author: FURMAN, PRESIDING Judge.

text:
    Will Rea v. State.
    No. A-95.
    Opinion Filed December 7, 1909.
    (105 Pac. 381.)
    1. APPEAL — Reversal on Error of Law — Review of Evidence. When an assignment of error that the evidence does not support the verdict is overruled, and the cause remanded on errors of law, the court will not discuss the evidence.
    2. INDICTMENT AND INFORMATION — Successive Information. Section 5351, Wilson’s Rev. & Ann. St. 1903, which provides that when a charge has been submitted to a grand jury, and no bill has been returned, it cannot be again submitted without direction from the court has no application to charges presented by information.

      3. EVIDENpE — Evidence of Other Prosecutions — Admissibility. A defendant should he tried on the facts of the particular case before the court. Evidence of other trials, indictments, or convictions not connected with the matter then on trial should not be received.
    4. EVIDENCE — Burden of Proof — Presumption of Innocence, (a) The burden of proof is on the prosecution to establish the guilt of the defendant by legal evidence beyond a reasonable doubt; and, if this is not done, he is entitled to he 'acquitted.
    • (b) The defendant is presumed to be innocent until his guilt is established by legal evidence beyond a reasonable doubt; and, unjess the jury are so satisfied, it is their duty to acquit the defendant.
    5. INSTRUCTIONS — Invasion of Province of Jury. Section 5518, Wilson’s Rev. & Ann. St. 1904, makes the jury the exclusive judges of all questions of fact. It is therefore error for the trial court to instruct the jury that they are bound to accept and act upon the testimony of an impeached witness if it has been corroborated. .
    (Syllabus by the Court.!

      Appeal from Poniotoc County Court; Joel Terrell, Judge.

    Will Eea was convicted of -unlawfully selling intoxicating liquor., and he appeals.
    Reversed and remanded.
    On the 14th day of February, 1908, Will Rea, hereinafter called defendant, was convicted on a charge of selling intoxicating liquor, in the county court of Pontotoc county, Okla., on information, and his punishment was assessed at a fine of $500 and 60 days in jail. The case is properly before this court on appeal.

      Crawford '& Bolen, B. C. King, and Galbraith & McKeown, for appellant.
    — On admissibility of evidence of other prosecutions: .Slater v. State, 1 Okla. Or.' 275. On instructions invading province of jury: Weber v. State, 2 Okla. Cr. 329; Shellabarger v. Nafus, 15 Kan.. 554; State v. Potter, 16 Kan. 99. , .
   FURMAN, PRESIDING Judge.

First.' The first assignment of error is:

“The court erred in not-.granting'a new- trial, because the verdict is contrary to the law and the evidence.”

We cannot agree with this contention; but, as the judgment will have to be reversed and remanded for a new trial on account of errors of law committed during the trial, we do not deem it necessary to discuss the evidence.

Second. The second assignment, of error is as,follows:

“The court erred in overruling the motion of the defendant to quash the information, to which action the defendant at the time excepted and still expects.” . .

This motion was based upon an affidavit to the effect that this identical oifense had been previously investigated by the ■ grand jury, and that they refused to find an indictment against the defendant thereon, and that the offense had not been again referred to the grand jury by the court, and that no leave had been granted by the court to file the information herein. Section 5351, Wilson’s Rev. & Ann. St. 1903, is as follows:

“The dismissal of the charge does not, however, prevent its being again submitted to a grand jury as often as the court may direct. But without such direction it cannot be again submitted.”

This statute has no application to offenses prosecuted by information, and the court did not err in overruling the motion to quash the information upon this ground.

Third. The court erred in forcing the defendant to testify as to previous prosecutions against him, and as to any promises which he may have made to the people of Roff growing out of such prosecutions. The defendant should have been tried on the facts of the particular case then before the court.. The question submitted to the jury was as to the guilt of the defendant on the charge then upon trial, and any reference to any former trial, indictments, or convictions was improper. Stater v. State, 1 Okla. Cr. 275, 98 Pac. 110.

■Fourth. The defendant complains of the action of the trial court in giving the following instruction:

“(7) The defendant, as a defense, claims that he did not sell said' intoxicating liquor at the time and the place as charged in said information; and, if you are satisfied from the evidence that the statements are true, your verdict should be a verdict of not guilty, because the defendant cannot be convicted in this ease unless you are satisfied from the evidence beyond a reasonable doubt that the defendant is guilty of unlawfully disposing of intoxieat-ing liquor. (8) As regards the question as to the guilt or innocence of the defendant, the jury are instructed that the defendant is not required to prove his innocence beyond a reasonable doubt to entitle him' to an acquittal, but it is sufficient if the evidence upon that jooint raises a reasonable doubt as to his guilt.”

In the seventh instruction the jury are informed that, if they are satisfied from the evidence that the defendant did not sell intoxicating liquor at the time and place charged in the information, their verdict should be not guilty. This' instruction squarely placed the burden of proof on the defendant, and is the exact reverse of the law. Under our system the burden of proof is on the state. The defendant is presumed to be innocent until his guilt is established by the state, by legal evidence beyond a reasonable doubt; and, if the state fails to do this, the defendant should be acquitted, whether the jury believe him innocent or not. The instruction complained of states under what conditions the defendant could be acquitted, viz., that the jury must be satisfied from the evidence that the defendant did not sell the intoxicating liquor as charged in the information. It then goes further, and informs the jury that they cannot convict the defendant unless they are satisfied from the evidence beyond a reasonable doubt that he is guilty, but the instruction does not inform the jury as to what their action will be if they fail to reach either of these conclusions. The eighth instruction informs the jury that the defendant is not required to prove his innocence beyond a reasonable doubt to entitle him to an acquittal, but is sufficient if the evidence upon that point raises a reasonable doubt as to his guilt. The first error in this instruction is that it suggests the idea that the burden is on the defendant to prove his innocence, and then it proceeds: “It is sufficient if the evidence upon that point raises a reasonable doubt as to his guilt.” We must confess that we are unable to understand just what the learned judge-means by this codicil to the instruction given. When he says “if the evidence upon that point raises a reasonable doubt of his-guilt,” to what point does he refer?

An instruction similar to the one now under consideration, was condemned in Weber v. State, 2 Okla. Cr. 329, 101 Pac. 355, in an opinion of this court by Judge Doyle. He said:

“It is not essential to an acquittal that the -jury should believe that the defendant did not deliver said whisky, or that defendant did not receive any money for said whisky, or that the defendant was not guilty. The law presumes that he did not deliver said whisky, and that he did not receive money for said whisky, and the law presumes that he is not guilty as charged until his guilt has been established by competent evidence beyond all reasonable doubt. In Johnson v. State, 29 Tex. App. 151, 15 S. W. 647, supra, the instruction was: Tf you believe from the evidence that the defendant, acting either alone or in concert with Jeff Wood, did not poison Elizabeth Rucker as explained in paragraph 3, or if you believe that the deceased was poisoned Py accident, or by her oto voluntary act, or if you believe that the deceased died from natural causes, or if you believe that the deceased was poisoned by some other person than the defendant, acting alone or in connection with Jeff Wood, then you will find the defendant not guilty.’ Wilson, judge, speaking for the court, says: We think the paragraph is subject to the exception that it requires the jury to believe from the evidence the existence of the .conditions which entitled him to acquittal. It virtually requires the jury to believe from the evidence that he is innocent before finding him not guilty, whereas the correct rule is that the jury must presume his innocence until his guilt has been established by the evidence beyond a reasonable doubt. If the jury entertained a reasonable doubt upon the whole evidence of the defendant’s guilt, it was their duty to acquit him, although they might not believe from the evidence the existence of the facts and conditions, or any of them, mentioned in said paragraph. It is true that in concluding his charge the learned judge gave the usual instruction-as to the presumption of innocence and as to reasonable doubt, and ordinarily such instruction is sufficient, but we do not think it was sufficient to correct and counteract the error in paragraph 5. The vice of the paragraph is in requiring the jury to believe from the evidence that some one of said conditions existed, in order to warrant a verdict of acquittal because thereof.’ It is apparent that within itself this instruction is inconsistent and contradictory. This court has held that, where the instructions on a material point in a criminal ease are inconsistent, some correct, and others incorrect to the extent that they may be misleading to a jury^ a conviction will be reversed. In the case of Price v. State, 1 Okla. Cr. 358; 98 Pac. 447, Furman, presiding judge, expressing the opinion of the court, in part says: ‘We concede the contention of the state that instructions are to be construed as a whole, and if, when so construed, they clearly and correctly state the law, then the instructions are sufficient. . But this does not mean that an erroneous instruction upon a material issue can be cured by giving a correct instruction upon the same question in another portion of the instructions. Can instructions which are self-contradictory' be harmonious and sufficient? Who can tell which instruction was followed by the jury? If the court did not harmonize the instruction given, how can it be expected that the jury could or would do so? If juries are to pass upon the sufficiency of instructions, then are they not the judges of the law as well as the facts? Instructions should be clear, explicit, and free from ambiguities and contradictions; otherwise they may confuse and mislead the jury/ ”

For these reasons instructions 7 and 8 are not the law. and should not have been given to the jury.

Fifth. The court gave the jury the following instruction:

“The jury are instructed that if they believe from the evidence that any witness has been successfully impeached by reasons of statements made out of court conflicting with statements made in court, or on the witness stand, or if they find that any witness wilfully swore falsely in regard to any matter or thing material to the issue in this case, they will be justified in disregarding the whole or any part of the testimony of such witness, except in so far as they may find it corroborated by other credible evidence in the case, or by facts and circumstances proved on the trial.”

An instruction similar to this one was considered in Shellabarger v. Nafus, 15 Kan. 554, and the Supreme Court there said:

“Whether the jury should disregard the whole of the testimony of a witness in such a case is a matter resting entirely with them. They are the exclusive judges of the credibility of the witnesses and the weight of their testimony. They may wholly disregard the testimony of any witness, if from the evidence before them they consider such witness as wholly unworthy of credit. Or they may disregard a.portion of the testimony of any witness, and give to every other portion full faith, credit, and consideration. Or they may give to one portion of the testimony of any witness greater weight and credit than they may to some other portion of such testimony. The jury ought to be allowed to weigh every portion of the testimony of every witness, and to give each portion of the testimony just such consideration as it is entitled to, considering all the facts and circumstances of the case. It is within the common experience of all men that the different portions of the testimony of the same-witness may differ vastly in value. A witness may, under great temptations, and in some isolated case, swear falsety, and yet where the temptation is removed, where there is nothing to operate on his hopes and fears, his passions and prejudices, where he has no interest in the matter except to tell the truth, his testimony may be of great value. And this being so, no inflexible rule of law should be interposed between the witness and the jury, commanding the jury to take all, or to exclude all, of- his testimony.”

The same question came up in State v. Potter. 16 Kan. 99, and the Supreme Court there said:

“The defendant also claims that the court erred in instructing the jury that: 'If any witness has wilfully testified falsely ■as to any material fact in the case, then the jury should disregard all the testimony of such witness/ This instruction was erroneous. Shellabarger v. Nafus, 15 Kan. 547. Even where a witness has testified wilfully, corruptly, and falsely to a material fact in a case, still the question as to whether the jury should disregard the whole of his testimony should be left entirely with the .jury themselves.”

Section 5518, Wilson’s Rev. & Ann. St. 1903. says that the court must instruct the jury that they are the exclusive judges of all questions of fact. The latter part of -the instruction given flatly contradicts this statute, by directing the jury in mandatory terms to accept and be bound by certain evidence, under the contingency therein stated. The court had no right to .'ingraft this exception upon the law. The doctrine expressed by the Supreme Court of Kansas is in harmony with our statute. It matters not how anxious this court may be to enforce the law, we cannot allow a conviction to stand which is based upon a violation of plain and mandatory statutes which go to the foundation of the case, and which action deprived the defendant of substantial rights upon the trial. The law is plain and simple, and must be foi-lowed in all matters involving the substantial rights of a defendant.

For the errors above pointed out, the judgment of the lower court is reversed and remanded for a new trial in conformity with the principles stated in this opinion.

Eeversed and remanded.

DOYLE and OWEN, Judges, concur.


source: Caselaw Access Project

author: FURMAN, PhesidiNG Judge.

license: Public Domain

text:
    Will Rea v. State.
    No. A-125.
    Opinion Filed December 7, 1909.
    (105 Pac. 384.)
    1. JUDGES — Motion for Change — Time for. Under section 6647, Snyder’s Comp. Laws 1909, and section 15, Bunn’s Const., a motion for a change of judge on account of the bias or prejudice of a county judge is in time if presented before the trial begins.
    2. CONSTITUTIONAL LAW — Right to Justice — Bias And Prejudice of Judge — Right to Change. Section 15, BUnn’s Const., provides that right and justice shall be administered without prejudice. Under this provision, when a motion, properly verified, is made before the trial begins for a change of judge upon the ground of the -bias or prejudice of the. trial judge, it is the constitutional right of the party making it that it shall be granted.
    (Syllabus by the Court.)

      Appeal from Pontotoc County Court; .Joel Terrell, Judge.

    Will Eea was convicted of unlawfully selling intoxicating liquor, and he appeals.
    Eeversed and remanded.
    On the 16th day of March, 1909, Will Eea, hereinafter called defendant, was convicted in the county court of Pontotoc county of the offense of selling intoxicating liquor, and sentenced to 60 days in jail and fine of $250. The case is properly before this court on appeal.

      Crawford & Bolen, B. C. King, and Galbraith & McKeown, for appellant,
    citing: Buchanan v. State, 2 Okla. Cr. 126.
   FURMAN, PhesidiNG Judge.

First. On the 21st day of February, 1908, the defendant filed the following motion in the county court of Pontotoc county:

"The State of Oklahoma v. Will Rea. Comes now the defendant Will Rea, in the above entitled cause, and states upon his oath that by reason of the bias and prejudice of the presiding judge, Joel Terrel, he cannot obtain a fair and impartial trial, and respectfully asks for a change of judge in this cause. W. C. Rea.
"Subscribed and sworn to before me this 21st day of February, 1908. W. H. Braley, Notary Public.”

This motion was overruled by the court, to which ruling an exception was reserved. Section 6647, Snyder’s Compiled Laws of Oklahoma of 1909, is as follows:

“If the defendant shall, before witnesses are subpoenaed, make affidavit that he cannot have a fair and impartial trial before the county judge by reason of the bias or prejudice of the judge or that the judge is a material witness in the cause,-or is related to the party in interest, such county judge shall thereby be disqualified to try such cause, and when the county judge is disqualified to try any criminal cause pending in the county court the county attorney and defendant may agree on a special judge to preside in his stead; but if they fail so to do, the disqualified judge shall proceed to select a special judge as follows: He shall nominate an odd number of persons not less than three, having the qualifications of a county judge, if there be so many qualified to hold such office residing in the county, or in attendance upon the court, and the parties may alternately challenge such nominees until they are reduced to one, who shall be the special judge, and shall preside in the cause or other matter with authority to do any act that the regular judge, if not disqualified, might have done in such case; but if there be not so many as three qualified persons residing in the county or in attendance upon 'the court who may be nominated by the disqualified judge, he shall appoint a qualified person to act in his stead, and such person shall have full power to perform the duties of county judge in such cause.”

The record is silent as to the ground upon which the motion for a change of judge was overruled, but we presume that it was because the motion ivas filed after the witnesses in the ease had been summoned. This requires a consideration of section 15 of. Bunn’s Constitution of Oklahoma, which is as follows:

“The courts of justice of the state shall be open to every person, and speedy and certain remedy afforded for every wrong and for every injury to person, property, or reputation; and right and justice shall be administered without sale, denial, delay, or prejudice.”

Substantially the same clause is contained in the Constitution of Idaho. This provision came before the Supreme Court of that state for consideration in the case of Day v. Day, 12 Idaho, 556; 86 Pac. 531, and the court said:

“It is contended by counsel for appellant that under the provision of section 18, art. 1, of the Constitution of Idaho. The people have prohibited a court from trying a case in which he is prejudiced by or for either party.’ Said section is as follows: ‘Courts of justice shall be open to every person, and a speedy remedy afforded for every injury of person, property or character, and right and justice shall be administered without sale, denial, delay or prejudice.’ They also cite paragraph 40 of the Magna Gharta, which reads: ‘To none will we sell; to none will we'deny or delay right or justice.’ They contend through that constitutional provision that the people have declared that justice shall be administered, not only without sale, without denial, and without delay, but also without prejudice, and contend that the legislative power to pass laws' regulating the change of venue is limited by constitutional provisions respecting the subject. 4 Ency. Pl. & Pr. p. 377. It is contended that said section of the Constitution is self-acting, self-executing, and requires no legislative provision for its enforcement, and cannot be abridged or modified by any legislative or judicial act. There is no question but what said provision is self-operating, and it is regarded as settled in' this country that all negative or prohibitive clauses.in a Consti-tuton are self-executing. The Law v. People, 87 Ill. 385; Davis v. Burke, 179 U. S. 399, 21 Sup. Ct. 210, 45 L. Ed. 249; Cooley, Const. Law, p. 98; Willis v. Mabon, 48 Minn. 140, 50 N W. 1110, 16 L. R. A. 281, 31 Am. St. Rep. 626; State v. Kyle, 166 Mo. 287, 65 S. W. 767, 56 L. R. A. 115. The Legislature neither by neglect to act nor by legislation can nullify a mandatory provision of the Constitution. * * * Can it be contended, in the face of the command of said provision of our Constitution, that the Legislature could legally declare that the bias and prejudice of a judge should be no cause for a change of venue? I think not. And if, in the face of that provision, the Legislature neglects to specify in a statute that the prejudice of the judge is a ground for a change of the place of trial, then the very object and purpose of that provision of the Constitution may be nullified and set at naught. Begardless of the statutory provision, where such a state of facts appears as in the ease at bar, and a change of place of trial is demanded because of the prejudice of a judge, a change of venue, or at least of judges, should be granted to preserve from discredit the judiciary of the state.”

The action of the lower court was reversed, and the cause was remanded. We regard the views expressed by the Supreme Court of Idaho as sound, and we, therefore, hold that under this statute, if a motion for a change of judge, supported by affidavit, upon the ground that the defendant cannot have a fair and impartial trial before the county judge by reason of the bias and prejudice of the judge, is made at any time before the trial begins, it. comes in time, and should be granted. The limitation contained in the statute that the motion for a change of judge, on the ground of the bias or prejudice or relationship of the judge to a party in interest, must be made before the witnesses are summoned is, by itself, of doubtful validity. Would a judge who was personalty interested in the result of a cause, or who was related to one of the parties to the cause, become qualified to try the cause merely because an objection to his doing so was not made before witnesses were summoned? If so, then subpoenas for the witnesses might be issued and served before the defendant had opportunity to make the objection, and thus defeat the mandate of the law. But be this as it may, under section 15, Bunn’s Const. Okla., providing that justice shall be ad-ministereed without prejudice, motion for a change of judge upon this ground is in time if made before the trial begins, and the limitation requiring the motion to be made before the witnesses are summoned is in conflict with this provision of our Constitution, and therefore void.

In an able and exhaustive opinion by Judge Irwin, in the case of Lincoln v. Territory, 8 Okla. 546, 58 Pac. 730, the Supreme Court of Oklahoma Territory said:

“So it seems to us that the course of procedure established by the judicial system of the states and the federal government is the law of the land for Oklahoma, and, thus tested, the plaintiff in error was denied a fair and impartial trial. And by an almost unbroken line of judicial decisions it is held that when one accused of crime complies with the provisions of the statute mandatory in its terms, as in the statute in question in the case at bar, the judge is devested of all discretion, and loses all jurisdiction, except to make the order granting the change, and all his subsequent actions are absolutely void. It follows, then, as a matter of course that the judge who would proceed with the trial after the making and filing of- such an affidavit' would do so without power or authority, and the trial would be a nullity. Therefore we think that, not only measured by the weight of reliable authority, but by the principles of equity, justice, and sound law —measured by the rule of reason — the refusal of a change- of judge in this ease by the trial court was error which substantially affected the rights of the defendant, and deprived him of the protection which the law throws around every defendant, and took from him certain constitutional rights.”

In the case of Buchanan v. State, 2 Okla. Cr. 126, 101 Pac. 296, this court, in an opinion by Judge Baker, said:

“Upon the filing by the accused of an affidavit in proper time, stating positively that he cannot have a fair and impartial trial on account of the bias and prejudice of the presiding judge of the court where the indictment or information is pending, such judge cannot thereafter perform any official act in such case binding upon the accused, except the allowance of such change of judge.”

We are therefore of the opinion that the trial judge erred in refusing to sustain the motion for a change of judge.

There are a number of other questions presented in the record; but, as they were all, so far as deemed material, passed upon in another case against the defendant (No. A — 95), ante, p. 269, 105 Pac. 381, they will not be discussed here.

For the error of the trial court in not granting a change of judge, as well as for the other errors which are pointed out in said cause No. A — 95, the judgment against the defendant is reversed and remanded.

DOYLE and OWEN, Judges, concur.


author: FURMAN, PRESIDING Judge PER CURIAM.

text:
    W. C. Rea v. State.
    No. A-283.
    Opinion Filed December 7, 1909.
    (105 Pac. 386.)
    1. LIMITATION OF PROSECUTIONS — Burden of Proof — Judicial Notice — Nonexistence of County, (a) The statute of limitations does not negative a single element of the crime with which a defendant may be charged. It does not put in issue the guilt of the defendant. It therefore is not necessary for the prosecution to prove beyond a reasonable doubt that the offense committed is not barred by the statute of limitations.
    (b)A trial court and jury can. take judicial notice of the fact that statehood for Oklahoma began on the 16th day of November, 1907, and that prior to that date there was no such county of Pontotoc county in Oklahoma, and that an offense committed in said county was committed after the incoming of statehood.
    2. APPEAL — Presentation and Reservation of Grounds of Review— Necessity of Timely Objection — Motion for New Trial — Necessity “Fundamental Errors” — Written Instructions, (a) When a defendant in a misdemeanor case is present in court, and is represented by counsel, who are also present, and the jury are orally instructed, and no objection is made or exceptions are reserved, at the time, to such instructions, and the matter is not brought to the attention of the trial court in the motion for a new trial, it is too late to raise this auestion for the first time in the appellate court.
    (b) Only those questions raised and preserved in the motion for a new trial will be considered on appeal, unless they are of a fundamental character. When the justice of the case requires it, fundamental errors will be considered, whether assigned as errors or not.
    (c) “Fundamental errors” are those which go to the foundation of the case, or which take from the defendant a right which was essential to his defense.
    (d) It is best in all cases for the court to give written instructions to the jury, and when they are waived it is best that this fact should appear in the record.

      3. APPEAL — Review—Questions of Fact, (a) When there is any evidence in the record from which the jury could logically draw the conclusion of the defendant’s guilt, and the record shows that the defendant has been properly indicted and fairly tried, this court will affirm the judgment of the lower court.
    (Syllabus by the Court.)

      Appeal from Pontotoc County Court; Joel Terrell, Judge.

    W. C. Rea was convicted oí unlawfully selling intoxicating liquor, _ and he appeals.
    Affirmed.
    The plaintiff in error, hereinafter designated as defendant, was convicted in the county of Pontotoc county, on an information charging that, in Pontotoc count}', Okla., on July 15, 1908, the said defendant did unlawfully sell, barter, give away, and furnish one Wes Hattox intoxicating liquor, to wit, alcohol. The cause came on for trial on the 4th day of February, 1909, which resulted in a verdict of guilty. Motion for a new trial was filed, overruled, and exception allowed, whereupon the court sentenced defendant to be imprisoned in the county jail for a period of 30 days and that he pay a fine of $50 and costs. From this judgment and sentence of the court, the defendant appeals to this court.

      Bulloch & Kerr and Galbraith & McTCeown, for appellant.
    No copies of briefs reached the reporter.
   FURMAN, PRESIDING Judge

(after stating the facts as above). First. The first contention of counsel for the defendant is as follows: “Because the state did not prove the alleged sale to have been made within the period of the statute of limitations." This contention presents the defense of the statute of limitations.

This question has been passed upon by the Supreme Court of Oklahoma Territory in the case of Coleman v. Territory, 5 Okla. 201, 47 Pac. 1079. After a lengthly and able opinion by Judge Tarsney, in which he cites and discusses all of the leading Ameri- • can eases and text-writers on this subject, he says:

“The defense of the statute of limitations traverses nó element of the crime charged. It is essentially an extrinsic defense. It does -not put in issue either of the essential elements constituting bis guilt of the offense charged. He simply asserts that by virtue of an extrinsic condition, not relating to the commission of the offense, but recognizing its commission, namely, a statute of repose or limitation, he is not now subject to punishment for the crime, which he admits having committed. We can see no reason why the rule relating to the defense of license, authorization by the state, autrefois acquit, autrefois convict, pardon, provocation, or compulsion should not be the rule as to his defense. In fact, we think the rule applies with more reason and justice to this defense than to the others. It is not inequitable, oppressive, or substantially prejudicial to the safeguards which should surround the defense of one accused of crime, that if his defense does not deny the commission of the acts charged, or traverse any of the material elements of the offense, but is based upon facts wholly extrinsic and peculiarly within his knowledge, and more readily susceptible of proof by him than by the prosecution, that he should be held to establish such defense to the reasonable satisfaction of the jury.”

But, even if the burden of proof was on the state to establish the commission of the offense within the statute of limitations beyond a reasonable doubt, we think that it was done in this case. The evidence is as follows:

“Q. You name is Wes Hattox? A. Yes, sir. Q. Where do you live? A. At Fitzhugh. Q. You know Will Ehea? A. Yes, sir. Q. What business is he in? A. Drug business. Q. Where? A. Boff. Q. Were you in his drug store in July? A. Yes, sir. Q. Did you purchase anything? A. Yes, sir. Q. What was it? A. Alcohol. Q. Is alcohol intoxicating? A. Yes, sir; I suppose it is. Q. That was in Pontotoc county, Okla.? A. Yes, sir.”

From this it is proven that the sale took place in Pontotoc county, Okla. The court takes judicial notice of the fact that prior to the incoming of statehood, on November 16, 1907, such county as Pontotoc county, Okla., was not in existence. Therefore the sale was proven to have been made subsequent to that date. Wigmore on Evidence, vol. 4, § 2575, says;

' “Domestic Political Organization — Boundaries, Capitals, etc. —So far as the facts of political organization and operation of the state are determined in the law, they are judicially noticed as a part of the law.”

Therefore the contention of the defendant that the case should be reversed because it. was not proven that the sale was made within the period of the statute of limitations, is not supported, by the law or the evidence.

Second. The second contention of counsel for the defendant is that the trial court erred in instructing the jury orally. The record does disclose the fact that the instructions to the jury were oral, and it fails to show that written instructions were waived by the defendant; neither does it contain any exceptions to the failure of the court to instruct the jury in writing. The motion for a new trial does not rely upon this ground for a reversal, and nothing is said with reference to this matter in the original petition in error filed with the appeal in this case. This point was first presented to this court on November 23, 1909, by an amended petition in error. The latter part of paragraph 6, § 5484, Wilson's Rev. & Ann.“St. 1903, is as follows:

“All instructions given shall be in writing unless waived by both parties, and shall be filed and become a part of the record in the case.”

From this it appears that it is not essential and necessary in all cases that the instructions to the jury be reduced to writing, but that this may be waived by the parties.

In Williams v. United States, 17 Okla. 28, 87 Pac. 647, oral instructions were given to the jury. The court said :

“No objection was made or exception taken to this manner of instructing the jury; but it is now claimed that, inasmuch as the statute provides that all instructions shall b.e in writing, this method of giving an instruction, under the circumstances, was materia] error. Had- the defendant at the time objected to the instruction being given in this manner, we have no doubt that that court would have handed to the jury the instruction properly prepared and written out. It would seem, from an examination of the entire record, that the manner in which this instruction was given to the jury was ‘perfectly satisfactory to all parties concerned, and the error was not preserved nor presented to the trial court for review by the motion for new trial.”

Replying to the manner in which the objection was presented, the court further said:

“It has been repeatedly held by this court that only those questions raised and peserved in the motion for new trial will be considered by this court on review. Therefore, while error exists, it is not a reversible one, nor is it one which we think affects the substantial rights of the defendant. This question has been passed upon by this court in the case of Frank Swaggart v. Territory, 6 Okla. 344, 50 Pac. 96, in which, after reviewing the entire subject, the court declined to reverse the judgment, holding that, although error appeared, the question not having been presented to the trial court in the motion for new trial, and it not being one which affected the substantial rights of the defendant, the error was not one which should work a reversal of the judgment.”

Denied February 1. 1910.

(106 Pac. 982.)

Galbraith & McKeown, for appellant.

Fred S. Caldwell, for the State.

This court has time and again declared that, whenever there was any evidence in the record from which the jury could rationally conclude that the defendant was guilty,, we would not reverse a conviction unless, from the record, it appeared that the defendant had been deprived of some substantial right during the trial. We fail to find any such error in this record. We are therefore compelled to .affirm the conviction.

Affirmed.

DOYLE and OWENy Judges, concur,.

On Petition eor Rehearing.

PER CURIAM.

There is no mandatory statute in this state requiring that in all instances instructions to juries shall be in writing. The language of the law is:

"All instructions given shall be in writing unless waived by both parties and shall be filed and become a part of the record in the case.” (Wilson’s Rev. & Ann. St. 1903, § 5484, par. 6.)

The presumption of law is that all proceedings in courts of record are regular. The burden is on the party who questions this regularity to show clearly that irregularity exists. The statute having in express terms provided that written instructions may be waived, in cases where the instructions have not been reduced to writing, the presumption will be that written instructions were waived unless the record affirmatively shows .to the contrary. Counsel for defendant in their petition for a rehearing say:

“Sections 55,18 and 5525 (Wilson’s Rev. & Ann. St. 1903), which, at least impliedly, command instructions .in criminal causes to be reduced to writing,'if they do not require them to be given in writing.”

Section 5518, Wilson’s Okla. Rev. & Ann. St., is as follows:

“In charging the jury, the court must state to them all matters of law which it thinks necessary, for their information in giving their verdict, and if it state the testimony of the case, it must in addition inform the jury that they are the exclusive judges.of all questions of fact. Either 'party may present to the court any written charge, and request that it be given. If the court thinks -it correct and pertinent, it.must be given; if not, it must be refused. Upon each charge presented and given or refused the court must indorse or sign its decision. If part of any written charge be given and part refused the court must distinguish, showing by the in-dorsement or answer, what part of each charge was given and what part refused.”

The court.must state to the jury all matters of law which it thinks necessary for their information, and if the court states the testimony of the case, it must, in addition thereto, inform the jury that they are the exclusive judges of all questions of fact. There is no express or implied command here that the instructions must be reduced to writing. The rest of the statute relates to written instructions, which may or may not be requested by the defendant. There is no claim made that any such written instructions were requested by the defendant in this case. Therefore this statute is not material to the question now before us.

Section 5525, Wilson’s Okla. Rev. & Ann. St., relied upon by counsel for the defendant, is as follows::

“On retiring for deliberation the jury may take with them the written instructions given by the court; the forms of verdict approved by the court, and all papers which have been received as evidence in the cause, or copies of such parts of public records ox private documents as ought not, in the opinion of the court, to be taken from the person having them in possession.”

So it is seen that this statute is merely permissive. We cannot agree with the contention of counsel for the defendant that these two sections of the statute by implication require that instructions given shall be reduced to writing. It is an old proverb of universal acceptance that “Actions speak louder than words,” and when oral instructions are given to a jury, and the defendant does not object and save an exception, he thereby waives his right to have such instructions reduced to writing, and cannot after-wards be heard to complain that such instructions were not in writing. As the giving of instructions in writing may be waived it cannot be said that the failure of the court to reduce the instructions to writing affects the jurisdiction of the court, or goes to the foundation of the case, and such failure does not constitute fundamental error.

Behearing denied.


author: OWEN, Judge

text:
    Frank Haikey v. State.
    No. A-122.
    Opinion Filed December 7, 1909.
    (105 Pac 343.)
    VENUE — Change of Venue — Transmission of Indictment — Harmless Error. The defendant was indicted prior to statehood in the United States Court for the Western District of Indian Territory, sitting at Tulsa. On defendant’s application the case was transferred to the United States Court for the Western District of Indian Territory, sitting at Sapulpa. The clerk of the court ' at Tulsa, who was also the clerk of the court sitting at Sapulpa failed to affix his official seal to the transcript of the proceedings which was transmitted with the original indictment to the court at Sapulpa. Held, the failure to affix his official seal to the transcript did not prejudice the substantial rights of the defendant.
    . (Syllabus by the Court.)

      Error from District Court, Creeh County; John Caruthers, Judge.

    Frank Haikey was convicted of murder, and he brings error.
    Affirmed.
    The plaintiff in error was indicted on the 13th day of February, 1907, in the United States Court for the Western District of the 'Indian Territory, sitting at Tulsa, charged with the crime of murder. On the 18th day of September, 1907, the defendant filed with the clerk of said court an affidavit for change of venue, and thereupon on the same day the petition was granted, and the cause 'transferred to the United States Court for the Western District of Indian Territory, sitting at Sapulpa. After statehood, and on May 25th, 1908, the case was tried to a jury; the defendant convicted, and sentenced to imprisonment for life. A motion for new trial was filed and overruled, and exceptions saved. A motion in arrest of judgment was filed, overruled, and exceptions saved. The case is here on case-made.

      W. J. Crump• and Robertson & Kean, for plaintiff in error.

      Charles West, Atty. Gen., and Chas. L. Moore, Asst. Atty. Gen., for the State,
    citing: Wilson's Rev. & Ann. St. 1903, § 4755; State v. Cover, 69 Kan. 382; 12 Cvc. 251-253, and cases cited; Williams v. State, (Ark.) 16 S. W. 816; In re Terrill, 144 Fed. 616.
   OWEN, Judge

(after stating the facts as above). The only question presented to this court, and the only reason urged for reversing the case, is that the clerk of the United States Court for the Western District of the Indian Territory failed to affix his seal to his certificate of the transcript of the proceedings had in the court at Tulsa. Counsel urge that because of the failure of the clerk to attach his official seal, the court at Sapulpa did not acquire jurisdiction of the ease. In support of their contention counsel rely on the case of Hudley v. State, 36 Ark. 237. In that ease the defendant was indicted in Desha couffiy, charged with murder. The venue was changed to'Jefferson county. The clerk neglected to attach his seal to the transcript of the record. The defendant was convicted and sentenced to death, and the Supreme Court of Avkan-gas held that the transcript was not authentic without the seal, and reversed the case.

This case would be controlling on this court, and we would cheerfully follow the rule announced there, if the facts were similar. That case was transferred from one court to another; from one county to another; from one clerk to another. The case at bar was transferred from the United States Court for the Western District, sitting at Tulsa, to the same court for the same district, sitting at Sapulpa.

The purpose of the seal is to authenticate the record. Under the practice in Arkansas, and as decided in the case of Pleasant v. State, 15 Ark. 634, the original indictment remains in the court where it is preferred, and the defendant is tried in the court to which the case is removed on a certified copy. The court to which the case is removed will not take judicial knowledge of the name of the clerk of the county from which the ease came. The clerk is the keeper of the seal, and it is the imprint of the seal which gives the court to which the case is removed proof that the purported copy is authentic. In the case at bar the clerk transmitted the original indictment and all papers filed with the court at Tulsa and a transcript of the proceedings had in that court. They were transmitted to the same court sitting at Sapulpa. The clerk of the court at Sapulpa was the clerk of the court at Tulsa. It was not necessary that the seal be attached to authenticate the papers, or the transcript of the proceedings. The court would take judicial knowledge of the proceedings had in the same court sitting at a different place. He would also take judicial knowledge of the fact that the clerk of the court sitting at Sapulpa was the clerk of the same court sitting at Tulsa.. The record in this case discloses that the failure of the clerk to attach the seal was called to the attention of the court after a jury was impaneled and swbrn and the first witness called, but before any testimony or evidence was given. The case was continued to the following day, and in the meantime the clerk attached his seal to the transcript of the proceedings of the court had at Tulsa. In our opinion this cured ' whatever defect there might have been by the failure to attach the seal in the first instance. If the transcript of the proceedings had in the court at Tulsa was not full and correct, and the omission was calculated to prejudice the rights of the defendant, the proper remedy would have been for a rule on the clerk to correct his transcript and supply the omission, or move to have the record certified on certiorari. In the case of Williams v. State (decided by the Supreme Court of Arkansas June 27, 1907) 16 S. W. 816, it appears that the defendant was indicted in one county, charged with murder, and the venue changed to another county for tidal, and that he objected to being tried for the reason that the transcript was defective. The syllabus in that case is as follows:

“Where on a change of venue one claims that a transcript is defective, his remedy is to apply to the court for a rule against the clerk to correct the same, or move to have the record certified on certiorari, and a mere exception taken is not effective on appeal.”

Under the decisions of this court and the decisions of the Supreme Court of the state, the district court of Creek county, state of Oklahoma, sitting at Sapulpa, is the legal successor of the United States Court sitting at Sapulpa, and the district court of the state would have the same jurisdetion in this case that had been acquired by the United States Court sitting at- Sapulpa prior to the admission of the state into the Union. Ex parte Buchanen. 1 Okla. Cr. 135, 94 Pac. 943; Ex parte Curlee, 1 Okla. Cr. 145, 95 Pac. 414; Ex parte Lydia Howland, ante, p. 142, 104 Pac. 927; Faggard v. State, ante, p. 159, 104 Pac. 930.

Section 2297, Mansf. Dig. Ark. (Ind. T. Ann. St. 1899, § L640), in force at the time the defendant was indicted, provides that a new trial may be granted when a verdict is rendered against the defendant by which his substantial rights have been prejudiced. Section 2454 of the same statutes (Ind. T. Ann. St. 1899, § 1797) provides that a judgment of conviction shall only be reversed on errors of law to the defendant’s prejudice appearing upon the record. The failure of the clerk to attach the seal to his transcript when there was no contention made that the transcript was not full or complete, and when the defendant was to be tried on the original indictment returned, and in the same court in which the indictment was returned, but at a different place of holding the same court, did not prejudice the substantial rights of the defendant.

The judgment of the trial court is affirmed.

FURMAN, Presiding Judge, and DOYLE, Judge, concur.


text:
    Harry G. Snow v. State.
    No. A-92.
    Opinion Filed December 11, 1909.
    (105 Pac. 575.)
    1. GAME — Violation of Game Law — Possession of Quail — Intent— Evidence. In a prosecution for violation of section 3. c. 15. p. 168, Sess. Laws 1903, the intent or purpose of the defendant in having possession of quail was material, and it was error for the court to refuse to permit the defendant, testifying in his own behalf, to state his intention and purpose with regard to the possession.
    2. GAME — Possession of as Offense — Instructions. It was error for the court to instruct the jury in this case that possession alone was sufficient to warrant a conviction.
    3. SAME — An instruction to the effect that possession of a large quantity of quail would be unlawful and would authorize the conviction in this case was not authorized by the statute under which the prosecution was had.
    (Syllabus by the Court.)

      Error from Blaine County Court; E. L. Hotchhiss, Judge p'o tern.

    Harry G. Snow was convicted of a violation of tbe game law, and brings error.
    Reversed.
    On the 25th day of January, 1908, the defendant was charged by information filed in the county court of Blaine county, Olda., with a violation of the game law, by having quail in his possession for the purpose of transportation. The defendant was tried ana convicted and was sentenced to pay a fine in the sum of $100 and costs of the prosecution, including an attorney fee of $50 for the county attorney. Motion for new trial filed and overruled, and exceptions saved, and the ease is before us on case-made.

      I. II. Loolcdbough, for plaintiff in error.

      Charles West, Atty. Gen., and Chas. L. Moore, Asst. Atty. Gen., for the State.
   OWEN, Judge

(after stating the facts as above). The statute under which the prosecution was had in this ease is as follows:

“Any agent, servant, or employe of any railroad or express company, or common carrier, or private individual who shall have or receive for transportation or carriage any of the birds or animals mentioned in section one of this act, shall be deemed guilty of a misdemeanor, and upon conviction thereof-, shall be fined in any sum not less than one hundred, nor more than five hundred dollars, and all costs incurred therein, and one-half of said fine shall go to the informer of said violation of said law, and there shall be taxed as- costs in said cause a fee of fifty dollars to go to the county attorney prosecuting the same.” (Section 3, c. 15, p. 168, Sess. Laws 1903.)

The information filed in this case charges that the defendant “did then and there, unlawfully, willfully, intentionally, knowingly, wantonly, maliciously have for, transportation and carriage, and did then and there transport, certain insectiverous birds, to wit, quail, contrary to the form of statute in such case made and provided and against the peace and dignity of the state of Oklahoma.”

The proof in this case is: That the defendant lived in Canadian county; that he had signed a bond as surety which had been filed in Blaine county; that he received a message to the effect that he must appear in person before the clerk of the court in Blaine county to qualify on the bond; that he left home in a wagon, accompanied by two of his neighbors, to go to the county seat of Blaine county for the purpose of qualifying on the bond,; that each of them had a gun and a bird dog; that in traveling across the country they shot quail; that they cooked and ate some iia camping on their way; that they sold 15; that they had 42 in the wagon when they arrived in AVatonga, the county seat of Blaine county; that, while the defendant was in the courthouse qualifying on the bond, the sheriff of the county discovered the quail in the wagon, which was at that time in a wagon yard, and this prosecution followed.

There was no conflict in the testimony. The sale of the 15 quail was in Canadian countjq and in the prosecution in this ease the defendant was not charged with selling. There was no proof that he had in fact transported any of the quail, other than hauling them in his wagon on his way to AVatonga. The following appears in the record as part of the testimony of the defendant:

“Q. You may state what you had these quail in the wagon for. A. For the purpose of eating. Q. For any other purpose’? A. No other purpose. Q. You may state whether or not you had these quail for the purpose of transporting them from one place to another, with a view of marketing them in violation of the game law. (Objected to as irrelevant, incompetent, and immaterial. Objection sustained by the court, to which ruling the defendant then and there excepted.)”

The charge in this case was that the defendant “did have for transportation, certain .insectiveroüs birds, to wit, quail, contrary to the form of statute in such case made and provided, and against the peace and dignity of the state of Oklahoma,” and, since there was no proof offered to the effect that he did transport the birds, we are at a loss to understand upon what theory the trial corirt excluded this testimony. Under the statute the defendant would undoubtedly have the right to transport the birds he killed from one place to another, for his own use. It would be unreasonable to say that the law contemplated that a man would cook and eat all the birds he killed on the spot where they were killed. True, the language of the statute is “have or receive for transportation or carriage any of the birds or animals mentioned in section 1 of this act,” etc. To hold that that language forbids transporting or carrying from the place of killing to the place of residence or destination, where the birds are killed for one’s own uso, would be unreasonable.

The court permitted the defendant to say that he had these birds in the wagon for the purpose of eating and for no othe; purpose. He was charged with having them for the purpose of transportation, contrary to the statute. Yet the court refused to permit him to answer the question, “You may state whether or not you had these quail for the purpose of transporting them from one place to another, with a view of marketing them in violation of the game law.” The sole issue in this case was the purpose for which this defendant had these quail in his possession.

There is some evidence in the record that defendant or one of his associates had inquired as to a market for quail, which tends to prove that the defendant had the quail for the purpose of selling them in violation of the statute. It was error for the court to refuse to permit the defendant to answer the question as to whether he had the quail for the purpose of transportation and carriage with a view of marketing in violation of the law. Proof that the defendant and his associates violated the statutes in Canadian county by the sale of 15 quail does not warrant a conviction in this case.- He was not charged in this case with selling. There is no rule of criminal law better settled than that you cannot convict a .defendant of one crime by proving him guilty of another. The mere possession of the quail was not sufficient to warrant a conviction.

The second instruction given by the court was as follows:

“Second. You are further instructed that it is unlawful under the laws of the state of Oklahoma for a private individual to have or receive for transportation, or carriage, quail, and in relation thereto you are further instructed that if you find from the evidence, beyond a reasonable doubt, that the defendant in this case did have in his possession in Blaine county, Okla., the 3aid quail which he is charged with having for the purpose of unlawfully transporting or carrying the same, then in that event you should find the defendant guilty.”

This, in effect, told the jury that possession was sufficient to warrant a conviction.

The third instruction is as follows:

“Third. You are further instructed that it is not unlawful for a person to have in his possession a reasonable number of quail during the open season (which open season is from the 15th day of October to the 1st day of February in each year), and' such person has°a right to carry said birds for his or their own use.”

There is no provision of this statute fixing the bag limit, and this instruction was improper. It would lead the jury to believe that possession of a greater number than they thought reasonable would be unlawful.

The verdict in this case was contrary to both the law and the evidence, and the motion to set the verdict aside should have been sustained.

The ease is reversed, with directions to grant the defendant a new trial.

FUKMAN, Presiding Judge, and DOYLE, Judge, concur.