text:
    JAMES F. McCULLOUGH v. DAVIS, District Judge.

    No. A-2362.
    Opinion Filed April 20, 1915.
    (147 Pac. 779.)
    JUDGES — Mandamus—Prejudice of Judge — Refusal to Disqualify. Applications for a change of judge, on account of the prejudice of the judge, set forth as the grounds and facts upon which the claim was made that the judge was disqualified; that said judge, in his campaign for renomination and re-election to his office in public speeches condemned the alleged misconduct of the office held by the defendant, to which office he was appointed by the candidate opposing respondent, which matters of alleged misconduct were then pending in the district court before said judge on indictments against petitioner. Held, that the applications on account of prejudice of the judge should have been granted. Held, further, that, respondent having refused to disqualify',' mandamus requiring him so to do is awarded.
    (Syllabus by the Court.)
    Mandamus by James F. McCullough against Preston S. Davis, District Judge.
    Writ awarded.

      C. Caldwell, C. McGary, and Wm. P. Thompson, for petitioner.

      Willard H. Voyles, Co. Atty., for respondent.
   DOYLE, P. J.

The petitioner has filed in this court his verified petition for mandamus, which, omitting the formal parts, reads as follows:

“Comes now James F. McCullough, and for his petition alleges and states; That he stands charged by indictment in the district court of Craig county, Okla., of the crime of embezzlement in cases Nos. 1165 to 1177, inclusive, now pending on the criminal, docket of said court, and that respondent is the presiding judge of said court. That on the 7th day of November, 1914, he filed his application under the laws of the state of Oklahoma for a change of judge, alleging that the trial judge, Preston S. Davis, was biased and prejudiced against him as defendant in said causes, and that on account of said bias and prejudice against him, he could not have a fair and impartial trial before said judge. That he was clerk of the county court in and for Craig county, Okla., and that he is charged in all of the above numbered cases of the crime of embezzlement of public funds while in said office. That'while these cases were pending in the court presided over by the said Preston S. Davis, and within the knowledge of said Preston S. Davis, during the primary campaign in the county of Craig and other counties of the Twenty-Third judicial district during the months of June and July, 1914, in said campaign for his nomination for said office which he now holds, he attacked the county judge, S. P. Parks', his opponent in said campaign and who appointed your petitioner to said office, and said that the office of the clerk of the county court in and for said Craig county while held by your petitioner, and at the close thereof, was in a state of rottenness, and that the state inspector and examiner had stated that the reports of said office to the county commissioners were all incorrect, that he was in default of about $5,000, and that the office was in a state of decadence, and that he made other statements concerning said official acts of your petitioner, all of which were calculated to create prejudice against him. That said statements and speeches were made with the knowledge that they would create a prejudice against him in the trial of the case, as the voters of the county who heard and who heard of said speeches would be called upon as jurors to try him before the said judge who made said statements and speeches, and that for said reasons' the said judge is disqualified to hear and determine any other motions or other matters in the trial of said cause. That this expression of opinion in said speeches by the respondent upon the report of the deputy state inspector and examiner disqualified the said respondent, as this report will be a portion of the material evidence which will be introduced and relied upon by the state in the trial of said cause. That said expressions and opinions in said speeches by the respondent, as above alleged and set forth in effect is a prejudgment by said respondent of your petitioner by the trial judge.
"A copy of said application for change of judge is herewith filed, marked ‘Exhibit A,’ and made a part of this petition. That said cause came on to be heard upon the application of your petitioner on the 7th day of November, 1914, your petitioner being present in person and represented by his counsel, and the county attorney of Craig county appearing for the state and waiving formal notice of the application for change of judge; and on the hearing upon said application, said sworn application of your petitioner was presented to the court, and the respondent refused to disqualify himself, whereupon your petitioner prayed the court to be allowed reasonable time to prepare this petition for an alternative writ of mandamus to the Criminal Court of Appeals of the state of Oklahoma, which was granted. That unless this court grants the writ of mandamus, the respondent will proceed to try said causes, and your petitioner will be deprived of his constitutional right of fair and impartial trial. That said judge is biased and prejudiced as set forth in said application for change of judge. Wherefore, your petitioner prays that an alternative writ of mandamus be issued out of this court, commanding the respondent to show cause why he should not disqualify himself, and upon failure to show cause, that a peremptory writ of mandamus issue, and if answer be filed by said respondent, that upon a final hearing of the same a peremptory writ of mandamus issue, compelling the said respondent to disqualify himself to try said causes.”

The application is supported, by the affidavits of some five or six citizens of Craig county. Summarized, the affidavits were to the following effect: That during the primary campaign preceding the nomination of a Democratic candidate for judge of the Twenty-Third judicial district, the respondent was opposed by S. P\ Parks, then county judge of Craig county, as the nominee for district judge, and at a political picnic in Craig county the respondent delivered a speech, and in substance used the following language:

“That the office of the clerk of the county court in and for Craig county, Okla., had been examined by a special deputy state examiner and inspector, and in the report of said examiner and inspector there was found the following:
“ T regret exceedingly to report that I found the affairs of this office in a deplorable condition. No excuse apparently exists as an explanation. In brief, the office was rapidly approaching a state of decadence, which would undoubtedly have worked injury on both the county and litigants.
“ ‘Important filings in civil, criminal, and probate cases were found scattered in all parts of the office. In desks, behind picture frames, in pigeon holes, and practically every conceivable nook and cranny upon being explored unearthed papers that should have been entered on the dockets and filed away in their proper places. How many papers have been lost, time alone will tell.’
“He then stated that in looking in the dictionary for the meaning of the word ‘decadence5 he found that it meant ‘rottenness,’ and that therefore 'the office was in a state of rottenness. He further said that of all the reports that were made from the said office to the board of county commissioners, none of them were correct.
“Affiant further says that there were a great number of people present and heard said speech, and that said judge made other statements pertaining to said office which affiant does not remember, but said statements were discreditable to the office, and from his act and demeanor and the language he used in talking about said office, affiant believes that James F. McCullough, the defendant in the above entitled cause and who was the clerk of said court, cannot have a fair and impartial trial before said judge.”

An alternative writ of mandamus was issued. The respondent filed his answer, the material part of which is as follows :

“That the charges against said defendant are embezzlement alleged to have occurred while said defendant was holding the office of clerk of the county court of Craig county, state of Oklahoma. The said defendant was appointed to said office by S. F. Parks, who was then county judge of Craig county. That said S. F. Parks and respondent were opposing candidates for the Democratic nomination for judge of the Twenty-Third court judicial district of the state of Oklahoma in the primary campaign of 19.14. That in said campaign respondent made speeches in behalf of his candidacy at political meetings and picnics, and made a political canvass of the three counties comprising his court judicial district, to wit, Ottawa, Craig, and Mayes.
“Respondent denies that he ever made any statement or statements in any of his said speeches, or at any other time, in which he mentioned or uttered, in any manner whatever, the name of the petitioner herein, James F. McCullough; and respondent further denies that he ever in any manner whatever mentioned the name of the petitioner herein, James F. McCullough, in any connection with the clerkship of the county court of Craig, county, state of Oklahoma; and respondent further denies that he ever, in any manner or upon an}' occasion whatever, mentioned or referred to the fact that there was such a person as the petitioner herein, or that he ever had any connection whatever with the office of clerk of the county court of Craig county, or of any other office whatsoever.
“Respondent admits that in his speeches, in answer to the printed circulars and other literature and arguments advanced by his opponent, S. F. Parks, in the primary campaign, that he, the said S. F. Parks, ought to be elected district judge of the Twenty-Third court judicial district of the state of Oklahoma on account of the fact that he had saved thousands of dollars to the taxpayers of Craig county, state of Oklahoma, and on account of the excellent manner in which he had conducted and run the office of judge of the county court of Craig county, state of Oklahoma, he did read from the report of Evans A. Nash, special deputy examiner, under Ered Parkinson, state examiner and inspector, made of the office of the county court of Craig county, Okla., covering the period from January 9, 1911, to January 20, 1914, and dated February 23, 1914, and filed March 9, 1914, in the office of Fred Parkinson, state examiner and inspector of the state of Oklahoma, the same being file No. 2017-18. Record No. 60, the following portions and these portions only. * * * That said portion of said report hereinabove set out and read and commented upon by your respondent, as herein set forth, and in this 'way only, is found on pages 3 and 4 of said original report. And after reading said portion of said report as hereinabove set forth, your respondent admits that he did by way of explaining the same, comment upon some of the meanings of some of the words used by said Examiner Nash in this portion of the report hereinabove set forth, and that he said, in commenting upon the word ‘decadence,’ that the word meant, as defined by Webster, deterioration, decay, rottenness. In addition to reading and commenting upon that portion of said report in the manner as herein stated, your respondent admits that he held in his hand, and read from and commented upon the following portions of, said official report, ■ as set forth and contained in respondent’s Exhibit A to this answer. The exhibit being the identical paper held in the hands of your respondent and read from during the Democratic primary campaign of 1914, and your respondent attaches it to this answer, having marked it as ‘respondent’s Exhibit A,’ and asks that it be made a part hereof, and considered herewith. That these portions of said report are the only portions of the same that were read, commented upon, or referred to in any manner by your respondent in said campaign. And in so doing your respondent says that in no manner whatever did he mention or refer to the petitioner in this action. That the above and foregoing is all that your respondent said in any manner touching the office of the county court, state of Oklahoma, in said campaign, and that at no time and under no circumstances did your respondent ever refer to the fact that the said office ever had a clerk, or in any manner ever touched upon the clerkship of said office. That your respondent up to the present' time has not read nor heard read any of the indictments in any of these cases against this petitioner, and does not now know the contents of any of the same. His knowledge up to this moment being only that the petitioner herein is charged as defendant therein with the crime of embezzlement. That nothing but friendship and friendly relations have ever existed between the petitioner herein and your respondent so far as your respondent knows or has ever been advised. That nothing of an unfriendly nature, so far as your respondent knows, occurred during the primary campaign, or the campaign for the general election for the office of judge of -the Twenty-Third court judicial district of the state of Oklahoma, 1914, between this petitioner and your respondent, and that nothing but friendly relations are existing at this time between the petitioner and the respondent. That your respondent has searched his mind, his heart, and his conscience, and at this time is absolutely unaware of any prejudice or bias whatever towards or against the petitioner herein, James F. McCullough.”

Upon the undisputed facts, the conclusion of the court is that petitioner is entitled to a change of judge on account of the prejudice of the presiding judge. The Constitution prescribes that: “Right and justice shall be administered without sale, denial, delay, or prejudice.” Section 6, art. 2, Bill of Rights. By this provision of the Constitution the people have prohibited a judge from trying a cause in which he is prejudiced by or for either party. In Ex parte Ellis, 3 Okla. Cr. 220, 105 Pac. 184, 25 L. R. A. (N. S.) 653, Ann. Cas. 1912A, 863, it is said:

“The framers of our Constitution guarded with special care our judiciary and tried to place it above suspicion of unfairness, passion, or prejudice, so that public confidence in our courts would not be shaken, and provided that right and justice should be administered without prejudice. By virtue of this constitutional provision, who can doubt or question the absolute and unqualified right of the citizen, when called to answer in a court of justice, to demand that his trial shall be before an impartial judge and .by impartial jurors? Any othér doctrine would place the rights of the citizen which were intended to be protected by this constitutional provision at the mercy or control of the court or judge thereof.”

The undisputed facts are that indictments- against the petitioner in criminal cases numbered 1165-1177, were returned at the May, 1914, term of the district court of Craig county, and were pending in said district court at the time the respondent made these speeches during his campaign for renomination and re-election to the office of district judge. The respondent does not deny that he did use the language imputed to him by the petitioner. In his answer he says that he never mentioned or uttered the name of the petitioner, and that up to the. time of filing his answer he had not read or heard read any of the indictments against the petitioner. It was the duty of respondent, as presiding judge of the district court court in which said indictments were returned, to examine the same for the purpose of fixing the amount of bail in each case when the bench warrants issued upon the same, and we are inclined to think that, upon the undisputed facts, the fact that he did not mention the petitioner’s name in his speeches is wholly immaterial.

It is undisputed that respondent, as district judge, in his campaign for re-election to his office, in a public manner and as an argument in support of his candidacy, condemned the alleged misconduct of the office held by petitioner, to which office he was appointed by the candidate opposing respondent, which matters of alleged misconduct were then pending in said district court and before respondent as district judge on the indictments herein. This fact alone clearly shows that respondent, as district judge, is disqualified to conduct the trial of the indictments. It is our opinion that the applications for change of judge in said cases on account of the prejudice of the judge should have been granted. Respondent having refused to disqualify as judge in said cases, the writ of mandamus as prayed for is awarded.

FURMAN and ARMSTRONG, JJ., concur.


source: Caselaw Access Project

author: DOYLE, P. J.

license: Public Domain

text:
    HENRY PETTY v. STATE.
    No. A-2142.
    Opinion Filed April 24, 1915.
    (147 Pac. 782.)
    1. CONTINUANCE — Absence of Witnesses- — -Affidavit — Requisites. An affidavit for continuance on the ground of absence of material witnesses, who are out of the state, which states that the defendant expects to procure their attendance at the next term of court, to be sufficient should state the grounds of such expectation, so that the court may determine whether or not it is reasonable.
    2. SAME — Cumulative Testimony. As a general rule, a continuance will not be granted for the purpose of procuring testimony that is merely cumulative.
    3. RAPE — Sufficiency of Evidence — In a prosecution for statutory rape, the evidence examined and held sufficient to sustain the ver-’ diet, and that no material error was committed on the trial.
    (Syllabus by the Court.)

      Appeal from District Court, 7'illman County; Frank Mathezvs, Judge.

    Henry Petty was convicted of statutory rape, and appeals.
    Affirmed.

      Mounts & Davis and P. D. Tant, for plaintiff in error.

      Chas. West, Atty. Gen., and P. I. McElhoes, Asst. Atty. Gen., for the State.
   DOYLE, P. J.

This appeal is from a judgment of conviction in the district court of Tillman county for the crime of statutory rape, committed on one Oma Owens, a female under the age of sixteen, to wit, of the age of fourteen years. February 16, 1913, was the date of the crime, as alleged in the information. By the judgment of the court rendered on the 13th day of June, 1913, in accordance with the verdict of the jury, the plaintiff in error, Henry Petty, was sentenced to be imprisoned in the penitentiary for a term of five years. •

It is contended for reversal that the court erred in refusing to grant a continuance, and that the verdict of the jury is contrary to law and the evidence.

When the case was called for trial, the plaintiff in error, filed his affidavit for a continuance, as follows:

“Plenry Petty, of lawful age, being duly sworn, deposes and says that he is the defendant in the above-entitled cause; that he is unable to proceed to the trial of this cause at this time, for want of material evidence, to wit, the evidence of Jim Baker and Tom Austin, who are material witnesses in this cause, and defendant has used due diligence to obtain their evidence; that said witnesses were duly subpoenaed to be present at this trial in this court, but without the knowledge of this defendant have departed from this state and their exact whereabouts are unknown to defendant, but that defendant expects to have the evidence of Jim Baker and Tom Austin by the next term of this court. Defendant further states that the witness Jim Baker has resided, and this defendant now believes that the said Jim Baker is residing, about four or five miles west of the town of Grandfield, Tillman county, Okla. Defendant further states that he understands that the said Jim Baker left his place of residence about ten days ago, and is now temporarily over in the state of Texas; but that this defendant does not know exactly his present whereabouts. Defendant further states that the witness Jim Baker is a very material witness in his defense to this prosecution, in this: That he understands that the state will attempt to prove and will rely upon the statements of the state’s witness that she and the defendant were together in Wichita Falls, Tex., some time in the month of March, and the defendant also understands that the state will undertake to prove by said witness that the defendant slept with the prosecuting witness, Oma Owens, and had intercourse with her at Wichita Falls, Tex., for the purpose of corroborating said prosecuting witness wherein she will try to claim and contend that this defendant had intercourse with her on Deep Red creek on or about the 16th day of February, 1913, and defendant states that he expects to prove by the witness Jim Baker that he was with this defendant on the day and at the time that the said Oma Owens was at Wichita Falls, Tex., and that he was with said defendant all of the time while he was at Wichita Falls, Tex., and slept with this defendant on that night, and he states that he expects to prove by the said Jim Baker that this defendant was not with the said Oma Owens and did not have intercourse with her at Wichita Falls, Tex., nor did this defendant sleep with the said Oma Owens at Wichita Falls, Tex., and that the said witness Jim Baker knows these facts for the reason that he was with this defendant all the time while he was in Wichita Falls, Tex., and slept with him in the same bed, and for that reason knows that this defendant was not with the said Oma Owens and did not have intercourse with her at Wichita Falls, Tex., nor was he in bed with her at AVichita Falls, Tex., nor did he get in bed with said Oma Owens at AVichita Falls, Tex. This defendant says that said testimony is very material to contradict the said Oma Owens in regard to said alleged transaction and statement.
“Defendant further states that the witness Tom Austin, whose whereabouts is now unknown to this defendant, but he believes that he will be able to get the witness Tom Austin’s testimony, either by depositions or in person by the next term of this court. Defendant further states that said Tom Austin’s testimony is very material to his defense to this case for this reason: He understands and is informed and believes that the prosecuting witness, Oma Owens, will swear that on or about the 16th day of February, 1913, that she, Tom Austin, Mrs. Boyd, and this defendant went out on Deep Red creek a pecan hunting, and that while there that this defendant took her off about 50 yards in the weeds and had intercourse with her, and that while they were off having intercourse that the said Tom Austin and lyirs. Boyd were together and only about 50 yards distance. Defendant states that such statements of the said Oma Owens would be and is untrue, and he expects to prove by the witness Tom Austin that he, the said Oma Owens, and Mrs. Boyd, and this defendant went- out on the creek pecan hunting on that day, and that this defendant was with Mrs. Boyd, and that the said Tom Austin was with the said Oma Owens. He further states that said witness will swear that he was with the said Oma Owens at all times that she was out on Deep Red creek, and that this defendant was with Mrs. Boyd, and that no time while out on Deep Red creek was this defendant with Oma Owens, nor did this defendant go off with said Oma Owens about 50 yards and have intercourse with her, and that as a matter of fact that such circumstances or transaction did not take place for the reason that the said witness was present at all times while said parties were out on Deep Red creek, and, had this defendant and the said Oma Owens gone off at any time together, that this witness would have seen such circumstances and would have known about the same. Defendant further states that he expects to prove by the said Tom Austin that said parties were only out on Deep Red creek about one hour on said date,.and that this defendant did not have the chance nor the opportunity to have intercourse with said Oma Owens at that time, nor did he attempt to do so, and had such circumstance or transaction taken place that said witness would have known all about the same, and this defendant states that the said Tom Austin will swear that this defendant was not with the said Oma Owens on that date, nor did he have intercourse with her as claimed, or will be claimed by the said Oma Owens. Defendant states that said testimony is very material, and is very essential that he have the same at the trial of this case, and for the reason that the charge herein made is a very serious one and that the law recognizes the fact that the same is hard to defend against. Defendant further states that he believes the testimony of said witnesses to be true. Defendant further states that all of the above evidence as above set out cannot be furnished by other witnesses in such a way as to be most beneficial to this defendant. Defendant further states that this application is not made for delay, but that substantial justice may be done, and he asks that this cause be continued until the next term of this court.”

Also, a supplemental affidavit, setting forth that the prose-cutrix, in the county court as a witness on a hearing to determine whether or not her mother, who was a widow, was a proper person to have the custody of the prosecutrix and several younger children, testified:

“That this defendant did not have intercourse with her at any time, and that the transcript of said testimony is now locked up in the county judge’s safe in his office, and said county judge is claiming that he has no key, and therefore he cannot obtain said record out of said safe; that said county judge claims that the key to said safe is in the possession of his clerk, who is now temporarily absent in Texas, at Wichita Falls; and that it would be unjust to require him to go to trial without said transcript.”

In reviewing the refusal of a continuance on account of-absent witnesses, the record will be examined, and the evidence adduced at the trial will be considered by this court for the purpose of determining whether the showing made was such as made it the duty of the court to grant the continuance.

From the record it appears that Mrs. Ellen Owens, mother of the prosecutrix, as a witness for the defendant testified to the facts that the defendant in his affidavit states that he expected to prove by the absent witness Jim Baker. It also appears that Mrs. M. V. Boyd, as a witness for the defendant, testified that on February 16th she went with the prosecutrix, Tom Austin, and the defendant, hunting pecans, and that the defendant was continuously in the company of the witness, and it was impossible for him to have had any improper relations with the prosecutrix at that time. It also appears that the prosecutrix admitted while on the stand that she had testified on the hearing before the county judge as alleged in the defendant’s supplemental affidavit for continuance.

In the case of Rose v. State, 8 Okla. Cr. 294, 127 Pac. 873, it is said:

“As a general rule, a continuance will not be granted to allow a defendant to obtain cumulative testimony,” and, “Although an application for a continuance may be good upon its face, yet where it is overruled, and upon the trial of the case it appears from the whole record that the testimony for which the continuance was sought could not have affected the result of the trial, a conviction will not be reversed.”

And see Jones v. State, 8 Okla. Cr. 576, 129 Pac. 446.

It has been the uniform holding of this court that an application for a continuance in a criminal case is addressed to the sound discretion of the trial court, and, unless it clearly appears that there is an abuse of such discretion, this court will not reverse the judgment for a refusal to grant the continuance. It is not an abuse of discretion to deny a continuance asked on the ground of absence of material witnesses who are out of the state, where it is not shown that any one of them would or could be procured within any reasonable time. The prosecutrix testified that, two or three weeks after the defendant had raped her, the absent witness Tom Austin accomplished an act of sexual intercourse with her against her will and consent. So it will be assumed that he. was at that time a fugitive from justice.

As to the transcript of the prosecutrix's testimony in the hearing before the county court, such transcript could only be used for impeachment purposes, and she admitted that she had so testified. The affidavit states that the defendant “expects to have the evidence of Jim Baker and Tom Austin at the next term of this court,” hut fails to show or set forth the grounds of such belief or expectation. Where an absent witness is beyond the limits of the state, the affidavit for a continuance should state the grounds of his expectation of the attendance of the witness, so that the court may determine whether it is reasonable.

We are of the opinion that it was not error for the court to overrule the application for a continuance.

The prosecutrix testified that she lived with her mother and several younger children in the town of Grandfield; that she went with the defendant and Mrs. Boyd and Tom Austin to the creek to pick" pecans; that she and the defendant separated from the other two, and the defendant had sexual intercourse with her against her will and consent; that she was a few days over fourteen years of age at that time; that two or three weeks later the defendant and Jim Baker took her and her mother on the night train to Wichita Falls; that they arrived there about 12 o’clock, and the defendant procured a room which they occupied together, and he had intercourse with her twice that night; that they returned on the train, leaving Wichita Falls at 4 o’clock in the morning. Pier testimony is corroborated by witnesses who testified to declarations made by the defendant and by the testimony of two doctors who examined her person.

The defendant as a witness in his own behalf did not deny these declarations. Plis cross-examination shows that he is a widower, 39 years of age, yet the evidence is undisputed that he kept company for several months with this child.

Upon the whole case, we think the defendant had a fair trial; that there is no doubt of his guilt; and that the jury were justified in the conclusion at which they arrived.

The judgment herein is therefore affirmed.

FURMAN and ARMSTRONG, JJ., concur.


text:
    ED McKEEHEN v. STATE.
    No. A-2130.
    Opinion Filed April 24, 1915.
    (147 Pac. 784.)
    1. INDICTMENT AND INFORMATION — Duplicity—Larceny. In a prosecution for the larceny of domestic animals, the indictment held not to be subject to the charge of being duplicitous.
    2. TRIAL — Refusal of Instructions Covered. Where the charge of the court fairly and fully presented the issues in the ease to be jury, it is not error to refuse to give requested instructions.
    (Syllabus by the Court.)

      Appeal from District Court, Marshall County; Thos. D. McKeozvn, Assigned Judge.

    Ed McKeehen was convicted of the larceny of live stock, and appeals.
    Affirmed.

      Stephen C. Treadzvell, 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 was convicted of the larceny of two heifers, and his punishment fixed at imprisonment for a term of three years in the penitentiary. From the judgment rendered on the 16th day of May, 1913, in pursuance of the jury’s verdict, he has appealed to this court. The indictment charged that:

“One Ed McKeehen did feloniously, by fraud and stealth, take, steal, and carry away, from the lawful possession of C. P. Swinney and without the consent of the said C. P. Swinney, two domestic animals, to wit, two heifers, the personal property of the said C. P. Swinney, with the felonious intent of him, the said Ed McKeehen, then and there to appropriate the same to his own use and to deprive the true owner thereof, contrary to,” etc.

The overruling of the defendant’s demurrer to this indictment is the first error assigned. Counsel for the defendant contends that in alleging the larceny to have been committed “by fraud and stealth,” and also alleging, “to deprive the true owner thereof,11’ makes the indictment bad for duplicity. We do not think that this contention is tenable. Under our statute it is only necessary to allege in an indictment or information the facts constituting the offense in ordinary and concise language, and in such manner as to enable a person of common understanding to know what is intended and the court to pronounce judgment according to law on a conviction. In a prosecution of this character the indictment is predicated upon the statute defining the crime of larceny of domestic animals, and the indictment here charges all the essentials of the statutory offense; that is, the ownership of the animals stolen and the felonious intent on the part of the taker to deprive the owner thereof and to convert the same to his, the taker’s, own use. Crowell v. State, 6 Okla. Cr. 148, 117 Pac. 883; Caido v. State, 7 Okla. Cr. 139, 122 Pac. 734; Bayless v. State, 9 Okla. Cr. 27, 130 Pac. 520. The indictment does not, in any manner, charge the crime of grand larceny, for no value of the property is alleged. The words “by fraud and stealth” do not make it duplicitous and in no way affect its sufficiency.

Several assignments are based upon the instructions given, and the refusal of the court to give requested instructions. Not a single authority is cited supporting ¿hese assignments. Our examination discloses there is nothing substantial in them. The requested instructions were properly refused, and the charge given by the court fairly and fully presented the issues in the case to the jury. There appears to be sufficient testimony to support the verdict, and, no error being found, the judgment is affirmed.

FURMAN and ARMSTRONG, JJ., concur.


text:
    DAVE BARKS v. STATE.
    No. A-2133.
    Opinion Filed April 28, 1915.
    (147 Pac. 1055.)
    1. APPEAL — Dismissal. In felony eases the appeal must be taken within six months after the judgment is rendered. Section 5991, Rev. Laws. In such cases the appeal is taken by filing in this court a petition in error with case-made attached, or transcript of the record, together with proof of service of notices of appeal as required by statute, and when this is not done within the time prescribed by the statute, this court does not acquire jurisdiction of the appeal, and such an appeal will be dismissed.
    2. SAME — Time for Perfecting — Excuse for Delay. The statute limiting the time within which appeals can be taken to this court is mandatory. The law makes no provisions for delays occasioned by miscarriage by express companies, and a plaintiff in error at his peril takes the chances of delay by forwarding the record to this court by express.
    (Syllabus by the Court.)

      Appeal from District Court, Sequoyah County; John H. Pitchford, Judge.

    Dave Barks was convicted of aggravated assault, and appeals.
    Appeal dismissed.

      Curtis & Pitchfordij 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, Dave Barks, was convicted of aggravated assault on an information which charged that he did unlawfully and feloniously make an assault upon, and shoot at, one Lee Blair with a rifle, with the felonious in-_ tent on the part of him, the said Dave Barks, to kill the said Lee Blair. On May 21, 1913, the court rendered judgment, and in accordance with the verdict of the jury sentenced the plaintiff in error to be imprisoned in the penitentiary at McAles-ter for the term of three years. From this judgment the defendant attempted to perfect an appeal by filing in this court on November 22, 1913, his petition in error with case-made. A motion to dismiss the appeal has been filed by the Attorney General, which, omitting the formal parts, reads as follows:

“Comes now the state of Oklahoma by the Attorney General and moves the court to dismiss the appeal herein, and as grounds therefor says that this is an attempted appeal from a judgment in a felony case, which judgment was rendered on May 21, 1913; that the petition in error with case-made attached was not filed in this court until November 22, 1913, which was after the expiration of the six months allowed by law within which to perfect the appeal. Wherefore, the Attorney General says this court has no jurisdiction as to said attempted appeal, except to dismiss the same, and accordingly prays for an order of dismissal.”

Plaintiff in error has filed an answer to the motion to dismiss wherein it is averred:

“That on the 19th day of November, 1913, his said attorneys delivered the petition in error in this case, with a copy of case-made thereto attached, in duplicate, to the Wells Fargo Express Company, at Sallisaw, Okla., and prepaid the express thereon. That said petition in error and case-made was plainly marked, ‘W. H. L. Campbell, Oklahoma City, Okla.’ The original receipt of the express company is hereto attached, marked ‘Exhibit A,’ and made a part of this response. That said petition in error and case-made should have reached Oklahoma City, and been delivered to the clerk of this court, some time during the day of November 20, 1913.”

An appeal from a judgment of conviction in a felony case is taken by filing in this court a petition in error with case-made, or transcript of the record, attached, together with proof of service of the notices of appeal as required by statute (section 5992, Rev. Laws 1910). When this is not done within the time allowed by statute (section 5991, Rev. Laws 1910), this court does not acquire jurisdiction of the appeal.

Our Code of Criminal Procedure provides:

“In felony cases the appeal must be taken within six months after the judgment is rendered.” (Section 5991, Rev. Laws 1910.)

In the case of Gorman v. State, 9 Okla. Cr. 351, 131 Pac. 939, it was held:

“The statute limiting the time within which appeals can be taken to this court is mandatory; and, where counsel delay perfecting an appeal until the last moment, they do so at their peril, and if the time for taking an appeal has expired, before the appeal is perfected, this court is without power to do otherwise than dismiss the appeal.”

In the case of Canady v. State, 6 Okla. Cr. 634, 117 Pac. 653, it is said:

“Counsel for appellant attempt to excuse their failure to perfect said appeal within the time prescribed by law by showing that this delay was caused through some miscarriage of the post office department of the United States. The law makes no provision for such delays as this. Counsel at their peril take the chances of sending matter through the mail at the last day. It is their duty to take such steps as will insure the filing of their appeals in this court within the time prescribed by law.”

In the case at bar the petition in error and case-made was not filed with the clerk of this court within six months after the judgment was rendered. It was one day too late. Plaintiff in error shows that the failure to perfect his appeal within the time prescribed by the statute was due to some miscarriage of the express company. The law makes no provisions for delays of this kind. Plaintiff in error at his peril takes the chances of dela}' by forwarding the record by express.

It follows that the motion to dismiss the appeal should be sustained. It is therefore ordered that the purported appeal be, and the same is hereby, dismissed, and the cause remanded to the district court of Sequoyah county, with direction to cause its judgment and sentence to be carried into execution.

FURMAN and ARMSTRONG, JJ., concur.


author: ARMSTRONG, P. J.

text:
      In re E. B. AMBLER.
    No. A-1770.
    Opinion Filed September 26, 1914.
    1. HABEAS CORPUS — Question for Consideration — Conviction in Lower Court. Upon habeas corpus, after a conviction had in a trial court, the inquiry is limited to the question of the jurisdiction of such court to try and determine the cause as presented to him.
    2. SAME — Validity of Statute — Jurisdiction of Court. If the statute upon which a judgment is based is valid and the court has jurisdiction of the person and subject-matter, the writ should be denied.
    3. PHYSICIANS AND SURGEONS — Medical Practices Act — Validity. The medical practices act as set out in the body of the oxrinion is a valid, constitutional law, enacted within the reasonable exercise of the police power of the state, and does not conflict with section 33 nor section 57, art. 5 of the Constitution of the state, nor with any provision in the federal Constitution. Por a discussion of the relationshix) of this act to said sections of the Constitution, and the conclusions of the court in reference thereto, see opinion.
    4. SAME — Title of Bill. The title of the medical practices act of Oklahoma relates primarily to one subject — that is, the practice of medicine, and all its features are cognate to the title as expressed and go to make up a complete enactment as a complement to the main purpose and intent thereof.
    5. STATUTES — Act to Embrace One Subject — Title of Bill — Construction. Section 57, art. 5, Const., x31'oviding that an act of the legislature shall embrace but one subject, etc., has reference only to the body of the bill. The provision as to the explicitness of the title to the bill is directory and is not fatal to a measure simply because the title is broader than the act itself.
    6 SAME — Subject to Two Constructions — -Title—Validity. It is a well-settled rule, recognized by all the courts, that where a statute is subject to two constructions, one of which would render it invalid, the other sustain its validity, that construction which sustains the validity of the act should be adopted by the court, and this rule is equally apx>licable to titles to legislative enactments.
    7. SAME — Constitutionality — Liberally Construed. It is equally well settled that a liberal construction should be apxflied to the acts of the Legislature and constitutional provisions as well in determining whether or not such enactments violate constitutional provisions, and only when acts of the Legislature are clearly contrary to the Constitution should the court hold them invalid.

      8. PHYSICIANS AND SURGEONS — Medical Practices Act — Revenue Provisions. Revenue is only an incident to the medical practices act of Oklahoma. Said act is not a revenue measure in contemplation of section 57, art. 5 of the Constitution.
    9. STATUTES — Revenue Measure — What Constitutes. A statute enacted within the reasonable exercise of the poliee power of the state may impose reasonable fees, and the imposition of such fees in no manner changes such law from a 'police regulation to a revenue measure. Such fees are not required to be based On the cost of the enforcement of the law or the issuance of permits thereunder.
    10. TAXATION — Power of State — Limitation" — Municipal Tax. Section 20, art. 10, Williams1 Ann. Const. Olda., which provides: “The Legislature shall not impose taxes for the purpose of any'county, city, town, or other municipal corporation, but may, by general laws, confer on the proper authorities thereof, respectively, the power to assess and collect such taxes,” applies to purely municipal affairs, and does not constitute a limitation upon the power of the Legislature of the state to impose taxes for purposes which, although of a municipal character, the state has a sovereign interest in, such as taxation for police protection, for streets, highways, and bridges, for the purpose of establishing and maintaining a public school system, etc.
    (Syllabus by the Court.)
    Petition for writ of habeas corpus.

    Writ denied.

      Springer & Ousler, for petitioner.

      W. C. Reeves, Asst. Atty. Gen., for the State.
   ARMSTRONG, P. J.

The petition in this cause was filed in June, 1912, and the petitioner admitted to bail in the sum of $500 pending determination. Petitioner was convicted in the county court of Payne county upon an information charging the violation of the following statutory enactment (Comp. Taws 1909), section 4260 being the particular section covering the offense charged:

“Sec. 4242. Board created — term-vacancies.—A State Board of Medical Examiners is hereby established, to consist of nine members, learned in medicine, legal and active practitioners in the state of Oklahoma, who shall have resided and practiced medicine in the state under a diploma from a legal and reputable college of medicine of the school to which said practitioner shall belong for more than three years prior to their appointment, and no one of such schools shall have a majority on said board. Provided, that for the societies represented by only one -member, there shall be one alternate appointed by the Governor to act at the meeting of said board in case of the absence or inability of the regularly appointed member. Said alternate to derive the same benefits and subscribe to the same" oath of office as the regularly appointed members of said board. The board shall be appointed by the Governor of the state of Oklahoma within thirty days after this act becomes effective, and the term of office therefor shall be four years, or until a successor is appointed and qualified. Provided, that the term of office of the first board shall expire with the term of the present Governor in January, 1911. Vacancies occurring -at any time on the board shall be appointed by the Governor of the state of Oklahoma as provided for in this section, from a school of medicine from which the vacancy occurs, so that at no time shall one school have a majority on said board. It shall require a majority vote of said board to carry any motion, or resolution, to adopt any rule, or to pass any measure, or to issue any certificate to practice surgery and medicine as in this act provided. No member of said board shall be a stockholder or member of the faculty or board of trustees of any medical college or school.
“Sec. 4243. Oath.- — Each member of said board shall, before entering upon the duties of his office, take the constitutional oath of office from some one qualified to administer oaths, and shall, in addition, make oath that he is a graduate in medicine, and a legally qualified practitioner of medicine and surgery in this state; that he has been engaged in the active practice of medicine and surgery in this state, or in the territory formerly known as Oklahoma, or what was formerly known as Indian Territory, for a period of three years preceding his appointment.
“Sec. 4244. Organization — treasurer’s bond. — The State Board of Medical Examiners shall, immediately after the members shall qualify, organize by electing a president, vice-president, secretary and treasurer. The president of said board shall preside at all meetings of the board and perform such other duties as the board by their rules may prescribe. The vice-president shall perform all the duties of the president during the latter’s absence or disability. The secretary shall keep a record of all the proceedings of the board and perform such other duties as are prescribed in this act, or which may be prescribed by said board. The treasurer shall, in order to qualify, give bond in the sum of $5,000, the same to be approved by the Governor, and filed with the Secretary of State. It shall be his duty to receive and care for all money from the secretary, receipting him therefor, and to pay out the same upon written order of the secretary, countersigned by the president.
“Sec. 4245. Keep Record. — The Board of Medical Examiners shall preserve a record of its proceedings in a book kept for that purpose, showing name, age, place and duration of residence of each applicant, the time spent in medical study in respective medical schools, and the year and school from which degrees were granted. Said register shall also show whether applicants were rejected or licensed, and shall be prima facie evidence of all matters concerned therein. The secretary of the board shall, on March the first of each year, transmit an official copy of said register to the Secretary of State for permanent record, a certified copy of which, with hand and seal of the secretary of the said board or Secretary of State, shall be admitted in evidence in all courts of the state.
“Sec. 4246. Meetings — seal.—Said board shall hold regular meetings every three months in some convenient city or town in this state for the consideration of certificates, and may transact such other business which may properly come before it, and shall have the power to adjourn from time to time until its business is concluded; notice of the regular meeting of the board shall be given thirty days previous to the meeting of said board, by publication in at least one daily newspaper in each supreme judicial district. Said board shall procure a seal for its use and shall receive, through its secretary, applications for certificates provided to be issued under this act.
“Sec. 4247. Rules. — Said board may from time to time adopt such rules as may be necessary to carry into effect the provisions of this act. Any member of the board may administer oaths in all matters pertaining to duties of said board and the board shall have authority to take evidence on questions pertaining to the enforcement of this act.
“Sec. 4-248. Requirements to practice medicine. — Every person before practicing medicine and surgery or any of the departments of medicine and surgery in this state, must have the credentials herein provided for. In order to procure such credentials, he must produce satisfactory evidence of good moral character and a diploma issued by some legally chartered medical school or college; the requirements of such medical school or college shall have been at the time of granting such diploma in no particular less than those prescribed by the American Association of Medical Colleges, or the Southern Association of Medical Colleges in that year in which the diploma was granted: Or he must show satisfactory evidence of having possessed such diploma or license from some legally constituted institution which grants medical and surgical licenses only on actual examinations, or satisfactory evidence of having possessed such license or diploma. ITe must accompany said diploma or license with an affidavit showing that he is the person therein named and that the diploma or license was procured in the regular course without fraud or misrepresentation of any kind, such affidavit to be taken before any person authorized to administer oaths. The same shall be attested under the hand and seal of such officer, if he have a seal. In addition to such affidavit, the board shall hear such information as in its discretion it may deem proper as to any of the matters embraced in said affidavits. If it should appear from the evidence that said affidavit is untrue in any particular, or if it should appear that the applicant is not of good moral character, the application must be rejected: Provided, that osteopaths shall be subject to the above regulations with the exception that instead of the diploma hereinbefore mentioned, they shall be required to file a diploma from a legally chartered college of osteopathy in good repute as such, having a course of instruction of at least twenty months, requiring actual attendance thereon, and after 1901, of three years of nine months each. In addition to the requirements above set out, each applicant for a certificate, upon the payment of a fee of $15.00 to the secretary of the State Board of Medical Examiners, must be personally examined by said board as to his qualifications to practice medicine and surgery. The examination must be conducted in the English language, and shall be in whole or in part in writing, and shall be on the following branches, to wit, which branches shall be considered fundamental : Anatomy, histology, physiology, chemistry, physical diagnosis, bacteriology, pathology, medical jurisprudence, toxicology, surgery, gynecology, and obstetrics, the branches peculiar to the teachings of the school attended by the applicant, and such other additional subjects made necessary by the advance in medical education, as the board may designate or deem advisable to test the scientific and practical knowledge of the. applicant: Provided, that the applicant shall be examined in theory and practice, materia medica, and therapeutics by those members of the board of examiners who represent the school of practice to which the applicant professes to belong; and be it further provided, that those legally qualified to practice medicine only in that school known as osteopathy shall not be permitted to administer medicines internally in the treatment of diseases except in the use of anesthetics in the practice of surgery and obstetrics, and in cases of emergency. The credentials of applicants. which shall be sworn to by the applicants, relating to their general reputation, their preliminary education, and the course of studies that they have pursued; the degrees they have received; the number of years they have been engaged in the lawful practice of medicine; their experience in general hospitals, the medical department of the army, navy and public health and marine and hospital service, licenses granted to them by other states and countries, and their experience as teachers of medicine. All these shall be given consideration by the board in conducting its examinations. Provided, that nothing herein contained shall' be so construed as to prevent mid-wives from practicing in cases of emergency. Provided, further, that those who use only herbs and roots and treat diseases without compensation shall not be required to register. Provided, however, that all physicians who have lawfully registered since statehood shall not be required to re-register under this act.
“Sec. 4249. When from other states. — The said board may, at its -discretion, accept and register upon payment of the registration fee without examination of the applicant, any certificate which shall have been issued to him, or her, by the state board of examiners of other states, territories, or the District of Columbia. Provided, however, that the legal requirements of such medical examining board shall have been at the time of issuing such certificate in no degree or particular less than those of Oklahoma at the time when such certificate shall be presented for registration to the board created by this act, and provided further, that the provisions provided in this act shall be held to apply only to such of said medical examining boards as accept and register the certificates granted by this board without examination by them of the one holding such certificate. Each applicant upon making application shall pay to the secretary of the board a fee of $25 which shall be paid into the treasury of said board by its secretary.
“Sec. 4250. Applicants graded. — The said board- of medical examiners shall conduct and grade all examinations, and. all applicants who shall make an average grade of 70 per cent and a minimum in any one branch of 50 per cent, and who shall have complied with the conditions specified in section 4248, shall receive the certificate entitling such applicant to practice medicine in this state, subject to the performance by the said applicant of the heretofore preliminary conditions in this act required. The applicants shall be known by numbers so that no member of said board shall be able to identify the applicants with their respective papers until said papers shall be finally graded. The questions and answers with the respective grades attached shall be preserved for two years, and shall be open to public inspection by all persons interested. In case of failure to secure the percentage required for a passing grade, the applicant may take another examination within twelve months without extra cost. Temporary permits may be granted and shall be effective until the next meeting of the board unless sooner revoked for cause. Provided, that the applicant shows good faith by payment to the secretary of the State Board of Medical Examiners the regular examination fee and delivering to the board such credentials and other evidences of intentions to become a bona fide resident of the state as the board may require.
“Sec. 4251. Certificate to practice. — When any applicant has shown himself to be possessed of the qualifications herein required and has successfully passed the examination, a certificate must be - issued to him by said board authorizing him to practice medicine and surgery in this state. Said certificate shall be signed by each member of the board and sealed with the seal of said board: Provided, however, that all physicians and surgeons who were legally licensed and practicing in Oklahoma Territory and the Indian Territory on the l(Sth day of November, 1907, shall be required to register with the said board, but shall be exempt from examination, except as to their credentials, and shall be entitled to re-registration with the said board, and certificate of registration free of cost: Provided, however, that said physician and surgeon desiring re-registration shall make an application therefor within 90 days after this act becomes operative; such physician and surgeon failing to make such application within the said 90 days, shall be considered an illegal practitioner, and shall be dealt with as herein provided, for the violation of this act.
“Sec. 4252. Same — recorded.—Every person holding a certificate authorizing him to practice medicine and surgery in this state must have it recorded in the office of the county clerk, as herein provided. Every such person on the change of residence must have his certificate recorded in like manner in the county to which he shall have changed his residence, and said certificate shall be displayed in his office as evidence of having complied with the law. The absence of such record shall be prima facie evidence of the want of possession of such certificate, and every person holding such certificate who shall practice medicine and surgery or attempt to practice medicine and surgery without first having recorded same with the county clerk, as herein provided, shall be deemed guilty of a misdemeanor.
“Sec. 4253. County clerk’s ‘Medical Register.’ — It shall be the duty of the county clerk of the several counties of the state, immediately upon the taking effect of this act, to purchase, at the expense of the county, a suitable book to be known as the ‘Medical Register’ for the purpose herein set forth; said record shall be open to public inspection during office hours. The county clerk shall receive compensation in the manner provided in the statutes of Oklahoma for the recording of similar documents.
“Sec. 4254. Before certificate is refused — procedure.—Said board must refuse a certificate to any applicant guilty of unprofessional conduct, but before such refusal, the applicant must be cited by citation signed by the secretary of the board and sealed with its seal. No such citation shall be issued except upon a sworn complaint filed with the secretary of the board charging the applicant with having been guilty of unprofessional conduct and setting forth the particular act constituting such unprofessional conduct. Upon the filing of such complaint, the secretary must forthwith issue a citation and make the same returnable at the next session of the board occurring at least 30 d.ays next after the filing of the complaint. Such citation Vhall notify the applicant of the time and place, when and whem the matter of such unprofessional conduct shall be heard, and the particular unprofessional conduct with which the applicant is charged. The applicant shall file written answer under oath within twenty days after the service on him of such citation, or default will be taken against his application and certificate refused. The attendance of witnesses shall be compelled at such hearing by subpoenas issued by the secretary of the board under its seal and said secretary shall in no case refuse to issue any such subpoena upon the fee of 25 cents being paid to him for its issuance.
“Said citation and said subpoena shall be served in accordance with the statutes of this state, then in force as to the service of citation and subpoenas generally and all of the provisions of the statutes of this state then in force relating to the subpoenas are hereby made applicable to the subpoenas provided for herein. If any person refuses to obey a subpoena' served on him or her according to the statutes of this state then in force providing for the manner of serving subpoenas, the fact of such refusal shall be certified by the secretary of the said board under the seal thereof, to the county court of the county in which the service was had, and said court shall proceed to' hear said matter in accordance with the statutes of this state then in force as to contempt for disobedience of its own process. In all cases of illegal or unprofessional conduct, arising under the provisions of this act and all the provisions of the statutes of this state then in force as to the takiiig of depositions are hereby made applicable to the taking of testimony under this act. If the applicant shall fail to file with the secretary of the said board his answer under oath to the charges made against him within twenty days after the service on him of said citation, or within such further time as the board may give him, the charges on the face may be deemed sufficient by the board, and default may be entered against him and his application refused. Whenever any holder of a certificate issued as herein provided shall be guilty of unprofessional conduct as defined by this act, and such unprofessional conduct is brought to the attention of the board granting said certificate in the manner herein pointed out, it shall be their duty to, and they must, at once, revoke the same, and the holder of such certificate shall not thereafter be permitted to practice medicine and surgery, or in any other departments of medicine and surgery in this state. But no such revocation shall be made unless such holder is cited to appear and the same proceedings are had, as is hereinbefore provided in this section, in case of refusal to issue certificates. The accused party at the time he presents his answer for filing, shall deposit with the secretary his certificate, and unless he does so, the secretary must not file his answer, and default may be thereon entered against him and his certificate revoked if the charges on their face be deemed sufficient by the board. When the certificate is revoked, the secretary of the board, if the certificate has been deposited with him, shall write across the face thereof in red ink, the fact of such revocation and shall file such certificate so revoked among the archives of his office under the seal of the board to the county clerk of the county of which the certificate of the person whose certificate has been revoked is recorded, and said county clerk must thereupon write on the margin or across the face of his register the fact and day of such revocation in accordance with this act. From the time of the revocation of certificate the holder shall be disqualified from practicing medicine in this state. The words ‘unprofessional conduct’ as used in this act are hereby declared to mean: First. The procuring or aiding or abetting in procuring a criminal operation. Second. The obtaining of any fee on the assurance that an incurable disease can be permanently cured. Third. The willful betrayal of a professional secret' to the detriment of a patient. Fourth. All advertising of medical business in which grossly improbable statements are made that are calculated to mislead the public. Fifth. All advertising of any medicine or means whereby the monthly periods of women can be regulated or menses re-established, if suppressed. Sixth. Conviction of any offenses involving moral turpitude. Seventh. Habitual intemperance, and the habitual use of habit-forming drugs. Eighth. The employment of what is commonly known as ‘cap-pers’ or ‘steerers’ in procuring practice. These specifications are not intended to exclude other acts for which license may be revoked on the ground of unprofessional conduct.
“Sec. 4255. Salary of secretary. — Said board shall fix the salary of the secretary not to exceed one hundred and fifty dollars per year, and the other members of said board shall receive not to exceed six dollars per diem for each and every day of actual service in the discharge of their duties under this act, and the necessary traveling expenses, and all money in excess of the actual expenses of the board, as provided by this act shall be paid annually into the state treasury.
“Sec. 4256. Penalty — practicing without license. — Any person practicing medicine and surgery in this state, without having at the time a valid unrevoked certificate as provided in this act, shall be deemed guilty of a misdemeanor and shall be fined not less than one hundred ($100) dollars nor more than five hundred ($500) dollars, or by imprisonment for a term of not less than sixty days nor more than one hundred and eighty days, or both such fine and imprisonment, and each dayls practice shall constitute a separate offense. All fines under the provisions of this section shall be paid into the road and bridge fund of the county wherein the conviction is secured.
“Sec. 4257. Unprofessional services — penalty.—Any person who shall render professional services as a physician in this state, without first complying with the provisions of this act, shall, in addition to the other penalties prescribed herein, receive no compensation for such services; and no indebtedness shall be created thereby against the person for whose benefit such services shall be rendered.
“Sec. 4258. False certificate. — Every person filing for record, or attempting to file for record the certificate issued to another falsely claiming himself to be the person entitled to the same, shall be guilty of a felony and upon conviction thereof shall be subject to such penalties as are provided by the laws of this state for the crime of forgery.
“Sec. 4259. Who deemed practitioners. — The following persons shall be deemed as practicing medicine and surgery within the meaning of this act:
“First. Those who prescribe or administer any drug or medicine now or hereafter included in materia medica in the treatment of disease, injury, or deformity of human beings.
“Second. Those who practice major or minor surgery in the treatment of disease, injury or deformity of human beings, except dealers in surgical, dental, or optical appliances. The doing of any of the acts in this section mentioned shall be taken to be prima facie evidence of an intent' on the part of the person doing any of the said acts to represent himself as engaged in the practice of medicine or surgery, or both. But nothing in this act shall be so construed as to prohibit the service in the case of emergency or the domestic administration of family remedies; nor shall this act apply to any commissioned medical officer in the United States army, navy, or marine hospital service in the discharge of his professional duties nor to any legally qualified dentist when engaged exclusively in the practice of dentistry, nor to any physician or surgeon from another state or territory when in actual consultation with a legal practitioner of this state, if such physician or surgeon is at the time of said consultation a legal practitioner of medicine and surgery in the state or territory in which he resides, nor to any physician or surgeon residing on the border of a neighboring state and duly authorized under the laws thereof to practice medicine and surgery therein, whose practice extends within the limits of this state, providing, that such physician or surgeon shall not open an office or a place to meet patients or receive calls within the limits of this state.
“Sec. 4260. Peddlers of medicine and medical appliances.— It shall be unlawful for any person to sell or offer for sale by peddling, or to offer for sale from house to house, or to offer for sale by public outcry, or to be vending in the street, any drug or medicine, pharmaceutical preparation, chemical or any composition or combination thereof, or any implement or appliance or other agency for the treatment of disease, injury or deformity, or by writing or printing or any other method to publicly profess to cure or treat any disease, injury, or deformity by any drug, nostrum manipulation, or other expedient, without previously obtaining a license therefor, as herein provided. An annual county license fee of fifty dollars is hereby ■levied upon all such itinerant vendors doing business in any county in this state. Said sum shall be paid to the county clerk, who shall pay the same over to the county treasurer for the use of the county road and bridge fund of said county. The. county clerk shall thereupon issue a license showing the applicant has paid his license fee and' is authorized to do business as above described in this section, in that county, for one year: Provided, however, that this shall not prevent incorporated towns or cities from levying an additional license on such vendors of aforesaid articles or goods. Any person who shall violate this section shall, upon conviction, be fined not less than fifty dollars nor more than one hundred dollars, or imprisonment, said fine to be turned over to the county treasurer for the use of the county road and bridge fund.
“Sec. 4261. Board to make report. — Said Board of Medical Examiners shall annually on or before the first day of January, file with the Governor a correct written report of all their proceedings, and account for all moneys received and paid out by them during the year.
“Sec. 4262. Appeal from board. — Any person who has been aggrieved by any act, rule or regulation of said board shall have his right of action to have, such issue tried in the district court of the county in which some member of the board shall reside.
“Sec. 4263. Violation' — penalty.—Any person who shall violate any of the provisions of this act, except as otherwise provided, shall be fined not less than ten dollars, nor more than one hundred dollars for each offense.
“A Resolution Empowering ti-ie Board of Health or Medical Examiners to Perform Certain Duties.
“Sec. 4264. Revision of errors. — Whereas, it is claimed that by mistake or otherwise, injustice has been done physicians of certain school or schools of medicine, in the administration of the territorial laws governing the admission of such physicians to practice their profession, as well as in the attempt to cancel the license of those previously admitted to practice; therefore, be it resolved by the House of Representatives, the Senate concurring therein: That the State Board of Health or Medical Examiners be, and is hereby empowered, authorized and directed to correct any such mistake or mistakes and right any injustices that may have been done any applicant of any school of medicine for admission to practice, and restore to practice any one who, by mistake or otherwise, has been deprived of the right to practice his or her profession, without further cost or examination; that all physicians who have been granted licenses previous to statehood, regardless of school or schools, shall be placed on equal footing with the graduates of the same school, who have been granted license by the State Board of Health or Medical Examiners.”

The act was approved July 10, 1909. The title to the same is as follows:

“An act to define and regulate the practice of medicine; to create a Board of Medical Examiners for the examination and licensing of physicians and surgeons, and to prescribe their qualifications; to provide for their proper regulation, and to provide for the revocation of their license; to require itinerant vendors to procure county license and to fix suitable penalties for the violation of this act, and repealing laws and parts of laws in conflict herewith.1”

The punishment of petitioner was fixed at a fine of $100. An appeal was taken to this court from the judgment, but was dismissed on motion of the Attorney General for non-compliance with statutory provisions.

The scope of the inquiry presented by this petition is limited, therefore, to the question of the jurisdiction of the court to try and determine the cause, it being the contention of petitioner that the statute is unconstitutional and void and that therefore the judgment against him is without authority of law.

In Ex parte Woods, 7 Okla. Cr. 645, 125 Pac. 440, we said:

“Where a prisoner in custody under sentence of conviction seeks to be discharged on habeas corpus, the inquiry is limited to the question of whether the court in which the prisoner was convicted had jurisdiction of the person of the defendant and of the crime charged; and if the trial court had jurisdiction and power to convict and sentence, the writ cannot issue to correct mere errors.”

See, also, In re Wilkins, 7 Okla. Cr. 422, 115 Pac. 1118; Ex parte Rupert, 6 Okla. Cr. 90, 116 Pac. 350; Ex parte Alexander, 5 Okla. Cr. 196, 113 Pac. 993; Ex parte Talley, 4 Okla. Cr. 398, 112 Pac. 36, 31 L. R. A. (N. S.) 905.

The petitioner contends that the medical practices act, supra, violates sections 33 and 57 of article 5, Oklahoma Constitution. These provisions are as follows:

“Sec. 33. All bills for raising revenue shall originate in the House of Representatives. The Senate may .propose amendments to revenue bills. No revenue bill shall be passed during the five last days of the session.
“Sec. 57. Every act of the Legislature shall ¿mbrace but one subject, which shall be clearly expressed in its title, except general appropriation bills, general revenue bills, and bills adopting a code, digest, or revision of statutes; and no law shall be revived, amended, or the provisions thereof extended or conferred, by reference to its title only, but so much thereof as is revived, amended, extended, or conferred shall be re-enacted and published at length: Provided, that if any subject be embraced in any act contrary to the provisions of this section, such act shall be void only as to so much of the law as may not be expressed in the title thereof."

Does the title of the act relate primarily to one subject, namely, the practice of medicine, and are all features of the act referable and cognate to the title as expressed, and do they go to make up a complete enactment or result as a complement to the main thought therein contained? We are of opinion that this question can be answered in the affirmative, and supported by ample authority, among them the following adjudicated cases: Jefferson v. Toomer, 28 Okla. 658, 115 Pac. 793; Coyle v. Smith, 28 Okla. 121, 113 Pac. 944; Binion v. Okla. Gas & Elec. Co., 28 Okla. 356, 114 Pac. 1096; Holcomb v. C., R. I. & P. Ry. Co., 27 Okla. 667, 112 Pac. 1023; Atwater v. Hassett, 27 Okla. 292, 111 Pac. 802; State ex rel. v. Hooker, 22 Okla. 712, 98 Pac. 964; In re County Commissioners, 22 Okla. 435, 98 Pac. 557; In re Menefee, 22 Okla. 365, 97 Pac. 1014; Noble State Bank v. Haskell, 22 Okla. 48, 97 Pac. 338; Lindsay v. U. S. Savings & Loan Association, 120 Ala. 174, 24 South. 171, 42 L. R. A. 783.

Section 57, art. 5, Const., supra, has reference only to the body of the bill, and not to the title. A case involving this proposition was decided by the Supreme Court of Tennessee in Mayor and Aldermen of Knoxville v. Gass, 104 S. W. 1084. Syllabus I reads:

“Const, art. 2, sec. 17, providing that no bill shall embrace more than one subject, which must be expressed in the title, does not apply to the title, but to the body of the bill, and it is no objection to a bill that the caption is broader than the enacting part, or covers or may be construed to cover other subjects, if the real subject of legislation is therein expressed.”

In Cannon v. Mathes, 8 Heisk. 519 (Tenn.), the same court, quoting Cooley on Const. Limitations, says:

“ ‘The generality of the title is no objection to it, so long as it may not be made to cover legislation incongruous in itself, and which by no fair intendment can be considered as having a necessary or proper connection.’ ”

See, also, State ex rel. v. Hamby, 114 Tenn. 364, 84 S. W. 622.

It appears that the most that can be said against the Oklahoma act, supra, is that the title is broader than the enacting part and covers or might be construed to cover another subject; that is, the licensing of vendors, but by a careful examination of the body of the bill it is easily to be determined that it relates to only such things as pertain to the practice of medicine. If no reference had been made to vendors in the title that section of the act which relates to vendors of medicine and medical appliances could have been properly included in the measure, because such a provision is referable and cognate to the subject expressed in the title and constitutes only a part of a complete enactment as a complement to the main thought therein expressed. This being true, the fact that the word “vendors” was not followed by the words “medicine and medical appliances” was immaterial, because the title would have been sufficient without any reference to vendors whatever. No attempt is made by the act to legislate as to vendors other than those who sell medicines and medical appliances, and no such intent can be deducted from the measure.

The Supreme Court of the United States, in the case of Montclair v. Ramsdal, 107 U. S. 147, in considering a constitutional provision of New Jersey which provided that every law should embrace but one subject which should be expressed in the title, said:

“The purpose of this constitutional provision was declared by the Supreme Court of New Jersey in State v. Town of Union, 33 N. J. L. 350, to be ‘to prevent surprise upon legislators by the passage of bills, the object of which.is not indicated by their titles, and also to prevent the combination of two or more distinct and unconnected matters in the same bill.’ Further the court said: ‘It is not intended to prohibit the uniting in one bill of any number of provisions having one general object fairly indicated by its title. The unity of the object must be sought in the end which the legislative act proposes to accomplish. The degree of particularity which must be used in the title of an act rests in legislative discretion, and is not defined by the Constitution. There are many cases where the object might with great propriety be more specifically stated, yet, the generality of the title will not be fatal to the act, if by fair intendment it can be connected with it.’ ”

See, also, McGlone v. Womack, 129 Ky. 274, 111 S. W. 688, 17 L. R. A. (N. S.) 855.

The title of the act under consideration by the Kentucky court in this latter case was as follows: “An act to promote the sheep industry and to provide a tax on dogs.” It was urged before that court that the act was inimical to the constitutional provision requiring laws to relate to only one subject, which should be clearly expressed in the title. Upon that point the court Said:

“* * * We do not agree that the title before us relates to two subjects. The subject-matter of the act is the promotion of the sheep industry and this is to be accomplished by the imposition of a tax on dogs. No other attempt to promote the. sheep industry is indicated by any provision in the act taken as a whole. It may be that the title to the act is rather awkwardly expressed. What it really means is that it is .an act to promote the sheep industry by providing a tax on dogs, and when thus read, all duality disappears.”

The similarity of the title to our medical practices act may clearly be seen by comparison.

In State v. Boardnax (Mo.) 128 S. W. 177, the Missouri Supreme Court, in discussing a similar constitutional provision, said:

“Directing our attention to the insistence of counsel for appellant that this act is a revenue measure and its validity must be tested by the taxing power, it is sufficient to say in our opinion that the test of the validity of this act is not to be applied to the usual taxing power in the imposition of a direct or property tax in any of the forms in which they are ordinarily imposed. Manifestly the act does not provide a direct or property tax in any form whatever, but simply provides for an excise or stamp tax on the right, privilege, and occupation of buying or selling shares of stocks, or bonds of any corporation, or petroleum, cotton, grain, provisions, or other commodities, either on margins or otherwise, where the same is not at the time actually paid for and delivered. As was said in Nicol v. Ames, 173 U. S. 509 (19 Sup. Ct. 522, 43 L. Ed. 786), where a tax of this character was in judgment before that court, that ‘the tax is, in effect, a duty or excise laid upon the privilege, opportunity, or facility orfered at boards of trade or exchanges for the transaction of the business mentioned in the act. It is not a tax upon the business itself which is so transacted, but is a duty upon the facilities made use of and actually employed in the transaction of the business, and separate and apart from the business itself. It is not a tax upon the members of the exchange nor upon the membership therein, nor is it a tax upon sales generally. The act limits the tax to sales at any exchange or board of trade, or other similar place, and its fair meaning is to impose a duty upon those privileges or facilities which are there found and made use of in the sale at such place of any product or merchandise.’ ”

It is a well-settled rule, recognized by all the courts, that where a statute is subject to two constructions, the one which will sustain its validity must be adopted, and this rule is equally applicable to the interpretation of titles to legislative enactments. Memphis St. Ry. Co. v. Byrne, 119 Tenn. 278, 104 S. W. 460. It is also well settled that a liberal construction should be applied to the acts of the Legislature in determining whether or not they violate the constitutional provisions, and courts will not pronounce a statute unconstitutional unless it clearly appears to be so. Both the legislative enactment and the constitutional provision are to be liberally construed with a view of sustaining the action of the Legislature.

In State v. Coyle, 7 Okla. Cr. 50. 122 Pac. 243, we said:

“Every legislative act is presumed to be constitutional and the courts should not declare an act to be unconstitutional unless it is clearly so. If there is a doubt, the express will of the Legislature should be sustained.”

See, also, Memphis St. Ry. Co. v. Byrne, 119 Tenn. 278, 104 S. W. 460 ; Joy et al. v. City of Terrell (Tex.) 138 S. W. 213; State v. Price, 229 Mo. 670, 129 S. W. 650.

In State ex rel. v. Wiethaupt. 231 Mo. 449, 133 S. W. 329, in syllabus I, it is said:

“The purpose of the Constitution * * * providing that no bill shall contain more than one subject, which shall be expressed in its title, is to prevent the public and the members of the Legislature from being misled as to the contents of a bill, and where the words in the title do not mislead as to what the bill contains, and they are not designed as a cover to incongruous legislation, the title is sufficient.''"

For a general discussion of the principle, see body of the opinion.

The Supreme Court of California, in the case of People v. Sacremento Drainage District, 155 Cal. 373, 103 Pac. 207, said:

“The purpose of Const. * * * declaring that ever}? act shall embrace but one subject, which shall be expressed in its title, was not to hamper legislation, but to check and prevent deception therein.”

In State v. Kolsem (Ind.) 14 L. R. A. 566, the Supreme Court of Indiana, discussing a similar question, said:

“If the title covers a general subject, the act is valid, no matter how minutely it may go into details germane to that subject.”

See, also, Evers v. Hudson, 36 Mont. 135, 9 Pac. 462.

The Supreme Court of Oregon in State v. Miller, 54 Ore. 381, 103 Pac. 519, held that a provision in an amendment to the act providing a board of pharmacy and .the registration of pharmacists and regulating the sale of poisons which provided for licensing itinerant vendors of drugs did not violate the section of the Constitution requiring every act to embrace one subject, which must be expressed in the title. There are many cases which support this doctrine. The constitutions of practically all the states prohibit the passage of laws pertaining to more than one subject-matter, ancl these provisions all intend to prevent the evils of omnibus bills and surreptitious legislation. The restrictions requiring'the subject of an act to be expressed in its title should be reasonably construed, considering substance rather than form and requiring the expression of the title of the general object, but not the details or incidents. See 36 Cyc. 1017-30.

It is next contended that the medical practices act is a revenue measure and that it did not originate in the House of Representatives and was not passed more than five days prior to the adjournment, and for that reason is in conflict with section 33, art. 5, supra. This contention is without merit. The medical practices act is not a revenue measure within the meaning of said sections of the Constitution. Revenue laws, in the contemplation of this section of the Constitution, are those only whose principal purpose is the raising of revenue, and not those under which revenue may incidentally arise. See Anderson v. Ritterbush, 23 Okla. 761, 98 Pac. 1003. The authorities on this point are collated and discussed at -great length by our Supreme Court in an opinion prepared by Justice Kane in the Anderson v. Ritterbush case, supra. This opinion by the Supreme Court completely answers the contention of counsel for petitioner.

It is next contended that the act in question is in violation of section 20, art. 10, Constitution of Oklahoma. This section of the Constitution is as follows:

“The Legislature shall not impose any taxes' for the purpose of any county, city or town or other municipal corporations, but may, by general laws, confer on the proper authorities thereof, respectively, the power to assess and collect taxes.”

The particular portion of the statute in question which is objected to as in violation of the above constitutional provision is as follows :

“Said sum shall be paid to the county clerk, who shall pay the same-over to the county treasurer for the use of the county road and bridge fund of said county.”

This identical question was determined adversely to the contention of petitioner by the Supreme Court of Oklahoma in Thurston, County Treasurer, v. Caldwell et al., 40 Okla. 206, 137 Pac. 683. The court, in that opinion, among other things, said:

“Section 20, art. 10, Williams’ Ann. Const. Okla., which provides, 'The Legislature shall not impose taxes for the purpose of any county, city, town or other municipal, corporation, but may, by general laws, confer on the proper authorities thereof, respectively, the power to assess and collect such taxes,’ applies to purely 'municipal affairs, and does not constitute a limitation upon the power of the Legislature of the state to impose taxes for purposes which, although of a municipal character, the state has a sovereign interest in, such as taxation for police protection, for streets, highways, and bridges, for the purpose of establishing and maintaining a public school system,” etc.

See, also, Atchison, T. & S. F. Ry. Co. v. State, 28 Okla. 94.

The reasoning, argument, and authorities cited in these two opinions of the Supreme Court of our own state are sufficient answer to this contention.

Counsel further contend that because the license fee is a sum greater than the cost of issuing same, the medical practices act in question becomes a revenue measure in so far as it affects vendors and peddlers of medicines and medical appliances. The license provided is an annual fee of $50. This identical question was before the Supreme Court of Minnesota in the case of State v. Jensen, 93 Minn. 88, 100 N. W. 644. The provision before the court of Minnesota required the payment of a license fee of $125. It was contended before that court that the act was void for the same reasons that counsel urge here — that is, that the law was a revenue measure and not the reasonable exercise of police power. The court in their opinion, among other things, said:

“The defendant urges that the license fee of $125 is unreasonable in amount and a tax for revenue, and that therefore the ordinance is void. The authority given to the city council by the charter of the city to license and regulate peddlers, was granted for police, not revenue purposes, but the fact that the city incidentally derives a revenue from the exercise of the power does not affect the validity of the ordinance. In the exercise of the power granted, a wide discretion is allowed the city council, and unless the license fee is manifestly unreasonable the ordinance is not void. The business of peddling is a legitimate one, but, unless regulated and wisely policed, it is liable to become a nuisance, especially in the large cities of the state. Therefore, the amount of the license fee is not limited to an amount which will cover the expense of issuing it, but it may include the reasonable cost of policing the business, and such further reasonable sum as the council may deem necessary in order to secure the orderly pursuit of the business, by excluding therefrom irresponsible and disorderly persons. City of Mankato v. Fowler, 32 Minn. 364, 20 N. W. 361; In re White, 43 Minn. 250, 45 N. W. 232; City of Duluth v. Krupp, 46 Minn. 435, 49 N. W. 235; City of Duluth v. Marsh, 71 Minn. 248, 73 N. W. 962.
“In the second case cited it was held that a license fee of $3 per day for peddlers was not unreasonable, and in the third one cited it was held that a license fee of $100 a year for peddling in the city of Duluth was not unreasonable. We hold that the license fee of $125 a year for peddling in the city of Minneapolis is not so manifestly unreasonable as to justify the court in holding that the ordinance is void.1"

Counsel assume that because the law in question produces revenue, this stamps .it as a revenue measure in contemplattion of the constitutional provision, supra. Revenue is a mere incident to the law, and not the primary purpose of the law. This is clearly apparent to an unbiased mind. If the $125 license fee imposed by a similar law under a similar constitutional provision in the state of Minnesota does not have the effect of converting the act into a revenue measure in that state, then the $50 license fee as imposed by the law in this state, enacted by the Legislature within the reasonable exercise of the police power, certainly does not convert the act into a revenue measure. We are not inclined to twist a construction out of these enactments that will thwart the will of the people expressed through the Legislature, and especially so when such construction is unsupported by reason or authority. The Legislature of Iowa enacted a law almost identical with the medical practices act of Oklahoma, except that in Iowa $100 was imposed instead of $50. In the case of State v. Wheelock, 95 Iowa, 577, 64 N. W. 620, 58 Am. St. Rep. 442, the question of whether or not this section was a revenue measure or a reasonable police provision arose. . The court in its opinion, among other things, says:

“The primary object of the act is not to derive a revenue for the use of the state, but in a large part at least to protect its citizens against solicitations and harmful practices or irresponsible and unknown traveling vendors of drugs and other articles intended for the treatment of diseases or injury, who in carrying on their business publicly profess to cure or treat diseases, injuries or deformities and thus promote the sale of their wares to the credulous. The prohibited act may be committed without any actual sale. State v. Blair, 60 N. W. 486. That the enactment of the law in question was within the police power of the state is affirmed in principle by numerous authorities, some of which are of long standing and cannot now be successfully questioned. * * * The amount of the license fee required by the statutes under consideration is not excessive, and the regulations adopted by them are reasonable. The sale of drugs, nostrums, and other articles manufactured in another state and brought into this state, whether brought into this state in original packages or otherwise, is not prohibited; but such medicines may be brought into the state and sold freely. Their importation and sale are not in any manner prohibited. But if its owner select as their agent an itinerant who, to promote sales, publicly professes to cure and treat diseases, injuries and deformities, it is proper that some evidence and guaranty of his responsibility be required. * * * The statutes which apply to such sales are not in any sense regulations of interstate commerce, but a reasonable exercise of the police power of the state which may be applied as well to articles of interstate commerce in the hands of a vendor, and offered for sale in the original package, as to' articles produced in the state.”

From these authorities it is clearly apparent that a reasonable license fee imposed under the police power to regulate is not invalid because it produces revenue. See Johnson v. Philadelphia, 60 Pa. 445; Ex parte Gregory, 20 Tex. App. 210, 54 Am. Rep. 516.

Counsel complain that the law requiring the license fee under the statute in question is invalid by reason of the fact that the fees provided for are to be used for other purposes, and not for the purpose of enforcing the law under which they are imposed. This contention is without merit. See Littlefield v. State, 42 Neb. 223, 28 L. R. A. 588.

The constitutionality of the medical practices act of Oklahoma has not been directly discussed by this court, although it has been recognized in Coulson v. State, 8 Okla. Cr. 403, 127 Pac. 1090; Gobin v. State, 9 Okla. Cr. 201, 131 Pac. 546; Wilson v. State, 8 Okla. Cr. 493, 129 Pac. 82.

We are of opinion that the act in question is a valid law, enacted within the reasonable exercise of the police power of the state, and a wholesome provision which infringes on no constitutional provision of Oklahoma or of the United States. From the foregoing conclusion it is seen that the conviction of the petitioner was had under a valid law and in a court of competent jurisdiction. It therefore follows that the writ should be discharged and the prisoner remanded to the custody of the sheriff of Payne county, to be dealt with as the law provides.

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