text:
    Buster Sample v. State.
    No. A-179.
    Opinion Filed January 25, 1910.
    (106 Pac. 557.)
    TRIAL — Separation of Jury. Section 68'58, Snyder’s Comp. Laws 1909, requires the jury to be kept together, after a case, is finally submitted to them, until a verdict is agreed upon.
    (Syllabus by the Court.)

      Error from District Court, Atoha County;' A. T. West, Judge.

    The plaintiff in error, Buster Sample, was tried in the district court of Atoka county, November term, 1908, on an indictment 'charging him with rape. He was convicted and sentenced to imprisonment for a térra of ten years. The case is before' us on appeal.
    Confession of error'filed, and ease reversed.

      Q. T. Ralls and J. G. Ralls, for plaintiff in error.

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

The record in' this case discloses that the jury were permitted to separate after the case had been finally submitted to them, and before a verdict had been agreed upon. It appears that they were instructed by the court .to return to the jury room after supper and consider of their vedict, and, if they were unable to agree after a reasonable time, they might separate for the night and return to the jury room on the following morning for further consideration. And it appears that' they were unable to agree during the night, and 'did separate and return to the jury room the following morning, after which the verdict was agreed upon and returned into court. The Attorney General has filed his written confession of' error in this case, confessing that under section 6858 of the statute (Snyder’s Comp. Laws 1909), and the rule announced in Bilton v. Territory, 1 Okla. Cr. 566, 99 Pac. 163, the action of the court in permitting the jury to separate was error

The confession of error is sustained, and case reversed and remanded.

FUEMAN, PRESIDING Judge, and DOYLE, Judge, concur.


source: Caselaw Access Project

author: FTJBMAN, PRESIDING Judge.

license: Public Domain

text:
    Peter Komiski v. State.
    No. A-88.
    Opinion Filed February 1, 1910.
    (106 Pac. 800.)
    1. APPEAL AND ERROR — Review—Scope. When the ease-made and transcript of the record omit the instructions of the court and the testimony of the witnesses, and contain only the information, the verdict of the jury, and judgment of the court, if these are regular upon their faces, the judgment will be affirmed.
    2. APPEAL AND ERROR — Service of Case-Made. After the time for preparing and serving case-made has expired, the court is without power to extend such time.
    (Syllabus by the Court.)

      Appeal from Latimer County Court; Cliff V. Perry, Judge.

    Peter Komiski was convicted of violating the prohibition law, and appeals.
    Affirmed.

      Hudson é Pounders, for appellant.

      Fred 8. Caldwell, for the State.
   FTJBMAN, PRESIDING Judge.

Although this appeal has been pending in this court since February 6, 1909, no briefs for appellant are on file. Upon an examination of what purports to be the case-made and transcript of the record, we find that the testimony of the witnesses and the instructions of the court are omitted. All of the record in the purported transcript is the information, the verdict of the jury, the motion for a new trial, and the judgment. The judgment was rendered on the 12th day of November, 1908, and it provided that .the defendant should be granted 50 days from said date in which to prepare and' serve a case-made. On the 14th'day of January, 1909, an order was entered extending the time 15 days in which a case-made might be served. The 50 days5 time originally granted for preparing and serving a case-made having expired, the court was without power to grant a further extension of time. That cannot be extended which has already expired. The order extending the time 15 days was therefore void, and even if a case-made had been served after the expiration of the 50 days first granted, it would have been stricken from the record.

Finding no error in the record before us, the judgment of the lower court is affirmed.

DOYLE and OWEN, Judges, concur.


author: FURMAN, PRESIDING Judge.

text:
    John M. D. Mulliken v. State.
    A-482.
    Opinion Filed February 1, 1910.
    (106 Pac. 650.)
    1. CHRiTIORARI — Signature of Petitioner — Verification. A petition for a writ of certiorari must be signed by the party applying therefor, or by his attorney, and must be verified.
    "h APPEAL — Time of Taking. An appeal in a misdemeanor case must be perfected within the time provided by law.
    (■Syllabus by the Court.)

      Appeal from Garfield County Court; Ban Hewitt, Special Judge.

    John M. D. Mulliken was convicted of violating the prohibition law, and appeals. *
    Dismissed.
   FURMAN, PRESIDING Judge.

First. Judgment was rendered against the defendant on the 18th day o£ October;- 1909. On the 11th day of December following a petition for a writ of certiorari was filed in this court, praying that the presiding judge of Garfield county be directed to certify to this court, under, seal of said court, all of the records, testimony, and( proceedings had in the cause of the State of Oklahoma v. John M. D. Mulliken. This petition for writ of certiorari is not signed by the defendant or his attorney; neither is it verified by oath. Under these conditions we cannot consider it.

Second. The 60 days from the date of judgment allowed by statute within which an appeal may be perfected in a misdemeanor ease has expired, and no notices of appeal or transcript of the record or case-made have been filed in this court. For those reasons the appeal is dismissed, with directions to the lower court to proceed to enforce the judgment.

Appeal dismissed.

DOYLE and OWEN, Judges, concur.


author: FURMAN, Presiding Judge.

text:
    Mont Gilmore v. State.
    No. A-75.
    Opinion Filed February 1, 1910.
    (106 Pac. 801.)
    1. COMMERCE — Interstate Commerce — Shipment of Liquors. The protection afforded by the Constitution and laws of the United States to shipments into this state of intoxicating liquors, upon the ground that they are interstate shipments of commerce, extends only to persons who are lawfully in possession of the liquor so shipped.
    2. EVIDENCE — Statements of Accused. When an officer arrests a defendant without warrant, 'the admissibility in evidence of any voluntary statement made by the defendant is not affected by the legality or illegality of the arrest.
    (Syllabus by the Court.)

      Appeal from Pontotoc County Court; Joel Terrell, Judge.

    Mont Gilmore was convicted of illegally conveying liquor in the state, and appeals.
    Affirmed.

      Cawford & Bolen, for appellant.
    — Citing: High et al. v. State, 2 Okla. Cr. 161; Boyd v. U. S., 116 U. S. 616; U. S. v. Wong Quong Wong, (D. C.) 94 Fed. 832; Pickett v. State 99 Ga. 12.

      Fred S. Caldwell, for the State.
    — Citing: State v. 18 Casks of Beer, 24 Okla. 786, and Cohen v. Slate (Ga.) 65 S. E. 1096.
   FURMAN, Presiding Judge.

First. Elmer Pool testified 'that he and the 'defendant lived at Allen; that in the early part of September, 1908, the defendant hired him to haul a barrel from Francis to Allen; that he did not know what was in the barrel, and the defendant did not tell him what its contents were, or whom it belonged to. R. E. Duncan testified that he was a deputy sheriff, and that he arrested the defendant, and took from him a barrel' of whisky; that the arrest was made about two miles east of Francis, in Pontotoc county. In answer to the question as to how many pints the barrel contained the witness said, “I did not count them — he told me there was 100.” There was a card on the barrel, upon which was written, “Ed Johnson, Francis, Oklahoma.” Ed Johnson testified that he had not ordered the whisky, and that he had never authorized the defendant to ship whisky in his name. The witness testified that he had a conversation with the defendant about this matter, after the arrest. He said: “I asked him if he ordered whisky in my name. He said, ‘You ordered it.’ I said, ‘No.’ He said I did, and we got miffed, and then walked off.” The defendant did not offer any testimony. The defendant’s uncontradicted statement was that the whisky had been ordered by Ed Johnson. If this was true, the defendant had no right to take it into his possession without the consent of Johnson, and, his possession being unlawful, he cannot raise the issue that this was an interstate shipment. The Hnited States law as to interstate shipments only protects those who are in lawful possession of the article so shipped. As to this issue the evidence sustains the judgment of the trial court.

Second. The other question raised by the _ defendant can be best presented by copying from the testimony of the witness R. E. Duncan, as follows:

“Q. Do you remember the occasion of your arresting Mont Gilmore? A. Yes; sir. Q. Out east of Francis? A. Yes, sir. Question by the defendant: Q. Did you have a search warrant ? A-. No, sir. (Defendant objects to any seizure made without a search warrant.) Examination resumed by the state: Q. Did you know what was in the barrel before you* arrested him? A. Yes, sir; only by hearsay, though. Q. Did you examine the record of the freight at the depot? A. No, sir. Q. Was this marked? A. Yes, sir; on the barrel marked ‘Ed Johnson.’ Q. Was there anything on it to show what it contained? A. No, sir.
“Cross-examination by the defendant: ' Q. It is just a matter of belief that it was a barrel of whisky, isn’t it? A. I. had been -informed twice that day that -Mont Gilmore and Elmore Pool were coming there after a barrel of whisky, and I was informed something like three or four weeks before that the barrel of whisky was there, and was informed that it was a barrel of whisky. (Defendant objects for the reason that the witness had no' search warrant, and it is in violation of the fourth and fifth amendments of the Constitution of the Hnited States, and that it is incompetent; objection overruled by the court, to which defendant excepts.)
“Examination by the state: Q. What was it? A. It was a'barrel of whisky. Q.' IIow many pints? A. I didn’t count them; he told me there was 100. Q. Was that barrel billed to Ed Johnson? A. Ed Johnson, Francis, Oklahoma.”

' ' The position of counsel for defendant is that the arrest of the defendant and the seizure' of the barrel of whisky, being made without warrant, were in violation of the constitutional rights of the defendant, and that therefore the state could not use the evidence that the barrel contained whisky, because this was only positively discovered after the arrest, and was obtained by illegal means. In support of this contention counsel cite Boyd v. United States, 116 U. S. 616, 6 Sup. Ct. 524, 29 L. Ed. 746. An examination of this case will show that it does'not sustain the contention of counsel for'the defendant. This was a proceeding to condemn 35 cases of plate glass, seized by a collector as forfeited to the United States, on account of an attempt to defraud the United States of the lawful duties thereon. The charge was that the goods in question were imported into the United States to the port of New York, subject to the payment of duties, and that the owners or agents of said merchandise, or other person unknown, committed the alleged fraud, which was described in the words of the statute. The plaintiffs in error entered a claim for the goods, and pleaded that they did not"become forfeited in manner and form alleged. On the trial of the cause it became important to show the quantity and value of the glass contained in 29 cases previously imported. To do this the district attorney offered in evidence an order made by the district judge, under section 5 of the act of June 22, 1874, c. 391, 18 Stat. 187 (U. S. Comp. St. 1901, p. 2019), directing notice under seal of the- court to be given to the-claimants, requiring them to produce the invoice of the 29 cases'. The claimants, in obedience to the notice, but objecting to its validity and to the constitutionality of the law, produced the invoice;' and, when it was offered in evidence by the district attorney, they objected to its reception on the ground that, in a s.uit for forfeiture, no evidence can be compelled from the claimants themselves, and also that the statute, so far as it compels production of evidence to be used against the claimants, is unconstitutional and void. The evidence ’being received, and the trial closed, the jury found a verdict for the United States, condemning the 35 cases of glass which were seized, and judgment of forfeiture was given. Upon appeal to the Supreme Court of the United States the judgment was reversed, and that court held:

“A proceeding to forfeit a person’s goods 'for an offense against the laws, though civil in form, and whether in rem or in personam, is a ‘criminal case’ within the meaning of that part of the fifth amendment which declares that no person ‘shall be compelled, in any case, to be a witness against himself.’ The seizure or compulsory production of a man’s private papers to be used in evidence against him is equivalent to compelling him to be a witness against himself, and, in a prosecution for a crime, penalty or forfeiture, is equally within the prohibition of the fifth amendment.”

So it is seen that there is no analogy either as to the facts or the principles of law involved in the case of Boyd v. United States and the case now before us. Boyd’s Case simply reaffirms the doctrine that no one shall be compelled to give testimony against himself. The voluntary statements of the defendant were given in evidence against him in this case, but no attempt was made to extort testimony from him against himself, neither was he compelled to furnish testimony against himself.

Counsel next cite United States v. Wong Quong Wong (D. C.) 94 Fed. p. 832. This was a case against two Chinamen to secure their deportation from the United States. Certain letters which they had written had been unlawfully seized by the officers, and introduced in evidence against them. • The court said:

“* * * Any forcible and compulsory extortion of a man’s own testimony, or of his private papers, to be used as evidence to convict him of a crime, or to forfeit his goods,-is within the condemnation of that judgment. In this regard the fourth .and fifth amendments run almost into- each other. * * * And any compulsory discovery, by extorting the party’s oath, or compelling the production of his privare books and papers, to convict him of crime, or of forfeit of his property, is contrary to the principles of free government. It is abhorrent to the instincts of an Englishman. It is abhorrent to the instincts of an American. It mav suit the purposes of despotic power; but it cannot abide the pure atmosphere of political liberty and personal freedom. * * * And we have been unable to perceive that the seizure of a man’s private books and papers, to be used in evidence against him, is substantially different- from compelling him to be a witness against himself.”

This authority simply protects a defendant from any forcible and compulsory extortion, by the officers, of his own evidence to be used for his conviction of a crime.

Counsel next cite Pickett v. State, 99 Ga. 12, 25 S. E. 608, 59 Am. St. Rep. p. 226. An examination of this case will show that it discusses the question of the legality of arrests without warrant, but it nowhere touches on the question of the admissibility of evidence. So far as the authorities cited by counsel for the defendant go, they support the position that a defendant cannot be compelled to furnish testimony against himself. In each case cited the facts related to the use as evidence of letters or papers which had been unlawfully obtained from the defendant, and that, too, when no offense had been committed by such defendant by having such papers and letters in their possession. There can be no question but that privilege against self-incrimination exists; it is also true that no general rule can be stated which applies to all cases. There is great diversity and conflict in the authorities touching this matter. In 4 Wigmore on Evidence, p. 3101, we find this language, which we heartily indorse:

“In preserving the privilege, however, we must resolve not to give it more than its due significance. We are to respect it rationally for its merits, not worship it blindly as a fetish. We are not merely to emphasize its benefits, but also to concede its shortcomings and guard against its abuses.”

The doctrine of the authorities cited by counsel for the defendant, and hereinbefore quoted, has been strongly assailed, and frequently distinguished and modified. But it is not necessary for this court in this case to harmonize the authorities on this ques-ton, or to lay down rules for the courts of this state, further than to say that the rules to be followed will depend largely upon the facts of each case. In this case the defendant after his arrest voluntarily stated that the barrel of whisky contained 100 pints. The admissibility of this statement was in no manner affected by the lawfulness or unlawfulness of the defendant’s arrest. The statement was not forced or extorted from him, and therefore the question of privilege against self-incrimination does not arise in this case. The barrel of whisky was seized because the defendant was committing a crime by conveying it from one place in this state to another place in the state, under the circumstances disclosed in the record. Can the burglar, arrested with the tools and fruits of his crime upon his person, object to the introduction of this evidence against him upon the ground that his arrest was irregular? Can a defendant have immunity from being brought before a jury for trial upon the ground that his presence will furnish evidence against him by affording the witnesses for the prosecution an opportunity to identify him as the party who committed the crime? Could such immunity be based upon the illegality of his arrest? Can a defendant charged with murder object to the introduction of evidence that the clothes which he had on when arrested were covered with human blood, and that the shoes which he then wore fit the tracks made by the assassin, or that he had in his possession property taken from the deceased ? Would any technical error in the manner of his arrest render such evidence illegal?

Finding no error in the record, the judgment of the lower court is affirmed.

DOYLE and OWEN, Judges, concur.


author: FUBMAN, Presiding Judge

text:
    City of Shawnee v. Landon.
    No. A-71.
    Opinion Filed February 1, 1910.
    (106 Pac. 652.)
    1. STATUTES — Construction—Penal Statutes. Penal statutes cannot be enlarged by implication or extended by inference. No person can be convicted of a crime unless the act committed is within both the letter and the spirit of a penal statute.
    2. MUNCliP'AL CORPORATIONS — Ordinances''— Regulation of Speed. The speed of automobiles, bicycles, and other means or ■ vehicles of conveyance cannot be regulated by an ordinance Which was clearly intended to apply only to those conveyances which are drawn by horses, mules, or other beasts.
    (Syllabus by the Court.)

      Appeal from District Court, Pottawatomie County ■ W. N. Maben, Judge.

    J. E. Landon was charged with violating .a city ordinance, and from a judgment of conviction in police court he appealed, and from an order sustaining a demurrer to the complaint the City of Shawnee appeals.
    Affirmed.
    On the 6th day of November, 1907, the defendant was fined $25 in the police court of the city of Shawnee upon a complaint filed in said court charging him with violating the following ordinance of said city, to wit:
    •‘Whoever shall in this city, ride or drive any horse, mule or other beast faster than an ordinary traveling gait, or who shall recklessly ride or drive so as to endanger the safety of others, shall be deemed guilty of a misdemeanor, and upon conviction thereof, shall be fined not to exceed twenty-five ($25.00).”
    Which complaint is in words and figures following:
    ‘‘In the police court of the City of Shawnee. The City of Shawnee v. J. E. Landon. Before me, I). C. Flowers, police judge within and for the said City of Shawnee, in said County and Territory, personally appeared T. B. Hewlett, who, being duly sworn, upon his oath says: ‘That on or about the 5th day of November, 1907, in said City and County, one J. E. Landon, did unlawfully ride a motor cycle or bicycle at such a reckless speed as to endanger the safety of others against the ordinances of said City of Shawnee of such cases made and provided; and affiant prays that a warrant may issue for the arrest of said J. E. Landon that he may be dealt with according to law.’’ T. B. Hewlett. Subscribed and sworn to before me this 6th day of November, 1907. D. C. Flowers, Police Judge of the City of Shawnee.”
    That thereafter the said defendant appealed from the judgment of said police court to the district court of Pottawatomie county, Okla., and the defendant did on the 18th day of March, 1908, file his demurrer in said district court to. said complaint, which demurrer is in words and figures following:
    “Comes now the defendant and demurs to the complaint filed herein for the reason that the facts stated in said complaint do not constitute a public offense, and that the facts stated in said complaint do not constitute a violation of any ordinance of the said City of Shawnee. Paul F. Cooper, Attorney for Defendant. Filed March 18th, 1908.”
    That on the 14th day of May, 1908, said demurrer coming on to be heard, the court sustained said demurrer, and entered an order sustaining said demurrer, and a judgment dismissing said cause and for costs against the plaintiff in error. The city excepted to this ruling, and appealed to this court.
    P. 0. Cassidy and W. M. Angart, for appellant.
    — Citing: State v. Collins (B. I.) 17 Atl. 131; Holland v. Bartch (Ind.) 22 N. E. 83; Swift v. Topeka, 43 Kan. 671; Mercer v. Corbin (Ind.) 20 N. E. 132.

      Paul F. Cooper, for appellee.
    — Citing: Black on Interpretation of Laws, pp. 290, 291.
   FUBMAN, Presiding Judge

(after stating the facts as above). It is a fundamental principal of criminal law, based on manifest justice, that penal statutes are not to be enlarged by implication or extended by inference. No person can be convicted of a crime unless the act committed is clearly within both the letter and the spirit of a penal statute. To our minds it is clear that the meaning of the ordinance involved in this case is to prohibit and punish the riding or driving within the corporate limit.? of the City of Shawnee of'horses, mules, or any other beast faster than an ordinary traveling gait, or to recklessly ride or drive any such beast within the corporate limits of said city so as to endanger the safety of others, even though such riding and driving be not faster than an ordinary gait. Were it not for the latter part óf the section, a defendant might ride or drive a beast upon the sidewalk in a most reckless manner and with great danger to others and still not violate the law. This section must be construed as a whole, and each of its parts consid^ ered in connection with its other parts. From this standpoint, it is clear that this ordinance was intended to regulate the riding and driving of horses, mules and other beasts, and does not include vehicles not drawn by horses, mules or other beasts. That the city may reasonably regulate the speed of bicycles, automobiles, or any other means of com^ance within its limits cannot be disputed. But it has not attempted to do so in this ordinance.

There was no error in the ruling of the trial court, and the judgment is therefore affirmed.

DOYXiE and OWEN, Judges, concur.


author: DOYLE, Judge.

text:
    W. H. Brown v. State.
    No. A-80.
    Opinion Filed February 1, 1910.
    (106 Pac. 808.)
    1. APPEAL — Service of Notice — Appearance. While the statute provides (section 6949, Snyder’s St.) that an appeal is taken by the service of a notice upon the clerk of the court where the judgment is entered that the appellant appeals from the judgment, a similar notice to be served upon the prosecuting attorney, yet a general appearance entered by the Attorney General in a cause in this court is sufficient to give this court; 1 jurisdiction.

      2. CONDUCT OF COUNSEL — Comment on Defendant’s Failure to Testify. Where the defendant upon his trial fails to t.estify in his own behalf, and the prosecuting attorney comments upon such failure to the jury, such comments constitute “reversible error.”
    (Syllabus by the Court.)

      Appeal from Pottavxatomie County Court; J. H. Woods, Judge. pro tem.

    W. II. Brown was convicted of violation o f the prohibitory law, and brings eerror.
    Beversed and remanded.

      T. G. Cutlip and McLain Taylor, for plaintiff in error.

      Fred S. Caldw&ll, Counsel to the Governor, for the State.
    No briefs reached the reporter.
   DOYLE, Judge.

Plaintiff in error, W. H. Brown, was tried and convicted in the county court of Pottawatomie county of the crime of selling and furnishing intoxicating liquors. On June 1, 1908, he was sentenced to be confined in the county jail for a period of 40 days and to pay a fine of $100 and costs, and stand committed to jail until said fine and costs are paid. On January 26, 1909, there was filed in this court his petition in error with case-made attached. On behalf of the state a motion was filed to dismiss said appeal, which motion is as follows:

“Special Appearance and Motion to Dismiss. Comes now the State of Oklahoma bj’ its attorney, Ered S. Caldwell, as counsel to the Governor, and appearing especially herein for the purposes of this motion only, represents to this honorable court as follows: More than one year has elapsed since the rendition of the judgment from which plaintiff in error undertakes to prosecute this appeal, and no notices of appeal were ever, served or filed as provided and required by Sec. 6949 of the 1909 Comp. Laws of Okla. Wherefore, the State of Oklahoma says that this court is without jurisdiction to entertain said appeal and that the same should be dismissed at plaintiff in error’s cost.’’

Dpon an examination of the record we find that, on the day said appeal was filed in this court, there was also entered the appearance of the state by the Attorney General as follows:

“And now comes Chas. West, Attorney General of the State of ■ Oklahoma, for and on behalf of said state, and waives the issuance and service of summons in error in the case above entitled” and makes a general appearance for' the state of Oklahoma in.said cause. Dated this 26th day’of Jan., 190.9.”

It was held by this court in the case of Bill Blunt v. State (decided at this term and reported in this volume), 106 Pac. 806, that:

‘‘While the mere waiver of the issuance and service of summons in error by the Attorney General is insufficient to give this court jurisdiction, there can be no question where he enters a general appearance as the authorized representative of the state in a case in this court, this court thereby obtains jurisdiction of the cause.”

The motion to dismiss the appeal will be overruled.

There are numerous assignments of error in the petition. However, it is only necessary to consider the fourth; that is:

•‘Because the court erred in not setting aside the verdici of the jury and granting a new trial because the attorney for tne state in presenting his case to the jury said that ‘the defendant Brown has not taken the stand in his own behalf and denied the sale of the whisky as charged in the information/ and which said statement was made to the-jury over the objection of the defendant at the time.”

The record shows that in support of a motion for a new trial wherein misconduct of the prosecuting atlorney was alleged, the following testimony was offered:. McLain Taylor, being first duly sworn, testified as follows:

“Q. What is your name? A. Taylor. Q. What is your business? A. Attorney at law. Q. Are you engaged as attorney for the defendant in the case styled State of Oklahoma v. W. H. Brown? A. I am. O- Were you present in the court and sat in the conduct of the defense? A. I did. Q. You are acquainted with O. P. Holt? A. I am. Q. The official position he-holds-is the deputy county attorney of Pottawatomie county, is it not? A. Yes, sir. Q. Was-he the attorney or one of them that represented the state in the prosecution? A. He was. Q. Did he make the presentation argument in that case? A. He did. Q. Mr. Taylor, during that argument you may state whether or not Mr. Holt made any reference to the fact that the defendant W. -H. Brown, did not take the stand as a witness in his own behalf, and, if so, you may state what was said? Á. Well, in the course of the argument of the case for the state, Mr. Holt used this language. I took a memorandum of the language that he used in the argument, and his language was as follows: ‘Brown didn’t deny selling, the whisky and did not go on the stand at all.’ And after he had repeated it two or three time's the attention of the court was called to the character of argument he was making by myself, and. the court instructed him, as 1 remember it. Q. Now, what was it he stated that Brown didn’t deny? A. Didn’t deny selling whisky. Q. Are you positive? A. I am positive.”

The statute expressly forbids a reference to the fact that the defendant failed to testify on his own behalf. Section 6833, Snyder’s St. 1909, provides:

“In the trial of all indictments, informations, complaints and other proceedings charged with the commission of a crime, offenses and misdemeanors before any court or committing magistrate in this state, the person charged shall at his own request but not otherwise, be a competent witness, and his failure to make such request shall not create any presumption against him nor be mentioned on the trial, if commented upon by counsel it shall be ground for a new trial.”

The record in this case shows that the defendant did not testify on his own behalf. This provision of Procedure Criminal is mandatory and leaves no discretion in the trial court to refuse to grant a new trial upon the application of the defendant. Such comment constitutes reversible error.

In Wilson v. Territory, 9 Okla. 331, 60 Pac. 112, it was held:

“Such misconduct by the'counsel for the prosecution cannot be cured or remedied by the withdrawal of the prejudicial statements from the consideration of the jury or by the court, and admonishing them that they must not consider the same.”
“This statute is plain and unambiguous, and, where its terms are violated, the court has no discretion, but must grant a new trial.” (Perkins v. Territory, 17 Okla. 82, 87 Pac. 297.)

In State v. Balch, 31 Kan. 465, 2 Pac. 609, Mr. Justice Valentine, in delivering the opinion of the court, said:

“Nor can the principle be tolerated that convictions for violated law may be procured or brought about by the inauguration and accomplishment of other violations of the law. It is also true that in this case the court below instructed the jury that the statement made by the county attorney should not be allowed to work any prejudice to the rights or interests of the defendant. But, under the authorities, the evil done by such an infringment of the law — an infringement of the law by the prosecuting officer of the state — ^cannot be remedied or cured by any mere instruction of'the court. The only complete remedy, if the defendant is convicted, is to grant a new trial on his motion.”

In Angelo v. People, 96 Ill. 209, 36 Am. Rep. 132, the court said;

"If the counsel for the people in a criminal trial comment on the omission of the defendant to testify in his own behalf, it is ground for a new trial, although the counsel was stopped by the '¡court and (the jury were insttncted to disregard those comments.” • ...

In State v. Snyder, 119 Iowa, 15, 91 N. W. 762, the court said :

“When it appears that the prosecuting attornej' has offended in. the respéct in question, the mischief is done, and the right to a new ti-ial is not affected by a failure to enter objection at the time. He may take advantage of the misconduct by motion for new trial after verdict.”

It is to be regretted that the prosecuting attorney referred in liia argument to the fact that the accused had failed to testify. Such comments are prohibited, and, when indulged' in, whether intentionally or inadvertently, a new trial must be granted.

For this reason the judgment of the county court is reversed, and the cause remanded, with direction to grant a new trial.

FURMAN, PRESIDING Judge, and OWEN, Judge, concur.


author: PEE CUEIAM.

text:
    Gleason Durant et al. v. State.
    No. A-64.
    Opinion Filed February 2, 1910.
    (106 Pac. 651.)
    1. APPEAL — Case-Made—Service—Extension of Time. When the time granted 'by the court for preparing and serving a case-made has expired, the 'Court is without power to grant an extension of such time, and any such attempted granting of ex-extension of such time is void.
    2. SAME — Expiration of Time — Effect. This court cannot consider a case-made served after the expiration of the time granted by the court in which it should be served.

      3. APIPEAL — 'Uncertified Transcript. A transcript of the record, not certified to by the clerk of the district court, will not he considered on appeal.
    (Syllabus by the Court.)

      Appeal from DistHct Court, Pushmataha County; Malcolm Ros-ser, Judge.

    Gleason Durant and Jane M. Joe were convicted of crime,, anc] appeal.
    Dismissed.

      J. B. Whitehead, for appellants.

      Charles L. Moore, Asst Atty. Gen., for the State.
   PEE CUEIAM.

On the 11th day of. September, 1908, judgment was rendered against the defendants, and they were allowed by the court 30 days in which to prepare and serve a case-made. The ease-made was not served until the 29th day of October, 1908, which was after the time granted by the court had expired. It is true that on said 29th day of October, 1908, the court did .grant a further extension of time; but as the time granted in the original order of the court for serving a ease-made had expired, the court was without power to grant additional time. That which has already expired cannot be extended. Dnder our statute applications for and grants of extension of time in which to prepare and serve a case-made must be presented and granted before the time originally granted has expired. An order of extension, made after the expiration of the time originally granted, is void. The case-made not having been served in the time originally granted, and,the subsequent order extending the time being void, we are not at liberty to consider what purports to be the case-made in this record. There' is no certificate of the clerk to the transcript of the record." There is' nothing before this court which it is authorized to consider.- The appeal is therefore dismissed for -want of legal case-made and a certified' transcript of the record. '

Appeal dismissed.


author: PER CURIAM.

text:
    Sampson Lewis v. State.
    No. A-58.
    Opinion Filed February 2, 1910.
    (106 Pac. 647.)
    1. APPEAL — Service of Case-Made — Extension of Time. Where the extension of time in which a case-made might be served was made after the time originally granted had expired, the extension was void.
    2. APPEAL — Certification of Case-Made. The clerk of the district court must attest the signature of the judge to the case-made, and certify to the accuracy of the transcript.
    (Syllabus by the Courts

      Appeal from District Court, Pushmataha County; Malcolm Ros-ser, Judge.

    Sampson Lewis was convicted of crime, and appeals.
    Dismissed.

      J. 2?. Whitehead, for appellant.

      Charles L. Moore,. Asst. Atty. Gen., for'the State.
   PER CURIAM.

The time originally granted for making and serving a case-made had expired when the case-made was served. The extension of time in which the case-made might be served having been made after the time originally granted had expired was void. There is no certificate by the clerk of the district conrt to what purports to be the transcript of the record. The clerk of the district conrt must attest the signature of the district judge to the case-made, and must also certify to the accuracy of the transcript. There is nothing before this court which we can consider.

The appeal is therefore dismissed.


text:
    Bill Blunt v. State.
    No. A-78.
    Opinion Filed February 3, 1910.
    (106 Pac. 806.)
    1. APPEAL — Notice—Appearance by Attorney General. While the statute provides (section 6949, Snyder’s St.) that an appeal is taken by the service of a notice upon the clerk of the court where the judgment is entered that the appellant appeals from the judgment, a similar notice to be served upon the prosecuting attorney, yet a general appearance entered by the Attorney General in a cause in this court is sufficient to give this court jurisdiction.
    2. APPEAL — Sufficiency of Evidence. Where competent evidence has been introduced in support of all the material allegations of an information, its weight and sufficiency to sustain a conviction is for the jury.
    (Syllabus by the Court.)

      Appeal from Pottatvatomde County Courtj F. D. Reasor, Judge.

    Bill Blunt was convicted of an illegal sale of liquors, and he appeals.
    Affirmed.

      T. G. Cutlip, for plaintiff in error. ■

      Fred 8. Caldwell, Counsel to the Governor, for the State.
   DOYLE, Judge.

Plaintiff in error, Bill Blunt, was tried and convicted in the county court of Pottawatomie county of a violation of that provision of' the- prohibition ordinance .which prohibits' the conveyance of''intoxicating liquors' from one place within the state to another place therein. 'On-the 30th day of April, 1908, he wais sentenced'to serve a period of 60 days in the county jail of said county- and pay a fine of $100 and costs, “that, he be confined in the county jail from and after the expiration of the jail sentence hereinbefore imposed for such time as it will require to satisfy ’ said fine and' costs by confinement at the rate of $2 per day,” from which judgment defendant appeals.

On January 21, 1909, there was filed in this court his petition in error and case-made attached. On behalf of the state a motion has been filed to dismiss said appeal, which motion is as follows: ' |

“Special Appearance and Motion to Dismiss. Comes now the State of . .Oklahoma by. its attorney, Fred S. Caldwell, as counsel to the Governor, and, appearing specially herein for the purpose of this motion only, represents to this honorable court as follows: More than one year-has el-apsed since the rendition of' the judgment from which plaintiff in error undertakes to prosecute this appeal, and no notices' of appeal were ever served or filed as provided and required by section 6949 of the' 1909 Comp. Laws of Okla. Wherefore, the state of Oklahoma says that this court is without jurisdiction to entertain said appeal and that the same should be dismissed at plaintiff in error’s cost.” . . , .... . ■> . ' ;

Upon an examination of the 'record we .find that on the day said appeal was filed in this court there -was also entered the appearance of the state by the Attorney. General as follows:

“And now comes Chas. West, Attorney General of the state of Oklahoma, for and on behalf - of'said state, and waives the issuance and service of summons in error in the ease above entitled and makes a general appearance for the state of Oklahoma in said cause. Dated this 21st day of Jan., 1909. Chas. West, Attorney General. Filed Jan. 21st, 1909. W. H. L. Campbell, Clerk.”

While the statute provides (section 6949, Snyder’s St.) that an'appeál is taken by the'ser'vice' of a notice upon the clerk of the court,'where the'judgment is entered tÜát'ttíe appellant appeals' from the judgment, a similar notice to be served upon the prosecuting attorney, yet a general appearance entered by the' Attorney General in a 'Case in this court is sufficient to give this court jurisdiction. The notice of appeal by which the adverse party is brought before this court ■ corresponds to a summons in error, as provided for in civil cases before the Supreme Court, and a- general appearance by the Attorney General where the defendant appeals will be equivalent to proof of service of notices of appeal required by statute. Section 6958, Snyder’s St., provides:

“An appeal shall not be dismissed fór any informality or defect in the. taking thereof. If the same be corrected in a reasonable time after an appeal has been dismissed, another appeal may be taken.”

■ Section 8642, Snyder’s St.,. prescribing the duties of the Attorney General, in part provides:

“He shall appear, for the state and prosecute and defend all actions and proceedings, civil or criminal, in the Supreme Court (the Criminal Court of Appeals), in which the state shall be interested ás a party, and shall also when requested by the Governor or either branch of the Legislature, appear for the state and prosecute or defend in any other court or before any officer, in any cause or manner, civil or criminal, in which the state may be a party or interested.”

While the mere waiver of the issuance and service of summons in error by the Attorney General is insufficient to give this court jurisdiction, there can be no question where he enters a general appearance as the authorized representative of the state in. a case in this court this court thereby obtains jurisdiction of the cause. Therefore the motion to dismiss the appeal will be ’ overruled, and we shall now consider the case upon its merits.

Eight assignments of error, are set forth in the petition, and an elaborate, argument has been made in,support thereof.

But one question is presented by. the first, second, third, fourth and.fifth assignments; that is, the competency and sufficiency of the evidence to prove- a public offense, the conclusion insisted on being that the verdict- is not supported by sufficient evidence. The evidence in substance is 'as follows: ■ Robert Neal, the complaining witness, testified that he lived at Earlsboro; that on or about the 17th day of March, 1908, he saw the defendant, who lived at Earlsboro, going towards Shawnee in a two-horse wagon; that the next morning about 3 o’clock he was at defendant’s house, and secured four barrels of whisky; that he saw them unloading the whisky about 3 o’clock in the morning; that he secured and delivered said whisky to the sheriff of Pottawatomie county. E. A. Pierce, sheriff of Pottawatomie county, testified that he saw the defendant about six miles from Shawnee on or about the 17th* of March, 1908, in a wagon going towards Earlsboro; that he had -four barrels in a wagon; that he had a conversation with the defendant and two other men in the wagon with him, and asked them where they had been, and they said over to Shawnee; that he asked them, “What is this you have got?” and they said it was salt they were taking to the ranch for the cattle; that Mr. Robert Neal delivered to him the four barrels of whisky the next day; that the bottles were labeled, “Shawran Whisky Bourbon, Shawan Distillery Co., Kansas City, Mo.” Defendant demurred to the evidence, which demurrer was overruled by the court, and the defendant excepted. Arthur Blunt, the only witness on the part of the defendant, testified that he had lived four or five years at Earlsboro, was the son of Bill Blunt, the defendant, was acquainted with Robert Neal; that the defendant lived with him at his home in Earlsboro; that Robert Neal came there on the night of the 17th of March some time after midnight and secured three or four barrels of something in the henhouse on his place; that he did not know who put them there. The demurrer to the evidence was properly overruled, and-we have no hesitation in saying that the facts and circumstances shown are sufficient to support the judgment of conviction.

The sixth assignment is based upon the refusal of the court to give the following instruction, requested by defendant.

“Gentlemen of the jury, you are instructed that an interstate purchase of intoxicating liquor shipped from a point outside of the state of Oklahoma and consigned to a resident of the state of Oklahoma is not unlawful, and the consignee is permitted to transport said consignment of intoxicating liquors where purchased as aforesaid from the depot or express office to the place of his domicile, and such transportation under such circumstances is not unlawful, and if you find from the evidence in this ease that the barrels containing whisky, and to which the defendant is charged with unlawfully transporting, was purchased from the Shawan Distillery Company of Kansas City, Mo., to the defendant at Shawnee, Olda., then, and in that event, you are instructed that the transportation from the express office in Shawnee by the defendant to his domicile or home in Earlsboro was not unlawful, and if you so find your verdict should be for the defendant.
“Refused, and excepted to by Deft. E. D. Reasor, County J udge.”

This instruction.was properly refused by the court, there being" no evidence showing or tending to show that said liquor was an interstate shipment.

The seventh assignment is that the court erred in giving instruction No. 4, which instruction is as follows:

“Gentlemen of the jury, you are instructed that the transportation or conveying of intoxicating liquor might have been done on the dates herein alleged as a lawful purchase, provided said purchase and transportation was shown by the defendant to come within the transportation and conveyance not prohibited by the Constitution of this state on that date, but that from the transportation of any quantity of intoxicating liquor not to be unlawful it is incumbent upon the defendant to prove by a fair preponderance of the competent evidence, that the same was purchased, conveyed, and transported by him for such scientific, industrial, or medical purposes as were permissible under the Constitution of the state on the 17th day of March, 1908.”

This instruction appears to have been drawn upon the theory that some affirmative proof had been offered, showing that said liquor was a lawful purchase outside the state, and that the same was received as an interstate consignment. There was no evidence adduced tending to show this state of facts. The. burden of proving the facts necessary to conviction devolve upon the state: and if, from all the evidence, a reasonable doubt exists in the minds of the jurors as to the guilt of defendant, he must be acquitted. The court correctly charged the jury in all matters within the issues raised and upon the evidence' adduced. There was no evidence offered showing or tending to show a lawful purchase of said liquor. . ■ ■

In conclusion, it is contended that the .court erred in.overruling and denying defendant’s motion • in arrest of judgment. There is .no merit in this assignment. ■ •

For the reasons stated the judgment is affirmed. ■

FURMAN, PRESIDING Judge, and OWEN,. Judge, . concur.


text:
    S. O. Chesney v. State.
    No. A-82.
    Opinion Filed February 3, 1910.
    (106 Pac. 651.)
    APPEAL — Notice of Appeal — Record—Dismissal. An appeal to the Criminal Court of Appeals may be taken by the defendant, as a matter of right, from any judgment against him; ' but the manner of taking and perfecting' such appeal is a proper matter for legislative control,' and the appeal must be taken in the manner prescribed by law, and, where the record before this court fails to show notices of appeal and proof of • service as required by law, ■ the case will be dismissed. In order to give this court jurisdiction, the notices required toy statute must be served, and proof'of'service of such notices must be hied with the record in this court within the time in which an appeal may be • taken.
    (Syllabus by the Court.)

      Mrror from Wagoner-County Court; W. T. Drake, Judge.

    S. 0. Chesney was 'convicted of a violation of the prohibition law, and brings error.
    Dismissed.

      W. T. Hunt, for plaintiff in error.

      Fred 8. Caldwell, Counsel to the Governor, for the Staté. .
   DOYLE, Judge.

Plaintiff in error.was convicted in the county court of Wagoner, county for a violation of the prohibition law. On the 5th day of November, 1908, the court rendered judgment and sentenced defendant to pay a fine of $150 and to serve 30 days in the county jail. Petition in error and case-made were filed in this court January'7, 1909. Counsel for the state has filed a motion to dismiss this appeal, for.‘the’reason that:

“More than one year has elapsed since the rendition of the judgment from _ which plaintiff in error undertakes to prosecute this appeal, and no notices of appeal were ever served or filed as provided and required by section '6949 .of the 1901 Compiled Laws of Oklahoma. Wherefore the state of Oklahoma, says that this court is without jurisdiction to entertain said appeal, and that the same-should be dismissed, at plaintiff in- error’s 'cost.”

It appears, from an-examination of the .record in’this case, that there has-been a failure to comply with the statutory provisions. An application was made on behalf of the plaintiff in error to amend the record to show-that-said statutory notices. had been served. In the ease of N. N. Boneparte v. United States, ante, p. 345, 106 Pac. 347, this1 court had. the same question under consideration,, wherein it was, said: . .......

-. ’-“In order to give this court-'jurisdiction,: the. notices prescribed by the provision quoted must be served upon the clerk of the court and upon the prosecuting attorney, and, under the law in force when this appeal was attempted to be taken, the proof of the'service of such notices or a waiver of the same must be filed with the record in this court within a year from date of the judgment. ■ This was not done- in this case.”- ■ .

.Applying this rule to the case at bar, the- application to amend the record must be denied, as it comes too .late. In. order to give this court jurisdiction, notices as required -by the • statute must be served upon the clerk of the court and the prosecuting attorney. The proof of the service of said notices must be filed with the record in this court within the time in which an appeal may be taken.

As there is nothing in the record before us which confers jurisdiction to review this ease, the motion to dismiss the purported appeal will be sustained.

Appeal dismissed.

FURMAN, PRESIDING Judge, and OWEN, Judge, concur.


text:
    James Mullikin v. State.
    No. A-120.
    Opinion Filed February 3, 1910.
    (106 Pac. 1134.)

      Appeal from Garfield County Court; James B. Culliscm, Judge.

    James Mullikin was convicted of a violation of the prohibition ordinance, and appeals.
    Dismissed.

      Fred 8. Caldwell, Counsel to the Governor, for the State.
   PER CURIAM.

Plaintiff in error was convicted- in the county court of Garfield county for a violation of the prohibition ordinance. On March 28, 1908, judgment was rendered in said cause. Petition in error and ease-made was filed in this court on March 19, 1909. Counsel for the state has' filed a motion to dismiss this appeal, for the reason that “more than one year has elapsed from the rendition of the judgment from which plaintiff in error undertakes to prosecute this appeal, and no notices of appeal have been filed or servéd by plaintiff in error, as provided by section 6949, Snyder’s St.” It appears from an examination of the record in this case that there has been a failure to comply with this statutory provision. In order to give this court jurisdiction, notices as required by the statute must be served upon the clerk of the court and the prosecuting attorney. The proof of service should be filed with the record in this court. There is nothing in the record before us which confers jurisdiction to review this case. For the reason stated, the motion to dismiss the purported appeal should be sustained.


text:
    Elmer Miller et al. v. State.
    No. A-32.
    Opinion Filed February 3, 1910.
    (106 Pac. 810.)
    1. APPEAL — Jurisdiction—Assault and Battery. In a proseeutidn for assault and battery before a probate court, an appeal may be taken from a judgment of conviction to the Criminal Court of Appeals of Oklahoma as the successor in criminal causes of the Supreme Court of Oklahoma Territory in the same manner as from the district court and with like effect when only questions of law are involved in the appeal.
    2. JURY — Right to Jury Trial — Constitutional Law. The sixth amendment of the Constitution of the United States secures to the .people of the territories the right to trial by a common-law jury in criminal prosecutions, and a person charged with having committed a misdemeanor prior to statehood has a constitutional right of trial by a jury composed of 12 persons.
    3. COURTS — Decisions of United States Supreme Court as Controlling. In determining questions of federal cognizance, this court is bound by and will adopt and be governed by the rules of decision adjudicated in the 'Supreme Court of the United States.
    (Syllabus by the Court.)

      Error from Probate Court. Kingfisher County; John M. Graham, Judge.

    Elmer Miller and another were convicted of assault and battery, and bring error.
    Reversed and remanded for a new trial.

      Wm. A. McCartney, for plaintiffs in error.

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

The plaintiffs in error were jointly prosecuted in the probate court of Kingfisher county, Okla. T., for the crime of assault and battery. The record recites that, when the ease was called for trial, they moved the court for a jury composed of 12 persons to try the cause. Whereupon the court continued the case until the next term. On November 7, 1907, the case again called for trial, whereupon the defendants were asked by tbe court if they demanded a trial by jury, to which request they and their ounsel stood mute and failed to demand a jury. Whereupon the court after hearing the evidence and argument of counsel, and being fully advised in the premises, found said defendants guilty and séntenced them to pay a 'fine of $25 each and costs, and to stand committed until said fines and costs are paid. Whereupon the defendants.prayed, an appeal and the court fixed the amount of the bail bon'd in the sum of $200, which bond was filed and. approved and execution, stayed, said appeal to be perfected in the time-fixed by statute. On November 7, 1908, there was filed in this court their petition in error with transcript attached. On behalf of the sfate there was filed a motion to dismiss the appeal, which motion is as follows:

“Comes now the Attorney General for and upon behalf of the state of Oklahoma, and moves the court to dismiss the pretended appeal herein, and to strike the'cause from its docket, for the reason that no appeal is in fact pending herein, in that no appeals lie from the'probate courts of Oklahoma' Territory to this court, in those matters where the probate court is- in exercise only of its justice .of the peace jurisdiction, so. that this court is therefore without jurisdiction in the present case.”

We are of opinion that the motion to dismiss is-not well ' taken. Section 2235, Wilson’s. Rev. & Ann. .St. 1903, giving justices of the peace jurisdiction in assault and battery cases, was repealed by section 4, art 1, c. 41, Sess. Laws 1895, being section 5305, Wilsoir’s St., which provided:

“If the offense ' be ' a' misdemeanor punishable'by a fine of more than one hundred . ‘dollars, or by imprisonment for more than thirty days, .or by both fine,and imprisonment, it shall be prosecuted by information before the probate or district court."

Section 2234, Wilson’s Rev. & Ann. St. 1903, provided:

“Assault, or assault and battery, shall be punishable by imprisonment in a county jail not exceeding thirty days, or by a fine of not less than five dollars or more than one hundred dollars, or both, at the discretion of the court.” . ,

Thus' it will be seen that .under the penalty prescribed by this provision justices of-the, peace had.no jurisdiction in assault and battery cases under, the territorial law; their jurisdietion being limited to . eases wherein the, penalty, prescribed does not exceed a fine of-$100, or imprisonment in-.the,county jail for 30 days. Section 1881, Wilson’s Bev. & .Ann. St. 1903, provided:

“Appeals from the final judgment of said probate courts shall be allowed and taken to the Supreme Court of this territory in the same manner as from the district court and with like effect when only .questions of law are involved in the appeal.”

The appeal in this case has been properly taken- The-, motion-to dismiss is hereby overruled.

The record in this case'presents-but one question: Did the probate court have jurisdiction' to impose the fines upon the accused, and to order them to be imprisoned until such ’fines were paid, the right to be tried by a common-law jury composed of 12 persons having been denied? Section 5158, Wilson’s Bev. & Ann/-St.-1903, provided: ■ • '

“No person can ‘be convicted of a public offense, unless by the verdict óf a jury, accepted and recorded by the court, or upon a plea óf guilty, or upon a judgment of á' pólice or justice’s court in cases in -which such judgment may be lawfully given without the intervention of'a jury.”

The sixth amendment to the Constitution of the United States provides: , -

“In all criminal prosecutions the accused ' shall enjoy the right to a speedy and public trial, by an impartial -jury of the state and district wherein the crime shall have been committed, which district shall .have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his- favor, and to have the assistance of counsel for bis defense.”

Under this* provision of the federal ‘Constitution, the accused having refused to waive their right to’ a -jury trial could only be tried by a common-law jury. Neither Congress nor the Territorial Legislature had the. power to deprive one accused of a misdemeanor in Oklahoma Territory of a-trial by a common-law jury. By a series of decisions it is the settled doctrine of the Supreme Court of the United States that the provisions’ of the federal Constitution relating to trial by jury in criminal prosecutions apply to the organized territories of the United States. These decisions are .cited and quoted.

In the case of Rasmussen v. United States, 197 U. S. 516, 25 Sup. Ct. 514, 49 L. Ed. 862, Mr. Justice White, delivering the opinion of the court, said:

“This brings us to the second proposition, which is: (2) That even if Alaska was incorporated into the United States, as it was not an organized territory, therefore the provisions of the sixth amendment were not controlling on Congress when legislating for Alaska. We do not stop to demonstrate from original considerations the unsoundness of this contention and its irreconcilable conflict with the essential principles upon which our constitutional system of government rests. Nor do we think it is required to point out the inconsistency which would arise between various provisions of the Constitution if the proposition was admitted, or the extreme extension on the one hand and the undue limitation on the other of the powers of Congress which would be occasioned by conceding it. This is said, because in our opinion the unsoundness of the proposition is conclusively established by a long line of decisions. Webster v. Reid, 11 How. 437, 13 L. Ed. 761; Reynolds v. United States, 98 U. S. 145, 25 L. Ed. 244; Callan v. Wilson, 127 U. S. 540, 8 Sup. Ct. 1301, 32 L. Ed. 223; American Publishing Co. v. Fisher, 166 U. S. 464, 17 Sup. Ct. 618, 41 L. Ed. 1079; Springville v. Thomas, 166 U. S. 707, 17 Sup. Ct. 717, 41 L. Ed. 1172; Thompson v. Utah, 170 U. S. 343, 18 Sup. Ct. 620, 42 L. Ed. 1061; Capital Traction Co. v. Hof, 174 U. S. 1, 19 Sup. Ct. 580, 43 L. Ed. 873; Black v. Jachson, 177 U. S. 349, 20 Sup. Ct. 648, 44 L. Ed. 801.
“The argument by which the decisive force of the cases just cited is sought to be escaped is that, as when the cases were decided there was legislation of Congress extending the Constitution to the District of Columbia or to the particular territory to which a case may have related, therefore the decisions must be taken to have proceeded alone upon the statutes and not upon the inherent application of the provisions of the fifth, sixth, and seventh amendments to the District of Columbia or to an incorporated territory; and, upon the assumption that the cases are distinguishable from the present one upon the basis just stated, the argument proceeds to insist that the sixth amendment does not apply to the territory of Alaska, because section 1891 of the Revised Statutes only extends the Constitution to the organized territories, in which, it is urged, Alaska is not embraced. Whilst the premises as to the existence of legislation declaring the extension of the Constitution to the territories with’which the cases were respectively concerned is well founded, the conclusion drawn from that fact is not justified. Without attempting to examine in detail the opinions in the various eases, in our judgment it clearly results from them that they substantially rested upon the proposition that, where territory was a part of the United States, the inhabitants thereof were entitled to the guaranties of the fifth, sixth, and seventh amendments, and that the act or acts of Con-, gress purporting to extend the Constitution were considered as declaratory merely of a result which existed independently by the inherent operation of the Constitution. It is true that in some of the opinions both the application of the Constitution and the statutory provisions declaring such application were referred to, but in others no reference to such statutes was made, and the cases proceeded upon a line of reasoning, leaving room for no other view than that the conclusion of the court was rested upon the self-operative application of the Constitution. Springville v. Thomas, 166 U. S. 707, 17 Sup. Ct. 717, 41 L. Ed. 1172; Thompson v. Utah, 170 U. S. 343, 18 Sup. Ct. 620, 42 L. Ed. 1061; Capital Traction Co. v. Hof, 174 U. S. 1, 19 Sup. Ct. 580, 43 L. Ed. 873; Black v. Jackson, 177 U. S. 349, 20 Sup. Ct. 648, 44 L. Ed. 801.
“And this result of the cases will be made clear by a brief reference to some of the opinions. In Thompson v. Utah, considering a law of the state of Utah, which provided that a jury in a criminal cause should consist of only eight persons, the statute was held to be ex post facto and void in its application to felonies committed before the territory became a state, ^because in respect of such crimes the Constitution/ of the United States gave the accused at the time of the commission -of his offense the right to be tried by a jury of 12 persons, and made it impossible to deprive him of his liberty except by the unanimous verdict of such a jury/ In Springville v. Thomas it was contended that the territorial Legislature of Utah was empowered by Congress in the organic act of the territory to dispense with unanimity of the jurors in rendering a verdict in a civil case. The court said (page 708:) Tn our-opinion the seventh amendment secured unanimity in finding a verdict as an essential feature of trial by jury in common-law cases, and the act of Congress could not impart the power to change the constitutional rule, and could not be treated as attempting to do so/ Again, in Capital Traction Co. v. Hof, 174 U. S. 1, [5, 19 Sup. Ct. 580, 582, 43 L. Ed. 873], no reference whatever being made to the statute of February 21, 1871, extending the provisions of the Constitution to the District of Columbia (16 Stat. 419), it was declared: ‘It is-beyond doubt at the present day that the provisions of the Constitution of the United States securing the right of trial by jury, whether in civil or criminal cases, are applicable to' the District of Columbia/ And in Black v. Jackson, 177 U. S. 349 [363, 20 Sup. Ct. 648, 653, 44 L. Ed. 801], speaking of a law of the territory of Oklahoma, it was said: ‘And it also fails to recognize the provisions of the seventh amendment securing the right of trial by jury in “suits at common law,” where the value iñ controversy exceeds $20. That amendment, so far as it secures the right of trial by jury, applies to judicial proceedings in the territories of the United States. Webster v. Reid, 11 How. 437, 460 [13 L. Ed. 761]; American Publishing Co. v. Fisher, 166 U. S. 464, 466 [17 Sup. Ct. 618, 41 L. Ed. 1079]; Springville v. Thomas, 166 U. S. 707 [17 Sup. Ct. 717, 41 L. Ed. 1172]. So that a court of a territory authorized as Oklahoma was to pass laws not inconsistent with the Constitution of the United States (26 Stat. 81, 84, e. 182, par. 6) could not proceed in a “common-law” action as if it were a suit in equity and determine by mandatory injunction rights for the protection or enforcement of which there was a plain and- adequate remedy at law according to the éstablished distinctions between law and equity/
“As it conclusively results from the foregoing considerations that the sixth amendment to the Constitution was applicable to Alaska, and' as of course being applicable it was controlling upon Congress in legislating for Alaska, it follows that the provisions of the act of Congress under consideration depriving persons accused of a misdemeanor in Alaska of a right' to tríál by a common-law jury was repugnant to the Constitution, and void.”

In Thompson v. Utah, supra, Mr. Justice.Harlan says:

“But the wise men, who framed the Constitutipn of the United States and the people who approved jt were of opinion that life and liberty, when involved in. criminal prosecution, would not.be adequately secured except throught the unapimous verdict of 12 jurors. Tt was, not for .the state .in respect of a crime committed within its limits while it was a. territory to dispense .with .that .guaranty simply because its people had reached the conclusion that the truth could be as well ascertained, and the liberty of an accused be as well guarded, by 8 as by 12 jurors in a criminal ease. It is said that the accused did not object, until after verdict, to a trial jury composed of 8 persons, and therefore he should not be heard, to say that his trial before such a jury was in violation of his constitutional right. It is1 sufficient1 to say that it was not in the power of'one accused of felony by consent expressly given or by his .silence to authorize a jury of only 8 persons to pass upon the question of , his guilt. The law in force, when this crime was committed did not permit any tribunal to deprive him of his liberty, except one constituted of á court and a) jury of 12 persons.”

And in Callan v. Wilson, supra, the same learned justice said:

“The third article of the Constitution provides for a jury in the trial of ‘all crimes, except in cases of impeachment.’ The word ‘crime,’ in its more extended sense, comprehends every violation of public law. 'In a limited sense it embraces offenses of a serious or atrocious character. In our opinion the provision is to be interpreted in the light of the principles which at common-law determined whether the accused in' a given class of cases was entitled to be tried by a jury. If is not to be construed as relating only to felonies or offenses punishable by confinement in the penitentiary. It embraces as well some classes of misdemeanors,1 the punishment of which involves or may' involve the deprivation of the liberty of the citizen. It would bé a narrow construction of the Constitution to hold that no prosecution for a misdemeanor is a prosecution for a ‘crime’ within the meaning of the third article, ■or a ‘criminal prosecution’ within the meaning of the sixth amendment. And we do not think that the amendment was intended to supplant that part of the article which relates to trial by jury. There is no necessar3r conflict between them.”

Mr.' Justice Story says that the amendment, “in declaring that the accused shall enjoy the right to a speedy and public trial by an impartial jury of the state or district wherein the crime •shall have been committed (which district shall be previously ascertained by law), and to be informed of the nature and cause of the accusation, and to be confronted with. the 'witnesses against him,, does but follow out the established course of the common law in all trials for crimes.” Story on the Constitution, § 1791.'

In Reynolds v. United States, 98 U. S. 145, 154, 25 L. Ed. 244, it was taken for granted that the sixth amendment of the Constitution secured to the people of the territories the right of trial by jury in criminal prosecutions.

It is argued on behalf of the state that “the law providing for a jury of six in the probate and justice’s courts was not unconstitutional, in that a jury of 12 was provided for upon appeal to the district court” — citing the case of Collier v. Territory, 2 Okla. 444, 37 Pac. 819. The doctrine of the Collier Case was overruled by the Supreme Court of Oklahoma Territory in the case of Bettge v. Territory, 17 Okla. 85, 87 Pac. 897. Mr. Justice Hamer, delivering the opinion of the court after reviewing the authorities, said:

“But it may be said that the requirements of the Constitution of the United States are fully satisfied, where the accused is accorded, at some stage of the prosecution, a right of trial by jury; and it was so held by this court in the ease of Collier v. Territory, 2 Okla. 444, 37 Pac. 819, where it was held that: ‘A law of the Legislature of this territory which provides that cases which the justice court have power to hear and determine may be tried before a jury of six men, and where it gives the defendant the right of appeal to the district court where he may be tried by a jury of 12 men, is not unconstitutional.’ It will be seen that this rule announced by our court is in .direct conflict with the decisions of the Supreme Court of the United States above cited.”

And the learned Justice concludes:

“The rule announced in Collier v. Territory, being in conflict with the settled decisions of the Supreme Court of the United States, is overruled in so far as it conflicts with this opinion. It follows that the provisions of the act of the Legislature depriving the defendant in this case of a right to a trial by a common-law jury are repugnant to the Constitution of the United States, and therefore unconstitutional and void.”

Inu determining questions of federal cognizance, this court is bound to enforce the protection of the federal Constitution and to adopt and be governed by the rule of decision adjudicated in the Supreme Court of the United States. The doctrine declared in the eases quoted is conclusive on the question here presented. The probate court could have summoned the necessary jurors in the manner provided by law. We are also of the opinion that .the probate court had the inherent right to impanel a jury of 12 men to try said ease by common-law method by issuing an open venire therefor, if necessary, in the absence of any express statute relating thereto, as held in the case of Clawson v. United States, 114 U. S. 477, 5 Sup. Ct. 949, 29 L. Ed. 179. It is our' opinion that the probate court was without jurisdiction'to render the judgment of conviction. ■

The judgment will therefore be reversed and the case remanded to the county court of Kingfisher county for a new trial.

EUEMAN, Presiding Judge, and OWEN, Judge, concur.


author: PEE C’UEIAM.

text:
    William Burks v. State.
    No. A-69.
    Opinion Filed February 3, 1910.
    (106 Pac. 1133.)

      Appeal from District Court, Latimer County; Malcolm E. Boss&r, Judge.

    William Burks was' convicted of receiving stolen property, and appeals.
    Affirmed.

      J. E. Whitehead and Hudson & Pounders, for appellant.

      Charles L. Moore, Asst. Atty. Gen., for the State.
   PEE C’UEIAM.

What, purports to be the case-made does not contain the testimony of the witnesses. The record only contains the information, the verdict of the jury, the judgment of the court, the clerk’s minutes of the trial, and some motions made by the defendant. The instructions of the court are not in the record. The information is sufficient, and the verdict and the judgment are regular. The judgment of the trial court is therefore affirmed.


text:
    S. S. Forge v. United States.
    No. A-50.
    Opinion Filed February 3, 1910.
    (106 Pac. 1133.)

      Appeal from District Court, Ottawa County; L. M. Poe, Judge.

    S. S. Forge was convicted of murder, and appeals.
    Dismissed.

      M. M. Pdminson, for appellant.

      Chas. L. Moore, Asst. Atty. Gen., for the State.
   PER CURIAM.

The Attorney General filed the following motion to dismiss this appeal :

“Comes now the Attorney General, for and upon behalf of the state of Oklahoma, and moves the court to dismiss the pretended appeal herein and to strike the cause from its docket, for the reason that this court has never acquired the jurisdiction to entertain, hear, and determine the questions sought to be raised and have reviewed herein, in that the final judgment appealed from was rendered on May 9, 1908, the record was not filed in this court until December 9, 1908, and the appeal has not up to this time been perfected by the service of notice of appeal as required by section 5610 of Wilson’s Oklahoma Statutes, 1903, in force at the time of said trial.”

The record before us does not show that notices of appeal were ever served upon the county attorney and the clerk of the district court of Ottawa county, as is required by law. This is jurisdictional, and as the time for serving such notices has long since expired we are forced to sustain the motion to dismiss.

Even if the notices of appeal had been properly served, we could not have considered what purports to be the case-made, because it is not sealed and settled by the judge who tried the case, as the law directs. The alleged case-made was not signed by the judge and 'attested by the clerk of the district court. There is nothing about it to indicate that the district judge ever saw it. Instead of presenting the case-made to the trial judge, we find the following certificate appended to it:

“State of Oklahoma, County of Ottawa- — ss.: I, J esse J. Worten, official court reporter within and for .the Twenty-First judicial district of the state of Oklahoma, do hereby certify that I was the stenographer who took down in shorthand all of the proceedings had in the trial of the case wherein the state of Oklahoma was plaintiff and S. S. Forge was defendant, and I further certify that the foregoing bill of evidence and exceptions is a full and complete record of all the evidence introduced by the state, both oral and written, and containing all the rulings of the court, in the trial of said cause. This record, however, containing only the evidence introduced by the state, and no part of that introduced by the defendant. In witness whereof, I have hereunto set my hand, on this the 5th day of November, A. D. 1908. Jesse J. Worten, Official .Court ^Reporter.”

There is no law authorizing this to- be done, and it is altogether insufficient.

There are irregularities in the transcript of the record; but, as this case will have to be dismissed for want of service of notice of appeal, it would be a waste of time to discuss them.

Appeal dismissed.


author: DOMLE, Judge.

text:
    L. G. House v. State.
    No. A-66.
    Opinion Filed February 3, 1910.
    (106 Pac. 806.)
    APPEAL — Failure to File Briefs, — Scope of Review. Where the defendant appeals from a judgment of conviction, and no briefs, are filed or argument presented, this court will only examine the pleadings, the judgment, and instructions excepted to, and, if no reversible error is apparent, will affirm the case.
    (Syllabus -by the Court.)

      Error from District Court, Custer County; James B. Tolbert, Judge.

    L. G. House was convicted of forgery, and brings' error.
    Affirmed.

      W. L. Holcomb, for plaintiff in error.

      Chas. L. Moore, Asst. Atty. Gen., for the State. '
   DOMLE, Judge.

Plaintiff in error was indicted, tried, and convicted in the district court of Custer county at the July, 1908, term thereof, for the crime of forgery. The jury fixed the punishment at 1 1-2 years at hard labor in the state penitentiary. Motions for new trial and in arrest of judgment having been made and overruled, and exceptions allowed, on November 20, 1908, the court pronounced judgment and sentence in accordance with the verdict. On January 7, 1909, there was filed in this court a petition in error, with case-made attached. The only error assigned is that the court erred in overruling the motion form new trial and the motion in arrest of judgment.

No briefs have been filed, and no oral argument has been made. This court is not advised what the plaintiff in error complains of, or relies upon for a reversal. We have examined the indictment,, the instructions of the court, and the judgment and sentence, and no error appears that will warrant a reversal of the judgment.

Therefore the judgment of the district court of Custer county is in all things affirmed, and the cause remanded, with direction to carry the judgment and sentence into execution.

FURMAN, Presiding Judge, and OWEN, Judge, concur.


author: OWEN, Judge

text:
    Will Nelson v. State.
    No. A-49.
    Opinion Filed February 3, 1910.
    (106 Pac. 467.)
    1. HOMICIDE — Dying Declarations — Belief of Death. Dying declarations are admissible on a trial for murder as to the fact of the homicide and the person by whom it was committed when made under 1he belief of certainty of death.
    2. SAME — Admissibility—Evidence. For evidence sufficient to warrant the admission of a dying declaration see opinion.

      3. WITNESSES — Cross-Examination — Criminal Career. For the purpose of affecting the credibility of a witness .he -may be asked, on cross-examination, if he has been convicted of a felony or .of any crime which involves moral turpitude; but it is prejudicial error to ask such witness if he has been indicted, arr rested, or imprisoned for a misdemeanor, or if he has been charged or arrested or imprisoned, before conviction, for any offense whatever.
    4. INSTRUCTIONS — Credibility of Witnesses. For an approved instruction as to rules by which a jury should be governed in weighing testimony, see opinion under fifth assignment of error.
    (Syllabus by the Court.)

      Error from, District Cowl, Pushmataha County; Malcolm E. Rosser, Judge.

    Will Nelson was convicted of manslaughter, and brings error.
    Keversed and remanded.
    Plaintiff in error here, who was defendant in the lower court, was tried in the district court of Pushmataha county at. the September term, 1908, charged with murder. He was convicted of the crime of manslaughter and sentenced to imprisonment for 10 years. The evidence as disclosed in the record is to the effect that this defendant, together with others, engaged in a free for all fight, in which Sam Wright was mortally wounded, and from the effects of the wounds died two days later. The defendant and others were drinking, and Davis Miller and the deceased became engaged in a fight in which the defendant took part, and, as disclosed by the evidence of two witnesses, the defendant and his associates were fighting Sam Wright. The case is before us on appeal.

      C. E. Dudley and Wm. M. Cravens, for plaintiff in error.—
    On admissibility of dying declarations: Ene. of Ev., vol. 4, p. 925; People v. Taylm; 59 Cal. 640; People v. Lanagan, 81 Cal. 142. On cross-examination touching witness’ criminal record: Slater v. ü. S., 1 Okla. Cr. 275.

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

(after stating the facts as above). Counsel for defendant urge five assignments of error, as follows:

(1) That the court erred in permitting the county attorney to ask leading questions.

(2) That the court erred in admitting, over the objection of plaintiff in error, as dying declarations, the statements of Sam Wright as purported to have been made to Dr. Walker, Jack Wright, and Mrs. C. E. Mullens.

(3) That the trial court erred in excluding from the jury the testimony of Myatt Greenwood to the effect that Bish Landrum became angry at the defendant on account of the defendant’s refusing to permit Landrum to fire his pistol, and that he rode away from the crowd, but returned in about an hour and a half in company with the deceased.

(4) That the trial court erred in permitting the county attorney to force plaintiff in error, over his objection, to testify on cross-examination the number of times he had been arrested.

(5) That the court erred in instructing the jury as to the rules of evidence in passing upon the weight of testimony.

Under the second assignment, counsel urge that the court erred in admitting the statements of the deceased because it does not sufficiently appear that the statements were made under belief of immediate death. We understand the rule to be, as was announced by this court in the ease of Bilton v. Territory, 1 Okla. Cr. 566, 99 Pac. 163, to render a dying 'declaration admissible in evidence, it must have been made when the declarant was not only in extremis, but also had abandoned all hope of living.

Wigmore on Evidence, § 1440, announces the rule in the following language:

“It follows from the general principle that the belief must be, not merely of the possibility of death, nor even of its probability, but of its certainty. A less stringent rule might with safety have been adopted; but this is the accepted one. The essential idea is that the belief should be a positive and absolute one, not limited by doubts or reserves; so that no room is left for the operation of worldly motives.”

Wharton on Homicide. (3d Ed.) § 635, says:

“A statement of the deceased is admissible in evidence as a dying declaration if it satisfactorily appears therefrom that at the time he believed that he must soon die from the effects of the injury with reference to which he makes the statement. And, as a general rule, a sufficient predicate is laid for the admission of dying declarations by a repeatedly expressed assertion upon the part of the declarant that he would die. And this is the rule, though he was told by his physician or others that he might get well, and though it did not appear that his attending physician had told him that he was going to die, or though his doctor had tried to encourage him as to his condition.”

There was no error on the part of the trial coilrt in admitting the statements of the deceased. In our opinion the evidence as it appears in the record is sufficient to comply with the rule and render the statement admissible as a dying declaration.

Dr. I. D. Walker testified in part as follows:

“Q. When was the first time you saw him after he was injured? A. Sunday morning early. Q. What was his condition then ? A.. Bad. He was able to sit up to have his wounds dressed by us propping him up. Q. Was he very seriously injured ? A. Yes, sir. Q. What statement, if any, did he make to you as to his condition, as to whether or not he was in a dangerous condition? A. Yes, sir. Q. What did he say? A. I had dressed Sam before, and I made the remark that, ‘You are skinned up a good deal/ and he says, ‘Yes, Doctor, they have got me this time.’ Q. What else, if anything, on that line did he say? A. He talked a great deal, but I don’t remember just the words he used; but that is the most he said. Q. Was he at that time in a dangerous condition and liable to die at any time? A. He was in a condition that I thought he would die later from the injuries he had. Q. How many days did he live after that? A. That was Sunday, and I think he died Wednesday. Q. At any other time during your treatment of him did he state to you, or in your presence, anything relative to the condition he was in? A. I do not remember that he did. Q. Did his condition grow worse? A. Yes, sir. Q. Now, Doctor, did he make at any time after you visited him that morning, did he make any statement to you or in your presence as to who injured him ? By Mr. Dudley: Q. You did not intimate to him, did you, Doctor, that he was going to die?, A. No, sir. Q. What the doctor has to say to a patient has a great deal to do with the condition of the patient’s mind as to whether he is going to die or whether he is going to get well ? A. Yes, sir. Q. Did you encourage him to- believe he would get well? A. Yes, sir. Q. Did you encouage him to believe that he would get well, or did-you try to encourage him to get well? A. I wanted to make him believe he was not as bad hurt as he. thought he was. Q. Did what you say make him believe it ? A. No, sir; I don’t think it did. By the Court: Q. Did he at any time while you were treating him talk or act as if he expected to get well? A. No, sir. Q. What was his conduct with reference to what he believed about going to get well? A. Sam was very uneasy, and he knew he was hurt bad all the time. Q. Did he state to -you what it was.that had produced these injuries? Who was it, Doctor? A. The names were not familiar to me only three were familiar, Myatt Greenwood, Alen Greenwood, and Will Nelson. Q. Sam Wright is dead, is he? A. 'Yes, sir. Q. I believe that you stated, Doctor, that his death resulted from those wounds ? A. Yes, sir.” ‘

, Jack Wright, father of deceased, testified in part as follows:

“Q. When you went to where he was, what was the first thing he said to you? A. When I went there, I stepped in the house, and he was lying on the bed. The bed stood inside the door and his feet was lying toward the door, and his head back crossways of the bed, on his side; and I walked up to the side of his bed, and he just turned over this way, and says, Tapa, they have got me this time.’ And I said, Tarn, who did it?’ Q. When you asked Sam who did it, whom did he say? A. Sam said Will Nelson, Myatt Greenwood, Willie Nelson, Morris Bison, and Davis Miller. I took the names down as he called them, and, after I got them down, I showed them to him, and he said that was right. Q. What was his condition from that time on until he died? Pretty sick? A. Yes, sir; he was in a great deal of pain, and could not bear to be moved. Q. Did he make the statement more than the one time to you as to who.it was that had injured him? More than this one time, or in your presence? A. Yes, sir; I think he did.”

Mrs. C. E. Mullens, a sister of the deceased, testified in part as follows:

“Q. When you went to Mr. Moore’s house, did Sam say anything as indicating the condition he was in? As to whether he was in a dangerous condition or not'? A. The first words he spoke were to a man standing at his feet. Q. What did he say? A. He said, ‘Well, old boy, they have got me this time.’ Q. You may state what, if anything, as to what he said then indicating whether or not he realized the condition he was in ? A. He didn’t do or say anything except about the disposition of his property. Q. What did he say? A. He said let his wife go to her father’s. He said, if he could have lived live years longer, he could have put them in more comfortable condition. Q. Did he say anything about anything else on that day which indicated that he realized the condition he was in? A. He spoke of sending for his mother.”

Wigmore in his work on Evidence (section 1442) says:

“In ascertaining this consciousness of approaching death, recourse should naturally be had to all the attending circumstances. It has been contended that only the statements of the declarant could be considered for this purpose; or, less broadly that the nature of the injury alone could not be sufficient; i. e., in effect that the declarant must have shown in some way by conduct or language that he knew he was going to die. This, however, is without good reason. We may avail ourselves of any means of inferring the existence of such knowledge; and, if in a given ease the nature of the wound is such that the declarant must have .realized his situation, our object is sufficiently attained. Such is the settled judicial attitude”—

citing with approval Woodcock’s Case, Leach Cr. L. (4th Ed.) 500, in which it was said:

“My judgment is that inasmuch as she was mortally wounded and was in a condition which rendered almost immediate death inevitable, as she was thought by every person about her to be dying, though it was difficult to get from her particular explanations as to what she thought of herself and her situation; her declarations made under these circumstances ought to be considered by a jury as being made under the impression of her approaching dissolution; for, resigned as she appeared to be, she must have felt the hand of death, and must have considered herself as a dying woman.”

In the case of Oliver v. State, 17 Ala. 594, it was held:

“The court must look to all the circumstances under which they were made; and, if they be sufficient to induce the belief that the deceased made them under the sense of impending death, the declarations are admissible.”

The statement, as shown by the testimony of Dr. Walker, Jack Wright, and Mrs. C. E. Mullens, considered in connection with his condition, the number of wounds and the nature of the same, was admissible as a dying declaration.

Under the third assignment of error, counsel urge that the court erred in excluding from the jury the testimony of Myatt Greenwood, which was to the effect that Bish Landrum got mad because the defendant and others would not let him get his pistol off his horse and shoot, and that Landrum then went off and came back with the deceased riding behind him on his horse. The record discloses that Will Nelson, the defendant, with eight others, was at the residence of Zadic Anderson; that the crowd were drinking and dancing, and that Bish Landrum got mad and rode away, but after an hour and a half returned in company with the deceased; and that soon thereafter deceased and the defendant, together with several others, became engaged in a figli, and that five or six of those present, including the defendant, were fighting the deceased. The record discloses that the fight began by the deceased saying, “I am a Democrat and a man,” to. which Davis Miller replied, “I am a Republican and a man.” There is no-evidence in the record to indicate that Bish Landrum’s getting mad and leaving the crowd was in any way connected with the difficulty, or that he took part in the fight. There was no error in excluding the testimony offered. It was no part of the res gestae.

The testimony complained of under the fourth assignment of error is as follows:

“How many times have you been arrested, Will ? A. I don’t know. Have been arrested a good many times. Q. You have been arrested for fighting, haven’t you, Will? A. Yes, sir. Q. Been arrested for introducing whisky? A. Yes, sir.. Q. What else have you been arrested for? A. Getting drunk, carrying a six-shooter, and disturbing the peace. Don’t know how many times I have been arrested for getting drunk. Q. Have you ever served a sentence in a jail ? A. Yes, sir; arrested me for pint of whisky. I plead'guilty, and got 91 days in the Et. Smith jail.”

The action of the court in compelling the defendant to answer these questions constitute prejudicial error, and for that reason this case must be reversed and a new trial granted. This court held this to be reversible error in the case of Slater v. United States, 1 Okla. Cr. 275, 98 Pac. 110; Keys v. United States, 2 Okla. Cr. 647, 103 Pac. 874.

The instruction complained of under the fifth assignment of error is as follows:

“You are the sole judges of the credibility of the witnesses and the weight to be given to the testimony of each. If the testimony of a witness is apparently candid and fair, reasonable within itself, and he has been in no way impeached, you should not arbitrarily discard his testimony. It is your duty to reconcile the testimony if you reasonably can, so that it may all stand. If you cannot reconcile the testimony, then, for the purpose of ascertaining what testimony is worthy of credit, you take into consideration the apparent candor and fairness of a witness, the reasonableness or unreasonableness of his or her story whether .or not the witness has been in any way impeached, the interest of the witness in the ease, if any, whether or not the witness had made contradictory statements and all the circumstances surrounding the ease.”

We find no error in the giving of this instruction.

For the error complained of under the fourth assignment, the ease is reversed and remanded, with directions to grant the defendant a new trial.

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


text:
    Charles Brown v. State.
    No. A-74.
    Opinion Filed February 7, 1910.
    (106 Pac. 975.)
    1. JURY — (Right to Jury Trial — Number of Jurors — Constitutional Law. The sixth amendment to the Constitution of the United States, guaranteeing a trial by jury of 12, has no application to the state courts of Oklahoma.
    2. SAME. 'Section 19, art. 2, of the Constitution of this state, providing for a jury of six in county courts, is not in conflict with the Constitution of the United States.

      3. CONSTITUTIONAL LAW — Statutes—'Declaration of Emergency — Conclusiveness. The declaring of an emergency by the Legislature, when it is expressed in the act that such measure is immediately necessary for the preservation of the public XDeace, health, or safety, when such act is not for the purpose of carrying into effect provisions relating to the initiative and referendum, or a general appropriation bill, or does not include the granting of a franchise or license to a corporation or individual to extend longer than one year, nor provisions for the purchase or sale of real estate, nor the renting or incumbering of real property for a longer term than one year, is conclusive on the courts. Okla. City v. Shields, 22 Obla. 265, 100 flPac. 559.
    (Syllabus by the Court.)

      Error from Canadian County Court; H. L. Fogg, Judge.

    Charles Brown, plaintiff in error here, who was defendant in the trial court below, was tried on March 35, 1908, in the county court of Canadian county, charged with selling liquor. He was convicted and sentenced to imprisonment in the county jail for a period of thirty days and to pay a fine of $100 and costs of prosecution. The case is before us on appeal.
    Affirmed.

      B. B. Forrest, for plaintiff in error.

      Fred 8. Caldwell, Counselor to the Governor, for the Stale.
   OWEN, Judge

(after stating the facts as above). In the brief filed in this ease counsel for plaintiff in error urges three reasons for the reversal of this case:

First, that the sixth amendment to the Constitution of the Hnited States, guaranteeing trial by jury, is in force in this state, and that a jury composed of 13 men is guaranteed by this provision of the Constitution.

Second, that section 19, art. 3, of the Constitution, providing for a jury of six in the county court, is in conflict with the sixth amendment to the Constitution of the Hnited States.

Third, that the act of the Legislature of the state of Oklahoma, enacting the jury law which has been applied in this case, is not in its subject-matter effective to the peace, health, or safety of the public, and cannot be of force until 90 days after the adjournment of the Legislature enacting it.

The questions raised under the first and second reasons urged by counsel have been settled by the uniform decisions of the Supreme Court of the United States in cases too numerous to quote here. In the ease of Spies v. Illinois, 123 U. S. 131, 8 Sup. Ct. 22, 31 L. Ed. 80, the court, in passing on this question, said:

“That the first ten articles of amendment were not intended to limit the powers of the state government in respect to their own people, but to operate on the national government only, was decided more than a half century ago, and that decision has been steadily adhered to since” — citing the numerous decisions of that court on this question.

The question raised under the third proposition urged by counsel was settled by the Supreme Court of this state in the case of Oklahoma City v. Shields, 22 Okla. 265, 100 Pac. 559. Justice Williams, in rendering the opinion of the court, on this proposition, said:

“Most unquestionably, those who make the laws are required, in the process of their enactment, to pass upon all questions of expediency and necessity connected therewith, and must therefore determine whether a given law is-necessary for the preservation of the public peace, health, and safety. It has always been the rule, and is now everywhere understood, that the .judgment of the legislative and executive departments as to wisdom, expediency, or necessity of any given law is conclusive on the courts, and cannot be revieived or called in question by them. * * * The existence of such necessity is therefore a question of fact, and the authority to determine such fact must rest somewhere. The Constitution does not confer it upon any tribunal. It must, therefore, necessarily reside with that department of the government which is called upon to exercise the power. It is a question of which the Legislature alone must be the judge, and, when it decides the fact to exist, its action is final” — citing a great number of authorities.

We approve the conclusions reached by the Supreme Court in that ease.

The judgment of the county court is affirmed.

EURMAN, Presiding Judge, and DOYLE, Judge, concur.