author: BRETT, J.

text:
      Ex Parte TAGGERT.
    No. A-2764.
    Opinion Filed June 24, 1916.
    (158 Pac. 288.)
    1. PARDON — Ciondictions—Acceptance. Before the terms and conditions of a parole can be made binding upon a party convicted, that party must consent to and accept the terms and conditions, thereof. He' is a party at interest and must be consulted, for he has the right to accept the parole with the conditions it imposes, or to reject it, as he sees fit.
    2. PUNISHMENT — Parole—Conditions. And where a parole is arbitrarily written into a judgment of sentence and conviction, by a court, imposing certain terms and conditions upon the person convicted, and it is not made to affirmatively appear that such convicted person accepted and consented to these terms and conditions, imprisonment based upon a breach of the terms of such parole cannot be upheld.
    Application by Dick Taggert for writ of habeas corpus.

    Writ granted, and prisoner discharged.

      Twyford & Smith, of Oklahoma City, for petitioner.

      B. D. Shear, City Atty., of Oklahoma City, for respondent.
   BRETT, J.

The petitioner, Dick Taggert, on June 14, 1916, filed in this court an application for a writ of habeas corpus in which he avers that he is unlawfully restrained of his liberty by W. B. Nichols, chief of police of Oklahoma City. And further avers that on November 29, 1915, he (Dick Taggert) was tried in police court in Oklahoma City upon two charges, one for breaking glass upon a sidewalk, and the other for conveying intoxicating liquors in said city; that he was fined upon the charge of breaking glass, and upon the charge of conveying intoxicating liquor he was fined and given a jail sentence of 30 days; and that the police judge, “without the application of the said Dick Taggert and without advising him of his rights in any respect whatever, suspended said 30-day jail sentence during the time, and until he was convicted on any other offense; that the said Dick Taggert did not make application for or consent to said pretended parole or suspension of said sentence, but that the same was made and done by said police judge without the said Dick Taggert’s consent;” that the fines and costs were thereafter paid on behalf of *the petitioner, Dick Taggart; and that thereafter on the 26th day of January, 1916, because of an alleged breach of the conditions of the parole, the .police judge set aside the parole and committed the petitioner to the city jail for 30 days upon the former conviction.

There are several questions raised by the petition, one of which is whether the police judge had the power and authority to grant paroles. But it is not necessary to a correct determination of this case to consider these questions. The controlling issue in this case is whether or not the petitioner applied for or- consented to the terms of the parole.

(1, 2) We may assume, without deciding, that the police judge had the power to grant paroles; yet, before he could make the conditions of a parole binding upon a party convicted, that party certainly would have to consent to the terms and conditions thereof. He is a party at interest, and must be consulted; he alone has the right to accept the parole with the conditions imposed, or to reject it, as he sees fit. And to bind him by the terms of the parole, his consent must affirmatively appear. But in this case the evidence offered on behalf of the respondent does not affirmatively show either an application for the parole in question, or that the petitioner consented to or accepted the terms thereof; and the terms of such a parole are not binding upon, but are void as to, the person convicted; and imprisonment based upon a breach of its terms, after the term of imprisonment has expired, ’ cannot be upheld. State v. Goddard, 69 Ore. 73, 133 Pac. 90, 138 Pac. 243, Ann. Cas. 1916A, 146.

Ret the writ issue, and the petitioner be discharged,

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


source: Caselaw Access Project

license: Public Domain

text:
    LEVY v. STATE.
    Opinion Filed June 24, 1916.
    (158 Pac. 288.)
    EVIDENCE — Other Offenses. In a prosecution for having in xjossession prohibited liquor with intent to sell the same, evidence of the conviction of defendant for previous sales is competent as a circumstance tending to show the intent to sell.

      Error from County Court, Logan County; John D. Chappelle, Judge.

    Paul Levy was convicted of having possession of liquor with intent to violate the prohibitory law, and brings error.
    Affirmed.

      E. I. Saddler, of Guthrie, for plaintiff in error.

      R. McMillan, Asst. Atty. Gen., for the State.
   BRETT, J.

The defendant in this case had 71 half-pints of whisky and 23 pints of beer in his residence, which was seized by the officers, and information filed against him, charging him with the offense of having possession of same with the intent to sell, barter, give away, and otherwise furnish said intoxicating liquors, contrary to and in violation of the statutes in such cases made and provided. A trial was had, which resulted in conviction, and judgment sentencing the defendant to 30 days in jail and a fine of $100, and he appeals from this judgment.

There is scarcely anything raised, by this appeal, which has not been already passed upon by this court adversely to the contention of defendant.

He complains that the information is defective, and that his demurrer to it should have been sustained, and cites Buffo v. State, 4th Okla. Cr. 516, 113 Pac. 233, in support of this contention ; but an examination of the Buffo case, and the information in the case at bar, shows that the element which rendered the information in the Buffo case defective is not lacking in the case at bar. In the Buffo case there was a total absence of any allegation as to what the accused intended to sell, barter, give away, or otherwise furnish, and it was upon this ground that the information was held defective. But in the case at bar it is clearly alleged that the accused intended to sell, barter, give away, and otherwise furnish the liquor described in the information.

The defendant complains because the state was allowed to prove that the accused had been convicted of former violations of the prohibition law, and the ground of this complaint is that the convictions proven were too remote to prove intent to illegally dispose of the liquors involved in the instant case. The state may prove former sales made by the defendant in cases of this kind, “as a circumstance tending to show an essential ingredient of the offense, namely, the intent to sell the liquor in possession” (Hill v. State, 3rd Okla. Cr. 686, 109 Pac. 291), and, though the former convictions proven in this case were rather remote, yet the other evidence in the case so clearly justified the verdict; and the attempted explanation of the defendant for having this amount of liquor on hand is so unsatisfactory that, even had this evidence been entirely eliminated, the jury could not have arrived at any other verdict; and we are not justified in disturbing the judgment.

The judgment is therefore affirmed.

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


text:
    WRIGHT v. STATE.
    No. A-2523.
    Opinion Filed June 17, 1916.
    (158 Pac. 290.)
    1. WRIT OF ERROR — Review—Decision, of Trial Court. The affidavits in support of an application for a change of venue and the counter affidavits, together witn the examination of witnesses in support of the application, in open court, presents only a question of fact for the court to pass upon; and, unless it is clear that he has abused his discretion or committed error in his judgment, his finding and judgment will not be disturbed by this court.
    2. TRIAL — Separation of Jurors. Where a jury was permitted to separate in order that one of its members might attend the funeral of a member of his family, and the defendant made no objection and took no exceptions to this action at the time the separation was allowed, he cannot be heard to complain in this court.
    3. WRIT OF ERROR — Review—Affidavits. Where a party makes an aflidavit charging”misconduct on the part of certain jurors, and afterwards upon examination, in open court, repudiates his affidavit, such affidavit will not receive consideration in this court.
    • 4. LARCENY — Instructions—Request. It is not error to refuse requested instructions that are upon propositions which are fully covered by the instructions given by the court; and it is not error for the court to give the usual instruction on larceny, where the evidence raises a question of the defendant’s guilt.

      Error from District Court, McCurtain County; C. U. Dudley, Judge.

    Ollie Wright was convicted of larceny of a domestic animal,- and brings error.
    Affirmed.

      Spriggs & Spriggs, of Idabel, and O. R. Young, of Oklahoma City, for plaintiff in error.

      R. McMillan, Asst. Atty. Gen., for the State.
   BRETT, J.

This is an appeal from the District Court of McCurtain county sentencing Ollie Wright, the defendant in that court and appellant here, to two years in the penitentiary for the larceny of a cow.

The evidence justifies the verdict, but the appellant insists that the court committed certain errors.

(1) 1. He complains first because the court overruled his application for a change of venue, and seems to insist that, when he filed the statutory application, the constitution made it mandatory that the court grant the change. This, however, is not the law. The constitution provides:

“That the venue may be changed to some other county of the state, on the application of the accused, in such manner as may be prescribed by law.” Const, art. 2, sec. 20.

And section 5810, Revised Laws 1910, prescribes' the procedure for a change of venue, and, among other things, provides that, after the necessary steps to obtain a change of venue have been taken by the defendant, the county attorney may file counter affidavits and examine “'the witnesses in support of said application in open court in regard to the truth of said application; and if it be made to appear by the affidavits and examination of wit-, nesses that a fair and impartial trial cannot be had in the county, a change shall be granted and the order made by the court.” This contemplates the exercise of a judicial discretion on the part of the trial court, and if upon the examination of the affidavits and counter affidavits, and the examination of the witnesses in support of the application in open court, the court is convinced that a fair and impartial trial cannot be had in the county, then, and under those conditions, it is mandatory that he grant a change of venue, but not otherwise. He sits in judgment on that question just as any other question of fact that might be submitted to him, and unless it is clear that he has abused his discretion', or committed error in his judgment, his finding and judgment will not be disturbed by this court. Gentry v. State, 11th Okla. Cr. 355, 146 Pac. 719; Sayers v. State, 10th Okla. Cr. 233, 135 Pac. 1073; Watson v. State, 9th Okla. Cr. 1, 130 Pac. 816; Edwards v. State, 9th Okla. Cr. 306, 131 Pac. 956, 44 L. R. A. (N. S.) 701.0

We have carefully examined the record in this case, and think the counter showing and the examination of the witnesses in support of the application in open court justified the court in denying the application for a change of venue.

(2) 2. The appellant next complains because the court permitted the jury to separate during the progress of the trial. It appears that a member of one- of the juror’s family died during this trial, and the court permitted him to attend the funeral, and, after proper admonition, also permitted the other jurors, who desired to do so, to return to their homes until the dead could be buried and the trial resumed. The defendant made no objection to this, and reserved no exceptions whatever to this action of the court, and has not indicated to us in what particular he was prejudiced by this action. If he was unwilling that this should be done, diligence required him to make his objection to the trial court, and, having failed to object there, he cannot be heard to object here.

(3) 3. One Harve Brown, in support of the motion for a new trial, made an affidavit that he heard two of the jurors discuss the case before it was finally submitted to the jury, and that they agreed that if J. E. Martin, a co-defendant who had been tried and convicted, was guilty, Wright was also, and should receive the same penalty that the jury assessed in Martin’s case. These jurors positively denied ever having had such a conversation; and the affiant upon an examination in open court repudiated his affidavit, stating that he was hard of hearing and could not be positive as to what was said, or whether these jurors talked about the Ollie Wright case at all or not. Under this state of the record, counsel surely cannot be serious in their contention that this case should be reversed upon the strength of this repudiated affidavit.

(4) 4. The fourth and fifth assignments of error complain of a certain instruction given by the.trial court, and the refusal of the court to give certain requested instructions. We need only say all the requested instructions which correctly stated the law applicable to the facts in this case were fully covered by the instructions given by the court; and in the instruction given by the court, which is complained of, the court only told the jury,-in substance, that if they believed from the evidence in the case beyond a reasonable doubt that the defendant did steal, take, and carry awa)^ by stealth the cow in question, without the knowledge and consent of the owner, and with the felonious intent to deprive the owner thereof, and to convert the same to the use and benefit of himself, it would be their duty to find the defendant guilty. This is the first time we have known the correctness of this principle of law to be questioned; and counsel have given no reason why this time-honored principle should be changed, or why their client should be made an exception to the rule.

The judgment is affirmed.

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


author: ARMSTRONG, J.

text:
    MALVIN JACKSON v. STATE.
    No. A-2512.
    Opinion Filed July 1, 1916.
    (158 Pac. 292.)
    EVIDENCE — Weight and Sufficiency. A judgment of conviction cannot be had upon testimony introduced for the state when that testimony eom.es wholly from two witnesses of equal credibility, one testifying to the guilt, and the other testifying to the innocence of the accused.

      Appeal from County Court, Pontotoc County; Hon. I. M. King, County Judge.

    Malvin Jackson was convicted of violating the prohibitory law and appeals.
    Reversed.

      C. C. Williams, for plaintiff in error.

      R. McMillan, Asst. Atty. Gen., for defendant in error.
   ARMSTRONG, J.

Plaintiff in error was convicted at the March, 1915, term of the County Court of Pontotoc county on a charge of selling intoxicating liquors, and his punishment fixed at a fine of fifty dollars ($50.00), and imprisonment in the county jail for a period of thirty days.

The evidence introduced on behalf of the state was from two witnesses. The first witness testified that he went with the other to the defendant Jackson’s home for the purpose of purchasing whiskey, but instead they asked for a guitar; that he furnished the money to buy the whiskey and saw Jackson and his man, to whom he had furnished the money, go away together; that when they returned his associate and friend had a quart of whiskey, but he did not know whether the whiskey was bought from Jackson or some one else. The associate of this first witness was placed on the stand by the state, and he testified that the first witness had given him no money, that they did not go to Jackson’s for whiskey, but went for the guitar; that they got no whiskey from Jackson, or any one else. In fact, he contradicted the first witness in toto. At the close of this testimony which was all of the testimony’ offered by the state, counsel for the plaintiff in error asked that a demurrer be sustained to the evidence and that the jury be advised to return a verdict of not guilty. This was denied by the court, and the question reserved for review by this court.

We do not find it necessary to discuss any other question briefed or argued. The state cannot put on the witness stand two witnesses of equal credibility, one of whom barely makes a cas.e, and another which exonerates the accused, and contend for a conviction. In this case there is no contention that the state was surprised by the testimony of either of these witnesses, and no effort made to explain the matter, other than an effort made on behalf of the state to show that the second witness for the state had been arrested on a charge of selling whiskey, which was not admissible. The first witness for the state admits that he was a violator of the prohibitory law.

It is the duty of the state to establish beyond a reasonable doubt that the person on trial is guilty and that, too, by proper and credible testimony. The state cannot put on two witnesses and prove by one of them that there is a probability of defendant’s guilt, and another that he is innocent absolutely, and expect this court to uphold the judgment. One charged with crime is entitled to a fair and impartial trial and to be convicted according to the forms of law, and it is the duty of the trial court to see that this is done.

We are of the opinion that the evidence is insufficient to support the verdict and judgment.

The judgment is therefore reversed.

DOYLE, P. J., concurs.


author: DOYLE, P. J.

text:
    LEM RATCLIFF v. STATE.
    No. A-2201.
    Opinion Filed June 15, 1916.
    (158 Pac. 293.)
    1. OBSTBuCTING- JUSTICE,— Indictment — -Sufficiency. An information alleging that the defendant did take property levied upon by a deputy sheriff by virtue of an execution, and in the possession of the agent of said deputy sheriff, “with the wilful intention of obstructing” said deputy sheriff “in the discharge of the duties of his office, ’ ’ is not sufficient to charge a violation of section 2252, Rev. Laws, making it a misdemeanor for one to wilfully delay or obstruct any public officer in the discharge or attempt to discharge any duty of his office. To be sufficient it must be alleged that the defendant knew at the time of the alleged aet of obstruction that such property had been levied upon under the execution.
    2. OBSTRUCTING JUSTICE — Elements of Offense — “Obstruct.” To “obstruct” a public officer means to oppose that officer. It does not mean to oppose or impede the process with which the officer is armed, or to defeat its execution, but that the officer himself shall be obstructed.
    3. OBSTRUCTING JUSTICE — Elements of Offense — Taking Property Levied On. Where the evidence merely shows that a deputy sheriff levied on a certain cow and placed it in charge of an agent and a stranger to the writ claiming to own said cow finds the cow running at large upon the highway and takes possession of said cow, such taking did not constitute the offense of obstructing a public officer in the discharge of the duties of his office.

      Appeal from County Court, Alfalfa County; F. M. Gustin, Judge.

    Lem Ratcliff, was convicted of obstructing an officer and: appeals.
    Reversed.

      Titus & Talbot, for plaintiff in error.

      Chas. West, Atty. Gen., and C. J. Davenport, Asst. Atty. Gen., for the State.
   DOYLE, P. J.

The plaintiff in error, Lem Ratcliff, herein referred to as the defendant, was jointly charged with J. C. Fisher, W. H. Kephart and Charles Woolery, Jr., with the offense of obstructing an officer under the statute providing that, “Any person who wilfully delays or obstructs any public officer in the discharge or attempt to discharge any duty of his office, is guilty of a misdemeanor” (Section 2252 Rev. Laws), The case was dismissed as to the other defendants and upon his trial the defendant was convicted and was sentenced to pay a fine of thirty-five dollars. The appeal is from the judgment rendered upon the verdict.

The evidence establishes or tends to .establish the following; facts: On October 13, 1913, in the justice court before E. D. Ford, justice of the peace for the incorporated town of Aline, Alfalfa county, L- H. Stephens recovered a judgment against W. H. Kephart, in the sum of $77.18, with interest and costs. On November 3, 1913, an abstract of the judgment was filed in the office of the clerk of the District Court of Alfalfa county. On November 13, 1913, the clerk of the District Court issued an execution on said judgment.

John E. Sprague, a deputy sheriff received the execution from L. H. Stephens, and with it a description of three cows supposed to be the property of W. H. Kephart. The deputy sheriff went to the Ratcliff farm about four miles east of Aline and by virtue of said execution levied upon two cows.

Deputy Sheriff Sprague testified that he found these cows, among other cows that he thought belonged to the defendant Ratcliff, and that he had no information or knowledge concerning the ownership of the cows levied upon, or whether they actually belonged to W. H. Kephart, the execution defendant; that immediately after taking possession of said cows he placed them in the •possession of one D. C. Andrews, a few days later Andrews’ cows broke out of his pasture and with one of the cows taken by the deputy sheriff under the execution were straying along the public "highway when the defendant Ratcliff driving along with a load of wood recognized this cow as one belonging to his wife and took ■possession of her and after dehorning her placed her in charge of 'Charles Woolery, Jr., in Woods’county. The next day the sheriff took said cow away from said Woolery.

The defendant offered to prove as a part of the cross ■examination of the witness John E. Sprague that Mrs. Lillian Ratcliff, wife of the defendant demanded possession of said cows immediately after said levy and that said demand was refused; that said deputy sheriff had knowledge of Mrs. Ratcliff’s ownership of said cows prior to the time he took them under the execution ; that prior to the time that said deputy sheriff took said cows •under said execution that he had knowledge that J. S. Fisher had •a mortgage covering said cows and that he so claimed them under said mortgage. To this offer of proof the state objected and the ■court sustained the objection.

Several witnesses for the state testified that they saw the •defendant driving a wagon loaded with poles and when passing seven or eight cows running at large on the highway he stopped and hitched his team and drove away a red cow; that the other ■cows there belonged to Mr. Andrews. The execution was also introduced in evidence. The state rested and the defendant demurred to the evidence “on the ground that the same is insufficient to prove the commission of any offense by the said defendant ■against the laws of the state of Oklahoma,” and for which reason the defendant moved the court to direct the jury to return a verdict of not guilty, which demurrer and motion were overruled •and exceptions allowed.' Thereupon counsel for the defendant ■commenced to state what he expected the evidence for the defendant would show. After numerous objections by the county attorney, all of which were sustained by the court, the jury was excused from the court room. Thereupon counsel for the defendant made-his statement and offered to prove by the defendant himself and five other witnesses, including his wife, that the twc cows levied upon by the deputy sheriff, Sprague, were not the property of W. H. Kephart and were the property of Mrs. Lillian Ratcliff, and that the cow in question was raised by Mrs. Ratcliff and was her property and in her possession at the time the levy was made; that at said time the sheriff of Alfalfa county and his deputy,. Sprague, had actual knowledge of such ownership. The state objected for the reason that the defense of ownership was not sufficient to justify the acts of the defendant. The court sustained the objection and allowed an exception. The defendant introduced no evidence.

In view of the disposition which we deem it necessary to make of this appeal, we shall consider only two of the twenty-two errors assigned and argued in the brief.

The first error assigned is that the court erred in overruling the demurrer to the information.

After alleging venue, time, issuance of the execution and the levy upon one certain cow, the personal property of W. H. Kep-hart by John E. Sprague a deputy sheriff of Alfalfa county, and alleging that he placed her in charge of one D. C. Andrews for safe keeping, and that while said cow was still in charge of said. Andrews, it is alleged that the defendant took said cow “with the wilful intention of obstructing the said John E. Sprague, deputy sheriff of Alfalfa county, Oklahoma, in the discharge of the duties, of his office, contrary to,” etc.

It is the contention of counsel for the defendant that there-is no sufficient allegation that the defendant at the time of the alleged obstruction knew that an execution had been levied on the cow in question, and that in order to -properly charge an offense under the statute it must be alleged that the defendant used forcible or quasi forcible means to secure possession of the cow 'in question. «•

We think the defendant’s contention is well taken. To constitute an offense under the statute it must be shown that the defendant knew at the time he is charged with obstructing such officer by taking the property in question that the property Trad been taken by virtue of such execution.

To wilfully do an act implies that it be done by design or with set purpose. One might purposely do an act which would have the •effect of obstructing an officer in the performance of his duties, in entire ignorance of the capacity in which such officer was acting.

In the case of Davis v. The State, 76 Ga. 721, the Supreme ’Court of Georgia held:

“In the statute making it criminal to knowingly and wilfully •obstruct, resist or oppose any sheriff, coroner or other officer of .this state, or other person duly authorized, in serving or attempting to serve or execute any lawful process, the word ‘obstruct’ must be construed with reference to the other words, ‘resist or oppose,’ which imply force. The crime consists in obstructing, resisting or opposing an officer, not merely in impeding or defeating the execution of the process with which the officer is armed. Therefore, where a sheriff levied on certain oxen, and left them in a field under the,care of an agent, and the person claiming to own them, together with another, privately took and carried them to an adjoining county in the absence of the sheriff, this did not constitute the crime of obstructing an officer in the execution of legal process.”

We are of opinion that the demurrer to the information should have been sustained, and that the verdict was not sustained by sufficient evidence. A careful examination of the whole case,, impresses us very strongly with the belief that the controversy involved in this case is one which ought to have been determined by an appropriate civil action, and not by a resort to a criminal prosecution. The judgment of conviction is reversed and the case remandecf with direction to sustain the demurrer to the information.

ARMSTRONG and BRETT, JJ, concur.


text:
    JOHN BELL v. STATE.
    (148 Pac. 402.)
    No. A-2113.
    Opinion Filed July 1, 1916.
    FORGERY — Elements of Offense — Apparent Validity of Instrument— Evidence. Upon a trial of a person charged with forgery of a deed, it is necessary for the state to establish beyond a reason able doubt that the forged instrument, upon its face, complies with all the requirements of the law to constitute a document a deed. In legal contemplation, and as a general rule, a deed is not a deed until executed and delivered to some person capable in law of accepting the same. In the ease at bar the facts are examined and are held to be insufficient to establish the crime'of forgery.

      Appeal from District Court, Nowata County; Hon. T. L. Brown, Judge.

    John Bell was convicted of forgery, and appeals.
    Reversed.

      W. V. Thraves, for plaintiff in error.

      C. J. Davenport, Asst. Atty. Gen., for defendant in error.
   ARMSTRONG, J.

The plaintiff in error, John Bell, wa£ convicted at the April, 1913, term of the District Court of Nowata county on a charge of forgery, and his punishment fixed at confinement in the state penitentiary for a term of ten years.

The indictment charges that John Bell and Robert Adair forged the name of Isaac Adair to a warranty deed in Nowata county on the 10th day of September, 1912.

The section of the statute under which this prosecution is brought is 2621 Revised Laws 1910, and is as follows:

“Any person who, with intent to defraud, forges, counterfeits or falsely, alters:
First. Any will or codicil of real or personal property, or any deed or other instrument being or purporting to be the act of another, by which any right or interest in real property is, or purports to be, transferred, conveyed or in any way changed or affected; or,
Second. ' A,ny certificate or indorsement of the acknowledgment by any person of any deed or other instrument which by law may be recorded or given in evidence, made or purporting to have been made by any officer duly authorized to make such certificate or indorsement; or,
Third. Any certificate of the proof of any deed, will, codicil or other instrument which by law may be recorded or given in evidence made or purporting to have been made by any court or officer duly authorized to make such certificate—
Is guilty of forgery in the first degree.”

The deed in question was never acknowledged nor delivered, nor was there any attempt to deliver it. Before acknowledgment, or attempted delivery, the deed was destroyed by the plaintiff in error, Bell, and thrown away. The scraps of paper, being small particles, were later gathered up by an enemy of the plaintiff in error, pasted together, and presented to the county attorney?, and thereafter used as the basis of this prosecution. The most serious question presented by the record is whether or not the crime of forgery was committed. If the instrument in question was a deed in law then the crime of forgery was -committed, otherwise not.

As a general rule a deed is not a deed, in legal contemplation, until properly executed and delivered to some person capable in law of accepting the same. Supporting this proposition see the following authorities:

Williams v. Armstrong, 130 Ala. 389, 30 So. 553;

Frisbie v. McCarty, 1 Stew. & P. 57 (Ala.) ;

Lewis v. Barnes, 122 Cal. 358, 55 Pac. 132;

Fitch v. Bunch, 30 Cal. 209;

Rittmaster v. Brisbane, 19 Colo. 371, 35 Pac. 736;

Doed, Guest, et al. v. Beeson, 2 Houst. (Del.),.246;

Pennel v. Weyant, 2 Harr. (Del.), 501;

Chambers v. Wesley, 113 Ga. 343, 38 S. E. 848;

Stallings v. Newton, 110 Ga. 875, 36 S. E. 227;

Maddox v. Gray, 75 Ga. 452;

Black v. Thornton, 31 Ga. 641;

Oliver v. Stone, 24 Ga. 63;

Hollenbeck v. Hollenbeck, 185 Ill. 101, 57 N. E. 36;

Nay v. Mograin, 24 Kans. 75.

The evidence presented does not show that plaintiff in error intended to or attempted to use the instrument alleged in the information to be a forged deed for the purpose of defrauding. In fact, the document was destroyed by him, and so placed beyond the possibility of use by any one. Besides, there is no proof to show that those elements necessary to make the instrument a deed existed, to-wit: delivery and acceptance. Instead of attempting the delivery the plaintiff in error destroyed the same of his own accord. There may have been an attempt to commit a crime, but the proof is lacking to establish the commission thereof.

In Couch v. Addy, et al., 35 Okla. 355, the Supreme Court of this state says:

“A deed is 'defined to be a written instrument containing a contract, or agreement, which has been delivered by the party to be bound and accepted by the obligee, or covenantee.”

In the body of the same opinion the following language is used:

“It is well settled that to constitute a valid deed, not only must there have been an intention on the part of the grantors to deliver, but the- grantee must accept the same in person, or by some one whom he has authorized to accept for him, or whose conduct he subsequently ratifies.”

Under the definition by the Supreme Court as to what constitutes a deed, and with which we agree, it is our opinion that the plaintiff in error did not commit a crime, and that the verdict of conviction, and the judgment rendered thereupon is wholly without authority in law.

The judgment is reversed and the cause remanded.

DOYLE, P. J., concurs.

FURMAN, J., absent.


text:
    ROGERS v. STATE
    Opinion Filed July 8, 1916!
    (158 Pac. 637.)
    HOMICIDE — Justification—Self-Defense. The law places too high an estimate upon human life to justify it being snuffed out by a mere whim of either cowardice or anger. And where there is nothing in the facts to justify the accused in believing, at the time of the homicide, that he was in danger of great bodily harm or his life was in imminent peril, the plea of self-defense is of no avail.

      Error from District Court, Kay County; Wm. M. Bowles, Judge.

      \Frank B. Rogers was convicted of manslaughter in the first degree, and brings error.
    Affirmed.

      W. P. Hackney, of Winfield, Kan., and Sam K. Sullivan, of Newkirk, and /. T. Lafferty, of Kansas City, Mo., for plaintiff in error.

      Charles West, Attorney General; Smith C.. Matson, Assistant Attorney General; John Emery, of Oklahoma City; C. L. Pink-ham, of Newkirk, and J. S. Burger, County Attorney of Blackwell, for the State.
   BRETT, J.

The plaintiff in error in this case, who will be referred to as defendant, was convicted in the district court of Kay county of manslaughter in the first degree, and sentenced to four years in the penitentiary. The defendant, on February 28, 1910, shot one Ed Conrad, inflicting two wounds from which Conrad died on March 2, 1910. Defendant, Rogers, was subsequently tried and convicted, and appealed to this court; that judgment was reversed and the cause remanded for a new trial. Frank B. Rogers v. State, 8 Okla. Cr. 226, 127 Pac. 365. A new trial was had which resulted again in conviction, and from that judgment the defendant again appeals to this court.

There were errors of law committed in the first trial, which necessitated a reversal; but in the second trial these errors do not recur. There are also material differences between the record now before this court, and the record in the former trial.

The defendant filed a brief in this case of 358 pages, but we find it is of practically no assistance to the court, as it sheds but little, if any, light upon the question as to whether or not the defendant had a fair and legal trial. And in view of this situation, out of an abundance of caution, we have carefully read the voluminous record in this case twice, to satisfy ourselves upon this question. In reference, however, to the brief of the defendant, we perhaps should say it is by no means stale, "but on the contrary is a remarkable display of pyrotechnics, and is extremely interesting when viewed from that standpoint. In criticizing county attorneys in general, for urging upon juries that “they owe a duty to the people that can only be honestly discharged by them in the conviction of the defendant,” etc., the brief says:

“No more cowardly, vicious, contemptible, and damnable perversion of justice can be perpetrated than by means thus employed; and, unless such practices are stayed by the stern and inflexible interference of courts of appeals, the doctrine of self-defense will be one of the lost rights of humanity, and in time the sturdy, self-reliant and courageous manhood that characterizes the robust and splendid heroes of today will be supplanted by ewe-necked, hollow-chested, Sarah Bernhardt-hipped, spindle-shanked, low-browed, hungry-visaged, measly cadavers, whose progeny will be fit subjects for the experimental, wild-eyed advocates of modern eugenics to practice upon; and the end is not yet.”

No one has a greater personal antipathy for the practical workings of the theories of the “wild-eyed advocates of modern eugenics” than the writer of this opinion. But that question, like many others discussed in the defendant’s brief, is not involved in this case. The one question in which we are interested, and by which the right of the defeadant to a new trial must be tested, is whether or not in the lower court he had a fair and legal trial.

The deceased was a township official. The defendant, as foreman of a cattle ranch, had fenced up certain public highways. He had been ordered by the township officials to make gates, so that the traveling public would not be deprived of the use of these highways. He failed or neglected to do this. And, under the direction of deceased, the road overseer cut the fences obstructing a highway leading through the defendant’s inclosure. As a result of this, bad blood was engendered; deceased constantly insisting that the order directing that gates be placed across the highways be obeyed, and the defendant, in apparent defiance of the order, replaced the fences v/hen cut. There is evidence that deceased threatened the defendant’s life, and that these threats were communicated to the defendant; and the defendant thereupon armed himself with a revolver. On the day of the tragedy the two men met upon a public highway, each .on horseback, going in opposite directions. As they were about to pass each other, deceased reined his horse in close to the defendant, and struck him a blow with his fist upon his head or neck. The state’s evidence is that both horses then sprang forward, and the two men were thus separated by some 25 or 30 feet. That defendant turned his horse and began shooting; that after the shooting began the deceased turned his horse, quartering toward the defendant. Four shots were fired, two taking effect; one shot seems to have entered the boy of the'deceased about an inch and one-half to the right of the spine, and the other about the ,center of the left groin. The deceased was unarmed. There was evidence offered by defendant to the effect that, after the deceased struck the blow, he wheeled his horse around, and was coming toward the defendant at the time he began shooting. But the physical facts, and the location of the deceased’s wounds, seem to bear out the state’s theory that the first shot to take effect was fired while the back of the deceased was turned toward the defendant; and that he had turned, quartering toward defendant when the second shot that took effect was fired. Besides, the deceased was wholly unarmed, and this fact was clearly apparent to the defendant. It is true that a friend and witness. for 'the defendant testified that he visited deceased while he languished in the hospital, and discovered a pair of brass knucks in his right-hand coat pocket. And it is also true that those knucks were taken from this pocket of deceased, after his death, by the undertaker. But it was satisfactorily proven that the pockets of deceased had been examined shortly after the shooting, and immediately before he was placed upon the train which took him to the hospital, and no brass knucks were in his pockets at that time. And we presume the jury had no trouble in determining to their satisfaction when, and by whom, these knucks were placed in that pocket. But aside from this no one claims to have seen any knucks during the difficulty; and, while the shooting was going on, the deceased asked defendant to get down off his horse, which should have further assured defendant that he was unarmed and had only anticipated a fist fight, which defendant, with his revolver in hand, could have avoided without even firing a shot.

Do these facts indicate that the defendant was clothed with a right of self-defense? What imminent and immediate danger was he in? And how could he have believed he was in danger of great bodily harm, or his life was in imminent' peril, when he, armed with a revolver, saw his adversary 25 or 30 feet away on horseback, unarmed, and inviting him to get down off of his horse, which was tantamount to insisting that they settle their difference by a fist fight? The law places too high an estimate upon human life to justify it being snuffed out by a mere whim of either cowardice or anger. And whether this shooting was done because the defendant, as intimated by his counsel, “was frightened,” or whether it was because he was smarting under anger aroused by the blow he had just received from the fist .of the deceased, is immaterial; since there was nothing in the circumstances and surroundings to justify his fear, and since homicide perpetrated in a heat of passion, by means of a dangerous weapon, is manslaughter in the first degree.

The instructions given by the court were fair, and fully covered every phase of the case; and there was no prejudical error committed in the trial of the case.

The judgment is affirmed.

DOYBE, P. J., and ARMSTRONG, J., concur.


text:
    NORRIS v. STATE.
    No. A-2651.
    Opinion Filed July 8, 1916.
    (158 Pac. 639.)
    TESTIMONY OF ACCOMPLICE — Necessity of Corroboration. A conviction upon the uncorroborated testimony of an accomplice is prohibited by our statute.

      Appeal from District Court, Atoka County; J. H. Linebaugk, Judge.

    C. H. Norris was convicted of larceny, and appeals.
    Reversed.

      J. C. Ralls and Jones & McCasland, all of Atoka, for plaintiff in error.

      R. McMillan, Asst. Atty. Gen., for the State.
   ARMSTRONG, J.

C. H. Norris, the plaintiff in error, was convicted at the October, 1915, term of the district court of Atoka county on a charge of larceny, and his punishment fixed at imprisonment in the state penitentiary for a period of two years.

This cause was argued by counsel for plaintiff in error, and submitted on a confession in error by the Assistant Attorney General. It was the contention of the counsel for the plaintiff in error that the evidence was not sufficient to warrant a conviction. The. Assistant Attorney General concedes the correctness of this position,' and files a written confession in error on behalf of the state. An examination of the record discloses no sufficient testimony to support the verdict. The incriminating facts were testified to by an admitted accomplice, and there was no proof supporting these facts from other sources. The law prohibits a conviction of this kind. The confession in error is therefor sustained, and the judgment reversed.

Mandate ordered forthwith.

DOYRE, P. J-, and BRETT, J., concur.


text:
    TOM CARSON v. STATE.
    No. A-2621.
    Opinion Filed July 18, 1916.
    (158 Pac. 639.)
    ABATEMENT — Grounds—Death of Party. In a criminal prosecution the. purpose of the proceeding being to punish the accused, the action must necessarily’ abate upon his death, and where it is made to appear that plaintiff in error has died, pending the determination of his appeal, the cause will be abated.

      Appeal from the County Court of Nowata County; F. A. Calvert, Judge

    Tom Carson, convicted of a misdemeanor, appeals.

      Glass & Weaver, for plaintiff in error.

      R. McMillan, Asst. Atty. Gen., for the State.
   DOYLE, P. J.

Plaintiff in error, Tom Carson, was convicted in the county court of Nowata county of a misdemeanor. From the judgment rendered on the verdict of the jury am appeal was perfected by filing in this court on January 3, 1916, a petition in error with case-made.

Since the appeal was taken, and before the final submission of the cause, to-wit, May 31, 1916, he departed'this life as shown by the affidavits of C. W. Mason, County Attorney of Nowata county, and Dr. G. A. Waters, who depose and say that plaintiff in error, Tom Carson, died at Lenapah, in said county, as the result of a gunshot wound. These affidavits are attached to and made a part of the suggestion of the death of the plaintiff in error by the Attorney General and filed in this court on this 18th day of July, 1915.

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

ARMSTRONG and BRETT, J. J., concur.


author: COLLIER, Special Judge.

text:
    MADDOX v. State.
    No. A-2193.
    Opinion Filed July 18, 1916.
    (158 Pac. 883.)
    1. CHANGE OF VENUE — Presumption and Burden of Proof. The presumption of law is that a defendant can have a fair trial in the county in which the crime is committed, and to establish his right to a change of venue the burden is upon the defendant to overcome such presumption.
    '2. WRIT OF ERROR — Review—Discretion of Trial Court — Change of Venue. The grant of a change of venue in a criminal ease is made by statute discretionary with the trial court, and this court will not reverse the ruling of the trial court denying a change of venue, unless it is made to clearly appear that there has been such an abuse of discretion as to amount practically to a denial of justice.

      ■3. JURY —■ Drawing — Service — Statutory Provision. A substantial compliance with the forms provided for by law for drawing and serving jurors is sufficient.
    4. JURY — Challenges—Ground. A challenge to the panel of jurors can be founded only on a material departure from the forms of law providing for drawing and summoning jurors, or the intentional omission of the sheriff to summon one or' more of the jurors drawn; and to entitle a defendant to successfully challenge a panel of jurors, the burden is upon the defendant to show that the illegality or wrong which is the basis of such challenge is such as .to have caused the defendant to suffer material prejudice.
    •'5. WRIT OF ERROR — Presenting Questions in Trial Court — Exceptions. ' Where, in a criminal case, the instructions given the jury by the court are not properly excepted to, such instruction, even though erroneous, will not be considered, except as to fundamental errors embraced therein.
    '6. • TRIAL — Instructions—Requests. The refusal of requested instructions, which are practically covered by the instructions given by the court, to the jury are piroperly refused, and requested instructions refused and not properly excepted to will not be reviewed.
    7. JURY — Change of Venue — Selection of Jurors. Refusal of the court to grant a change of venue, and the overruling of the challenge to the array of jurors, carefully examined, and held to be free from error.

      8. HOMICIDE — Evidence—Weight and Sufficiency. Evidence in a homicide case considered, and held sufficient to sustain a conviction of manslaughter in the first degree.
    9. WRIT OP ERROR — Disposition of Cause — Reduction of Sentence. -\Vhen the record discloses that substantial justice requires it, this court may modify the judgment rendered by reducing the-sentence imposed.

      Error from District Court, Washita County; G. A. Brown, Judge.

    C. W. Maddox was convicted of manslaughter in the first degree, and brings error.
    Modified and affirmed.

      Burnette, Austin & Holden and Brett & Billups, all of Cor< dell, and Bond & Melton, of Chickasha, for plaintiff in error.

      A. R. Ash, of Cordell, and Chas. West and C. J. Daz’enport^ both of Oklahoma City, for the State.
   COLLIER, Special Judge.

The plaintiff in error, hereafter styled defendant, was charged upon fnformation with the murder of H. Tempt Elam, on the 22d day of August, 1913. Upon his trial he was found guilty of manslaughter in the first degree, and his punishment fixed at imprisonment in the penitentiary for 40-years at hard labor. A motion for new trial was duly filed, which was overruled, and on the 24'th day of October, 1914, judgment was rendered in pursuance of the verdict. To reverse the said judgment, this appeal was taken by filing in this court on February 20, 1914, a petition in error with case-made.

The defendant was duly arraigned and entered a plea of not. guilty, and thereupon made a motion for a change of venue upon the ground that he had been informed against in numerous cases, in the county of Washita; that numerous parties were interested in the pi osecution and, as complaining witnesses in said cause, that they persistently sought to arouse prejudice against the defendant and had succeeded in doing so to such an extent that the defendant cannot have a fair and impartial trial in Washita county; that it had been sought to convict him in this and other charges for the purpose of gratifying the ill will of the prosecutors, and that great publicity had been given all of the accusations against the defendant, by publications in the newspapers of wide circulation in the county, and that by wide publicity and biased statements in said newspaper, and that by the bias and prejudice thereby ■engendered and general ill-feeling against the defendant, the defendant cannot have a fair and impartial trial in Washita county. To said motion a copy of the respective issues of. August 23, September 4, and September 11, and September 26, 1913, of the Cordell Beacon was attached to and made a part ■of the said petition. Said motion was duly sworn to by the defendant.

In support of the motion for change of venue, the affidavits ■of C. P. Beckwith, John H. Bennett, and C. L. Ferguson were attached in each of which affidavits it was averred that the defendant could not have a fair and impartial trial in Washita ■county on account of bias and prejudice existing against him, and that the facts stated in said petition were true. Thereafter the state filed counter affidavits of A. R. Sayre, Doc «Hutchinson, •and W. T. Hamic, residents of said county, in each of which ■said affidavits it was averred that affiants , believe that said defendant can obtain a fair and impartial trial in Washita county,. ■and that a fair and impartial jury can be obtained to try the ■defendant in said county.

Upon the hearing of the petition for change of venue, the defendant did not offer as witnesses J. H. Bennett, C. L. Ferguson, and C. P. Beckwith, who signed the supporting affidavits ^attached to the motion for a change of venue, but the defendant Introduced as witnesses In ' his behalf on said hearing a Mr. Burks, J. J. Jackson, Walter Askew, J. S. Hatchett, John Lam- . bert, Quincy Bates, Mr. Montgomery, Mr. Glasscock, Mr. Ash- j worth, and Mr. Mitchell, which said witnesses resided in different parts of Washita county and who testified as to the material 'questions involved, as follows :

Mr. Burks, Mr. Jackson, Mr. Askew, Mr. Glasscock, and Mr.' Mitchell, each testified that he could not say that the defendant could not get a fair trial in Washita county. Mr. Hatchett and Mr. Lambert each testified that he thought the defendant could have a fair and impartial trial before the jurors of Washita county. Mr. Askew testified that it looked to him that defendant would get a fair trial in Washita county. Mr. Montgomery did not testify as to whether or not the defendant could have a fair and impartial trial in Washita county; that he did not know what the sentiment was. Mr. Bates testified that he was a brother-in-law of Roy Maddoy, who is a brother to Charley Maddox, and he would not say from what he knew of the sentiment in the community that a man could not get a jury for any case, so far as that is concerned, if he goes out over the whole county; that it is too much for him; that he supposed there are men in the community that had read the Cordell Beacon, and talked over the ’phone-to him and would be safe men; that there are some men that have it in for Charley Maddox, and there are some men that don’t know it and don’t say much about it. John Ashworth testified that as far as he knew it looked like the defendant ought to get a fair and impartial trial in Washita county.

The state introduced as witnesses on said hearing J. H. Bennett, C. L. Ferguson, C. P. Beckwith, W. H. Griffin, J. W. Blanton, H. G. Walterstedt, L. L. Reeves, Stewart Humbarger, H. K. Thomas, W. D. Killon, J. G. Cone, Charles Hoober, Perry Harrison, A. Sponholtz, and John Hailey, which said witnesses resided in different parts of Washita county and each of whom, except J. H. Bennett, and L. L. Reeves, testified that in his opinion the defendant could secure a fair and impartial trial in Washita county. Mr. Reeves testified that there was no bias or prejudice in his community against the defendant, and that there was sympathy and friendship for defendant’s father. Mr. Bennett, the father-in-law of defendant, testified that he did not believe that defendant could have a fair and impartial trial in Washita county.

The foregoing béing all the evidence offered for and against the motion for a change of venue, the court overruled the motion, to which the defendant duly excepted. Whereupon the defendant filed his duly verified, original, and amended challenge to the-array of the jurors to serve in said court during the year 1913-upon the following grounds: That the names of the persons selected by the jury commission of Washita county for the year 1913, were selected and drawn from the poll lists as returned from the election of officers and not from the tax roll as required by law; that the proceedings of said jury commission at their meeting in January, 1913, was not made a part of the records of this court and certified to by said jury commission as prescribed by law; the unlawful and unauthorized acts of the clerk of this court in opening the box containing the list of the jurors and not recording the names of those in the jury box at the time said box was opened; that the clerk of this court drew the names of .the j-urors to serve in this term of court without having said sheriff or one of his deputies present and certifying to said proceedings according to law; that the clerk of this court delegated authority to summons jurors to the sheriff of this court without authority of law; that there was no meeting of the jury commission in the-month of July, 1913, as prescribed by law, at which a list of jurors was prepared for the October, 1913, term of said court; that by reason of the facts herein stated the defendant has suffered material prejudice, and that the list returned as aforesaid consists of a large number of prejudiced jurors on said list and are drawn from districts where there is great animosity to this'defendant, said prejudice and bias arising from an organized effort to convict this defendant without regard to his, legal rights.

To the said challenge of the array of jurors, the county attorney filed his duly verified answer, denying each of the allegations contained in said challenge save and except that there was no meeting of the jury commissioners of Washita county in the month of July, 1913, and alleged the facts to be that the said jury commission was not called to'meet and did not meet at said time for the reason that no necessity existed therefor. The defendant offered evidence upon the hearing of said challenge to the array of jurors, but the only evidence in support of any of the allegations as to the irregularity of the drawing and'serving of said jurors, or in connection therewith, is that the names'of a part of said jurors were taken from the election returns and not from the tax rolls. The only one of the jury commissioners examined as a witness testified that he took the names from the election returns; that he personally knew the persons whose names were selected, and that they were taxpayers; that, at the time of selecting said names of jurors, the jury commission had the tax rolls in the office with them and resorted to the election returns to locate the residence of the several persons selected; that the respective jury commissioners selected the names from their respective districts, and that he was unable to say whether or not the other jury commissioners selected the names selected by them from the tax rolls; that.the respective jury commissioners furnished the names from thfeir ' respective districts to make up the panel attached.

There was no evidence whatever that the names of the-persons to serve as jurors thus selected from the.poll books were, except in one instance, different from the names that would have been selected had the names been taken from the taxt books, and there is no evidence whatever that, in the drawing and the serving af said'jurors, or anything in connection therewith, the defendant suffered material prejudice. Brown Hatchett, one of the persons on the panel of jurors attacked, a witness for the defendant, testified that he was not on the tax roll in 1912, but had property rubject to taxation.

The court overruled the challenge to the array of jurors, to which the defendant duly excepted. On the examination of the defendant as a witness he was required to answer whether or not he, defendant, had ever been convicted of a felony, to which he duly excepted, and answered in the affirmative.

An abstract of the evidence heard on the trial of the cause is not set out in any one of the briefs of tire defendant, and in neither one of the briefs of defendant is it argued, or was it insisted in the oral argument of the case, that the evidence was not sufficient to sustain the conviction had in this case; therefore it is unnecessary to set out an abridgment of the voluminous evidence heard on the trial of the case.

On the hearing of the motion for a new trial, evidence was offered to show that an automobile with some persons in i't drove up in front of the courthouse while the jury were standing near the courthouse door; that it was dark and that the Jury did not recognize who the parties were that were in the automobile; that some one of the jurors asked who they were and the bailiff replied1 that they would find out later; that some of the jurors recognized' Dock Hutchinson and John Thompson, officers of the court; that it was never discussed by the jury as to who the parties were in the automobile; that the jury did not learn that Tom Athey and his wife were under arrest; that the jurors were taken to church-once; that while there they did not hear a word in reference to any prosecution or any remarks about the enforcement of the law- or anything like that; that they did not read the news while on the jury.

Upon the conclusion of the evidence, the court instructed the jury as *to the law in the cause, said instructions being numbered from 1 to 28 inclusive. And thereupon the defendant duly excepted in open court to each and all of said instructions; said! exceptions being takén as aforesaid in open court to each instruction separately from 1 to 28 inclusive, and exceptions duly allowed by the court. But there are no exceptions separately taken to¡ either one of said instructions as provided by law. The defendant requested instructions numbered respectively 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, and 11. The first eight requested instructions were, refused for the reason, assigned by the court, that they were substantially given in the court’s charge to the jury. The refusal to. give requested instructions 10 and 11 are not excepted to. Florence Athey into the presence of the jury while they were

Defendant predicates the reversal of this cause upon many assignments of errorj but for a proper review of this cause we deem it only necessary to review the following assignments: (1 ) That the court erred in overruling defendant’s application for a change of venue; (2) the court erred in overruling the defendant’s challenge to the array of jurors; (7) that the evidence is not sufficient to sustain the verdict of guilty of manslaughter in the first degree as found by the jury in said cause; (9) that the verdict in said cause was influenced by passion and prejudice' against the defendant; (10) misconduct on the part of the sheriff and bailiffs in charge of the jury in bringing Tom Athey and under arrest on a charge of conspiracy with defendant to murder the deceased, H. Tempt Elam, while the jury was considering the verdict in this cause, the said Tom Athey and Florence Athey having been witnesses in behalf of the defendant in the trial of this cause; (11) misconduct of the jury whereby the defendant was prejudiced in his rights; (13) the court erred in permitting the state, over the objection of the defendant, to ask defendant if he had ever been convicted of a felony and requiring the defendant to answer said question; (15) that the court erred in refusing defendant’s requested instructions Nos. 1 tto 11, inclusive; (16) that the court erred in giving instructions Nos. 11, 12, 13, 14, 16, 17, 18, 26, and 27, which were excepted to by the defendant; that the court erred in overruling defendant’s motion for .a new trial. These several assignments of error will be considered in their order.

(1, 2, 7). The gounds set up in the application for a change of venue were that prejudice in the minds of the inhabitants of Washita county, because of the frequent prosecutions instituted against the defendant, produced .prejudice against him, and that the newspaper that had a large circulation in the county had published prejudicial accounts of the tragedy and by reason of such publication the minds of the inhabitants of the county were prejudiced against the defendant. We have carefully considered the publications complained of which are attached to and made a part of the application for change of venue, and are unable to say that such publications were of such a nature as to inflame the minds of the inhabitants of the county against the defendant and to militate against the defendant having a fair and impartial trial in the county, especially in view of the fact that such publications were made more than a year prior to the time of the trial.

The evidence produced on the hearing of the motion (an abridgment of which is hereinbefore set out) fails to furnish for the defendant that measure of evidence, to entitle him to favorable action on his petition for change of venue, while, on the other hand, the evidence on the part of the state, and by a part of the evidence offered by defendant, shows conclusively that, under the well-settled rules of this court, the court did not err in denying the change of venue.

“The presumption of law is that a defendant can get a fair and impartial trial in the county in which the offense was committed, and, if this is not true, the burden is upon the defendant who seeks a change of venue to establish his right thereto.” Tegeler v. State, 9 Okla. Cr. 138, 130 Pac. 1164; Johnson v. State, 1 Okl. Cr. 322, 97 Pac. 1059, 18 Ann. Cas. 300; Turner v. State, 4 Okl. Cr. 164, 111 Pac. 988.

In the celebrated and well-considered case of Gentry v. State, 11 Okl. Cr. 355, 146 Pac. 719, Presiding Judge Doyle says:

“It has been the uniform holding of this court that the granting of a change of venue is a matter resting within the sound discretion of the trial court, and, unless it clearly appears that there is an abuse of such discretion, this court will not disturb the decision of the trial court in granting the change of venue” (citing many authorities in support thereof).

This holding of Judge Doyle is fully supported by the exhaustive opinion o'f Chief Justice Angellotti of the Supreme Court of California, in the case of People v. Kromphold, 157 Pac. 599, rendered May 1, 1916, which said opinion is amply fortified by authorities. Certainly it cannot be said that in the instant case the trial judge abused his discretion in refusing the change of venue.

(3, 4). The only serious question presented by the attack upon the array of the jurors is as to the manner of their selection by the jury commission. In part, the names of the jurors were taken from the election records instead of from the tax rolls. Section 5841 and 5842, R. L,. 1910, are as follows:

“Section 5841. A challenge to the panel is an objection made t'o all the trial jurors returned, and may be taken by either party. . t
“Section 5842. A challenge to the panel can be founded only on a material departure from the forms prescribed by law, ■in respect to the drawing.and return of the jury, dr on the intentional omission of the sheriff to summon one or more of the jurors drawn, from which the defendant has suffered material prejudice.”

.Section 3701, R. L. 1910, in part provides: A substantial compliance with the provisions of this chapter shall be sufficient to prevent the setting aside of any verdict rendered by a jury chosen hereunder, unless the irregularity in drawing, summoning, or impaneling the same resulted in depriving a party litigant of some substantial right.

There is no evidence in the record from which it can be said that the names of the jurors of the array differed from those who would have been upon the array had the names of the jurors been taken from the. tax books, except as to one juror, who was a tax payer, and whose name did not appear upon the tax list. There is no claim that the action of the jury commission was tainted with fraud or that said commissioners who drew the panel were in any way prejudiced against the defendant.

The pivotal consideration of section 5842, supra, is that the acts upon which the challenge of the array is based must be such as that the defendant has suffered material prejudice thereby. If the same persons constituted the panel as would have constituted the panel if the tax rolls had been resorted to to obtain their names, we are at a loss to see how the defendant suffered material prejudice from the jury commission having selected the names from the election records.

In Ran Wood v. State, 3 Okla. Cr. 553, 107 Pac. 937, it is held:

“The challenge to a petit jury .panel must be predicated on facts from which defendant has suffered material prejudice.”
“A challenge to the panel can be founded only on a material departure from the forms prescribed by law in respect to the drawing and return of the jury or on the intentional omission of the sheriff to summon one or more of the jurors drawn from which the defendant has suffered material prejudice.” Wadsworth v. State, 9 Okla. Cr. 84, 130 Pac. 808.

When an objection to the panel is purely technical and does not affect the substantial rights of the defendant, such challenge should be overruled. Malignon v. Territory, 8 Okla. 439, 58 Pac. 505.

“A challenge to the panel can only be founded upon a material departure from the directions of the law in respect to the drawing and returning of the jury, or the intentional misconduct of the sheriff In the matter of summoning the same, and it, must be shown in the challenge that the defendant has suffered some material prejudice thereby.
“A substantial compliance with the law as to the manner in which jurors shall be selected and summoned is all that is required.” Wadsworth v. State, 9 Okl. Cr. 84, 130 Pac. 808.

In the well considered case of Watson v. State, 9 Okla. Cr. 1, 130 Pac. 816, Judge Doyle says:

“We think that, before the defendant can avail himself of any irregularities on a challenge to the panel, he must show intentional omission on the part of the jury commissioners from which he has suffered material prejudice. * * * The fact that the jury commissioners failed to strictly follow the provisions of the jury law is not in itself a sufficient ground to sustain a challenge to the panel. It must be shown that such irregularities were prejudicial to the substantial rights of the defendant.”

It does not appear from the evidence that a part of the names upon the panel were not taken from the tax rolls and not from the election returns; and hence the entire panel does not come within the objection made in the motion. In Stuard v. State, 6 Okla. Cr. 94, 116 Pac. 204, it is held: “A motion to quash the jury panel is properly overruled when any portion of the panel does not come within the objection made in the motion.”

In the absence of evidence to the contrary, the law presuming that an officer properly discharges his duty, it must be presumed that the other commissioners than the one who testified in the case selected the names selected by them on the panel, from their respective districts from the tax rolls of the county and under the authority of Stuard v. State, supra, the challenge to the array of jurors was without merit. We are unable to see that the trial court committed prejudicial error in overruling the challenge to the array of jurors.

(8). While the evidence had on the merits of the case is nqt abstracted in the briefs, we have carefully read and weighed the entire evidence in the case, and are satisfied that the'evidence is amply sufficient to support the verdict rendered, especially in view of the undisputed fact that the deceased was shot in the back, that the ball passed through his body, on through his arm, severing the main artery thereof, from which blood must have instantly flowed; that the first sign of blood found at the place of the tragedy was 23 steps from the place where the deceased’s horse was hitched, and the remarkable statement of the defendant that the smoke of the first shot was such that he could not see the deceased clearly, coupled with the fact of the shadow cast upon the evidence of the defendant by reason of his conviction of a felony, and the statement of the deceased that the defendant shot him in the back. Indeed, in the brief, and the able supplemental brief on behalf of the defendant, and in the oral argument, it is not seriously contended that the evidence is not sufficient to sustain the judgment rendered.

•In Culpepper v. State, 4 Okla. Cr. 103, 111 Pac. 679, 31 U. R. A. (N. S.) 1166, 140 Am. St. Rep. 668, it is said:

“Our statutes provide that 'a defendant in a criminal action is presumed to be innocent until the contrary is proved.’ Section 6828, Snyder’s Comp. L. Okla. It is also provided that: ‘Upon a trial for murder, the commission of the homicide by the defendant being .proven, the burden of proving circumstances of mitigation, or that justify or excuse it, devolves upon him, unless the proof on the part of the prosecution tends to show that the crime committed only amounts to manslaughter, or that the defendant was justifiable or excusable.’ .Section 6854, Snyder’s Comp. L,. Okla. ■Under the section first quoted, the defendant goes into the trial presumed to be innocent, and this presumption remains with him until the contrary is proved. This fixes the burden of proof in the first instance, and designates the party whose duty it is to produce evidence and effect persuasion — the party upon whom lies at first the risk of non-persuasion. It is but another way of stating the maxims, presumitur pro reo, and actore non probante reus abso'lvitur. The presumption is not evidence of any kind, nor does it partake of the nature of evidence. * * * What is presumed, so long as the presumption remains, need not be proved; and, as to the matter presumed, the burden is on him against whom the presumption exists.”

Upon this same subject, Mr. Wigmore says:

“The 'presumption of innocence,’ is a term which has been the subject o’f two special fallacies, namely (1) that it is a genuine addition to the number'of presumptions, and (2) that it is per se evidence. As to the first of those fallacies, it is to be noticed that the ‘presumption of innocence’ is in truth merely another form of expression for a part of the accepted rule for the burden of proof in criminal cases, i. e., the rule that it is for the prosecution to adduce evidence, and to produce persuasion beyond a reasonable doubt. As to this latter part, the measure of .persuasion, the ‘presumption’ says nothing. As to the former part, the ‘presumption’ implies what the other rule says, namely, that th'» accused (like every other person on whom the burden of proof does not lie) may remain inactive and secure, until the prosecution has taken up its burden and produced evidence and effected persuasion, i. e., to say in this case, as in any other, that the opponent of a claim or charge is presumed not to be guilty is to say in another form that the proponent of the claim or charge must evidence it. * * * ”

We are of the opinion that the evidence is sufficient to sustain the verdict of the jury, of the guilt of the defendant beyond all reasonable doubt, of the offense of manslaughter in the first degree. There is no evidence whatever to sustain the assignments of error, that the verdict in said cause was influenced by prejudice and bias against the defendant, or that there was misconduct on the part of the sheriff and bailiff in charge of the jury in bringing Tom Athey and Florence Athey into the presence of the jury while they were under arrest on a charge of conspiracy with t! e defendant to murder the deceased. 'The evidence on the motion for a new trial clearly shows that no knowledge came to the jury of the arrest of said Tom Athey and Florence Athey, or that they were charged with conspiracy in connection with the defendant for the murder of the deceased, and consequently said assignments of error are without merit. There is no evidence to support the assignment of error, “that the jury was guilty of misconduct whereby defendant was prejudiced in his rights.”

When a defendant takes the stand in his own behalf he is placed upon the plane of any other witness, and for the. purpose of showing his credibility may be asked as to whether or not he has been convicted of a felony, and therefore the court did not err in requiring the defendant to answer such question.

“The state, in a criminal case, has a right to ask the defendant as a witness in his own behalf, upon cross-examination, whether or not he had been convicted of a crime, for the purpose of affecting his credibility.” Busby v. State, 10 Okla. Cr. 343, 136 Pac. 598.
“The prosecution in a criminal case has the right to ask the defendant, when-he takes the witness stand in his own behalf, whether or not he has been convicted of a particular crime, for the purpose of affecting his credibility.” Key v. State, 10 Okla. Cr. 206, 135 Pac. 950.

(5) After instructions were read to the jury, the defendant attempted to except thereto as follows:

“The defendant duly excepted in open court to each and all of said instructions. Said exception being taken as aforesaid, in open court to each instruction separately, from 1 to 28, inclusive, and the exceptions duly allowed by the court. Such attempted saving of the exceptions cannot be.considered.”

In the case of Starr v. State, 9 Okla. Cr. 210, 131 Pac. 542, this court held that such objections do not properly reserve exceptions to instructions, the court using the following language:

“Counsel for appellant complains in his brief of a number of alleged errors in the instructions of the court to the jury. We cannot consider these objections, because proper exceptions were not reserved to the instructions at the trial. The record shows that, after the instructions were read to the jury, counsel for appellant stated that he excepted to each and every instruction given by the court, and to each and every paragraph thereof. This only amounts to a general exception which we cannot consider for any purpose whatever. When counsel desire to except to any instruction, the attention of the court should be directly called to the instruction objected to, in order that the court may be given an opportunity to correct any error which it may contain. If this is not done, errors in the instructions will be waived, unless they are fundamental. See Summers v. State, 7 Okla. Cr. 11, 120 Pac. 1031. We find no fundamental error in the instructions of the court.”

In Hess v. State, 9 Okla. Cr. 516, loc. cit. 520 (132 Pac. 505), this court, speaking through Judge Furman, said:

“ Tt has been repeatedly held that where counsel desire to reserve an exception to an instruction they must point out the particular paragraph of the instructions objected to and state the-grounds of the objection, so that the trial court may have an opportunity to correct the error complained of. A general exception will not be considered for a single moment, as it is unfair to the judge and the opposing counsel. See Boutcher v. State, 4 Okla. Cr. 576, 111 Pac. 1006; Brasiel v. State, 5 Okla. Cr. 540, 115 Pac. 618. If this court were to tolerate practices of this kind the result would be to encourage carelessness upon the part of counsel.’ ”

In Birdwell v United States, 10 Okla. Cr. 159, 135 Pac. 445, the record shows that, after the instructions were read, the following occurred:

“Comes now the defendant and excepts to each and every instruction given by the court to the jury from No. 1 to 22, inclusive.”

In the syllabus of said case, the court says:

“A general exception to -instructions given upon the trial of a case will not be considered. Counsel should point out to the trial court the particular instruction to which they desire to except, in order that the court may have an opportunity to correct the error therein, if any.”

There'being no proper exceptions taken to the. charge of the court to the jury, the only review of instructions given that we can make is to see that the instructions are not only erroneous, but fundamentally wrong.

“ ‘Fundamental errors,’ which will be considered whether assigned or not, are those which go to the foundation of the case, or which take from the defendant a right which was essential to his defense.” Rea v. State, 3 Okla. Cr. 281, 105 Pac. 386, 106 Pac. 982.

An erroneous instruction, unless fundamentally wrong, will not be ground for reversal unless excepted to at the time of the trial as directed by law. Anderson v. State, 7 Okla. Cr. 491, 124 Pac. 86; Hayes v. State, 4 Okla. 377, 111 Pac. 1020; Boutcher v. State, 4 Okla. Cr. 576, 111 Pac. 1006; Ryan v. State, 8 Okla. Cr. 624, 129 Pac. 685; Dooling v. State, 3 Okla. Cr. 491, 108 Pac. 982; Prue v. Territory, 1 Okla. Cr. 508, 99 Pac. 157; Sparks. v. Territory, 16 Okla. 127, 83 Pac. 712; Heatley v. Territory, 15 Okla. 72, 78 Pac. 79.

We have carefully examined the instructions of the court and are unable to find a fundamental error in either one of the instructions given by the court to the jury. It is admitted in the supplemental brief filed by defendant that exceptions were not properly saved to instructions of the court to the jury, but it is earnestly insisted that fundamental errors are in some of said instructions, and particularly in the instruction defining a reasonable doubt. We have carefully examined the instructions of the court defining a reasonable doubt and are unable to agree with the learned counsel of the defense, filing the supplemental brief, that the definition of a reasonable doubt as defined in said instructions is not only erroneous but contains fundamental error.

The instructions defining a reasonable doubt in the case of Gransden v. State, filed in February, 1916, not yet officially reported, 158 Pac. 157, which is identical with the definition given in the instant case, is held should be condemned, “but notwithstanding said instruction is erroneous, we are of opinion that, the error is not fundamental.” Again, in the case of Harris v. State, 10 Okla. Cr. 417, 137 Pac. 365, 139 Pac. 846, the case most relied up for the reversal of this cause, upon the erroneous defining of a reasonable doubt, in which said case the definition of a reasonable doubt is in the exact language in the instant case. The late lamented Judge Furman, says:

“In this case, as no exception was reserved to the instruction, and as defendant may waive his constitutional rights, we cannot do otherwise than hold that the instruction was harmless error.”

(6) We have carefully compared the instructions requested with the instructions given by the court to the jury, and we are impressed that all of said requested instructions that were refused, except 10 and 11, are substantially covered by the instructions given by the court. The refusal of the court to give requested instructions 10 and 11 is not excep'ted to and therefore cannot be reviewed by us. It follows that the court did not err in overruling the motion for a new trial.

While we feel that histice has been done in this case, so xai as the conviction of the defendant is concerned for the offense of manslaughter in the first degree, and that he has been ably and earnestly defended by learned attorneys in both the trial and this court, we think that there are mitigating circumstances in the case, some of which are that a few days prior to the homicide the deceased threatened the life of defendant, which threats were communicated to him prior to the homicide; that the deceased had, on several occasions, expressed a desire of “shooting it out”with defendant, and that on the morning of the homicide the justice of the peace who was estimating the damages under the herd law between the parties, where both the defendant and deceased were present, had to admonish the deceased to return to his pocket a knife which deceased had taken from his pocket and opened the blade with an expression indicating great indignation against the defendant. And in connection with said mitigating circumstances must be considered the statement, made at the oral argument of the case by the county attorney who prosecuted the case in the trial court, which statement was approved by the Assistant Attorney General, who appeared iri this court on the oral argument of said case, that “while he (county attorney) earnestly insisted that the conviction should stand, that a reduction of the sentence was not opposed.” And in addition to said mitigating circumstances, and the indirect recommendation of the prosecuting attorney, considering the age of defendant as shown by the evidence, 40 years, and that a sentence of 40 years, considering the average life in penal institutions, would probably er.c~ed the life of the defendant, and remembering that “judgment should be tempered with mercy,” it is hereby ordered, under authority conferred by section 6003, R. D. 1910, that the judgment be modified, and that the imprisonment imposed upon appellant be reduced from 40 to 10 years and that the judgment, as modified, be affirmed.

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

NOTE: One of the Judges of this Court, HON. RUTHERFORD BRETT, having been counsel in the ease, being thereby disqualified as one of the Judges to hear and determine the same, and this fact having been duly certified to Governor R. L. Williams, he thereupon appointed HON. WILLIAM A. COLLIER as Special Judge of the Criminal Court of Appeals for the trial and determination of this case. Judge Collier, having duly qualified as Special Judge, the case was submitted upon oral argument and briefs by both parties;


text:
    DRAUGHN v. STATE.
    No. A-2499.
    Opinion Filed July 15, 1916.
    (158 Pac. 890.)
    1. MARRIAGE — Requisites—Solemnization. Marriage in its legal sense is a civil contract, and where competent parties agree to become man and wife, it is not indispensable that a license issue and that a clergyman be present to authorize and confirm the •contract, In order to give validity to the marriage.
    2. MARRIAGE — Common-Law Marriage — Validity. Statutes regulating the mode of entering into the marriage contract do not confer the right that has existed ever since there were two human hearts, and such statutes are not within the principle that, where a statute creates a right and provides a remedy for its ■enforcement, that remedy is exclusive; hence common-law marriages in this state, although in derogation of the statutory directions as to formalities, are valid, since such marriages are riot expressly forbidden by our statutes.

      3. BIGAMY — Elements of Offense — Validity of Former Marriage. A common-law marriage in this state is valid, and if a party to such a marriage marries again, before the same has been dissolved by death or legal proceedings, he is guilty of bigamy.
    4. RAPE — Elements of Offense — Trick or Artifice. Subdivision 8 of section 2414, Revised Laws 1910, which provides that an act of sexual intercourse is rape when accomplished with a female not the wife of the perpetrator, “where she submits under the belief that the person committing the act is. her husband, and this belief is induced by artifice, pretense or concealment practiced by the accused, or by the accused in collusion with her husband, with intent to induce such belief,” is intended to protect a married woman against any one who might by trick or artifice deceive her, and have intercourse with her under the belief, on her part, that such person is her husband. The artifice against which this statute is directed is such as deceives the woman as to the identity of the man with whom she is having intercourse, thus causing her to submit to intercourse with him, under the belief that he is her husband.

      Error from District Court, Marshall County; Jesse M. Hatchett, Judge.

    I. D. Draughn was convicted of rape, and brings error.
    Reversed and remanded, with directions to dismiss case.

      Robert Wimbish, W. C. Duncan, and Orel Busby, all of Ada, for plaintiff in error.

      R. McMillan, Asst. Atty. Gen., for the State.
   BRETT, J.

Plaintiff in error in this case, who will be-referred to as defendant, was convicted in the district court of 'Marshall county of rape, and sentenced to seven years in the penitentiary. He was prosecuted and convicted under subdivision 8, Section 2414, Revised Laws, 1910, which provides that rape is an act of sexual intercourse accomplished with a female, not the wife of the perpetrator:

“Where she submits under the belief that the person committing the act is her husband, and this belief is induced by artifice, pretense or concealment practiced by the accused, or by the accused in collusion with her husband with intent to induce such belief. And in all cases of collusion between the accused and the husband of the female, to accomplish such act, both the husband and the accused shall be deemed guilty of rape.”

The material facts in this case are that the defendant for some time kept company with the prosecutrix, Nettie Crabtree, won her confidence and affection, and promised to marry her. Due to his employment, he and the prosecutrix were separated ior some time, and he finally wrote her to come to him and they would get married, and sent her the money on which to make the trip. She met him at the designated time and place, and he produced a man purporting to be a minister, with a paper which purported to be a marriage license. They stood up before this person and took the marriage vows. They then went to Sulphur, Okla., and lived as husband and wife. The defendant introduced her to his friends and acquaintances as his wife, provided for her, paid her doctor bills, and in every way they for more than three years maintained the relation of husband and wife, visited both his and her .people, lived in other communities than Sulphur, and everywhere he supported her, cohabited with her, and treated her in every respect as his wife. Three children were born to them, and he seemed to be proud of the offspring, and as a doting father presented them to his friends and acquaintances as the children of him and his wife. But finally he abandoned this woman, and the next she heard of him he was married to another.

The defendant contends that he could not legally be prosecuted for rape under these conditions by reason of the sexual relations he had with the prosecutrix. The state proceeded on the theory that she submitted to these relations under the belief that he was her husband, and that in fact he was not, bi# she was induced 'to believe he was by reason of a sham marriage, and therefore her consent thus obtained by such artifice, fraud, and pretense brought the offense within the contemplation of the statute above quoted.

(1-3) But in this, for two reasons, we think the state is wrong. First, because under the law of marriage as announced by the Supreme Court of Oklahoma, and almost every other court in the Union that has spoken on that subject, they were under the facts in this case husband and wife. He courted her, she loved him, he asked her to marry him, she consented, and the contract was consummated and sealed by his sending her the money, and her going to him, where they mutually took upon themselves the marriage vows. They lived and cohabited as husband and wife, so held themselves out to the world, and brought children into the world as such. It is true, perhaps, that this man who impersonated the minister was not a minister, that the paper he held 'in his hand was not a marriage license, and that the statutory •directions with reference to solemnizing the marriage rite were not in any respect followed; yet it has been repeatedly held by the 'most respectable courts of our land that the right of marriage is not conferred by statute, but has existed ever since there were two human hearts, and will continue to exist as long as there is a man and woman upon the earth, and that, because the statute •directs the rite to be solemnized in a particular way, it does not follow that it is void simply because it was solemnized in some •other way.

In Reaves v. Reaves, 15 Okla. 240, 82 Pac. 492, 2 L. R. A. (N. S.) 353, the common-law marriage is upheld by a strong and 'well-considered opinion, and the doctrine there announced has consistently been followed every time that court has had occasion to speak upon the subject, and that question seems well settled in this jurisdiction; the last announcement on this subject being in re Love’s Estate, 42 Okla. 478, 142 Pac. 305, L. R. A. 1915E, 109. In Reaves v. Reaves, supra, the court says:

“As before stated in this opinion, the general rule is that ■statutes which direct that a license must be issued and procured, that only certain .persons shall perform the ceremony, that a certain number of witnesses shall be present, and that a certificate of the marriage shall be signed, returned,- and recorded, and that persons violating the conditions shall be guilty of a criminal offense, are directory merely, being addressed to persons in authority to secure publicity and a record of marriages, and will in no wise affect the validity of the marriage contract, unless they contain an express provision to that effect. They simply provide the evidence of the marriage. In Meister v. Moore, 96 U. S. 76, 24 L. Ed. 826, the Supreme Court of the United States makes use of the following language: ‘The learned judge of the Circuit Court instructed the jury that, if neither a minister nor a magistrate was present at the alleged marriage of William A. Mowry- and the daughter of the Indian Pero, the marriage was invalid under the Michigan statutes, and this instruction is now alleged to have been erroneous. It certainly withdrew from the consideration of the jury all evidence, if any there was,-of informal marriage by contract, per verba de praesenti. That such a contract constitutes a marriage at -common law there can be no-doubt, in view of the adjudication made in this country from its earliest settlement to the present day. Marriage is elsewhere regarded as a civil contract. Statutes in many of the states, it is true, regulate the mode of entering into the contract; but they do not confer the right. Hence they are not within the principle that, where a statute creates a right and provides a remedy for its. enforcement, the remedy is exclusive. No doubt, a statute may take away a common-law right; but there is always a presumption that the Legislature has no such intention, unless it be plainly expressed. A statute may declare that no marriages shall be-valid, unless they are solemnized in a prescribed manner; but such an enactment is a very different thing from a law requiring all marriages to be entered into in the presence of a magistrate or clergyman, or that it be preceded by a license, or publication of banns, or be attested by witnesses. Such formal provisions may be construed as merely directory, instead of being treated as destructive of a common-law right to form the marriage relation by words of present assent. And such, we think, has been the rule generally adopted in construing statutes regulating marriage. Whatever directions they may give respecting its formation or solemnization, courts have usually held a marriage good at common law to be good notwithstanding the statutes, unless they contain express words of nullity. This is' the conclusion reached by Mr. Bishop after an examination of the authorities.”

And the court in this opinion also quotes approvingly from Mathewson v. Phoenix Iron Fountry (C. C.) 20 Fed. 281, as follows:

“At common law, as held in this country, and until recently, it would seem, as generally understood in England, persons of suitable age might, by words of present consent, contract a valid marriage without the presence and intervention of a minister, and without any particular form of solemnization. A statute may, of course, take away this common-law right; but this is not to be presumed. The right is not conferred by statute, but exists independent of it, and therefore it is 'held the rule does not apply that, when a statute directs a thing to be done in a particular way, it is void if done in any other way. The construction usually adopted is that, when the statute regulating marriage is directory merely, when it does not expressly forbid other marriage contracts, a marriage per verba praesenti, or at common law is good.”

To the same effect are the following authorities: 2 Greenl Ev. par. 460; Kent, Com. 51; Reeve, Dom. Rel. 247; Bynon v. State, 117 Ala. 80, 23 South. 640, 67 Am. St. Rep. 163; Jones v. Jones, 28 Ark. 19; Hargroves v. Thompson, 31 Miss. 211; Hynes v. McDermott, 91 N. Y. 451, 43 Am. Rep. 677; Carmichael v. State, 12 Ohio St. 553.

And in In re Love’s Estate, supra, Commissioner Brewer says:

“So we repeat that, so far as the statutes relating to the precise question involved here are concerned, all of the reasoning and the authorities quoted and relied upon in Reaves v. Reaves, supra, when studied closely seem to be applicable at the present time; but it may be said that, to give our statute a reasonable construction, they prohibit persons from entering into the marriage relation except in the manner pointed out, and in a sense they do; but it is significant that they nowher.e declare that marriages entered into otherwise than the statutory way are void.”

And the opinion closes with the following language, which is very pertinent to the facts in the case at bar:

“At the trial of this suit a little daughter, the result of this union sat innocently by, unconscious that her very name and future status were being determined there. We infer from the record that the property involved is insignificant, and was probably little in mind, while this woman fought for the relation of wife and for a name for her little girl. She is entitled to both. We do not propose to sit here, considering the most sacred relation of life, and construe away the status of this woman, who appears to have acted in good faith; neither will we turn the innocent result of this common-law union out into the world a nameless thing. She was begotten by a man who had voluntarily assumed the relation of husband, and she shall have the right to be called his child and bear his name.”

The facts in neither of the cases quoted from are as strong as the facts in the case at bar; and the defendant in this action is the husband of this woman, and until separated from her by death or legal proceedings had no right to marry another, and in doing so he committed the crime of bigamy, and should be taught that marriage is a sacred relation, and not a mere convenience for the gratification of the beastly passions.

(4) 2. Our second reason for thinking that the state is wrong in its theory is that the statute relied upon in this prosecution is intended to protect married women against any who might by trick or artifice deceive her and have intercourse with her under the belief, on her part, that such person was her husband. That this was the intention of the Legislature further appears from the fact that it is provided that, if her husband enter into a collusion with the accused to accomplish this purpose, he also shall be deemed guilty of rape. The artifice against which this statute is directed is such as deceives the woman as to the identity of the man with whom she is having intercourse, thus causing her to submit to intercourse with him under the belief that he is her husband.

The judgment is reversed, and the cause remanded, with directions to dismiss the case, and recommendation that the defendant be prosecuted for bigamy.

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