text:
    DAVE COKER et al. v. STATE.
    No. A- 4058.
    Opinion Filed Feb. 29, 1924.
    (223 Pac. 711.)
    (Syllabus.)
    1. Appeal and Error — Misleading Instructions — When Defendants Cannot Complain. Except where there is a manifest misstatement of law in the instructions to the jury, such as will probably mislead the jury in arriving- at a true verdict, the defendants will not ordinarily be heard to complain, where no suggestion is made pointing out to the court how the instructions drawn by the court could be improved. (a) This rule will not apply to an instruction clearly or fundamentally wrong, but it should apply in all cases where the question is a fine distinction of syntax or of technical inaccuracies in defining burden of proof, reasonable doubt, or self-defense.
    2. Trial — Instructions—Definitions of Collateral Questions — Requests. The court should, without request, instruct the jury upon the salient principles of law brought out by the evidence; but the court is not required, in absence of specific request, to incorporate in the instructions a complete definition of every collateral question of law that may arise.
    3. Trial — Argument of County Attorney Arousing Passions of ■ Jury. Exhortations to the jury- by the county attorney in argument, to the effect that the community is confronted by a great wave of crime ,and that it is the duty of the jurors to see that the law is enforced, should be discouraged. But unless such argument is indulged in to such an extent as would probably arouse the passions and prejudices of the jury in the case on trial, it will not amount to reversible error.

      4. Homicide- — What Facts as to Private Arrest Admissible in Justification. Where the defendants seek to justify in a homicide case under the provisions of section 2477, Comp. Stat. 1921, authorizing a private citizen to arrest a felon, the fact that a felony had been committed and that they knew of it is all that is admissible in evidence on that issue. The defendants will not be permitted to show the details surrounding the commission of the felony.
    5. Witnesses — How Evidence of Character Witness May Be Attacked. The evidence of a character witness for the defendant may be attacked by asking such witness if he did not know that' the defendant had killed two men, if he did not know that he had committed larceny, or other crimes, provided there is some foundation for propounding such questions, and that the matters suggested are not imaginary and propounded merely to prejudice the jury.
    Appeal from District Court, Seminole County; J. W. Bolen, Judge.
    Dave Coker and J. B. Coessee were convicted of manslaughter in the first degree, and they appeal.
    Affirmed.
    Maben & Pitman and Pryor & Stokes, for plaintiffs in error.
    The Attorney General, and N. W. Gore, Asst. A-tty. Gen;, for the State.
   BESSEY, J.

Dave Coker and J.. B. Coessee, plaintiffs in error, here designated the defendants, were by information filed in the district court of Seminole county, May 21, 1918, charged with the murder of Ben Coker on April 14, 1918. At the close of the trial, February 22, 1921, by a verdict of the jury they were found guilty of manslaughter in the first degree, with the punishment of each assessed at imprisonment in the penitentiary for a term of four years.

The tragedy resulting in the death of Ben Coker was a sequel to the death of Charley Coker on the preceding night, as a result of a gunshot wound inflicted by Ben Coker, deceased. Ben and Charley Coker were cousins; defendant Dave Coker was the father of Charley Coker and defendant Coessee was a brother-in-law of Charley and son-in-law of Dave Coker. Some time in the early part of the night on which the first difficulty occurred these defendants were informed that Ben Coker had shot and killed Charley. Early the next morning the defendants mounted their horses and went to the place where the body of Charley Coker lay, remaining there for a period of 20 or 30 minutes. There they discovered buggy tracks leading towards Ben’s house. They followed! these tracks for some distance, past the entrance to Ben’s place and on into a road through the timber. About 10 o’clock in the morning they overtook Ben and his brother, Tom Coker, driving in a two-horse, one-seated buggy, the top of which was laid back.

The road was rough and unfrequented, with trees and underbrush on either side. Tom and Ben were driving in a trot, and as the defendants approached from the rear Dave Coker hailed them, saying, “Who killed Charley?” Tom Coker testified that Ben told him to tell the defendants that they did not know. This he did, and one of the defendants replied, “You are lying.” It is admitted that defendant Dave Coker told Tom Coker to get out of the buggy, which Tom refused to do. Immediately a pitched battle took place between these four people, all armed, in which Ben Coker was killed, both the defendants were seriously wounded, and Tom Coker was also' wounded. The testimony is conflicting- as to who fired1 the first shot, but all agree that the shooting on both sides commenced at practically the same time.

The defendants’ defense was that they were acting under the authority granted them as citizens under the provisions of section 2477, Comp. Stat. 1921, as follows:

“Arrest by Private Person. A private person may arrest another:
“First. For a public offense committed or attempted in his presence.
“Second. When the person arrested' has committed a felony although not in his presence.
“Third. When a felony has been in fact committed, and he has reasonable cause for believing the person arrested to have committed it.”

They justify themselves under this statute on the ground that a murder had been committed by Ben Coker, although not in their presence, and that they apprehended Ben iii the act of making his escape, aided by his brother Tom, and sought to arrest him, and that his resistance resulted in the death of Ben and the wounding of the other participants as before stated.

Defendant Coessee claimed that he took no part in the shooting and did nothing to bring on the difficulty, except that he was accompanying his father-in-law, Dave Coker, at the latter’s request. This is in conflict with the dying statement of Ben Coker and with the testimony of Tom Coker, who claimed that Coessee, as well as Dave Coker, participated in the actual shooting. Defendant Coessee’s claim that he did not shoot was in some measure corroborated by the testimony of a deputy sheriff who found Coessee wounded by the side of the road near the scene of the tragedy, with his pistol by his side, a loaded cartridge in each chamber, and showing no signs of having been recently discharged.

A disinterested witness, Mr; Yellines, testified that Ben and Tom Coker passed Mm on the road, and that after passing them he met the defendants riding their horses at a fast gait, apparently pursuing Ben and Tom, and that at the time Coessee had his hand upon his pistol; that after having traveled about 150 yards he heard the shooting.

The numerous assignments of error urged by defendants may be grouped thus: First, Alleged misstatements of the law in the instructions to the jury. Second. Misconduct of the county attorney in his argument to the jury. Third. Error’s. of. the court in ' sustaining objections to the testimony offered by the defendants and in permitting improper cross-examination of certain witnesses for the defendants.

The defendants complain that the instructions to the jury contained several prejudicial misstatements of the law applicable to the facts. The record shows that all but two' of the instructions given were excepted to by the defendants, and that these objections and exceptions were made without any request on the part of defendants for any other or clearer statement of the law covering the matters embodied in the instructions given, and without pointing out to the court in what particulars the instructions were deemed deficient. The instructions to which no exceptions were taken, .being instructions numbered 6 and 11, are as follows:

"The defendants are presumed to be innocent, and that presumption follows them through- all stages of the trial until overcome by- competent evidence to your satisfaction beyond a reasonable doubt.”
"If you find the defendants guilty of murder you will assess their punishment at death of at life in the penitentiary, and you will so say by your verdict. If you find the defendants guilty of manslaughter in the first degree you will assess their punishment at any term in the penitentiary not less than four years.”

The defendants claim chiefly that this case should be reversed because of improper instructions of the court. In order to comprehend this contention it will be necessary to set out in full the instructions complained of, which are as follows :

“1. In the charge of murder is also included the charge of manslaughter in the first ' degree. ’ ’
“2. Murder is the killing of a human being without authority of law and with a premeditated design to effect the .death of the person killed.”
“3. You are instructed in order to reduce an unlawful killing from murder to manslaughter the mind of the defendants must be so agitated by anger or sudden heat of passion as to render it incapable of premeditating at the time of the fatal shooting; and if.the minds of the defendants were so agitated by anger or passion upon a probable cause that it precludes the idea of premeditation, then such killing, although unlawful, would be manslaughter and not murder.”
“4. Manslaughter in the first degree is the unlawful killing of a human being without a premeditated design to effect the death of the person killed.”
“5. To this charge the defendants have entered their plea of not guilty, which places the burden upon the state to prove every material allegation in the information beyond a reasonable doubt.”
“7. The defendants in this ease interpose a plea of not guilty, which includes all the defenses known to the law. The defendants say that they acted in their own necessary self-defense; and in this connection you are instructed that when a party is assaulted by a deadly weapon in the hands of another that he has a right to use such force as is necessary to repel such assault; and in considering the defense of self-defense you will place yourselves in the shoes of the defendants, and if, after viewing it from the standpoint of the defendants you believe that the assault, together with all the surrounding facts and circumstances, would create in the minds of the defendants an apprehension of danger of losing their lives or having inflicted upon them great bodily harm, then in that event they would have a right to shoot. Therefore, if the defendants approached the deceased and Tom Coker with the lawful purpose of arresting them and that said deceased and Tom Coker made demonstrations with guns such as would be calculated to create in the minds of reasonable men, situated as the defendants were, an apprehension of danger to their lives or of receiving great bodily harm, then you are instructed that the defendants had a right to shoot, if you find beyond a reasonable doubt that they did shoot, and you will acquit.”
“8. If the deceased, Ben Coker, the night before killed Charley Coker and was still at large and the defendants pursued the said Ben Coker and Tom Coker with the intention of arresting them, and when they approached the said deceased and Tom Coker they, or either of them, made demonstrations with a pistol, which demonstrations were calculated to create in the minds of the defendants a reasonable apprehension of danger to their lives or of having inflicted upon them great bodily injury, then you are instructed that they had a right to shoot and you will acquit. ’ ’
“9. You are instructed that if Ben Coker had slain Charley Coker on the night before and was still at large that the defendants had a right to arm themselves and pursue the said Ben Coker for the purpose of arresting him with all the rights of a regular officer of the law, provided that Ben Coker committed the offense and that the defendants had reasonable cause to believe that Ben Coker was guilty of said offense, and to use all the necessary force to apprehend the said Ben Coker, even to the extent of taking his life, but before they would have a right to take his life in order to accomplish said arrest, it was the duty of the defendants to use all necessary means of arresting said Ben Coker before- resorting to shooting him.”
“9A. Before the defendants would be entitled to protection under' the law that extends to each citizen the privilege of arresting a felon, they must act in good faith and must have pursued the deceased with the sole purpose of arresting him. ’ ’
“9B. If you find beyond a reasonable doubt that the defendants armed themselves and pursued the deceased for the purpose of raising a row and if necessary to shoot the deceased, then you are instructed that the right of self-defense is forfeited and you will not consider that right.”
“9C. Gentlemen of the jury, you are instructed that you may find one of the defendants guilty or acquit one; or you may find them both guilty or may find them both innocent.”
“9D. You are instructed that all persons acting together in the commission of a felony are principals and may be prosecuted as such; and in this connection you are instructed that if you find beyond a reasonable doubt that the defendants went together in company with each other and they went prepared to aid each other, it is immaterial who fired the bullet that killed Ben Coker; and if you find beyond a reasonable doubt that Dave Coker unlawfully killed Ben Coker and that the other defendant was present ready to aid, abet and assist him, that he would be as guilty as though he fired the fatal shot himself.”
“10. In this connection you are instructed that where a party is placed in a place of peril or apparent peril, such as to create in^ the mind of a reasonable man that he may have inflicted upon him great bodily injury or death, that he does not have to wait until the danger is actual and impending, bnt that he has a right to act immediately if it appears to him that such action is necessary in order to prevent the carrying into effect the apparent purpose of the deceased to inflict great bodily injury or take his life, if you find that such exists, or have a reasonable doubt thereof. ’ ’

Except where there is a manifest misstatement of the law, such as will probably mislead the jury in arriving at a true verdict, the defendants will not ordinarily be heard to complain, where no suggestion is made pointing out to the court how the instructions drawn by him could be improved. This rule will not apply to an instruction clearly or fundamentally wrong, but it should apply to all cases where the question is a fine distinction of syntax or of mere technical inaccuracies, defining burden of proof, reasonable doubt, or self-defense. The average juror is not an expert logician. So where the instructions are couched in such language that the jurors may glean from the instructions given a fair conception of the law as applied to the facts the verdict will not be disturbed because the instructions may not have been perfect as interpreted by analytical .experts, unless some change is suggested which would manifestly clarify the subject treated, or unless the instructions given are fundamentally wrong.

In nearly every record coming to this court the instructions to the jury are open to some criticism or other, so that, if this court were to reverse every case in which the instructions could be improved upon from a technical or analytical standpoint, nearly every case appealed to this court would be sent back for a new trial and cases would pass back and forth between the trial and appellate court like a weaver’s shuttle at the. loom. The policy of our law is to waive all immaterial or purely technieal errors tbat do not affect the substantial rights of the accused to his prejudice.

Defendants criticize instruction No. 3. Since the conviction in this case was for manslaughter in the first degree, and there was no evidence warranting a verdict for a lesser degree of homicide or any other included offense, and no request was made for any such instruction, an inaccuracy in defining a degree of homicide would be immaterial. The same reasoning applies to instruction No. 4.

Ben Coker lost his life by the acts of the defendants, either with malice and premeditation or in the heat of passion by means of dangerous weapon, or else the homicide was justifiable on the ground of self-defense, as defined in other instructions.

Defendants complain particularly of instruction No. 7, insisting that this instruction shifts the burden of proof to the defendants and is argumentative, intimating conclusions not warranted by the evidence. We do not so construe this instruction as applied to the evidence. The defendants claim that they were peaceably endeavoring to make a lawful arrest, as private citizens. Assuming this to be true, the testimony shows that during the course of this attempt to make the arrest Ben Coker and Tom Coker resisted, and that the defendants may at some time during the difficulty have fired their pistols in self-defense. True, the jury did not believe that there was any element of self-defense, as shown by their verdict, but there was some evidence supporting that theory, calling for an' instruction on the law of self-defense. . And upon that issue instructions Nos. ■ 6, 7, and 9B should be construed together. So construed, and considered together with all the other instructions and with the evidence shown in the record, they appear to be' sufficient, and not prejudicial.

Defendants say that this instruction shifts the burden of proof under the holdings of this court in the case of Rogers v. State, 8 Okla. Cr. 226, 127 Pac. 365; McGill v. State, 8 Okla. Cr. 500, 129 Pac. 75; Bauer v. State, 3 Okla. Cr. 529, 107 Pac. 525; Johnson v. United States, 2 Okla. Cr. 17, 99 Pac. 1022.

In the Rogers Case the trial court, touching upon the question of self-defense, used this qualifying clause:

“Unless the facts constituting such reasonable cause have been established by the evidence in the case, you cannot acquit the defendant in such case on the ground of self-defense, even though you may believe that the defendant really thought he was in danger.”

This court, in commenting upon this language, said that that part of the instruction complained of should have been omitted and instead the jury should have been instructed that in determining whether or not the defendant-had reasonable cause to apprehend or fear death or serious bodily harm at the hands of the deceased at the time he fired the fatal shot, and if they entertained a reasonable doubt as to whether or not at the time the defendant fired the fatal shot he had reasonable ground to apprehend serious bodily harm or death at the hands of the deceased and in good faith acted upon that apprehension, they should resolve that doubt in his favor and acquit him. In the Rogers Case there was a positive direction that, unless certain facts were established by the evidence, “you cannot acquit the defendant in such case on the ground of self-defense, even though you may believe that the defendant really thought he was in danger.” This was an instruction which did place the burden of proof upon the defendant and was manifestly erroneous. In the instructions Nos. 6, 7, and 9 B here we find no such language or its equivalent, and these instructions, construed together, avoid the vice pointed out in the Rogers Case.

It may be noted in passing that the Rogers Case was long and complicated, and full of errors, and that the case was really reversed on other grounds. The other cases cited by defendants are only remotely in point, and need not be here analyzed.

The defendants complain of instructions Nos. 9, 9A, and 9B, particularly in the use of the language, "before they would have a right to take the life of Ben Coker in order to accomplish his arrest, it was the duty of the defendant to use all necessary means of arresting said Ben Coker before resorting to shooting.” Defendants say that the court should have more fully instructed the jury concerning the meaning of "all necessary means of arresting,” as defined7by statute. Sections 2477 and 2478, Comp. Stat. 1921.

If defendants desired more specific instructions upon this point, it was the duty of counsel to suggest, them. While the court is required, without request, to instruct upon the salient principles of law brought out by the evidence, the court is not required, in the absence of specific request, to incorporate a complete definition of every collateral question of law that may arise. To do so it would be necessary for the trial judges to write a treatise on every issue of law involved in the case — a practice that would tend to confuse rather than enlighten the jury. Lumpkin v. State, 5 Okla. Cr. 496, 115 Pac. 478; Huff v. Territory, 15 Okla. 377, 85 Pac. 241.

In the eoursé of criminal procedure, society is entitled to protection as well as the accused. This right of society would be impaired by permitting a defendant to remain silent, make no suggestions or requests for instructions deemed essential for the protection of the accused, and then claim immunity from punishment because every feature of the law was not fully defined in the instructions given. What we have said also applies to instruction No. 9D, relating to principals and accessories.

It is next urged that this conviction should be set aside because the county attorney in his argument, to the jury supplemented his remarks with a sort of exhortation to the jury, to the effect that the community was confronted with a great wave of crime, and that it was the duty of the jurors to see that the law was enforced. This method of argument is, of course, subject to abuse, and should be employed sparingly, but this court has heretofore held that, unless it is indulged in to such an extent as would probably arouse the passions and prejudices of the jury in the case on trial it will not amount to reversible error.

The defendants complain next that they were deprived, of showing how and in what manner Ben Coker killed Charley Coker the night preceding this homicide. The fact that a felony had been committed by Ben, and that the information had been communicated to the defendants, was all that the defendants had a right to show in order to justify them as private citizens in their attempt to arrest the person who committed it.

We find no error in the efforts of the state to impeach certain character witnesses for the defendants by asking them on cross-examination if they had not heard that defendant Dave Coker had killed two men; that he had committed larceny; and had been, once or twice convicted of violating the prohibitory laws. Such questions may be proper where they are propounded in good faith and are not merely imaginary suggestions made for the purpose of prejudicing the jury.

The judgment of the trial court is affirmed.

MATSON, P. J., and DOYLE, J., concur.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    RALPH MARRS v. STATE.
    No. A-4991.
    Opinion Filed March 1, 1924.
    (223 Pac. 1117.)
    Appeal from County Court, Adair County; W. H. Martin, Judge.
    Ralph Marrs and Pete Alberty were jointly tried and convicted of the crime of unlawfully conveying intoxicating liquor, and eaeh sentenced to pay a fine of $50 and to serve 30 days in jail, and they appeal.
    Appeal dismissed.
    George F. Short, Atty. Gen., and J. Roy .Orr, Asst. Atty. Gen., for the State.
   PER CURIAM.

This is an attempted appeal from a judgment of conviction rendered against plaintiffs in error in the county court of Adair county on the 16th day of November, 1923, wherein eaeh of these plaintiffs in error was convicted of the offense of unlawfully conveying intoxicating liquor, and punishment of each fixed as above stated. The appeal was not lodged in this court until the 18th day of January, 1924, 63 days after the rendition of judgment. No order was made by the trial court extending the time for lodging the appeal in this court beyond the 60-day period after rendition of judgment allowed by statute (section 2808, Compiled Statutes 1921), in misdemeanor cases. On the 5th day of February the Attorney General filed a motion to dismiss this appeal on the ground that the appeal was not filed in this court within the time required by law. No response has been made to tbe same. An examination of, tbe record discloses that tbe motion of tbe Attorney General to dismiss tbe appeal is well taken, and the. appeal is accordingly dismissed.


text:
    LEE ALLISON v. STATE.
    No. A-4992.
    Opinion Filed March 1, 1924.
    (223 Pac. 405.)
    Appeal from County Court, Adair County; W. H. Martin, Judge.
    Lee Allison was convicted of unlawfully conveying intoxicating liquor, and be appeals.
    Appeal dismissed.
    John A. Goodall, for plaintiff in error.
    George F. Short, Atty. Gen., and J. Roy Orr, Asst. Atty. Gen., for tbe State.
   PER CURIAM.

On tbe 23d day of September, 1923, tbe county attorney of-Adair county filed an information in tbe county court of said county charging Lee Allison with the crime of unlawful conveyance of whisky from a point unknown in said county to tbe town of Stillwell in said county. Trial was bad on the 16th day of November, 1923, resulting in a verdict of guilty, with punishment fixed as above stated. On tbe 17th day of November judgment was rendered in accordance with tbe verdict.

Motion for a new trial was filed and overruled, and tbe defendant prayed an appeal to this court; tbe court granting 45 days in which to make and serve case-made. Tbe case-made was served on tbe county attorney on tbe 7th day of January, 1924; suggestion of amendments to said case-made being waived, and consent given that the same might be signed and settled immediately, the trial judge on said 7th day of January, 1924, signed and settled the same in accordance with the statute.

The petition in error and ease-made were not filed in tbis court until the 18th day of January, 1924, which was 62 days after rendition of the judgment. The trial court made no order extending the time for filing the appeal in this court beyond the 60 days after rendition of judgment allowed by the statute (section 2808, Compiled Statutes 1921) for taking appeals in misdemeanor cases. On February 5, 1924, the Attorney General filed a motion to dismiss this appeal, because the same was not filed within the time required by section 2808, Compiled Statutes 1921. No résponse has been made to said motion.

An examination of the record discloses that the motion of the Attorney General is well taken, and the appeal is accordingly dismissed.


text:
    BOB BUTLER v. STATE.
    No. A-4434.
    Opinion Filed March 1, 1924.
    (223 Pac. 406.)
    Appeal from District Court, Cherokee County; J, H. Jar-man, Judge.
    Bob Butler was convicted of larceny of live stock, and he appeals.
    Appeal dismissed.
    J. I. Coursey, for plaintiff in error.
    George F. Short, Atty. Gen., and N. W. Gore, Asst. Atty. Gen., for the State.
   PER CURIAM.

This is an attempted appeal from a judgment of conviction rendered in the district court of Cherokee county on the 1st day of March, 1922, wherein the plaintiff in error, Bob Butler, was convicted of the crime of larceny of live stock, and punishment fixed as above stated. The petition in error and case-made were filed in this court on August 22, 1922.

The Attorney General has filed a motion to dismiss this appeal for the reason that no written notices of appeal were served on the county attorney and court clerk of Cherokee county, Okla., nor any summons in error issued and served upon the Attorney General, or waiver thereof by such officer.

There is also a motion to dismiss the appeal filed by counsel for plaintiff in error upon the ground that the plaintiff in error, pending this appeal, has applied for and been granted executive clemency.

This court has repeatedly held that where, pending appeal, the plaintiff in error applies for and is granted executive clemency, the same amounts to an abandonment of the appeal, and the appeal will be dismissed upon proper showing to that effect. In this ease, however, there is no sufficient showing to authorize the court to dismiss the appeal upon the application of plaintiff in error.

The record, however, supports the motion of the Attorney General to dismiss the appeal upon the grounds stated in the Attorney General's motion, and for the reason that no sufficient steps were taken by plaintiff in error by service of written notices of appeal upon the county attorney and the court clerk of Cherokee county, or by the service of summons in error upon the Attorney General, or by waiver of the same by such officer.

The appeal is dismissed.


author: MATSON, P. J.

text:
    WALTER GIBSON v. STATE.
    No. A-4645.
    Opinion Filed March 1, 1924.
    (223 Pac. 406.)
    (Syllabus.)
    1. Courts — County Courts, Courts of Record. The county courts of this state are courts of record.

      2. Indictment and Information — Prosecution in Courts of Record Only by Indictment or Information. Criminal prosecutions in courts of record must be either by indictment by a grand jury or by an information exhibited by the county attorney or some other officer specifically authorized by law to do so.
    3. Same — Cases not Triable on Verified Complaint in County Court as Court' of Record. The county court has no jurisdiction as a court of record to place a defendant upon trial upon a verified complaint only.
    Appeal from County Court, Pawnee County; L. N. Kimrey, Judge.
    Walter Gibson was convicted of unlawfully conveying intoxicating liquor, and he appeals.
    Eeversed and remanded.
    McCollum & McCollum, for plaintiff in error.
    George F. Short, Atty. Gen., and J. Eoy Orr, Asst. Atty. Gen., for the State.
   MATSON, P. J.

The record discloses that this prosecution was commenced by filing on the 2d day of February, 1923, what is styled a complaint against the defendant, Walter Gibson, and another person by the name of Jess Dodd, charging them with the crime of unlawfully conveying intoxicating liquor, to wit, whisky, on the 30th day of January, 1923, from the residence of one Eobert Berg to a point on the public highway about one quarter of a mile north, of the residence of Eobert Berg in the county of Pawnee, in the state of Oklahoma. The information does not allege where the residence of Eobert Berg is located in said county. This complaint is sworn to by one C. W. Scott, and the record further shows that John Strosnider is the county attorney of Pawnee county.

Defendant objected to going to trial for the reason that no information or indictment charging the offense had been filed on behalf of the state, which objection was overruled and exception thereto taken. The defendant then moved to quash the complaint, for the reason that the filing of such complaint did not give the court jurisdiction to hear and try the cause, which motion was overruled and exception to the action of the court reserved. The defendant then demurred to the complaint, first, for the reason it did not state sufficient- evidence to constitute a public offense, and, second, that the court was without jurisdiction to hear and determine the cause on the complaint, which demurrer was overruled and exception to the action of the court taken by the defendant. The defendant, Walter Gibson, requested a severance, and by agreement of the county attorney and counsel for the defendant the cause proceeded against Walter Gibson alone, and the defendant, Gibson, again interposed a separate demurrer to the complaint on the grounds heretofore stated, which demurrer was overruled and excepted to by the defendant.

The jury was then impaneled, sworn, and charged, and the witness C. W. Scott was sworn and introduced by the state as a witness in chief against the defendant, Gibson. The defendant then objected to the introduction of any testimony in the case for all of the reasons heretofore stated, which objection was overruled and exception taken to the action of the. court. The trial proceeded and resulted in. a verdict of guilty with punishment assessed as. above stated, and the trial court pronounced judgment in accordance with the verdict, and an appeal was prayed for and taken to this court, and the cause is now before the court for review on its merits.

The errors assigned are numerous, and include the following: First. The court erred in overruling the motion for a new trial. Second. That the* court erred in overruling defendant’s objections to proceeding to trial upon the complaint. Third. That the court erred in overruling defendant’s motion to quash the proceedings and the complaint and to discharge defendant. Fourth. That the court erred in overruling defendant’s demurrer to the complaint. Fifth. That the court erred in putting defendant to trial on said complaint over his repeated objections.

The Attorney General has filed a confession of error, which is as follows:

“Plaintiff in error was convicted in the county court of Pawnee county, Okla., on a charge of unlawfully transporting intoxicating liquor, and the jury fixed his punishment at a fine of $300 and confinement in the.county jail for 120 days. Judgment and sentence was pronounced by the court in accordance with the verdict of the jury, and plaintiff in error appeals to this court.
“The record shows that the ease was started in the county court by filing of a complaint, signed and sworn to by C. W. Scott. No information was ever filed- in. the ease, and plaintiff in error first filed a motion objecting to proceeding to trial without the filing of an information. Plaintiff in error then moved to quash the complaint, and then filed a demurrer. Each motion and the demurrer were in turn overruled by the court and exceptions saved. We think that the trial court committed error in overruling plaintiff in error’s demurrer to the complaint.”
“Article 2, section 17, of the Constitution of Oklahoma, says that:
“ ‘No person shall be prosecuted criminally in courts of record for felony or misdemeanor otherwise than by presentment or indictment or by information. No person shall be prosecuted for a felony by information without having had a preliminary examination before an examining magistrate, or having waived sueh preliminary examination. Prosecutions may be instituted in courts not of record upon a duly verified complaint. ’
“In the case at bar the proceeding was brought in the county court, which is a court of record, and no information was filed. The pleading was called a complaint, and we have examined it carefully to see whether or not it contained the essentials of an information.
“Section 2511, Compiled Oklahoma Statutes 1921, provides that an information filed in the county court must be signed by the county attorney. The section follows:
“ ‘The county attorney shall subscribe his name to informations filed in the county, superior or district court and indorse thereon the names of the witnesses known to him at the time of. filing the same. He shall also indorse thereon the names of such other witnesses as may afterwards become known to him, at such time as the court may by rule prescribe. All informations shall be verified by the oath of the prosecuting attorney, complainant or some other person.’
“The pleading filed in the case at bar was not signed by the county attorney, and for that reason cannot be considered as an information. It is our opinion that the trial court erred in overruling the demurrer of plaintiff in error, and. accordingly we confess error.”

The county court of this state are courts' of record. Section 11, article 7, Constitution.

In Evans v. Willis, 22 Okla. 310, 97 Pac. 1047, 19 L. R. A. (N. S.) 1050, 18 Ann. Cas. 258, the Supreme Court of this state held:

“No original prosecution can be instituted in a court of record in this state except by presentment of indictment by a grand jury, or by an information exhibited by the county attorney or some other officer thereto authorized by law.
“Where the paper writing purporting to be an information is not exhibited or presented by the county attorney, or some one authorized by law, the same being invalid, and not capable of being amended, the county court did not acquire any jurisdiction of such action or prosecution.”

In the ease of Fullingim v. State, 7 Okla. Cr. 333, 133 Pac. 558, if is held:

“It is essential to the validity of an information charging a misdemeanor that the county attorney shall subscribe his name thereto after the charge has been made, and the failure of the county attorney to so sign an information is sufficient ground for quashing the same.”

It is apparent from the foregoing decisions that the confession of error of the Attorney General is well founded in law; that the county court had no jurisdiction as a court of record to place this defendant upon trial upon a verified complaint only, as prosecutions in courts of record must be either by indictment or by information signed by the county attorney or in his name by some duly authorized deputy or assistant. The confession of error is sustained.

Judgment reversed, and cause remanded for further proceedings.

BESSEY and DOYLE, JJ., concur.


text:
    CHARLES MADDEN v. STATE.
    No. A-4248.
    Opinion Filed March 1, 1924.
    (223 Pac. 716.)
    (Syllabus.)
    1, Perjury — Establishment of Falsity of Defendant's Statement by Circumstantial' Evidence. In a prosecution for perjury, the falsity of the defendant’s evidence may be established by circumstantial evidence, but the facts constituting such circumstantial evidence must be directly and positively sworn to by at least one credible witness, supported by corroborating evidence, and, taken as a whole, must be of such a conclusive character as to exclude every other reasonable hypothesis except that of the defendant’s guilt.
    2. Trial — Perjury—"Credible Witness” Defined — Jury Exclusive Judges Whether Witness Worthy of Belief. A “credible witness” is one who, being competent to give evidence, is worthy of belief, and all witnesses permitted to testify on the trial are competent, and the jury are the exclusive judges as to whether a witness is worthy of belief.
    3. Evidence* — Corroboration of Accomplice by Circumstantial' Evidence — Sufficiency. An accomplice to the original crime out of the prosecution for which the perjury arose is competent to testify to the falsity of the accused’s statement; but the corroboration of the accomplice’s testimony, if based on circumstantial evidence, should be such as to exclude every other reasonable hypothesis than that of the guilt of the defendant of the crime of willful and deliberate perjury when considered in connection with the accomplice’s testimony.-
    4. Perjury — Requisite Instruction as to Proof by Credible Witnesses. The trial court instructed the jury: “Before you will be warranted in convicting the defendant, the state must prove by the testimony of at least one witness and corroborating circumstances that the testimony charged by the state to have been given was false.” Held, such instruction is erroneous, in that it does not require the testimony of one credible witness supported by corroborating evidence as to the falsity of defendant’s statements. In perjury cases the trial court should instruct' that the state must prove the falsity of defendant’s testimony by at least two credible witnesses or by one credible witness and corroborating circumstances, which, when considered in connection with the direct testimony of the witness, exclude every other reasonable hypothesis except that of the defendant’s guilt. In this connection the court should define who are credible witnesses.
    5. Appeal and Error — Conviction for Perjury Set Aside for Insufficiency of Evidence and Instructions as to Degree of Proof Required. Where the falsity of defendant’s statement is based upon the testimony of an accomplice to the original crime, with very slight corroborating evidence, and the evidence as a whole is not such as to exclude every other reasonable hypothesis except that of the guilt of the defendant, and the jury is not instructed that the state must prove the falsity of defendant’s testimony by at least one credible witness supported by corroborating circumstances as heretofore defined, the conviction will be set aside because of such instruction and insufficient evidence.
    Appeal from District Court, Harper County; Arthur G. Sutton, Judge.

      Charles Madden was convicted of perjury, and he appeals.
    Beversed and remanded.
    S. M. Smith and S. A. Horton, for plaintiff in error.
    George F. Short, Atty. Gen., and John Barry, Asst. Atty. Gen., for the State.
   MATSON, P. J.

The defendant testified in the preliminary examination of Dickson, Charles Brankel, Bennett High-fill, and Joseph Hierholzer, charged with robbing the Citizens’ State Bank of Salt Springs, that Brankel and Highfill were not to his knowledge at his (defendant’s) home on Monday the 28th day of March, 1921, and that they did not with his knowledge and consent take the horse used by Hierholzer on the 30th day of March, 1921, in robbing the Citizens’ State Bank of Salt Springs. It is as to the materiality and falsity of this testimony given by the defendant herein in the preliminary examination of those charged with the bank robbery that caused this prosecution.

The undisputed evidence is that, Hierholzer, in .attempting to rob the Citizens’ State Bank at Salt Springs, rode a horse belonging to this defendant, and it is also uneontradicted that the horse which Hierholzer rode on the 30th day of March, 1921, in robbing the bank, was taken from the defendant’s premises some time during the night of March 28, 1921. It is apparent' that the testimony of the defendant given in the preliminary examination could have been material to connect Hierholzer, Brankel, and Highfill with the robbery of the Citizens’ State Bank by means of connecting them with the horse which Hierholzer rode and which was owned by Madden. •

Of course, Madden could have refused to have given testimony on the preliminary examination as to any matter which tended to connect him with the commission of the crime charged or with aiding or abetting therein; but, where he voluntarily testified to any matter to which he could have refused to testify, as to such matter he waived his constitutional privilege against self-incrimination, and perjury may be based upon the testimony so given. People v. Miller, 264 Ill. 148, 106 N. E. 191, Ann. Cas. 1915B, 1240.

This is a very close case on the evidence. The falsity of the defendant’s testimony given at the preliminary examination was based alone upon the testimony of one Charles Brankel, whose testimony in the perjury trial placed himself in the category of an accomplice of Madden, or rather places Madden in the category of an accomplice to him in the robbery of the Citizens’ State Bank. In order to comply with the rule of this court stated in Metcalf v. State, 8 Okla. Cr. 605, 129 Pac. 675, 44 L. R. A. (N. S.) 513, that the falsity of defendant’s evidence in a perjury case must be established by at least one credible witness supported by corroborative evidence which'may be circumstantial in its nature, the state attempted to corroborate Brankel by showing certain circumstances which the state contended, and now contends, were sufficient to meet the rule laid down in Metcalf v. State, supra.

In Conant v. State, 51 Tex. Cr. R. 610, 103 S. W. 897, it is held that, an accomplice being a discredited witness, in order to meet the statutory rule that no person may be convicted of perjury except upon the testimony of two credible witnesses, or of one credible witness strongly corroborated by other evidence, there must be at least one credible witness besides an accomplice testifying to the falsity of defendant’s testimony.

In the later case of Anderson v. State, 56 Tex. Cr. R. 360, 120 S. W. 462, the same court defined a “credible witness” to be one wbo, being competent to give evidence, is worthy oí belief, and all witnesses permitted to testify on the trial are competent, and the jury are the exclusive judges as to whether a witness is worthy of belief.

It is apparent that as to a conviction of perjury an accomplice to the original crime out of which the prosecution for which the perjury arose is competent to testify as to the falsity of the accused’s statement, but it is equally as apparent that, in order to justify a conviction for perjury the falsity of which testimony is based upon the testimony of an accomplice to the original crime, the corroboration of the accomplice’s testimony, if based on circumstantial evidence, should be such as to exclude every other reasonable hypothesis than that of the guilt of the defendant of the crime of willful and deliberate perjury when considered in connection with the accomplice’s testimony.

In this case there is no testimony which tends to connect the defendant Madden with Brankel or any others who admitted that they were conspirators in the preparation for the robbery of the Citizens’ State Bank at Salt Springs, Okla., except the testimony of some witnesses who saw one Bennett Highfill, a coconspirator with Brankel, in company with another person, supposed to be Brankel, and who Brankel testifies was himself, riding horseback from the direction of the Dickson place in the direction of Madden’s farm on the afternoon of March 28, 1921. This was supplemented by the testimony of another witness to the effect that Highfill and another man ate a light lunch in the store of C. T. Baxter, at Curtis, Okla., which place was about a half mile from defendant’s home, and which lunch was procured about sundown on the evening of March 28, 1921. There is also some evidence to the effect that about three days after the bank robbery, and five days after Madden had missed his horse, he made tbe statement that it was bis horse that was used in robbing the bank.

It was upon these corroborating circumstances that the corroboration of Brankel’s testimony of the falsity of defendant’s evidence in the preliminary examination' is made to rest. The corroborating circumstances amounted to nothing more than suspicions of the defendant’s guilt. They do not exclude every other reasonable, hypothesis than that of guilt. As heretofore stated, there is no doubt but that Madden’s horse was used in robbing the Citizens’ State Bank. Madden testified that he had no knowledge of who took it or of how it left his premises. The fact that Highfill and . Brankel were seen on two days before the robbery going in the direction of Madden’s, house, and on the evening of that day ate a lunch in a store about one-half mile distance from Madden’s house, does not tend to contradict the statement of Madden to the effect that' he had no knowledge of how his horse was taken that night.' That circumstance is just as consistent with the statement of Madden that somebody stole his horse as it is with the statement of Brankel that Madden permitted Highfill and Brankel' to take the horse with the agreement that he was to get $100 from the proceeds of the bank robbery.

There is evidence in this record also to the effect that on the morning of the 29th day of March, after Madden had missed his horse, he made inquiry to find the animal and notified some of his neighbors that the animal was missing. This evidence is uncontradicted. The statement that Madden made thereafter, to the effect that it was his horse that was used in the bank robbery, after it became known that a horse answering his description had been used in the bank robbery, and after he had missed his horse and had made inquiry to find it, is not inconsistent with his innocence, and it amounted only to the expression of his belief that the bank robbers had stolen and used his horse in the commission of the robbery. It does not corroborate the accomplice Brankel in his statement that Madden had consented to the use of the horse in the robbery, and the question of Madden’s consent is the substance on which the falsity of his testimony must rest. It is not sufficient to show merely an opportunity for Brankel and Ilighfill to get Madden’s horse.

Among other instructions given by the trial court to the jury was the following:

“No. 5. Before you will be warranted in convicting the defendant, the state must prove by the testimony of at least one witness and corroborating circumstances that the testimony charged by the state to have been given was false.
“But if, within the rules hereinbefore defined, you believe beyond a reasonable doubt that in said Harper county, and at about the time charged in the information herein, an oath was administered in said county court to the defendant, Charles Madden, in the preliminary hearing aforesaid, to testify truly, and that he willfully and contrary to such oath, and contrary to his belief, stated in his testimony therein, in substance, to the effect or with the meaning as charged in the information herein, that the matters and things so testified to by him were false, and that he knew the same to be false, and you further find and believe that the said matters and things so testified to by him were material in said hearing, then your verdict should be that the defendant is guilty, otherwise you should acquit him. In the event you return a verdict of guilty, you should indicate therein the penalty to be inflicted.”

It will be noted that in the foregoing instruction, which was excepted to by the defendant, the jury is not told that the state must prove the falsity of defendant’s alleged testimony by the testimony of at least one “credible witness” and corroborating circumstances. The court only told the jury that it took the testimony of “one witness” and corroborating circumstances. ' The foregoing instruction does not. meet the rule laid down by this court in Metcalf v. State, supra, for the rule therein stated requires one credible witness supported by corroborating evidence as to the falsity of defendant’s testimony.

After a careful consideration of the entire record, the court is of the opinion that it would be a dangerous precedent to permit this conviction to stand, based as it is upon evidence strongly in conflict; with the falsity of defendant’s statement based upon the testimony of a discredited witness (an accomplice), with very slight corroborating evidence, and the evidence as a whole not such as to exclude every reasonable hypothesis except that of the guilt of the defendant. The further fact that the jury was told by instruction No. 5 that only one witness need be produced by the state, whether credible or otherwise, to prove the falsity of defendant’s testimony, was misleading to the extent that the jury probably believed it could convict on the testimony of an accomplice even though the corroborating circumstances as to the falsity of defendant’s testimony were very slight and explainable on the theory of defendant’s innocence. In other words, in legal effect the falsity of defendant’s testimony is based upon the uncorroborated testimony of an accomplice.

The judgment is reversed, and the cause remanded to the trial court for further action not inconsistent with this opinion.

BESSEY and DOYLE, JJ., concur.


author: DOYLE, J.

text:
    Ex parte MATTIE LONG.
    No. A-5003.
    Opinion Filed March 1, 1924.
    (223 Pac. 710.)
    (Syllabus.)
    1. Habeas Corpus — -Only Defects of Jurisdictional Character Considered. Upon habeas corpus cognizance can be taken only of defects of a jurisdictional character, which render the proceedings under which the petitioner is imprisoned, not merely erroneous, but absolutely void.
    2. Same-County Court Without Jurisdiction Where' Information Unsigned — Defendant Discharged on Habeas Corpus. Where an accusation purporting to be an information filed in the county court was not signed by the county attorney, and his name was not signed by a duly appointed and qualified assistant, the county court did not acquire jurisdiction of the person therein named as the defendant.
    3. Same — Writ Lies Where Petitioner Confined under Judgment of Court Without Jurisdiction. Habeas corpus lies where the petitioner is confined under the judgment' of a court entered when such court had no jurisdiction.
    Habeas corpus by Mattie Long, for release from custody.
    "Writ allowed, and petitioner discharged.
    Prentiss E. Bowe and Chas. Besly, for petitioner.
    George F. Short, Atty. Gen., and N. W. Gore, Asst. Atty. Gen., for respondent.
   DOYLE, J.

This proceeding is submitted upon the petition for the writ and the demurrer to the petition on behalf of respondent, the sheriff of Pawnee county.

It is averred in the petition that petitioner, Mattie Long, is unlawfully confined in the county jail of Pawnee county, by C. W. Scott, sheriff of said county, upon a commitment issued by the judge of the county court on a conviction of the offense of maintaining a liquor nuisance; that her confinement is illegal for the reason that said county court did not have jurisdiction of the person or of the subject-matter of tbe action at the time of her pretended trial and conviction, in that said pretended information, filed in said canse, was not signed by Strosnider, the duly elected, qualified, and acting county attorney of Pawnee county; that the county attorney’s name was not written thereon by the duly appointed, qualified, and acting assistant county attorney, nor by any one authorized to write the county attorney’s name thereon, and the name of the county attorney does not appear on said information; that the only name subscribed to said information was the name of W. S. Caldwell, who signed as county attorney; that defendant moved to quash said information on the ground that the same was void and of no effect, for the reasons stated, and that the court was without jurisdiction to hear and determine said cause; that defendant further objected by demurring thereto for the reasons stated, and further objected to the introduction of testimony, and asked to have the cause dismissed for want of jurisdiction to hear and determine the case under said information — all of which motions and demurrers were overruled by said court.

Upon the record in this cause, the sole question for our determination is: Was the alleged void information sufficient to give the court jurisdiction over person of petitioner named therein as the defendant?

In England, at common law, an “information” was an accusation of a criminal character exhibited against a person charging him with a criminal offense by the Attorney General or the Solicitor General, and under his oath of office. In the United States, in the absence of statutes changing its character, it is filed by the officer, whatever his title, who exercises the function of prosecuting attorney for the county. In re McNaught, 1 Okla. Cr. 528, 99 Pac. 241.

The Bill of Rights provides:

“No person shall be prosecuted criminally in courts of record for felony or misdemeanor otherwise than by presentment or indictment or by information.” (Const, art. 2, § 17.)

The statute provides:

“The county attorney shall subscribe his name to in-formations filed in the county, superior or district court and indorse thereon the names of the witnesses known to him at the time of filing the same. ’ ’ Section 2511, Comp. Stats. 1921.

Construing this statute in McGarrah v. State, 10 Okla. Cr. 21, 133 Pac. 260, we said:

“An unqualified reading of the words of the statute would make it necessary for the county attorney himself to subscribe his own name to all informations; but it has been held that the' county attorney need not himself subscribe his name to an information, as it is sufficient if it be done by his legally appointed assistant.”

In the case of Johns v. State, 15 Okla. Cr. 630, 179 Pac. 941, it was held:

• “It is essential to the validity of an information charging a misdemeanor that the county attorney subscribe his name thereto, or his name should be signed by a duly appointed and qualified assistant county attorney.”

In Benson v. State, 10 Okla. Cr. 16, 133 Pac. 271, it is said: .

“No doubt a county attorney may employ assistants in' various ways not involving official discretion or responsibility, but he cannot authorize his name to be signed to informations by a person other than his duly appointed and qualified assistant.”

And see Viers v. State, 10 Okla. Cr. 28, 134 Pac. 80; Fullingim v. State, 7 Okla. Cr. 333, 123 Pac. 558; Evans v. Willis, 22 Okla. 310, 97 Pac. 1047, 19 L. R. A. (N. S.) 1050, 18 Ann. Cas. 258.

It is undoubtedly the law that upon habeas corpus cognizance can be taken only of defects of a jurisdictional character, which render the proceedings under which the petitioner is imprisoned not merely erroneous, but absolutely void. Under the constitutional and statutory provisions above quoted, the accusation purporting to be an information not signed by the county attorney, or his name signed by a duly appointed and qualified assistant, and filed in the county court, is void, and the county court did not acquire jurisdiction of the person therein named as the defendant.

It follows that the demurrer to the petition should be overruled. It is the opinion of the court that petitioner is unlawfully restrained of her liberty and is therefore entitled to her discharge. It is so ordered.

MATSON, P. J., and BESSEY, J., concur.


text:
    CHARLEY WASHINGTON v. STATE.
    No. A- 4652.
    Opinion Filed March 1, 1924.
    (223 Pac. 408.)
    (Syllabus.)
    1. Appeal and Error — Appeal not Dismissed for Failure to File Case-Made. "Where an appellant filed in this court a complete and duly certified transcript of the record, and attaches thereto his petition in error, with service of notices of appeal on the court clerk and county attorney, all within the period allowed for taking such an appeal to this court, and at the time of filing such transcript procured an order of this' court permitting him to supplement said record by case-made, the appeal will not be dismissed for failure to file a case-made, as appeals to this court may be taken by transcript only of the record as well as by case-made.
    2. Same — 'Review—Examination of Transcript for Fundamental Error. Where the appeal is by transcript of the record only, and the questions raised by the petition in error are not such as may be intelligently passed upon by a consideration of the transcript of the record, the court will examine the transcript for fundamental errors, and if none appear the judgment will he affirmed.
    Appeal from County Court, Adair County; W. H. Martin, Judge.
    Charley Washington was convicted of the crime of unlawfully manufacturing 'intoxicating liquor, and he appeals.
    Affirmed.
    A. W. Turner and E. B. Arnold, for plaintiff in error.
    George F. Short, Atty. Gen., and J. Roy Orr, Asst. Atty. Gen., for the State.
   MATSON, P. J.

This is an appeal from the county court of Adair county, wherein the plaintiff in error, Charley Washington, was convicted of the crime of unlawfully manufacturing intoxicating liquor, and sentenced to pay a fine of $200, and to be imprisoned in the county jail for a period of 60 days.

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

“Comes now George F. Short, Attorney General, and moves the court to dismiss the appeal in the above and foregoing cause, for the reason- that the order of this court has not been complied with.

“Movant shows the court that judgment was rendered in the county court of Adair county, April 3, 1923, and defendant was given 30 days in which to prepare and serve case-made. On April 26, 1923, defendant filed certified copies of a portion of the record in the Criminal Court of Appeals, and on such transcript the Criminal Court of Appeals issued an order allowing and fixing- amount of supersedeas bond and giving the defendant an extension of time of 20 days from the 7th day of May, 1923, in which to make and serve case-made on appeal; 10 days thereafter in which to suggest amendments, same to be signed and settled upon 5 days’ notice by either party, and for good cause shown plaintiff in error is given an extension of 60 days from the 7th day of May, 1923, in which to file and attach said case-made to his transcript and petition in error, in this court, in this cause.

“Movant further shows the court that no case-made has been filed in the Criminal Court of Appeals at this time, and that the time given by the court has long since elapsed:
“Wherefore, the Attorney General prays that said appeal be dismissed.”

The motion of the Attorney General to dismiss the appeal is overruled. The record shows that plaintiff in error has a complete and duly certified transcript of the record attached to his petition in error, and appeals by transcript, with petition in error attached, are permissible under the provisions of section 2814, Compiled Statutes 1921.

The failure of plaintiff in error to supplement the record by filing a case-made as applied for to this court on the 26th day of April, 1923, indicates that this appeal has practically been abandoned, because the errors alleged in the petition are not such as may be intelligently passed upon by a consideration of the transcript of the record only. The time has long since expired in which the plaintiff in error may supplement this record by filing a ease-made under the terms of the orders of this court.

The court, however, has examined the transcript of the record and considered the same in connection with the errors assigned in the petition. Proceedings leading up to the judgment appear to be regular. No fundamental error is contained in the instructions given. The judgment conforms to the charge, and the punishment imposed is within the limits allowed by the statute.

Finding no reversible error in the record before ns, the judgment is affirmed.

BESSEY and DOYLE, JJ., concur.


text:
    H. B. HOUSER v. STATE.
    No. A-4930.
    Opinion Filed March 1, 1924.
    (223 Pac. 409.)
    (Syllabus.)
    1. Appeal and Error — Appeals from Final Judgment Against Defendant. Appeals to the Criminal Court of Appeals are from the final judgment against the defendant.
    2. Same — Intermediate) Orders Reviewable only in Appeals from Final Judgment1. There is no statute allowing an appeal from any^ intermediate order made in the progress of the case. Any decision of the court or intermediate order made in the progress of the case is reviewable by this court in appeals taken from the final judgment itself.
    3. Same — Appeal from Intermediate Order Before Final Judgment Dismissed. Where the appeal is. from an intermediate order only, before the rendition of final judgment in the action, this court has no jurisdiciton to review the same, and the appeal will be dismissed.
    Appeal from County Court, Kay County; J. L. Roberson, Judge.
    H. B.' Houser and others were informed against- for the unlawful possession of intoxicating liquor, and, from an order denying his motion to return property alleged unlawfully received under a void search warrant, the named defendant appeals.
    Dismissed.
    Sargent & Ross, for plaintiff in error.
    George F. Short, Atty. Gen., and G. B. Fulton, Asst. Atty. Gen., for the State.
   MATSON, P. J.

On the 27th day of August, 1923, the county attorney of Kay county filed in the county court of said county an information charging H. B. Houser, A. Houser, Cien Denning, and C. E; Mills jointly with the unlawful possession of certain intoxicating liquor, including whisky and Jamaica ginger. Thereafter the said defendants appeared in person and by counsel and were duly arraigned and entered a plea of not guilty to the charge.

On the 17th day of October, 1923, H. B. Houser filed in said cause a motion for' the return of certain property alleged to have been unlawfully seized under a void search warrant.

On the 22d day of October, 1923, the cause was 'heard on the motion of the defendant H. B. Houser to return such property, and certain evidence was introduced in support of the motion. The motion was denied and excepted to by the appellant herein, and an appeal prayed to this court from the order of the court denying said motion. An order was made allowing said appeal and notices of appeal served and other steps taken .as provided for appeals from a final judgment in a criminal cause.

On the 23d day of January, 1924, the Attorney General filed a motion to dismiss the appeal for the reason that this is an attempted appeal from the intermediate order of the trial 'court and that no final judgment has ever been rendered in said cause.

We- presume the purpose of this, an attempted appeal from an intermediate order of the trial court in the prosecution against this defendant and others, is to determine before the trial the question of admissibility in evidence against them of certain liquors alleged to have been seized under an invalid search warrant.

In Gore v. State, 24 Okla. Cr. 394, 218 Pac. 545, this court held that articles obtained by an illegal search and seizure were inadmissible in evidence against the defendant where timely objection to their introduction was interposed, and the judgment of conviction in the Gore Case was reversed because of the erroneous admission of evidence obtained by reason of an illegal search.

Section 2805, Compiled Statutes 1921, provides:

“An appeal to the Criminal Court of Appeals may be taken by the defendant, as a matter of right, from any judgment against him; and upon the appeal, any decision of the court, or intermediate order made in the progress of the case may'be reviewed.”

The plain intent of the foregoing statutory provision is to allow to a defendant in a criminal cause an appeal from the final judgment rendered against him, and, upon such an appeal, any decision of the court, or intermediate order made in the progress of the case may be reviewed. The foregoing is the only statutory. provision allowing appeals to defendants in criminal causes.

In Merrill v. State, 11 Okla. Cr. 278, 145 Pac. 1109, it was held by this court that there is no statute authorizing an appeal from an order denying a motion for a new trial except as incidental to an appeal from a judgment of conviction. The same rule is applicable to any other intermediate order made during the progress of a criminal cause such as the order here attempted to be appealed from.

For the reason that no> final judgment has ever been rendered in this cause and the action of the trial court relative to the order here appealed from may be reviewed by this court should the trial result in a conviction and final judgment against this defendant, the appeal is dismissed, as no jurisdiction is lodged in this court to consider the matter on the merits in a proceeding of this kind. Merrill v. State, supra; In re Opinion of the Judges, 18 Okla. Cr. 20, 192 Pac. 597.

BESSEY and DOYLE, JJ., concur.


text:
    GROVER C. BLACKBURN v. STATE.
    No. A-4237.
    Opinion Filed March 4, 1924.
    (224 Pac. 208.)
    Appeal from County Court, Caddo County; C. B. Case, Judge.
    Grover C. Blackburn was convicted of the unlawful possession of intoxicating liquor, and he appeals.
    Order overruling motion to dismiss.
    C. H. Carswell, for plaintiff in error.
    The Attorney General, for the State.
   PER CURIAM.

On the 14th day of December, 1921, plaintiff in error was sentenced to pay a fine of $50 and serve 30 days in the county jail for the unlawful possession of whisky. Plaintiff in error was given 60 days in which to prepare and serve a case-made, and 90 days in which to file his appeal in this court. The appeal was filed in this court on March 8, 1922. The Attorney General, on November 15, 1923, filed a motion to dismiss the appeal for the reason that no notice of appeal was served on the court clerk and county attorney of Caddo county, as required by law. "While the case-made does not contain a notice of appeal, other files in the clerk’s office show that the notice was served on the proper officers on March 6th and filed in this court on March 8, 1922.

The motion to dismiss is therefore overruled.


text:
    SAM WELLS v. STATE.
    No. A-4655.
    Opinion Filed March 4, 1924.
    (223 Pac. 1118.)
    Appeal from District Court, Beckham County; T. P. Clay, Judge.
    Sam Wells was convicted of larceny of live stock, and he appeals.
    Order overruling motion to dismiss.
    Tracy & Minton, for plaintiff in error.
    The Attorney General, for the State.
   PER CURIAM.

On February 13, 1924, the Attorney General filed a motion to dismiss this appeal for the reason that the same was not filed in this court within 6 months from the rendition of judgment. This ease was tried on the 18th day of October, 1922. On October 23d a motion for a new trial was filed, which was by the court considered and overruled on October 27, 1922. After the overruling of the motion for a new trial the court rendered judgment fixing the punishment of plaintiff in error at confinement in the state penitentiary for a term, of two years. While the journal entry in this case shows that the' judgment was rendered on the 18th day of October, 1922, other portions of the record conclusively show that the judgment was not in fact rendered until the 27th of October. The appeal was filed in this court on April 23, 1923, within six months from the date on which the judgment was actually rendered, and the motion to dismiss the appeal is therefore overruled.


text:
    DEWEY SHORT v. STATE.
    No. A-4494.
    Opinion Filed March 4, 1924.
    (223 Pac. 408.)
    Appeal from County Court, Tillman County; W. H. Hussey, Judge.
    Dewey Short was convicted of wife and child abandonment, and he appeals.
    Appeal dismissed.
    Wilson & Roe, for plaintiff in error.
   PER CURIAM.

On the 11th day of September, 1922, plaintiff in error was convicted of wife and child abandonment and his punishment assessed at a fine of $500. The plaintiff in error files a motion to dismiss the appeal from the judgment of the trial below, for the reason that the fine assessed by the county court has been fully paid. That being true, the issues involved in the appeal are moot.

The appeal is therefore ordered dismissed.


text:
    OBE HATHAWAY v. STATE.
    No. A-4437.
    Opinion Filed March 6, 1924.
    (223 Pac. 1117.)
    Appeal from County Court, Oklahoma County; W. R. Taylor, Judge.
    Obe Hathaway was convicted of transporting intoxicating liquor, and he appeals.
    Affirmed.
    Cargill & Looney, for plaintiff in error.
    The Attorney General, for the State.
   PER CURIAM.

Obe Hathaway was, by information filed in the county court of Oklahoma county January 17, 1922, charged with the illegal transportation of intoxicating liquor. At the trial, February 24, 1922, he was by verdict of a jury found guilty as charged, with his punishment fixed at confinement in the county jail for a period of 90 days and a fine of $250. From the judgment on this verdict he appeals. The accused filed no brief in support of his appeal, and the case has subsequently been submitted on the record, which discloses no irregularities. The judgment of the trial court is affirmed.


text:
    JOHN GALENTINE et al. v. STATE.
    No. A-4492.
    Opinion Filed March 6, 1924.
    (228 Pac. 404.)
    Appeal from District Court, Washington County; J. R. Charlton, Judge.
    John Galentine and another were convicted of murder and they appeal.
    Affirmed.
    John B. Turner and Woodson E. Norvell, for plaintiffs in error.
    The Attorney General, for the State.
   PER CURIAM.

Plaintiffs in error were jointly charged with the murder of Felix Pugh, alleged to have been committed on August 18, 1921. At the trial, May 6, 1922, each was adjudged guilty as charged, and their punishment was fixed at confinement in the penitentiary for life. From this judgment and sentence they appeal.

Although the time for filing briefs in this court has long since passed, no briefs have been filed by plaintiffs in error, and the cause is regularly submitted on the record. An examination of the' record discloses that the accused were ably defended at the trial before an impartial jury; that the instructions of the court to the jury correctly stated the law involved; and that in all respects the accused were accorded a fair trial.

The judgment of the trial court is therefore affirmed.


text:
    BILL WATSON v. STATE.
    No. A-4558.
    Opinion Filed March 6, 1924.
    (223 Pac. 405.)
    Appeal from County Court, Pontotoc County; Tal Crawford, Judge.
    Bill Watson was convicted of selling intoxicating liquor, and he appeals.
    Reversed.
    King & Crawford, for plaintiff in error.
    The Attorney General and N. W. Gore, Asst. Atty. Gen., for the State.
   PER CURIAM.

This is an appeal from a judgment rendered by the county court of Pontotoc county, finding the plaintiff in error guilty of selling intoxicating liquor and fixing his punishment at 30 days in jail and a fine of $50.

Plantiff in error contends that he was denied a fair trial, because the court failed to instruct the jury upon the law of reasonable doubt. The Attorney General has confessed error for that reason. The accused testified in his own behalf, and denied that he made a sale of the intoxicating liquor as charged. Under the testimony the issue of reasonable doubt was a direct issue, and the instructions given nowhere touched upon that issue. The instructions as given were challenged by exceptions at the trial, and also in the motion for a new trial. The error was therefore fundamental and prejudicial, under the provisions of section 2692, Comp. Stat. 1921.

The confession of error is confirmed, and the judgment of the trial court is reversed.


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    J. B. LANGHAM v. STATE.
    No. A-4446.
    Opinion Filed March 6, 1924.
    (223 Pac. 410.)
    Appeal from County Court, Stephens County; G. T. Burrows, Judge.
    J. B. Langham was convicted of unlawful possession of intoxicating liquor, and he appeals.
    Affirmed.
    Wilkinson & Saye, for plaintiff in error.
    The Attorney General, for the State.
   PER CURIAM.

J. B. Langham was by information filed in the county court of Stephens county May 22, 1922, charged with having been, on May 20, 1922, in the unlawful possession of intoxicating liquor, with intent to sell the same. At the trial, June 3, 1922, he was by a verdict of a jury found guilty as charged, fixing his punishment at confinement in the county jail for 30 days and a fine of $100. The accused filed no brief, as required by law and the rules of this court. The appeal may therefore be considered as waived. The case has been regularly submitted on the record, which discloses no irregularities.

The judgment of the court below is affirmed.


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    WALTER BAREFIELD v. STATE.
    No. A-4454.
    Opinion Filed March 6, 1924.
    (223 Pac. 408.)
    Appeal from County Court, Stephens County; G. T. Burrows, Judge.
    Walter Barefield was convicted of the illegal sale of intoxicating liquor, and he appeals.
    Affirmed.
    Wilkinson & Saye, for plaintiff in error.
    The Attorney General, for the State.
   PER CURIAM.

Walter Barefield was on February 22, 1922, by information filed in the county court of Stephens county, charged with having sold intoxicating liquor contrary to law. At the trial, June 3, 1922, by verdict of a jury he was found guilty as charged, assessing his punishment at confinement in the county jail for a period of 30 days and a fine of $50. From the judgment on the verdict he appeals.

The time for filing a brief supporting the appeal has passed, and, no brief having been filed, it may be assumed that the appeal has been abandoned. The cause has been regularly submitted on the record, which has been examined, disclosing no errors.

The judgment of the trial court is affirmed.


author: BESSEY, J.

text:
    JESS DOWNARD v. STATE.
    No. A-4979.
    Opinion Filed March 6, 1924.
    (223 Pac. 718.)
    (Syllabus.)
    1. Perjury — Information to Show Materiality of Statements Falsely Sworn to. An essential element of the crime of perjury is that the statement falsely sworn to must be material, and an information charging perjury should contain such an averment in direct terms, or should contain a statement of such facts as will tend to show that the statements complained of were material.
    2. .Criminal Law — Withdrawal of Plea to Demur to Defective Information. Where an information on its face is defective in that it fails to allege one of the essential elements of the crime, upon application of the accused it became the duty of the court, under the provisions of section 2621, Comp. Stat. 1921, to permit the accused to withdraw his plea of not guilty in order to interpose a demurrer to the information.
    3. Perjury — Essential that Testimony Was Given Without Honest' Belief of Truth — Refusal of Instruction Erroneous. To constitute perjury the statement must not only be false, but the person making it must have known it to be false, or must have made it' as unqualifiedly true without honestly believing it to be true.
    (a) Instructions held insufficient touching that issue.
    Appeal from District Court, Woods County; Arthur G. Sutton, Judge.
    Jess Downard was convicted of perjury and he appeals.
    Reversed.
    W. L. Houts and L. T. Wilson, for plaintiff in error.
    The Attorney General, for the State.
   BESSEY, J.

This was a conviction for perjury, founded upon the testimony of the accused, Jess Downard, in a criminal case pending in the county court for his neglect or refusal to appear in response to a notice from the road supervisors of McKinley township, Wood county, to work on the roads (section 10016, Comp. Stat. 1921). On conviction of the perjury charge plaintiff in error was sentenced to serve a year and a day in the penitentiary. From this judgment and sentence he appeals.

It is alleged in the information that the deceased willfully and falsely testified that he had a right to redeem and recover certain lands in Avard township, Woods county, from a judgment of foreclosure.' There is no direct or inferential allegation in the information charging that the alleged false testimony given was material in the case in which it was alleged to have been given. From the statements contained in the record before us it appears that the defense of the accused in the misdemeanor case was that he resided in Avard township and was not a resident of McKinley township and therefore not subject to road duty in the latter township.

Section 1628, Comp. Stat. 1921, defines perjury as follows :

"Any person who, having taken an oath that he will testify, declare, depose or certify truly before any competent tribunal, officer, or person, in any of the cases in which such an oath may by law be administered, willfully and contrary to such oath, states any material matter which he knows to be false, is guilty of perjury.”

According to this statutory definition of the crime of perjury, as well as at common law, and according to the decisions of this court,' an essential element of the crime is that the statement sworn to falsely must be material, and an information charging perjury should contain such an averment in direct terms, or should contain a statement of such facts as will tend to show that the statements complained of were material. Rose v. State, 8 Okla. Cr. 294, 127 Pac. 873; Coleman v. State, 6 Okla. Cr. 252, 118 Pac. 594; Dunn v. State, 15 Okla. Cr. 245, 176 Pac. 86; McFarland v. State, 12 Okla. Cr. 201, 153 Pac. 619; Pate v. State, 10 Okla. Cr. 100, 133 Pac. 1132.

So far'as disclosed by the averments of this information the fact that the accused had or had not an equity of redemption in lands in Avard township was irrelevant and immaterial, and did not tend to establish any issue in the other case.

In the course of the proceedings in district court in the perjury ease the accused stated to the court that he was a poor person and unable to employ counsel. He, however, entered his plea of not guilty. Later the court appointed counsel to defend him, and his attorney, so appointed, after the state had announced ready for trial, asked leave of court to withdraw the plea of not guilty for the purpose of filing a demurrer to the information on the ground that the information did not sufficiently charge an offense. This application was by the court denied.

Since the information on its face was defective in that it failed to allege an essential element of the crime of perjury, and since the court had previously received and entered a plea of not guilty in the absence of counsel, it became the duty of the court under the provisions of section 2621, Comp. Stat. 1921, to permit the accused to withdraw his plea in order to interpose a demurrer to the information.

Although the information contained no averments showing that the foreclosure proceedings were material, there was "testimony introduced which might remotely affect the issue of whether the accused was a resident of Avard township or McKinley township. Harry E. Mason testified that he bought the land in question at the sheriff’s sale; that before confirmation of sale he had a talk with the wife of the accused in which there was some talk about renting the place and whether or not the land could be redeemed. Mr. Mason said he made no offer to return the land for any consideration. The wife of the defendant, on the contrary, testified in part as follows:

“Well, I went to talk to Mr. Mason about this. We were preparing to get the money from the Farmers’ State Bank to take up this mortgage at that time. This was my first knowledge that he had the deed to that land, at that time,' and he told me it had already went through court and he had a deed to it, but all he wanted was what money he had in it, and if I would secure that much money he would turn it back to me; that is the words he spoke. ’ ’

We allude to this part of the record to show that possibly the accused honestly believed that he had a right to redeem the land.

The perjury charge was based upon the falsity of the testimony following, particularly the answer:

"I’ve got my redemption period.”
"Q. Now, Jess, isn’t it a fact that Harry Mason foreclosed a mortgage on that place last February? A. He started foreclosure.
"Q. And they took it away from you? A. No; they haven’t got it.
"Q. They started foreclosure? A. Yes, sir.
"Q. When was it started? A. I don’t remember.
"Q. And the proceedings are not completed as yet? A. No, sir; I’ve got my redemption period.
"Q. When were the proceedings finished? A. I don,’t think they are finished yet.”

One of the essential elements of the crime of perjury is that the falsity of the statement must have been known to the deponent, or it must have been unqualifiedly made as true without such knowledge. Even if the testimony quoted had been material, to sustain a charge of perjury it would have been incumbent upon the state to show that the accused had no right of redemption and that he knew at the time he testified that he had no such right, or that he asserted that right as true recklessly without regard to the truth. It is within the realm of possibility, and may indeed be probable, that the accused had been misinformed and was not correctly apprised of his rights in the foreclosure proceeding and may have testified as he did honestly believing that he had a right of redemption when he had no such right. This question of corrupt motive in perjury was fully discussed in the case of Pilgrim v. State, 3 Okla. Cr. 49, 104 Pac. 383, wherein Judge Doyle said:

“Corrupt motive is indispensable to perjury; and one * * * who testified, however positively, only what he believes to be true, can be guilty of no crime, although he was ‘mistaken.’ ”

And in Mathes v. State, 15 Okla. Cr. 382, 177 Pac. 120, it was said:

“To constitute perjury the statement must not only be false, but the party making it must know it to be so.”

So far as they relate to the points here treated, the court’s instructions to the jury were as follows:

“It is no defense in a prosecution for perjury that the accused did not know the materiality of the false statement made by him, or that it did not, in fact, affect the proceeding in or for which it was made. It is sufficient that it was material and might have been used to affect such proceeding.”
“Any unqualified statement of that which one does not know to be true is equivalent to a statement of fact which one knows to be false.”
“If you believe from the evidence, facts and circumstances, beyond a reasonable doubt, that in said county of Woods, on or about the 22d day of May, 1923, and in the county court of said Woods county, the said defendant was duly sworn, on oath, to testify to the truth in said cause, that he testified to the matters and things stated in said information, that such testimony was falsely given, but was false and known by the said defendant at the time he so testified to be false, or if you believe beyond a reasonable doubt that at said time and place, and in said court, the defendant was sworn in said proceeding to testify the truth and willfully testified to the matters and things set forth in said information and made an unqualified statement of the same, and did not know the same to be true, then in either of said events, your verdict should be that the defendant is guilty; otherwise you should acquit him.”

The defendant requested two instructions, which the court refused, to the effect that there could be no conviction for perjury where the witness was honestly mistaken in his testimony or where his testimony was based upon an honest conviction and belief, even though such testimony was in fact untrue. Under the circumstances here, after such request was made, some additional instruction should have been given covering this issue.

Other errors urged by the plaintiff in error need not be analyzed, since for the reasons given the cause is reversed, with instructions to dismiss; and the accused is ordered released from the penitentiary.

MATSON, P. J., and DOYLE, J., concur.


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    A. L. IVEY v. STATE.
    No. A-4396.
    Opinion Filed March 12, 1924.
    (223 Pac. 1117.)
    Appeal from County Court, Oklahoma County; W. R. Taylor, Judge.
    A. L. Ivey was convicted of the offense of illegal possession of intoxicating liquor, and he appeals.
    Appeal dismissed.
    S. A. Byars, for plaintiff in error.
    George F. Short, Atty Gen., and N. W. Gore, Asst. Atty. Gen., for the State.
   PER CURIAM.

This is an appeal from a judgment of conviction rendered in the county court of Oklahoma county on the 6th day of March, 1922, wherein A. L. Ivey was convicted of the offense of illegal possession of intoxicating liquors, and sentenced to pay a fine of $250, and to be imprisoned in the county jail for a period of 90 days. Petition in error and case-made were filed in this court on the 3d day of July, 1922. The plaintiff in error has interposed a motion to dismiss his appeal. The appeal is therefore accordingly dismissed, and the cause remanded to the trial court. Mandate forthwith.


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    HARRY STEWARD et al. v. STATE.
    No. A-4368.
    Opinion Filed March 13, 1924.
    (223 Pac. 1118.)
    Appeal from County Court, Woods County; L. T. Wilson, Judge.
    Harry Steward and Oliver Hiett were convicted of the' unlawful manufacture of intoxicating liquors, and they appeal.
    Affirmed.
    A. J. Stevens, for plaintiffs in error.
    George P. Short, Atty. Gen., and G. B. Pulton, Asst. Atty. Gen., for the State.
   PER CURIAM.

This is an appeal from the county court of Woods county, where the plaintiffs in error were jointly tried and convicted of the crime of manufacturing intoxicating liquor, and punishment assessed against each at a fine of $50 and imprisonment in the county jail for 30 days. Judgment was rendered against each defendant on the 24th day of March, and petition in error and case-made were filed in this court on June 7, 1922. An examination of the brief in connection with the petition in error and ease-made discloses that the errors assigned and argued are such as have been heretofore passed upon by this court adversely to the contentions of plaintiffs in error in other cases where the same questions were raised, and the condition of the records substantially the same. We consider the'evidence sufficient to support the verdict and judgment against each of these plaintiffs in error. In our opinion, plaintiffs in error had a fair and impartial trial. They received the minimirm punishment provided by statute for a conviction of the offense charged. Finding no reversible error in the record, the judgment as to each defendant is affirmed.


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    SANDY IVEY v. STATE.
    No. A-4663.
    Opinion Filed March 12, 1924.
    (223 Pac. 724.)
    Appeal from County Court, Oklahoma County; C. C. Christison, Judge.
    Sandy Ivey was convicted of the offense of maintaining a public nuisance, and he appeals.
    Appeal dismissed.
    S. A. Byars, for plaintiff in error.
    George F. Short, Atty. Gen., and N. W. Gore, Asst. Atty. Gen., for the State.
   PER CURIAM.

This is an appeal from a judgment of conviction rendered in the county court of Oklahoma county on the 29th day of December, 1922, wherein Sandy Ivey was convicted of the offense of maintaining a public nuisance and sentenced to pay a fine of $250, and to be imprisoned in the county jail for a period of 90 days. Petition in error and case-made were filed in this court on the 28th day of April, 1923. The plaintiff in error has interposed a motion to dismiss his appeal.

The appeal is therefore accordingly dismissed, and the cause remanded to the trial court. Mandate forthwith.