’ or something similar to that. I don’t know that is exactly it or not. And the next time it snapped, and he said, ‘Ed, for God’s sake, or God Almighty’s sake, I haven’t got anything to defend myself with;’ something similar to that.”

The admissibility of dying declarations has repeatedly been passed upon by this court. In the case of Morris v. State, 6 Okla. Cr. 41, 115 Pac. 1035, Judge Doyle, speaking for the court, said:

“It is essential to the admissibility of dying declarations, and is a preliminary fact to be proved hy the prosecution, that they were made under a sense of impending death. This may be made to appear from what the injured person said or where, from the nature and extent of his injuries, it is evident that- he must have known that he could not survive. It is sufficient if it satisfactorily appears that they were made under the sense of impending death, whether it be directly proven by the express language of the declarant, or be inferred from his evident danger, or the opinions of the medical attendants, stated to him, or from other circumstances of the case, such as the length of time elapsing between the making of the declaration and his death, and the fact that he declarant was so weak that he could not sign his name and so affix his mark, all of which are resorted to in order to ascertain the state of declarant’s mind.”

In the case of Offit v. State, 5 Okla. Cr. 49, 113 Pac. 554, Judge Armstrong said:

“A declaration made by deceased, clearly without premeditation or design, when the record shows he is mortally wounded, and he has made statements showing that he realizes his condition, are properly admitted as dying declarations.”

. In Blair v. State, 4 Okla. Cr. 364, 111 Pac. 1003, Judge Richardson said:

“The deceased, shortly after the shooting, was found by two witnesses lying on the ground, covered with wounds made by 47 large-size shot, unable to move, and in a dying condition. They asked him what was the matter, to which he replied that he was dying. They then inquired, ‘Did you see who shot you?’ And he answered, ‘Joe Blair'; from ambush; two shots.’ This was about 5 o’clock in the afternoon. The witnesses then procured a conveyance and removed the deceased to his home. On the way they met his sister, and the deceased said to her: ‘Come kiss me, May; I’m’dying.’ And the deceased died that night a few minutes before 11 o’clock. These facts were given in evidence, and thereupon the court admitted as a dying declaration the deceased’s answer to the question, ‘Did you see who shot you ?’ This ruling of the court is assigned as error on two grounds: First, that it had not been sufficiently shown that the deceased was under a sense of impending death at the time he made the declaration; and, second, that the statement that Joe Blair shot him from 'ambush was a mere opinion or conclusion. As to the first ground, we think the evidence abundantly shows that the deceased was under the solemn conviction that death was impending. As to the second, we regard the declaration as a statement of fact and not a mere opinion. The witness said, in effect, that he .saw who shot him; that it was Joe Blair; that the latter was in ambush'and fired two shots; and every statement contained in ,the declaration, on its face was one of fact and not of mere opinion. Whether, if the declaration was the expression of an opinion based on personal knowledge or. observation, and not a mere guess, it would have been competent, it ip not necessary to decide. But see Wigmore on Evidence, secs. 1447 and 1918.”

We think that under the rules laid down in these cases the testimony objected to was all admissible.

. . .Fourth. Appellant contends that the court erred in sub'.mitting to the jury an instruction upon the subject of manslaughter, upon the ground that appellant was either guilty of murder or nothing. There is evidence in this record, however, from which provocation can easily be inferred, and also evidence from which may be inferred that the killing might have taken place-when' the defendant was overcome by a sudden heat of passion. The question raised is not new to this court. In fact, counsel rep*' resenting this appellant has raised the same question in at least-1 one óthér case presented to this court. See Boutcher v. State, 4 Okla. Cr. 576, 111 Pac. 1006. This court has repeatedly held1 that where there is the slightest evidence that would justify thé1 giving of a manslaughter instruction, or would support such- a-verdict, the court should instruct the jury on the law relative to manslaughter. We do not think that the defendant should be heard to complain because the court took' a very charitable view1 of the killing. This instruction upon manslaughter wás a very merciful act toward this appellant; and we cannot see that this case should be reversed and sent back for a new trial for -this1 reason, because we are satisfied that any honest jury, swdrñ-to administer the law, could arrive at no conclusion other than-the guilt of this appellant.

In the case of John Hopkins v. State, 4 Okla. Cr. 194, 108 Pac. 420, this court said:

“It' is always the duty of the trial court to instruct on- the-law of manslaughter if there is any evidence that the alleged: crime might have been done under circumstances that- would reduce the crime from murder to manslaughter.” . ,

In other words, where there may be the slightest doubt in the mind of the. trial court whether the crime was murder, then that doubt should be resolved in favor of the accused.and a manslaughter instruction given.

We concur with appellant in believing that the testimony, in this case would have supported a verdict for murder, but we cannot reverse a conviction because the jury has found a defendant guilty of a lesser degree of an offense than that of which, in our judgment, he should have been convicted. See Burns v. State, ante, 129 Pac. 657, decided at the present term..

Fifth. Appellant complains at the refusal of the trial court to. submit special instructions requested. It is not error for the trial court to refuse to submit a special instruction, although ;it-may be a correct statement of the law, where such instruction is not applicable to the evidence, or where the law governing the-question presented is correctly stated in the general instructions. We find that the general instructions contain all that was requested in the special instructions that was applicable to the evidence.

Sixth. Appellant at great length discusses alleged errors in the trial court’s instructions to the jury. We fail to- find, however, that exceptions as required by law were reserved to the instructions given. See Boutcher v. State, 4 Okla. Cr. 576, 111 Pac. 1006. In the absence of exceptions required by law, we can only examine the instructions given for fundamental error. We think the instructions are substantially correct.

Seventh. Appellant’s motion for a new trial was overruled, and he was sentenced by the court on the 16th day of May, 1910. He announced his determination to appeal, and the preliminary steps for perfecting the appeal were taken, and appellant was admitted to bail to abide the final decision of this court upon this appeal. Eleven days later appellant filed a second motion for a new trial upon the ground of alleged newly discovered evidence. Waiving a number of objections which might be urged to this second motion, it is sufficient to say it is fatally defective in not stating fully the facts which would make the matters and things therein stated newly discovered; and there is no explanation as to why this alleged evidence could not have been discovered earlier by the exercise of proper diligence.

In the case of Drew v. State, 6 Okla. Cr. 348, 118 Pac. 677, Judge Doyle, speaking for this court, said:

“A motion for a new trial on the ground of newly discovered evidence, made before judgment, or after .the term at which the defendant was convicted, is addressed'to the sound discretion of the trial court and its ruling thereon will not be disturbed, except for an abuse of discretion; the presumption being that the discretion was properly exercised.”

In the case of Johnson v. State, 5 Okla. Cr. 4, 112 Pac. 761, this court said:

“The defendant filed a motion for a new trial upon the ground of newly discovered evidence, and claims that if a new trial were granted him he would be able to prove by Mollie Ingram and Lou Johnson that the prosecuting witness in this cause was over-16 years of age at the time of the commission of this offense. Defendant alleges that since his arrest on the charge of this case he has been confined in jail and been unable to make any inquiries with reference to the testimony in the' case; that he has used all reasonable diligence in procuring evidence in his behalf; and that he did not discover the testimony of the said Lou Johnson and Mollie Ingram until after the conviction. Defendant stated that he had exercised due diligence in procuring testimony in his behalf before the- trial began. This is merely the statement of a conclusion. Such an affidavit should state the facts, so as to enable the court to see that due diligence had been exercised. The record shows that the father of the defendant resided at Woodville. With the least effort on the part of the defendant or his counsel, he should have been in possession of the alleged facts set up in his motion for new trial long before the trial of this case took place. The record further shows that the verdict was rendered against the defendant the same day on which the motion for new trial was filed. No explanation was made as to how or why it was that the defendant could discover this testimony as soon as he was convicted, but could not find it out before the trial. Defendant had had a preliminary trial at which the state’s evidence was introduced, and in which he was represented by the same counsel who represented him in the final trial. The town of Woodville is about fifteen miles from the county seat, where the trial took place. It is not alleged that counsel for the defendant even visited Woodville to make an investigation in behalf of their client; that the defendant or his counsel ever even requested the father of the defendant, who resided at Woodville, to make any investigation as to the facts of the case. They rested their defense entirely upon the hope that the jury would believe the testimony of the defendant rather than the testimony of the prosecuting witness. Under these circumstances it was too late, after the conviction, to begin to exercise that diligence which should have been exercised before the trial. Counsel cannot remain idle before a trial and, after there has been a conviction, discover evidence which they could have discovered prior to the trial by the exercise of diligence, and thereby obtain a new trial. The trial of a criminal case is a very serious matter, and the law requires that defendants and those representing them must be diligent in preparing to defend their cases. It is their duty to prepare their cases for trial before a conviction has been had.”

In the case of Slater v. United States, 1 Okla. Cr. 278, 98 Pac. 111, this court said:

“In Runnels v. State, 28 Ark. 121, if is said: ‘Applications' for new trial on the ground of newly discovered evidence are to be received with caution, and this iii proportion to the magnitude of the offense. The application should be corroborated by the affidavits of other persons than the accused, and, if possible, those of the newly, discovered witnesses themselves, and it is not sufficient for the applicant to state that he did not know of the existence of thé testimony in time to have brought it forward on the trial; but it must appear that he could not have ascertained it by reasonablfe diligence. Pleasant v. State, 13 Ark. 362; Graham & Waterman, New Trials, vol. 1, pp. 462, 485, and cases cited.’ In Twine, Saddler & Sawner v. Alice Kilgore, 3 Okla. 643, 39 Pac. 389, Judge Burford said: ‘An application for a new trial on the ground of newly discovered evidence must show that the appellant usfed diligence to procure and present the evidence upon the trial, - and the facts showing due. diligence must be shown, so that the court may determine whether the diligence used was sufficient. Allen v. Bond, 112 Ind. 523, 14 N. E. 492; Hamm v. Romine, 98 Ind. 77. There is no showing in the case at bar that the defendant used any diligence whatever to procure testimony upon which their motion for a new trial is based; nor is there any allegation to the effect that'they had no knowledge of such' evidence prior to the trial of said cause.’ In Flersheim Mercantile Co. v. Gillespie, 14 Okla. 143, 77 Pac. 183, Judge Irwin said: ‘The next assignment of error is that the court erred in refusing to grant plaintiff a new trial on the ground of newly discovered evidence. It is a well-recognized rule of this court that a hew trial on the ground of newly discovered evidence will not be sustained, unless it affirmatively appears from the affidavit in support of such motion that diligence has been used to discover such testimony, and that the .same could not have been discovered at a time prior to the trial by the use of reasonable diligence. In the affidavit in support of the motion for a new trial in.this case,' the general statement is made that the'plaintiff and its attorneys have used every possible effort to ascertain the names of these witnesses and the facts whereof they would testify; but it does not appear by the affidavit what thesé efforts were, or in what manner or how they investigated or made inquiry to ascertain the facts.’- The above cases present our views of the law upon this -question clearly and fully. In this case the affidavit is silent upon the question of diligence. It is therefore fatally defective, and the trial court did not err in refusing to grant a new trial upon this ground. Ah affidavit for a new trial upon the ground of newly discovered evidence must set out the proposed evidence, and it must be such as could not have been secured at the former trial by reasonable diligence on the part of the defendant, which fact should appear in the affidavit. If possible, it should be oc-companied by the affidavit of the newly discovered witnesses.”

See, also, Harper v. State, 7 Okla. Cr. 581, 124 Pac. 1116.

There are several other assignments of error which have been duly considered, but which we do not think are necessary to be discussed. We think the verdict is fully sustained by the testimony, and that no material error was committed upon the trial.

The'judgment of the lower court is therefore, in all things, affirmed.

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