text:
    Rudolph Tegler v. State.
    No. A-130.
    Opinion Filed March 31, 1910.
    (107 Pac. 949.)
    NEW TRIAL — Death of Judge Before Settlement of Case-Made. Under the provisions of the law in force at the date of this trial, the judge who presided at the trial was the only person authorized to settle and sign a case-made, and, such judge having died after the completion of the trial and before the case-made had been settled and signed, the defendant, without fault on his part, was thereby deprived of his constitutional right to present a complete appeal to this court,, and is thereby entitled to a new trial.
    (Syllabus by the Court.)

      Appeal from District Court, Oklahoma County; J. G. Lowe,, Judge.

    Eudolph Tegler was convicted of murder, and appeals.
    *Ec-versed and remanded for new trial.
    On the 11th day of April, 1908, Eudolph Tegler, the defendant, after having been indicted and tried, was by the judgment and sentence of the Thirteenth judicial district court of the state of Oklahoma adjudged guilty of the crime of murder, and sentenced to imprisonment in the penitentiary lor the term of his natural life. Motions for a new trial and in arrest of judgment had been previously made and overruled and exceptions saved, and time had been given to malee and serve a case-made. The trial was presided over by Hon. J. G. Lowe, one of the regular judges of the said district court, but, before the case-made was prepared, served, settled, and allowed, Judge Lowe departed‘this life. Subsequently to the death of Judge Lowe, Hon. Jno. J. Carney attempted .to allow, settle;, and sign the case-made, as the successor in office of Judge Lowe. The record shows that this attempted settlement of the case-made was done with the consent of counsel who represented the state in the lower court. The appeal is now before us on transcript of the record and the attempted case-made.

      J. W. Johnson and A. N. Munden, for appellant.

      Charles L. Moore, Asst. Atty. Gen., and B. H. Harris, for the State.
   FURMAN, PRESIDING Judge

(after stating the facts as above). Counsel' for the state insist that this court cannot consider the attempted case-made contained, in the record upon the ground that “Judge Lowe,' who presided at the trial, was the only person authorized by-law to settle and sign the case-made, and that the purported ease-made is a mere nullity, and is no part .of the record, and cannot be considered for the purpose of determining the alleged errors sought to be, presented by.it for review.” In the case of Spray v. Territory, 6 Okla. 4, 37 Pac. 1075, the Supreme Court of the Territory of Oklahoma, said:

. “When a. criminal cause is brought here upon writ of error or áppeal 'in such a manner that the court cannot pass upon the substantial rights of the parties, the provisions of the statute relating thereto must be strictly complied with. An agreement of attorneys, prescribing the time or manner of taking such appeal or bringing such writ of error here cannot be substituted in lieu of the provisions of the statute.”

In Bailey v. Territory, 9 Okla. 461, 60 Pac. 117, the Supreme Court of the. Territory said:

' “An appeal is a right conferred by the organic act, but the manner of perfecting an appeal is a matter'of statutory regulation. The criminal procedure act makes specific and definite provisions for the mode of taking appeals in criminal causes.”

' Section 4742', Wilson’s Bev. & Ann. St. in force at the time of the trial in this case is as follows:

'“T-lie court or judge may, upon good cause shown, extend time for making a case and the time in which the case may be served; and may also direct notice to be given of the time when a ease may be presented for settlement after the same has been made and served, and amendments suggested, which when so made and presented shall be settled, certified and signed by the judge who tried the cause, and the case so settled and made shall thereupon be filed with the papers in the cause; and in all causes heretofore or hereafter tried, when the term of office of the trial judge shall have expired, or may hereafter expire before the time fixed for making or settling and signing a case, it shall be his duty to certifj', sign or settle' the case in all respects, as if his term had not expired; and if no amendments are suggested by the opposing party, as above provided, said case shall be taken as true and containing a full record of the cause and certified accordingly.”

This statute in plain and mandatory terms provides that the case-made “shall be settled, certified and signed by the judge who tried the cause.” There was then no provision of law permitting any other judge to perform this duty. It is therefore plain that a case-made attempted to be settled by any other judge would be void, and could not be regarded otherwise than a nullity. It is true that the special session of the Legislature of 1910 did amend the law in this respect, and that in the future, in the event of the death of the judge who tried a case, the case-made may be settled and signed by his successor in office. But this amendment has no application to the ease before us. This case must be determined by the law in force at the time that the present case-made was settled. The Attorney General is therefore correct in his contention, and we are unable to consider for any purposes the attempted case-made contained in the record.

If the failure to have a case-made incorporated in the record in the manner required by law is the result of the neglect or iardt of a defendant, or of those who represent him, then the defendant could not be heard to complain; neither would this court have power to relieve him against the consequences of such failure. But this is not the state of facts which is now before us. Here there is no case-made in the record, owing to facts for which the defendant and his counsel are in no manner responsible, and which rendered' it impossible to comply with the mandates of the law. Our Constitution recognizes the right of appeal in criminal cases, but leaves it to the Legislature to provide the means and method of exercising this right. We are bound by the provisions of law regulating appeals provided by the Legislature. Shall a constitutional privilege conferring a substantial right be denied because some unavoidable accident renders the provision of law inadequate? Is it not the sworn duty of this court to secure to each citizen of Oklahoma the full and unimpaired enjoyment of all of his constitutional rights, it matters not how humble, poor, and penniless such citizen may he? It would be a contemptible farce to say that the defendant in this case had been granted the full enjoyment and exercise of his right of an appeal to this court, when, owing to the death of Judge Lowe, it had become out of the power of the defendant to jAresent to this court a case-made as provided by law, containing all that transpired at the trial, except those matters which constitute the record proper. We cannot pass intelligent^ upon the questions presented to this court by the record proper, unless we can consider the facts transpiring at the trial and the testimony of the ivitnesses. This Ave cannot do without the case-made. This defendant has the constitutional right to have this court consider the facts of- this case, and the legal questions involved in the light of these facts, and of all that transpired at the trial, and he cannot be deprived of this right by the death of the judge who tried che case.

The record1 sIioavs that counsel for the defendant did more than the laAV' required or provided for in attempting to secure a case-made. This certainly should not be charged against them as a Avaiver of the constitutional rights of their client. In Bailey v. United States, ante, p. 175, 104 Pac. 918, Judge Doyle, speaking for this court, said:

“It seems to be well established, as a general rule, that where a defendant has done all that the law requires in perfecting his appeal, and where the record necessary for a review of the case is lost or destroyed while in the custody of an officer of the court, in order to prevent a possible miscarriage of justice by depriving the defendant of his legal right of appeal, a new trial will be granted. In Crittenden v. Schermerhorn, 35 Mich. 370, Chief Justice Cooley said: ‘Where a party has lost the benefit of his exceptions from causes beyond his control, it is proper to give him a new trial, and this we have done in some eases where the judge’s term of office expired before exceptions could be settled.’ In Borrowscale v. Bosworth, 98 Mass. 34, it was said: ‘We can have no doubt that where a party has regularly taken exceptions in a cause, and has lost the benefit of them without fault o£ his own, a new trial may be granted. He has a right by law to the judgment of the higher court upon the decision by which he feels himself to be aggrieved, and a new trial may be his only remedy.’ In the case of Hume v. Bowie, 148 U. S. 245, 13 Sup. Ct. 582, 37 L. Ed. 438, the Supreme Court of the United States recognized the general rule, and said: ‘Ordinarily, where a party, without laches, on his part, loses the benefit of his exceptions through tire death or illness of the judge, a new trial will be granted.’ In the case of State v. Reed, 67 Mo. 36, it appeared that the record of the case was defective, and upon a suggestion by the appellant of a diminution of the record a certiorari was awarded, to which a return was made to the effect that the office of the clerk of the court had been broken open, and nearly all of the papers in the case stolen. The record sent up in obedience to the certiorari was therefore more defective than the first. In consequence of the inability to obtain a perfect record, a motion filed to reverse the judgment on that ground was sustained. In the case of Ruston v. State, 15 Tex. App. 336, the court said: ‘It appears that the defendant, without any fault or negligence upon his part, or on the part of his counsel, has been deprived of a most important legal right; and, such being the case, the judgment of conviction will be reversed, and the case remanded.’ In the case of Fire Ass’n v. McNerney, 54 S. W. 1053, a case decided by the Court of Civil Appeals of Texas, it appears that the court’s instructions to the jury had been destroyed by fire subsequent to the trial, and a motion was made and heard to substitute an instruction in place of one destroyed as a basis for an exception to such charge by the appellant. There was a dispute between the parties as to the correctness of the substituted copy. The trial court refused to substitute the charge as requested, on the ground that it had no recollection of having given such a charge as was contended for by the defendant in error, and that the proof offered did not establish the charge contended for by plaintiff in error. The court said with reference to that motion: ‘We are of the opinion that if the court, upon a hearing of such motion, finds it impossible to supply the lost papers (if .the loss is not due to appellant’s fault or negligence), a new trial should be granted. A party should not be deprived of his right of appeal by loss of the record due to an accident not chargeable to him/ .In State v. Gaslin, 32 Neb. 291, 49 N. W. 353, the court said: ‘A litigant should not be deprived of the right to have his case heard in a court of last resort on account of the failure of the official stenographer to furnish him a copy of the testimony/ In Sanders v. Norris, 82 N. C. 243, the court said: ‘The defendant is entitled to his appeal, and has lost it by no laches on his part; and in such cases it has been the established practice in this court to order a new trial/ In the case of Richardson v. State, 15 Wyo. 465, 89 Pac. 1027, Chief Justice Potter, in an able opinion, after reviewing the authorities, said: ‘Incidental to the power to compel a correct record to be sent up, or a bill of exceptions to be settled, is the power, as it seems to us, of ordering a new trial of the cause, where it is made to appear that the only record in the cause has been destroyed without possibility of substitution through no fault on the part of the appellant, or where, without fault on the part of the appellant or his counsel, but solely because of the neglect or delay of some court official, or some accident or act of Providence for which no one is responsible, it has become impossible for a bill of exceptions to be settled, without which the errors complained of cannot be considered/ ”

The judgment against the defendant is reversed solely upon the ground that, owing to the death of Judge Lowe, the defendant has been deprived of the exercise of his constitutional right to have his appeal fully considered by this court.

The instructions given to the jury which constitute a part of the record proper are open to a number of criticisms, but we cannot intelligently determine these matters unless we could consider them in connection with the facts of the case.. An erroneous instruction which might become material and result in reversal, under one state of facts, might be harmless, and not be ground for reversal under a different state of facts. Hence the importance or rather necessity of a case-made in determining appeals; and as there is no case-made in this case, through no fault of the defendant or his counsel, manifest justice requires that the judgment of conviction be reversed, and the cause remanded for a new trial.

DOYLE and OWEN, Judges, concur.


source: Caselaw Access Project

author: OWEN, Judge. FUBMAN, PRESIDING Judge DOYLE, Judge

license: Public Domain

text:
    Dan Scribner v. State.
    No. A-303.
    Opinion Filed March 31, 1910.
    (108 Pac. 422.)
    1. JU'RY — Competency of Jurors — Opinion as to Guilt. Persons called as jurors, who have heard and read detailed accounts of an alleged offense, from which they have formed such an opinion as to the guilt of the accused as will require evidence to remove, are not qualified jurors, although they believe and express their belief that they can and will fairly try the case upon the .testimony produced.
    2. SAME — Nature of Opinion. The opinion necessary to disqualify a juror must be one based on what purports to be the facts and one that will combat the evidence.
    3. JURY — Disqualification of Juror — Prejudice. The trial court is not limited to the answers made by the juror, but must be satisfied from ail the circumstances as well as the examination that the juror is not prejudiced against the accused.
    4. JURY — Examination of Juror — Opinion. Where the juror says he has an opinion, the accused should be given an opportunity to examine him fully as to the extent of his opinion.
    (Syllabus by the Court.)

      Error from District Court, Pontotoc County; A. T. West, Judge.

    The plaintiff in error, Dan Scribner, was tried in the district court of Pontotoc County on a charge of murder. He was eon-vietecl, and his punishment fixed at death.
    Reversed and remanded.

      J. F. McEecl and Crawford & Bolen, for plaintiff in error.
    —On disqualification of jurors: Johnson v. State, 1 Okla. Or. 321; Bradford v. Territory, 2 Okla. 230; Huntley v. Territory, 7 Okla. 60; State v. Start, 56 Pac. 15; State v. Morrison, 68 Pac. 41.

      Charles West, Atty. Gen., Chas. L. Moore, Asst. Atty. Gen., and Robert Wimbish, Co. Atty., for the State.
    — On disqualification of jurors: -tJohnson v. Slate, 1 Okla. Or. 321; Huntley v. Territory, 7 Okla. 60; Slate v. Saw tell, 10 Am. Grim. Rep. 347; Iiopi v. Utah, 120 IT. S. 430.
   OWEN, Judge.

There are numerous errors alleged in the petition filed in this case, the most important of which, and the only one necessary to notice here, is assignment No. 17. This assignment appears in the following language:

“The court cued in not affording this plaintiff in error a fair and impartial trial before a fair and impartial jury, as provided in section 20 of the Bill of Rights, in this: That the court overruled this plaintiff in error’s challenge to a number of jurors who stated on their voir dire examination that they had formed an opinion as to the guilt of this plaintiff in error, and that they then had such opinion, and that it would take evidence to remove it; that on said examination ten (10) jurors stated that they had formed an opinion, and still had an opinion, as to the guilt or innocence of the plaintiff in error, and the court held that they were not thereby disqualified, and overruled this plaintiff in error’s challenge to such jurors, and this plaintiff in error was reduced to the necessity of using his peremptory challenge in excusing the most objectionable of such jurors, but was compelled to permit some of the said jurors so entertaining said opinion to sit on the jury and try said cause; wherefore, the plaintiff in error says that he did not have a trial before a fair and impartial jury.”

No case has been presented to this court with greater skill and energy than that displayed and exercised on part of the attorneys for the state in this case. The able county attorney, who prosecuted this ease below, for his able and fair presentation of the matter in this court deserves the thanks of this court.

The question presented under this assignment of error is one that strikes at the very foundation of our jurisprudence. Two cardinal principles of our system are, that every man shall be clothed with the presumption of innocence, and that he shall have a fair trial by an impartial jury.

Section 6 of our Bill of Bights provides: “Right, and justice shall be administered without sale, denial, delay, or prejudice.”

Section 20 provides:

“In all criminal prosecutions the accused shall have the right to a speedy and public trial by an impartial jury.”

A fair sample of the examination of the jurors complained of as objectionable, and who sat in the case, is as follows:

“John McKinney: Q. You have formed a,n opinion? A. Yes, sir. Q. That opinion, formed from what you have heard, you could not give this defendant the same fair and impartial trial as if you had not heard anything? A. I do not think that I could; if I had never heard anything about it, I would not have formed an opinion. Q. But now you have an opinion? A. Yes, sir. Q. In your present frame of mind, with what you have heard, you could convict the defendant on less evidence than if you had not heard anything? The state objects to the form of the question. Objected sustained, and^ excepted to. This juror challenged by the defendant for cause. Mr. Wimbish: Q. What you have heard about this case was based on rumor, wasn’t it? A. Yes, sir. Q. You havn’t talked to anybody who was a witness in the case? A. No, sir. Q. Regardless of this rumor that you have heard, can you and will you, if taken as a juror in this case, go into the jury box and take the testimony of the witnesses on the witness stand and the charge of the court, and give this man a fair and impartial trial, notwithstanding the opinion that you have, based upon rumor? A. Yes, sir. The court overrules the defendant’s challenge. The defendant excepts.”
“J". W. Fuller: Q. You say that you have heard a good deal about this case? A. Yes; I have heard a good deal. Q. You have heard the facts in the case detailed? A. Yes; from rumor and reports, I have. Q. Have you heard a statement of what purported to be the facts in the case? A. Yes, sir. Q. And from that you have formed an opinion? A. Yes, sir. Q. You have that opinion at this time? A. Yes, sir. Q. It would take evidence to remove that opinion? A. Yes, sir.”

In this case we are called upon to say whether a man shall be deprived of his life by the verdict of a jury when the record discloses that 10 of the persons called and examined as jurors said under oath that they had conned an opinion as to the guilt of the defendant, and that it would’ require evidence to remove that opinion. The juror McKinney frankly .admitted that he could not give the defendant the same fair trial that he could have given if he had not heard of the case. He was asked if he would not convict on less evidence than if he had not heard of the case. The court sustained the state’s objection to the question, and did not permit him to answer. This was error. The defendant had the right to know. The ‘ court should permit a full investigation when a juror says he has an opinion. If he would require less evidence to convict, he is not a qualified juror. The defendant exhausted his peremptory challenges allowed him by law, and was compelled to accept as jurors four persons who had formed- an opinion as to his guilt or innocence. ' ■.

It has been urged with much force in this case that under the statutes of this state a juror is qualified although he had an opinion, provided it appears -to the court upon his declaration that he can and will, notwithstanding such opinion, act impartially and fairly, upon the matters to be submitted to him. This statute was construed by this court' in the case of Johnson v. Stale, 1 Okla. Cr. 321, 97 Pac. 1059. The court in an opinion delivered by the presiding judge said:

“But the enumerated causes of challenge in the statute are Dot-exclusive of all others not enumerated. When the juror has any opinion as to the guilt of the defendant, it matters not how this opinion was formed, the closing paragraph of the statute provides that it must appear to the court that the jurdr can and will act fairly and impartially in the ease. But if this provision was not in the statute, we would be forced to place this construction upon the first part of the statute, because section- 29 of our Constitution (Bunn’s Ed.) is in this language: Tn all criminal prosecutions, the accused shall have the right to a speedy and public trial by an impartial jury.’ Const. art. 2, § 20. Any statute which would even tend to deprive a defendant of a trial by an impartial jury would be unconstitutional and void. Although a juror may know absolutely nothing about the facts of the.case, and may not have the slightest opinion as to-the guilt of the defendant, yet if from any cause or upon any ground it appears to the trial court that the juror is biased or prejudiced against the defendant, it cannot be said that he would be a fair and impartial juror, and he should be excluded from the jury; otherwise the Constitution of the state would be disregarded and trampled upon. The trial court should resolve all doubts upon this matter in favor of the defendant. Upon the other- hand, when no personal, class, or race bias or prejudice appears to exist in the mind of the juror against the defendant, but it does appear that from- rumor, or reading the public press,' or from notoriety, the juror has an opinion as to the guilt of the defendant, but that such opinion will 'not combat the testimony or resist its force, and the court is satisfied that the juror can and will lay this opinion aside, and base his verdict alone upon the testimony of the witnesses and the instructions of the court, then the juror is competent. To our-minds this is the only rational construction which can be placed upon our statute.”

In the case at bar we have reviewed at considerable length a great number of authorities on this proposition, and such research has. convinced us that the weight of modern authority as well as reason is that, if from any cause the juror has such, an opinion as will preclude a fair trial, he is disqualified, without regard to the causes enumerated in the statute.

In the case of State v. Start, 60 Kan. 256, 56 Pac. 15, the Sixpreme Court of Kansas, in passing on a similar question, used this language:

“Persons called as jurors who have heard and read' detailed accounts of an alleged offense, from which they have formed fixed and positive opinions as to the guilt of the defendant that still remain with them, and who state on examination that they then have no doubt of the defendant’s guilt, are not qualified jurors, although they believe and express their belief that they can fairly try the case upon the testimony produced.”

In the case of Black v. State, 42 Tex. 377, in passing on a similar question, the Supreme Court of that state said:

“A general opinion, formed without any particular examina ti on into the facts, and derived from a source in which the juror placed no great reliance, might be denominated a conclusion, and still it might generally not disqualify the juror. On the other hand, a satisfactory conclusion, from hearing and carefully considering the evidence, would certainly disqualify the juror. In this case the juror had read the report of the evidence in the Walker Case; Walker and the defendant being charged with the commission of the same offense, in the same indictment. The report referred to may be presumed to be the detail of the evidence at a former trial, as given in the newspapers of the city, which is usually published in cases exciting any general interest. He must have placed reliance in the report of the evidence which he read in order to have enabled him to have formed a conclusion at all, and the fact that, as he says himself, that it would require other and different evidence to change that opinion, shows, or at least renders it probable, that it was with some considerable attention to and consideration of the facts reported, that he had formed his conclusion. Under such circumstances, we are of opinion that the court below, in judging of the qualification of the juror, should not have been satisfied that he was an impartial juror. The juror took his seat in the jury box with a conclusion formed, when the defendant had not been heard, and without the benefit of the instruction of the court as to the law applicable to the case. If his conclusion was in favor of the prisoner’s guilt, it was as a weight put in the scale of justice before the trial commenced. Whatever of obstinacy of character and pride of opinion he possessed had to be overcome by other evidence. There are perhaps but few men who do not lean in favor of a preconceived opinion, founded on what they deem to be authentic source. They look favorably upon whatever will support it, and examine with increased caution whatever will oppose it. The love of consistency in the formation of their judgments requires this of them. No authority has been found for holding that this juror was qualified, and an abundance that is in opposition to it.”

•One of the best considered cases on this question we find reported in Rothschild v. State, 7 Tex. App. 519. In that case the court in an opinion delivered by Judge Clark said:

“This juror, William Sanders, on his voir dire appeared to be qualified, and was accepted by the state. Upon examination by the defendant, he stated that he had heard the case talked about a good deal, had formed an opinion as to the guilt or innocence of the defendant from what he had heard, and that opinion was that he was guilty. He had not only formed the opinion, but had expressed it frequently, having heard the case talked about a good deal. This opinion was formed the first time he had heard the circumstances, and had continued until the present time, and was now his opinion. It was based upon what he had heard from outsiders, and he had never heard any particulars or read any evidence in the case, but he believed what he heard to be true, and still believed it. He would not take this opinion in the jury box if selected as a juror, but would throw it asile, and go by the evidence, as he could lay aside his opinions at will. * * *
“A mere impression, though derived Horn the testimony, does not disqualify if it be perfectly apparent, not from what the juror may say, but from all the evidence bearing on the issue, that such impressions will not influence his action in finding a verdict; and, on the other hand, a disqualifying opinion may be formed from mere hearsay. * * * The fact that a juror may say that, notwithstanding his opinion formed from hearsay, he can try the case impartially, manifests in most instances a recklessness of judgment and a state of mind less prepared to receive and allow a fair defense than if he had believed on proof which furnishes at least prima, facie evidence of guilt. * * *
“Mr. Bishop, our most thoughtful and philosophic writer on criminal law, after a full citation of the leading American authorities, deduces the true rale as follows: ‘The true view would seem to be that, since the law presumes every man to be innocent until he is by judicial evidence proved in a court of justice to be guilty, and since the burden is on the prosecuting power to make the guilt appear affirmatively by proofs' produced at the trial, if a man leaps in advance of the law, and settles in his own mind the question of guilt against the prisoner, whether by reason of what he has read or heard, or by reason of an inner impulse which condemns before it hears, he is not a fit person to be a juror in the cause; for his mind, which ought at least to be a blank on which the evidence might write its conclusions, is already preoccupied. It is vain for a man to say, or even believe, that he can judge impartially of a matter which he has already determined. Human nature, as developed in the average of men, does not permit this. The juror is to hear, and then say what he believes; but, if he believes before hearing that only which can lawfully affect his belief — namely, the testimony of the witnesses in open court — he is, in legal reason, disqualified to hear and be swayed by the testimony. It is immaterial, therefore, whether the belief, which comes not according to the law, is derived from rumor, or from listening to statements of a more reliable sort. Likewise, if the juror has not expressed his belief, he is still unfit, though the expression of-it might render him unfit in a yet higher degree. Such is the. legal reason which* should govern the question/ 1 Bishop’s Cr. Proc. §■ 910.
“Judge Marshall, in passing upon the question in Burr’s Gass, used those words: T have always conceived, and still conceive, an impartial jury, as required by the common law and as secured by the Constitution, must be composed of men who will fairly hear the testimony which may be offered to them, and bring in their verdict according to that testimony, and according to the law arising on it. This is not to be expected — certainly the law does not expect it — where the jurors, before they hear the testimony, have deliberately formed and delivered an opinion that the person whom they are to try is guilty or innocent of the charge alleged against him/ Burr’s Trial, 128.
“Judge Taney, in a criminal trial in 1854, held that: • Tf the juror has formed an opinion that the prisoners are guilty, and entertains that opinion now, without waiting to hear the testimony, then he is incompetent/ Wharf. Cr. Law, § 2981.
“Similar views were expressed by the Chief Justice in Blade v. State, and it was there said that the fact that the juror himself said it would require other and different evidence to change his opinion showed, or at least rendered it probable, that it was with some considerable attention to and consideration of the facts reported that he had formed his conclusion. And it was further held that, if upon an examination of the juror it was doubtful whether he was impartial or not, it would be safer, and more in unison with the spirit of our Constitution and laws relating to the trial by jury, to decide against the qualification of the juror. 42 Tex. 382, 383.
“While we recognize the rule that the action of the lower court in passing upon the qualifications of a juror should not be reviewed except in a clear case (Reynolds v. United States, 8 Otto, 157 [25 L. Ed. 244]), yet, after a careful consideration of the law and the facts pertaining to the juror Sanders, we are constrained to say that he was not a fit person to' pass upon the life of the prisoner. From his own testimony, he had formed an opinion that the prisoner was guilty at the time he had fir-st heard of the occurrence, which opinion had remained with him from that time continuously to the time of trial — a period of nearly two j'ears. He had heard the case talked about a gx’eat deal, believed what he had heard, and had frequently expressed the opinion that the defendant was guilty, and that he would take his seat upon the jury prepared to act upon it as an established opinion in case he heard nothing else to change it. In the language of Hawkins, the juror ‘hath declared his opinion beforehand that the party is guilty:’ and according to the doctrine accepted nearly everywhere in the United States, and probably in every other locality where the common law prevails, he was incompetent. 1 Bishop’s Cr. Proc. § 909. Certainly the repetition of his examination as many as six different times by the respective parties and the court is most convincing that his qualifications were of so doubtful a character that he should have been rejected on a challenge for cause.”

In the case of Ward v. State, 19 Tex. App. 664, in an opinion delivered by Judge Hurt, a more learned criminal lawyer than whoaarnever wrote an opinion, the court said:

“This conviction was for the killing of Bobert Fly. We will treat the first and third assigned errors together.
“First error assigned: That the court erred in overruling the defendant’s challenge for cause to the juror J. B. Scates, and compelled defendant to challenge him peremptorily. Upon his voir dire Scates answered: ‘I have talked to witnesses about the ease; have strong opinions as to his guilt or innocence; have expressed those opinions; it would take good, positive, and conclusive evidence of truthful men to change my opinion’; but his opinions would not influence his verdict.
“Third error: In overruling defendant’s challenge for cause-to W. W. Bailey. Upon his voir dire this juror answered: ‘I have some opinion now as to his guilt or innocence. It would take evidence to change that opinion. I got that opinion from hearsay or general gossip. I heard about it through talk and newspapers. What I read purported to be the truth, as well as I remember it. It is a settled opinion now. If the evidence turned out as I have read it, I would be of the same opinion still. I think that opinion would not influence my verdict.’
“The juror Newton, on his voir dire, said: ‘I have formed an opinion as, to the guilt of defendant from hearsay. It would take evidence to remove that opinion. I could discard that opinion, try the case on the evidence, but the opinion might have a bearing on me.’
“B. B. Ship said: ‘I have formed and expressed an opinion as to the guilt or innocence of the defendant. I could not discard it in going into the jury box. It would take evidence to change it. I would render a verdict upon the evidence uninfluenced by that opinion. The parties who told me were not witnesses, but told me what purported to be the circumstances and facts of the case, and .may have had other conversations since then with some parties/
“All of these objectionable jurors, except Bailey and Ship, when defendant’s challenges for cause were overruled, were challenged peremptorily, and did not serve on the jury. Defendant, however, exhausted his peremptory challenges. That each and every one of these jurors were obnoxious to challenge for cause there can be no doubt or question.
“We have had under consideration the questions presented in this record relating to the competency of the jurors for quite a long while. We have carefully examined and compared the authorities bearing upon this subject, with a view of making, if possible, a clearer statement of the principles of law applicable thereto than we have already done; but we are forced to concede our inability to make a clearer or more lucid exposition of the law than that already made. The opinion of Judge Clark in the Bothschild Case is not only a model for style and logic, but is, we believe, exhaustive of the subject.
“In support, therefore, of the position that the above-named persons were incompetent because they had formed an opinion of the guilt of defendant, which was calculated 'to influence their verdict, we submit the following authorities: Rothschild v. State, 7 Tex. App. 540; Burrell v. State, 18 Tex. 713; Johnson v. State, 27 Tex. 758; Sharp v. State, 6 Tex. App. 650; Bejarano v. State, Id. 265; Krebs v. State, 8 Tex. App. 1; Loggins v. State, 12 Tex. App. 65.”

It has been urged in this case that on the evidence produced the jury could not have returned other than a verdict of guilty, and therefore the defendant was not prejudiced by reason of the fact that some of the jurors had formed an opinion as to his guilt. As to whether a different verdict could not have been returned on the evidence, we are not- called upon to decide. We might concede that such is true; that being true, we cannot agree that the defendant was not deprived of the rights guaranteed to him under our Constitution. The fact remains that this jury fixed his punishment at death. In determining this ease, v/ although the evidence may show the defendant guilty beyond all peradventure of a doubt, and sufficient to support a verdict with the death penalty, we must nevertheless set a precedent under which a perfectly innocent man may be tried and have preserved to him his constitutional rights of the presumption of innocence, and a trial before an impartial jury. If a juror has prejudged the guilt of the defendant before hearing the sworn testimony, ,/ then it cannot be said that the defendant had a trial before an impartial jury. It is a physical impossibility for a juror, who has an opinion based on what he has understood to be the facts in the case, to weigh the evidence as though he had never heard of the case and had not already made up his mind. He may have an earnest and conscientious desire to do so and to deal out exact justice, but he will unconsciously attach a greater weight to the evidence which conforms to his preconceived opinion .than he'' would otherwise do. He is not in that frame of mind which the Constitution contemplates, and which is necessary to enable him to fairly and impartially judge as to the weight to be given to the evidence of each witness appearing before him. The determination of the qualifications of a juror is a matter addressed to the discretion of the trial court, and the question to be determined here is whether the trial eourb in this case abused this discretion to the prejudice of the defendant-

After a careful review of the numerous authorities called to our attention by the counsel in the ease, and those which we have been able to find by our own efforts, we are convinced that the court 'did abuse such discretion to the prejudice of the defendant. The principle that every reasonable doubt must be resolved in favor of the defendant applies in this instance as well as to the evidence offered before the jury on the final trial. The evidence offered as to the qualifications of the jurors enters into and becomes a material part of the trial, as much so as the evidence offered by the witnesses on the part of the state, and in this case the trial court should have resolved that doubt in favor of the defendant, and sustained his challenges for cause to these jurors.

We deem it unnecessary to review the other errors complained of. They are directed principally to the action of the court in refusing a change of venue and in drawing and summoning the panel of jurors from which the trial jury was selected. These are questions not likely to arise on the next trial of this ease, and not necessary to be- considered here.

For the refusal of the court to sustain the challenge made to the jurors who testified on their voir-dire that they had formed such an opinion as to the guilt of the defendant as would require evidence to remove, the judgment of the lower court must be reversed. >

FUBMAN, PRESIDING Judge

(concurring). The record shows that John McKinney sat as a juror in this case, and that upon his examination as such juror, among other things, he said from what he had heard he had an opinion as to the guilt of the defendant, and that he did not believe that lie could give the defendant the same fair and impartial trial as if he had not heard anything about the case. The juror was then asked: “In your present frame of mind, from what you have heard, you could convict the defendant on less evidence than if you had not heard anything?” Objection being made, the juror was not permitted to answer this question. In answer to questions asked by the county attorney, the juror stated that he had never talked to ’a witness in the case, that his opinion was based upon rumor, and that if taken upon the jury he could and would give the defendant a fair and impartial trial notwithstanding this opinion, and would be governed alone in making up his verdict by the testimony of the witnesses on the stand and the charge of the court. Thereupon the court overruled the challenge of the defendant, and the juror was sworn in the cause over the protest and exception of the defendant.

When a juror states that he had an opinion as to the guilt of a defendant, he is not made competent to sit in the case merely because he may state that he can and will lay this opinion aside if taken on the jury, and give the defendant a fair and impartial trial, and be governed alone in making up his verdict by the testimony of the witnesses and the charge of the court. The juror is not the judge of his own competency, of his own impartiality,- and of his own freedom from prejudice. No statute Can clothe him with such judicial discretion and power. The competency of the juror is left to the discretion of the court, and the'presiding judge is not bound by the answers of the juror. It is the judge and not the juror who is charged with the duty of passing upon the competency of the juror, and in the discharge of this duty the judge may hare recourse to any means of information within his power. In fact he should carefully investigate every source which would be calculated to throw any light upon the' competency of a juror, and if the judge is not entirely satisfied of the competency of the juror, he should be excused. In Johnson v. State, 1 Okla. Cr. 348, 97 Pac. 1070, this court said:

'“The question of the competency of jurors is addressed to the sound discretion of the trial court, and, in the absence of an abuse of that discretion, it is not subject to review; in other words, while the trial court must be clearly satisfied that a juror is fair and impartial before permitting him to sit in a criminal case, yet upon appeal to this court it must be clearly shown that the trial court abused its discretion before this court will review its rulings in this respect.”

We think it clear that the trial court erred in two particulars in passing upon the competency of the juror McKinney: First, this juror frankly stated that on account of what he had heard he did not think that he could give the defendant the same fair and impartial trial as if he had not heard anything. This was stating, in effect, that the juror believed that the opinion which he then entertained would influence his action in finding a verdict; that it might combat the evidence of the witnesses and resist its force. It is the nature of the opinion, and not the source from which it is derived, that we are considering. We do not claim that any impression which a juror may have as to the guilt of a defendant will necessarily disqualify the juror, but we do say that, when the juror is shown to have an opinion as to the guilt of the defendant, it matters not from what source it comes, then the burden is on the state to show that this opinion is such that it does not affect the fairness and impartiality of the juror. This is the' letter and the spirit of our statute." Section 5475, Wilson’s Rev. & Ann. St. Okla. 1903, is as follows:

“In a challenge for implied bias, one or more of the causes stated in the second preceding section must be alleged. In a challenge for actual bias, the cause stated in the second subdivision of the third preceding section, must be alleged, but no person shall be disqualified as a juror by reason of having formed or expressed an opinion upon the matter or cause to be submitted to such jury, founded upon rumor, statements in public journals, or common notoriety, provided it appears to the court, upon his declaration, under oath or otherwise, that he can and will, notwithstanding such opinion, act impartially and fairly upon the matters to be submitted to him. The challenge may be oral, but must be entered upon the minutes of the court.”

So it is seen that according to the statute it is the court and not the juror who must be satisfied as to the fairness and impartiality of the juror, and that the judge is not bound by the answers of the juror, but may inform himself “otherwise.” But even if this were not the statute, it is the plain meaning and intent of our Constitution, and as such it is our first duty to enforce it.

The juror McKinney, just after having expressed the opinion that lie did not think that he could give the defendant the same fair and impartial trial that he could give him if he had never heard anything about the case, did, in answer to the question of the county attorney, state that if taken on the jury he could and would lay his opinion aside, and be governed as a juror alone by the testimony of the witnesses and the charge of the court. This shows that the juror was himself uncertain as to his mental condition, and was varying as to what his action would be if taken on the jury, and, of itself, should have caused the trial court to sustain the challenge for cause.

Second, counsel for the defendant asked the juror this question: “In your present frame of mind, with what you have heard, you could convict the defendant on less evidence than if you had.not heard anything?” The court erred in not permitting this question to be answered. While it is true that the court would not be bound by the answers of the juror, yet, when it is disclosed that a juror has an opinion, in all fairness the court should permit the most searching cross-examination of the juror as to the origin, extent, and probable effect of such opinion. This is especially true in capital cases. The graver the case and the more severe the punishment liable to be inflicted, the more cautious the court should be in safeguarding all of the substantial rights of a defendant. But it may be said that the defendant is guilty, and that therefore it is immaterial as to whether the law was complied with. Such a statement as this is the first step toward lynch law, and if recognized by this court, would wipe out and destroy every constitutional right, and would establish a precedent which, if followed, would result in arbitrary punishment in the name of the law; a consummation dangerous to liberty and innocence, and utterly inconsistent with the perpetuity of our free institutions. We heartily assent to the proposition that when • a defendant has been properly indicted and fairly tried, and the evidence clearly shows that he is guilty, then a conviction should not be set aside on account of any mere matter of form or any exception which did not deprive the defendant of a substantial right. We have uniformly recognized and adhered to this rule, as our decisions will conclusively show. But it is an utter misapprehension of the doctrine of harmless error to suppose that when a defendant has been deprived of a substantial right, the error was or could be harmless. If this was correct, then the doctrine itself would become a mighty engine of wrong and oppression; in fact it would be the entering wédge of anarchy, for it would result in the destruction of all law, and substitute in its place the arbitrary will of the judges and jurors.

Section 5618, Wilson’s Rev. & Ann. St. Okla. 1903, is as follows :

“On an appeal the court must give judgment without regard to technical errors or defects, or to exceptions which do not affect the substantial rights of the parties.”

'This forbids this court from reversing a conviction upon any technicality or exception which did not affect the substantial rights of the defendant. This is the doctrine of harmless error in a nutshell. The converse of this statutory provision is that we must reverse convictions when the defendant has been deprived of a substantial right.

The court instructed the jury as follows:

“In connection with the evidence in this case, you are instructed that a conviction cannot be had upon the testimony of an accomplice unless it be corroborated by such other evidence as tends to connect the defendant with the commission of the oifense, and the corroboration is not sufficient if it merely shows that commission of the oifense or the circumstances thereof; that is, in this case, you cannot convict the defendant, Dan Scribner, upon the uncorroborated testimony of the witness Ed Johnson, for the reason that the evidence shows him to be an accomplice. However, if you are satisfied that the witness Ed Johnson speaks the truth in some material parts of his testimony in which you see him corroborated or confirmed by other unimpeachable evidence, this may be ground for your believing that he also speaks the truth in other parts of his testimony in which there may be no confirmation, but this corroboration ought to be as to some fact which tends to connect the defendant with the commission of the oifense.”

The vice of this instruction lies in the fact that the court tells the jury that the corroboration of the accomplice ought to be as to some fact which tends to connect the defendant with the» commission of the offense. The law prohibits a jury from convicting a defendant upon the testimony of an accomplice, unless such testimony is corroborated by other testimony which tends to connect the defendant, with the oifense committed. The law is mandatory. This instruction is only advisory, and qualifies and is contradictory of the first portion of the instruction, which correctly states the law. When this is the case, no one can tell upon what portion of the instruction the jury acted in finding their verdict. Such instructions are universally condemned, both upon principle and by the authorities, without a single exception, so far as our investigations have gone.

For the reasons above given, I concur in the opinion that the judgment against the defendant should he reversed. While it is of great importance that every guilty man should be speedily brought to justice and punished for his crime, yet it is of still greater importance that the citizens of Oklahoma should know that the courts of the state will secure to each and every one of them, it matters not how poor, friendless, and unpopular he may be, the full protection afforded by each substantial privilege and right guaranteed to them by the Constitution and laws of the state. This court will discharge its full duty in this respect, without partiality, fear, or favor, let it please or displease whomsoever it may.

The judgment against the defendant is therefore reversed, and the cause remanded, with directions that a new trial be granted the defendant.

DOYLE, Judge

(concurring). I would be content with concurring in the opinions of my Brethren were it not that they reverse the conviction for bias and prejudice of jurors only, and the erroneous instruction on the necessary corroboration of an accomplice, while I believe they should. have gone further, and held that the trial court erred in denying the application for a change of venue. The crime charged and the manner of its perpetration was of a character to arouse the greatest public indignation, and, without going at large into a discussion of the affidavits and other evidence offered in support of the application, it is sufficient to notice the fact that to protect the defendant from mob violence he was removed by the sheriff from Pontotoc county, and that this state of feeling continued until and through the trial, and must have had such effect upon the jury as that their verdict was little else than the reflection of the common belief that the defendant was guilty, and as a means of carrying * out the public purpose of having defendant pay the penalty with his life. The trial was not, and could not under the circumstances then and there existing, have been fair and impartial. A public trial by an impartial jury and that justice shall be administered without prejudice are the great constitutional safeguards against oppression and injustice, that must not be abridged or compromised. Prejudice and prejudgment are synonymous. That there was such prejudgment of the case as that defendant could n'ot obtain a fair and impartial trial in Pontotoc county was clearly shown, and I believe that it was an abuse of discretion for the trial court to deny the application for a change of venue.


author: DOYLE, Judge.

text:
    Fred Stewart et al. v. State.
    No. A-235.
    Opinion Filed December 1, 1909.
    (105 Pac. 374.)
    APPEAL — Notice of Appeal from County Court — Service upon Judge. Under the provisions of section 6949, Snyder’s Comp. St. 1909, the notice that defendant appeals from the judgment is properly served upon the county judge as ex officio clerk of the county court. There is no clerk of the county court in the sense that there is a clerk of the district court.
    CLERKS OF COURTS — County Court — Appointment—Permissive Statute. Section 1995, Snyder’s Comp. St. 1909, authorizing the appointment • of clerks for county courts, is permissive merely, and there may or there may not be a clerk of a county court, at the option of the county judge with the approval of the board of county commissioners. When a clerk is so appointed, the county judge is not disqualified or excused from performing any act that by law he might perform if no clerk had been appointed.
    APPEAL — Certificate of Settlement of Case-Made — Sufficiency— Duties of County Judge. Section 6951, Snyder’s Comp. St. 1909, provides: “The case and amendments shall toe submitted to the judge, who shall settle and sign the same and cause it to be attested by the clerk or county judge, and the seal of the court to be thereto attached.” Held that a certificate of the settlement of a case-made from a county court is sufficient, when signed and sealed by the judge thereof, without being attested by a clerk of the county court.
    APPEAL — Authentication of Record — Seal—County Court. Section 24, Schedule of the Constitution, provides: “Until otherwise provided by law the seal of the probate courts in the counties of the territory of .Oklahoma shall be the seal of the county courts.” Held, that this clause of the Constitution, in the absence of other legislation, makes the seal of the probate court the official seal of the county court of said county.
    (Syllabus by the Court.)

      Appeal from Cleveland County Court; N. E. Sharp, Judge.

    Fred Stewart and others were convicted of disturbing the peace, and they appeal, and the State moves to dismiss the appeal.
    Motion denied.

      Williams '& Williams and S. A. Norton, for appellants.

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

The plaintiffs in error were tried and convicted in the 'county court of Cleveland county for disturbing the public peace, from which conviction an appeal was taken by filing in this court a petition in error with ease-made attached. There was also filed in this court proof of service of notice upon Geo. G. Graham, county attorney of Cleveland county, and N. E. Sharp, county judge of said county, that said defendants appeal from the judgment to the Criminal Court of Appeals of Oklahoma.

The Attorney General’s office, on November 16, 1909, filed a motion to dismiss said appeal for two reasons:

“First. Because no notices of appeal were served, as required under the statute.”

This contention is based upon section 6949, Snyder’s Comp. St. 1909, which provides that:

“An appeal is taken by the service of a notice upon the clerk of the court where the judgment was entered, stating that the appellant appeals from the judgment. If taken by the defendant, a similar notice must be served upon the prosecuting attorney ”— in that the notice of appeal should have been served upon the clerk of the county court, and not upon the judge thereof. No contention is made that the notice of appeal does not comply with the'statute in*all other respects. There is no merit in this objection. There is no clerk of the county court in the sense that there is a clerk of the district court. The laws of this state do not require that there shall be a clerk of the county court. Section 1995, Snyder’s Comp. St. 1909, provides:
“The county judge may appoint a clerk of the county court in each county oí this state having a population of more than ten thousand inhabitants subject to the approval of the board of county commissioners if, in their judgment, said board finds that the public interest requires the appointment of such clerk. Said clerk shall have authority to issue all process and notices from the county court, to issue marriage licenses, and to perform such other duties, ministerial in character, as are performed by the clerk of the district court.”

This statute is merely permissive, and authorizes the appointment of a clerk of the county court where the public interest requires it. In appeals from county courts it is sufficient where the notice of appeal has been served upon the county judge, as he is ex officio clerk of his own court.

“Second. Because the judge’s signature on the certificates to the case-made is not attested by the clerk, as required by law.”

The record shows that the certificate -of the settlement of the case-made is attested as follows: “Witness my hand this 19th day of September, 1908. N. E. Sharp, County Judge, Cleveland County.” Seal attached bearing the impress: “Seal Probate Court, Cleveland Co., Okla.” “Filed in county court of Cleveland county, Oklahoma, Sept. 19, 1908. N. E. Sharp, County Judge.” Section 6951, Snyder’s Comp. St. 1909, provides:

“The case and amendments shall be submitted to the judge, who shall settle and sign the same and cause it to be attested by the clerk or county judge, and the seal of the court to be thereto attached. It shall then be filed with the papers in the case. Such original case-made shall be filed with the petition in error.”

As regards the alleged irregularities of the seal, section 24 of the Schedule of the Constitution provides:

“Until otherwise provided by law the seal of the probate courts, in the counties of the territory of Oklahoma, shall be the seals of the county courts.”

This clause of the ' Constitution doubtless contemplates a change by legislative enactment, but an examination of the acts relating to county courts discloses the fact that there has been no legislation on this subject. As we view the record, it shows a full compliance with the requirements of the statute.

An appeal to the Criminal Court of Appeals may be taken by a defendant, as a matter of constitutional right, from any judgment against him; and, in a proceeding in error, where the appellant is without fault, this right cannot be denied by any act of omission, or through the neglect or fault of the trial court, or any official thereof. Bailey v. United Stastes, ante, p. 175, 104 Pac. 917. In the case at bar, however, we find there has been no neglect or omission on the part of the trial court, and that the appeal has been properly perfected.

For the reasons stated, the motion to dismiss is hereby overruled.

FUBHAN, PRESIDING Judge, and OWEN, Judge, concur.


author: FUEMAN, PRESIDING Judge.

text:
    W. T. Caple v. State.
    No. A-243.
    Opinion Filed December 18, 1909.
    (106 Pac. 618.)
    1. INDICTMENT — Caption—Sufficiency. The omission of the word “the’’ before the words “State of Oklahoma” in the caption of an indictment is not fatal to the indictment.
    £. RAPE — Appeal—Review—Verdict, (a) The statute makes the jury in the trial court the exclusive judges of all matters of fact, and this court will not disturb their finding, unless it is so clearly unsupported by testimony as to create a strong presumption that the jury was influenced by improper motives in reaching a verdict.
    (b) For facts supporting a conviction for rape see opinion.
    3. NEW TRIAL — Newly Discovered Evidence, (a) When parties are indicted, they must recognize the fact that it is a serious matter, and be diligent in preparing for trial. It is too late after conviction to begin to investigate the character of the witnesses for the state, of whom they have notice before trial.

      Ob) A new trial will not be granted on the ground of newly discovered, evidence to impeach the reputation for truth and. veracity of witnesses for the state.
    (Syllabus by the Court.)

      Appeal from District Court, Garter County; Stilwell H. Bussell,, J udge.

      W. T. Caple was convicted of crime, and appeals.
    Amended and affirmed.

      Pruiett '& Sniggs, E. G. McAdams, and E: B. Aslcew, for appellant.

      Charles L. Moore, Asst. Atty. Gen., for the State.
    No briefs reached the reporter.
   FUEMAN, PRESIDING Judge.

First. The first ground relied upon by the defendant is that the caption of the indictment is “State of Oklahoma v. W. T. Caple”; the contention'being that it should have been “The State of Oklahoma v. W. T. Caple.” This question was passed upon and settled contrary to the contention of the defendant in another case against this defendant, ante, p. 72, 104 Pac. 493. This court there held that the omission of the word “the” before the words “State of Oklahoma” in the caption of an indictment was not fatal to the indictment.

Second. The next ground relied upon is that the evidence does not support the verdict. It appears from the evidence that the defendant at the time of the trial was 35 years of age, and Mrs. Anderson, the prosecuting witness, 17. Mrs. Anderson had been married but a few months, and had recently come with her husband from their former home in Tennessee, and they were engaged, at the time of the alleged offense, in farming at Chagris, some distance from Ardmore. Both were entirely unacquainted at Ardmore, except with a family named Byers, at whose home Mrs. Anderson was stopping at the time of the alleged crime. It appears from the testimony of Mrs. Anderson that her husband had been arrested on a charge of mortgaging a team belonging to his cousin, but with his authority, and was confined in the county jail at "Ardmore. The wife had come to Ardlnore to employ counsel and procure bond for him. She had gone in the forenoon to the office of Attorney Coleman, who was representing Mr. Anderson, to see about the bond. The defendant was' present, .learned of the circumstances, and a few minutes after she had left the attorney’s office approached her in a friendly way, assuring her that he had a friend, Charlie Thomas, a well to do farmer living out from Ardmore a few miles, whom he felt would sign the bond, and that he (the defendant) would -also sign the bond, but could not schedule for enough alone 'without his friend Thomas, and proposed that they drive out and see him. It was accordingly arranged that after dinner .they would go and see Thomas and arrange for the bond. They started to Thomas’s place seven or eight miles southeast of Ardmore at 1:30 in the. afternoon, going in a one-seated top buggy, with two-horse team. They reached the house of Nancy Franklin, a negress, between 2 and 3 o’clock. The defendant stopped here, got a drink of water, and inquired the way to Thomas’, leaving the prosecutrix outside in the buggy. The negress pointed out the Thomas home, then in full view. The defendant returned to the buggy, and informed1 Mrs. Anderson that, owing to the road having been fenced, it would be necessary to make a detour around the fenced field in order to reach the Thomas residence; from this route he again detoured, and by all sorts of representations, without having ever gone to the Thomas residence, drove around all of the afternoon, claiming to he himself ■ lost, and wound up at nightfall in a clump of timber in a large uninhabited pasture, where he found himself alone with this young-unprotected woman, who had, in her desire to assist her husband, been lured to a lone spot, far from human aid, for the purpose of her forcible defilement by one who had posed as her friend. Although it was .raining, he then unhitched his horses, and turned them out to graze. He then proceeded to detail to the terrified woman an account of his escapade, brought to the attention of this court in Case A-156, ante, p. 72, 104 Pac. 493, where a five-year sentence of imprisonment was affirmed for his murderous attempt to kill. After making a demand for sexual intercourse, which was resented, calling the attention of the prosecutrix to her unprotected and helpless condition, notifying her of his intention to force her, and reminding her of his inflexibility and determination in all things, being one that whatever he proposed he performed, he exhibited a revolver, and laying the same down near him, commenced the assault, which after every resistance on her part, she was finally overcome, and the completed act of rape accomplished by the penetration of her person, the terrors engendered throwing the woman into a nervous chill.

It does not appear at what time in the night the crime was actually accomplished, but it is reasonable to suppose that the defendant himself would be willing, on account of the inclem-ei^r of the weather, to return to Ad more as soon as his lustful monomania had temporarily subsided in being satisfied by the accomplishment of his purpose. The defendant left the pros-ecutrix at his own furnished house in Ardmore, in which there was no one at the time, where she stayed, not being able to locate the Byers home. Although she had had neither supper nor breakfast, she finally wept herself to sleep, and from her exhaustion and collapse did not awaken until nearly noon. She then went to Mrs. Byerp, who observed her distressed and disheveled condition, her eyes swollen from much weeping, her mental condition perturbed1; her body bruised from the encounter ip endeavoring to resist the assault from the defendant. She examined her wounds four days later, after the preliminary examination, and still found her badly bruised.

The defendant took the stand in his own behalf. He testified to all of the facts of the trip related by the prosecutrix, except the sexual intercourse — this he denied; admitted having learned of the prosecutrix at Coleman's office and the facts of her husband's imprisonment; of her desire to secure bond for him; of himself seeking her out later in town, and voluntarily and unsolicited offering to see that the bond was made, although he had never heard of the prosecutrix -nor her husband before, and had no knowledge of the character of the offense charged against him; gave no reason for his interest in them, except his great magnanimity and sympathetic benevolence, going out to all persons in distress. Nowhere does he intimate that the prosecutrix had made any advances toward him; that her deportment on the trip was other than proper and ladylike. Although the defendant and his witness Tullis both gave testimony at the preliminary on the fourth day after the commission of the crime, it was very different from their evidence at the fiinal hearing, and the later testimony bears upon its face the appearance of having been concocted to bolster up the defense. At the preliminary neither said anything of having seen the prosecutrix drink liquors, but both testified to this at the trial. This- was the only matter at the hearing tending to place the prosecutrix in an unfavorable light, aside from the seurrillous affidavits in support of the motion for a new trial, and was immaterial for the purpose of this case, except as affecting her credibility as a witness. Mrs. Byers, a respectable woman, was with the^ girl very soon after Tullis says he saw her drinking whisky. She was close to her, assisting and sympathizing with her in her distress, examining her person and apparel, and had every opportunity to detect the effects of liquor in her manner and upon her breath. She observed no evidences of this kind, but saw only a heart-broken woman, weeping and grieving over her calamitous sorrow. The two drinks which Tullis and the defendant say they saw the prosecutrix take about noon Tuesday would have, upon an empty stomach' — she not having partaken of food since noon the day before — certainly produced an intoxication which would have been readily observed by Mrs. Byers.

Our statute makes the jury in a trial court the exclusive judges of all matters of fact. While this court has the power to set aside their findings upon questions of fact, yet it is without the right to do so unless the verdict is so clearly unsupported by the testimony as to create a strong presumption that the jury wais influenced by prejudice or some other improper motive in deciding the case. There is nothing in this record which would warrant us in reaching such a conclusion. We are therefore without rightful power to disturb the verdict.

Third. The third and last ground relied upon to secure a new trial is alleged newly discovered evidence to the effect that the prosecuting witness was a woman of bad reputation for chastity in the community where she last resided. In support of this ground the defendant filed the following affidavit:

“State of Oklahoma, v. W. T. Caple, Dft. Affidavit. Now comes the affiant W. R. Watkins, and states that he is personally acquainted with Mary E.' Anderson, better known as (Shine) the prosecuting witness against W. T. Caple, on the charge of rape, affiant states, that he knows her general reputation of the said Mary E. Anderson for chastity and virtue in the neighborhood where she last resided in, and her reputation for virtue is bad. Affiant states she had the reputation of having tha disease known as gonerarior, and is known as a common prostitute where she lived soon after the time she made the said charge against the said W. T. Caple. The affiant W. R. Watkins says under oath that he has heard the foregoing statement read and states that they are true. W. R. Watkins. Subscribed and sworn to before me by W. R. Watkins this December 22, 1908. A. K. Swan, Notary Pub. of Carter Co. Okla. [Seal.] Commission expires July 3, 1909.”
“The State of Oklahoma, Pltf., v. W. T. Caple, Deft. Affidavit. Comes Mrs. Lou Catherine Watkjins and states that she is a citizen of Jefferson County, Okla., and that she is personally acquainted with Mrs. Mary E. Audersou, better known as '(Shine) 1ho prosecuting witness against W. T. Caple, on the charge of rape, and that said Mary E. Anderson lived with this affiant about three weeks as a helper, that she had some kind of disease and what I saw of her and what I heard of her I think she is a woman not worthy of the associates of a lady and I made her leave my home. The affiajnt Mrs. Lou Catherine Watkins states upon her oath that she had read this affidavit and it is true. Lou Catherine Watkins. Subscribed and sworn to before me by Mrs. Lou Catherine Watkins, this December 31, 1908. L. L. Lee, Notary Public for Jefferson County, Okla. [Seal.] Commission expires Api. 10, 1911.”

Even if it be conceded that the statements contained in. these affidavits would be admissible in evidence if offered during the trial of this case, yet they do not come within the rule relating to newly discovered testimony, which governs in motions for a new trial. This offense is alleged to have been committed on July 13, 1908. Within a few days thereafter the defendant had a preliminary trial on this charge. The prosecuting witness testified at that trial. The final trial of the defendant took place in December, 1908. The defendant knew all of this time that Mrs. Anderson would be a witness against him. The defendant had ample time and opportunity to investigate the character of the witness for truth and veracity, 'if he desired to do so. It is too late after a conviction for a defendant to begin to make inquiries of this character. When parties are indicted they must recognize the fact that it is a serious matter, and they must be diligent in preparing for their defense. This court will not encourage carelessness and negligence of .this kind, i It is the settled law that a new trial will not be granted on the ground of newly discovered evidence to impeach the reputation for truth and veracity of witnesses for the state. Herler v. State, 7 Tex. 70; Davidson v. State, 33 Tex. 248; Dansly v. State, 34 Tex. 393. Gibbs v. State, 1 Tex. App. 12-19; Hauck v. State, 1 Tex. App. 357-360; Thompson v. State, 2 Tex. App. 289; Terry v. State, 3 Tex. App. 236-239; Higginbotham v. State, 3 Tex. App. 447-450; Love v. State, 3 Tex. App. 501; Boothe v. State, 4 Tex. App. 202; Watson v. State, 5 Tex. App. 11-29; Tooney v. State, 5 Tex. App. 163-185; Brown v. Sítate, 6 Tex. App. 286-314; Polser v. State, 6 Tex. App. 510-512; Walker v. State, 6 Tex. App. 576-608; Burton v. State, 9 Tex. App. 605-608; Jackson v. State, 18 Tex. App. 586-597; Grate v. State, 23 Tex. App. 458-462, 5 S. W. 245; McCoy v State, 27 Tex. App. 415-434, 11 S. W. 454; Estrada v. State, 29 Tex. App. 169, 15 S. W. 644; Barber v. State, 35 Tex. Cr. R. 70-73, 31 S. W. 649; Miller v. State, 35 Tex. Cr. R. 209, 33 S. W. 227; Butts v. State, 35 Tex. Cr. R. 364, 33 S. W. 866; Scruggs v. State, 35 Tex. Cr. R. 622-626, 34. S. W. 951; Cruse v. State, (Tex. Cr. App.) 21 S. W. 370; Lewis v. State (Tex. Cr. App.) 22 S. W. 687; Messic v. State, (Tex. Cr. App.) 25 S. W. 626; Walker v. State, (Tex. Cr. App.) 33 S. W. 372; Priest v. State, (Tex. Cr. App.) 34 S. W. 611; Storms v. State, (Tex. Cr. App.) 37 S. W. 439; Wright v. State, (Tex. Cr. App.) 40 S. W. 1096; Porter v. State, (Tex. Cr. App.) 42 S. W. 305; Alexander v. Stale, (Tex. Cr. App.) 42 S. W. 989; Poteet v. State, (Tex. Cr. App.) 43 S. W. 339; McNeal v. State (Tex. Cr. App.) 43 S. W. 792; Navarro v. State, (Tex. Cr. App.) 45 S. W. 724; Fields v. State, 39 Tex. Cr. R. 488, 46 S. W. 814; Holt v. State, 39 Tex. Cr. R. 282, 46 S. W. 829; Lawson v. State, (Tex. Cr. App.) 50 S. W. 345; Mirando v. State, (Tex. Cr. App.) 50 S. W. 714; Shilling v. State, (Tex. Cr. App.) 51 S. W. 240; Ford v. State, (Tex. Cr. App.) 51 S. W. 935.

It appearing that the defendant was sentenced to imprisonment at hard labor in the penitentiary'at Lansing, Kan., for a period of 10 years, time of service to commence at his delivery to the warden of said penitentiary, said judgment and sentence is amended to read that such imprisonment shall be in the penitentiary at McAlester, state oí Oklahoma. In all .other respects, the judgment of the lower court is affirmed.

DOYLE and OWEN, Judges, concur.


author: FURMAN, PRESIDING Judge.

text:
    Joseph Harkness v. Territory.
    No. A-46.
    Opinion Filed January 25, 1910.
    (106 Pac. 558.)
    APPEAL — 'Failure to File Record. The transcript o£ the record or case-made must be filed in this court within the time prescribed ■by the statute for taking' an appeal, or this court will not acquire jurisdiction of the appeal, and it will be dismissed.
    (Syllabus by the Court.)

      Appeal from District Court, Blaine County; M. C. Garter. Ludge.

      Joseph Harkneiss was convicted of assault with intent to do bodily barm, and appeals.
    Dismissed.

      Lawrence LI. Hampton, for appellant.

      Chañes L. Moore, Asst. Atty. Gen., for the State.
   FURMAN, PRESIDING Judge.

On the 28th day of October, 1907, judgment was rendered against the defendant. The record was not filed in this court until December 3, 1908. Under the law in force at the date of the rendition of the judgment in this case, it was necessary that an appeal, in a criminal case, should be taken within one year after the date of the judgment. This time having expired before the record ijn this case was filed in this court, we are without jurisdiction to consider the case. Boneparte v. United States, ante; p. 345, 106 Pac. 347, If a defendant can file a record in this court after the time for perfecting the appeal has expired, there would be no limit to the time in which an appeal could be perfected.

The appeal is therefore dismissed.

DOYLE and OWEN, Judges, concur.


author: DOYLE, Judge. ■

text:
    S. G. Smith v. State.
    No. A-24.
    Opinion Filed April 2, 1910.
    (108 Pac. 418.)
    1. WITNESSES — Impeachment — Contradictory Statements... It is proper to show inconsistent statements of a witness, made out of court, to affect his credibility.
    2. EVIDENCE — Other Offenses. Upon the subject of motive or intent, other transactions tending to prove its criminal existence, even though they may involve other offenses, may be given in evidence against the defendant, but such evidence must be so limited and restricted as to leave the jury only at liberty to use it to discover the motive or intent actuating the accused in the act for which he is on trial.

      3, APPEAL — Evidence—Perjured Testimony. A judgment of conviction will be reversed on appeal, where the record shows that it is founded solely on perjured testimony.
    (Sjdlabus by the Court.)

      Appeal from, Pittsburg County Court; B. W. TTiggins, Judge.

    S. G. Smith was convicted of selling intoxicating liquors, and he brings error.
    Reversed and remanded.

      Stuart & Gordon, J. S. Arnote’such. J. Tl. Wilkins, for plaintiff in error.

      Fred S. Caldwell, Counsel to the Governor, for the State.
    No briefs reached the reporter.
   DOYLE, Judge. ■

Plaintiff in error, S. G. Smith (hereinafter designated defendant), was convicted in the count}' court of Pittsburg county upon ■ an information charging him with furnishing intoxicating liquor to one Tom Lewis, and was on the 16th day of July, 1908, sentenced to imprisonment in the county jail for a period of 60 days, and to pay a fine of $100 and costs, from which judgment the defendant appeals to this . court.

The petition avers 22 assignments of error. We deem it uninecessary to consider the numerous questions presented, because, upon a careful examination of the ease, we are convinced that the testimony does not establish defendant’s guilt, and is so uncertain and contradictory that it is insufficient to support the verdict. It appears from the record that Tom Lewis, the complainant, is a self-confessed perjurer. He testified that he lived in Hughes county; that on July 2d he came to McAlester with one Edd Colbert; that while there he went with Henry Sealey to the law office of S. G. Smith, the defendant; that Smith had a half pint of whisky, Irom which he took three drinks, Henry Sealey three drinks and Smith one drink, and that the bottle was still half full, and that he was pretty full; that he had not been drinking before his visit to the defendant’s office; and that he was not indebted to the defendant for services rendered or for mone}' borrowed. The prosecution was then permitted, over the objection of the defendant, to ask complainant whether or not he had any business dealings with Smith the day he got the whiskey, and whether or not he had anything to do with some checks' that day. Witness testified that he signed two checks, each for $10; that on one of 'the checks witness received $6. These checks were protested, and the next day witness was arrested for issuing said checks. He further testified that he had signed a written statement denying ¿that defendant did 'at :any time famish him.-whisky, and that he had sworn to said statement.

Henry Sealey, on the part of the prosecution, testified that he went with Lewis to Smith’s office, and Smith had a half pint of whisky. Asked if Smith gave Lewis some whisky, he said: “No, I did not see him.” He also testified that Lewis took three drinks and witness three drinks and Smith one, leaving about the length of a finger in a half-pint bottle. He was asked if he had signed a statement in part as follows:

“I was with Tom Lewis all day. He was drinking. When he came in on the train from Calvin I saw him as soon as he came up town. I first saw him in front of the Wells-Fargo Express Co. -office. I never did in my life see Mr. Smith with any whisky, and I never did at any time see Mr. Smith give Tom Lewis a drink of whisky. Mr. Smith never did at any time give me a drink of whisky nor did he ever at any time offer me a drink. .Henry Sealey. Witnesses to signature: S. J, Small. O. C. Warner'. John Elsing. E. P. Fay. A. E. Becker. G. S. Bussell S. S. Smith.”

He denied making this statement and said that he never signed the same. After several witnesses had testified that the statement was -read to him, and that he had signed the same, when called in rebuttal, he admitted that he had signed said statement.

G. E, Vining, a witness for the prosecution, testified: That he ran a second hand store, and over the-objection of. the defendant he was permitted to testify that on the day charged defendant presented to him a check signed by Tom Lewis, payable to defendant, and indorsed by defendant, for which he paid defendant $10. At the same time Tom Lewis had another .check for $10; payable to defendant; and indorsed by defendant. That he handed the money for the second check to Tom Lewis; but Smith took it'and gave Lewis $5.50; and kept the balance. That the checks were protested; and that he hied a complaint against Tom Lewis, and had him arrested for passing said cheeks.

On the part of the defense W. R. White testified that he knew Henry Sealey, that he read to him his statement before he signed it, and that he signed the same in his presence.

Wood N. Arnold testified that on July 2d, he met Henry Sea-ley in front of his office, and talked with him, and that he seemed to be drinking and asked witness to have a drink; that he. asked him if he knew where the defendant Smith was, and where he could find him, and said he had some business with Mr. Smith and. wanted to see him.

Sam Small testified that he was asked to witness Henry Sealey’s signature to said statement; that he asked him if that was his signature and he said it was.

Tom Taylor testified that he was a member of the bar of Pittsburg county; that he saw Tom Lewis on the 2d day of July; that he had a half-pint bottle about half full of' whisky; that Tom Lewis and Johnson Frasier and Edd C'olbert came to his office, and, while there, Lewis gaye Frasier a check for $10, asking witness to write it for him. Witness then signed it.

The defendant testified he lived in McAlester 16 years, and denied he ever gave any whisky to Tom Lewis or to Henry Seáléy; that he saw them on or about the 2d of July; that Tom Lewis had visited his office on several occasions, and asked him to sell his surplus land and be his agent; that on various occasions he wanted a dollar or two, and the defendant let‘him have it; that on the day in question Lewis told him he had $50 in the bank of Guertie; that he gave him a check for $10; for service rendered, and then asked him to cash a check for $10; that he then went with him to Yining’s second hand store and cashed the checks; that Tom Lewis then paid him $4 that he had borrowed from him. '■ ■

On cross-examination the defendant was asked: ° Have yon ever been charged with any crime? (Objection made and sustained.)” He was then asked: “Q. Have you ever been arrested on any charge.? A. No, sir. Q. Were you not arrested in this court, the central district?”" (Objected to as incompetent, irrelevant and immaterial. Objection overruled and exceptions saved.) This in itself constitutes reversible error. This question was fully considered in the ease of Slater v. Untied States, 1 Okla. Cr. 375, 98 Pac. 110. In an opinion written by Presiding Judge Pur-man, the third syllabus reads as follows:

“For the purpose of affecting the credibility o£ a witness, he may be asked, on cross-examination, if he has been convicted of a felony or of any crime which involves a want of moral character; but it is improper to ask such witness if he has been indicted, arrested, or imprisoned, before conviction, for any offense whatever.”

The admission of evidence in relation to the checks was clearly erroneous and prejudicial to the rights of the defendant. It would seem that this evidence was introduced for the purpose of showing that defendant had obtained money from Tom Lewis fraudulently.

Upon the subject of motive or intent, other transactions tending to prove its criminal existence, even though they may involve other offenses, may be given in evidence against the defendant, but such evidence must be so limited and restricted as to. leave the jury only at liberty to use it to discover the motive actuating the defendant in the act for which he is on trial.

(The palpable perjury of the two witnesses for the state should be condemned, and, in view of the character of this testimony, we think it would have been a proper exercise of the power vested in the trial court to have advised the acquittal of the defendant upon the ground that the evidence was insufficient. A conviction founded upon such testimony should not be permitted to stand. In our opinion it would be destroying the presumption which arises in favor of the innocence of the defendant and permitting the subversion of .the rule which requires, the es-tablishmcnt of guilt beyondi a reasonable doubt to allow this conviction to stand.

■The judgment of the county court of Pittsburg county is therefore reversed, and the cause remanded.

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


text:
    Will Ingram v. State.
    No. A-31.
    Opinion Filed April 5, 1910.
    (108 Pac. 552.)
    1. APPEAL — Review of Evidence — Sufficiency. Under our system of jurisprudence, it is the exclusive province of the jury to determine whether the evidence tending- to prove the guilt of the defendant is so lacking in convincing force as to leave an in- , telligent and discriminating mind to doubt as to the truth of the charge contained in the indictment, and in reviewing questions of fact upon appeal to the Criminal Court of Appeals, if there is a fair conflict in the evidence, or it is such that different inferences can be properly drawn from it, the determination of the jury will not be interfered with, unless it is clearly against the weight of evidence, or appears to have been influenced 'by passion or prejudice.
    2. RAPE — Sufficiency of Evidence. See opinion for evidence held sufficient to sustain a verdict of guilty without capital punish- ' ment for the crime of rape.
    (Syllabus by the Court.)

      Error from District Court. Carter County.

    Will Ingram was convicted of crime, and brings error.
    Affirmed.

      Cruce, Cruce '£ Blahemore and W. B. Johnson, for plaintiff in error.

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

Plaintiff in error, Will Ingram (hereinafter designated the “defendant”)', was indicted jointly with his brother, Tom Ingram, in the United States court for the Indian Territory for the Southern district of said territory, at the April term, 1907. Said indictment charges that the defendant, on the 17th day of February, A. D. 1907, did upon one Enid Kerr commit the crime of rape and that the said Tom Ingram standing by, did aid, abet, and assist the said Will Ingram the said felony and rape then and there to do and commit. Under the provisions of the Enabling Act and of the Constitution of the state of Oklahoma, the case was tried in the district court of Carter county. Upon the trial so had the jury returned a verdict of guilty, without capital punishment, against the defendant Will Ingram, and a verdict of guilty, fixing the penalty at imprisonment in the penitentiary for five years against the defendant Tom Ingram. Motion for new trial was filed and overruled. On the 16th day of June, 1908, in conformity with the verdict, the defendant was by the court sentenced to imprisonment at hard labor in the state prison for the term of his natural life. The defendant appealed by filing on October 31, 1908, in this court a petition in error with case-made attached. No briefs have been filed. Mr. Johnson of counsel made an oral argument, in the main contending that the verdict was against the weight of the evidence, and that hence justice requires a new trial.

Notwithstanding the appeal has been substantially abandoned, nevertheless, in deference to the gravity of the case, we have deemed it our duty to fully and carefully examine the record. Enid Kerr, the victim of the assault, at the time IS years of age, lived with her stepfather about two miles west of Poolville, in what is now Carter county, and the defendant’s home was about 300 yards south. The testimony on the part of the prosecution proves that on the day alleged, which was Sunday about the hoxxr of noon, Enid Kerr, with her brothers, aged 7 and 10 years, went to a point on a creek branch between her home and the Ingram home, and while there she was inhumanly assaulted and ravished.

Enid Kerr testified that she was there digging with a piece of broken hoe for “tooth brushes”, when Will and Tom Ingram appeared; that the defendant grabbed her, choked her, and put his hands over her mouth; that Tom Ingram chased her little, brothers away, and then held her while the defendant ravished her; that the defendant then held her while his brother Tom ravished her; that they then ran off, the defendant going down the branch, and Tom Ingram going towards his 'home; that as soon as they left, her brothers returned and went with her to their home; that only her mother was at home; and that her mother laid her on the bed and sent for a doctor. She also testified that she had known the defendant for about six years.

Mrs. Payne testified: That Enid Kerr was her daughter. That in the morning of the day alleged in the indictment her husband went to Elk. That about the noon hour her children went to a little branch, and within an hour her daughter came back crying and told her what the defendants had done. That she laid her on the bed and found that she was bleeding from the inside of her privates. That she then ran fo the door and saw Tom Ingram coming out of the branch going toward his home. That she ran right down into the branch and lost sight of him. That she went on to the Ingram home and asked Mrs. Ingram, “Where’s those wretched boys at?” Mrs. Ingram said, “Will has gone to Elk, and Tom went with Ed after some cows.” That she turned to leave and Mrs. Ingram said, “Stop! What is the matter?” And witness said: “I have got no time to stop. I have got to have a doctor.” And ran back home. She then sent her two little boys to Poolville, telling them to tell their papa to come and bring the doctors. That soon her husband returned, and Dr. Irby and Dr. Norris reached there soon after.

Lee Payne testified: That he was 10 years old. That on said day, with his sister and brother he went to a branch near their house, and with his brother he stopped to swing on a grapevine, while his sister with an old piece of a hoe went to dig tooth brushes; that they heard her scream, and they ran down to her and saw the defendant holding her, and that Tom Ingram was with him and chased them back where they could not see their sister. Shortly they saw them leave. That Will went down a cow trail and Tom went up toward his home. That they returned then to where their sister was and found her lying on the ground and she was crying. That they started to the house with her, and she staggered and fell. That they sat there a little while and then returned to the house. That his mother sent him and his brother to Elk after the doctor. That they met their father and returned home with him.

Dr. Norris testified that on Sunday, the 17th day of February, 1907, he was called with Dr. Irby to go to the Payne home to attend Enid Kerr; that he arrived there between 2 and 3 o’clock; that he found from his examination that she had bled pretty freely; that the hymen had been ruptured, and the perineum lacerated; that she was still bleeding from the rupture, and the laceration; and that he returned that night and further treated her.

Dr. Irby testified that he was called on said day with Dr. Norris to treat Enid Kerr, and his examination showed a rupture of the hymen and also of the perineum.

E. K.. Pool testified: That he lived at Poolville. Was acquainted with the defendants Will and Tom Ingram 9 or 10 years. That Mr. Payne lived about a mile and a half southwest of Poolville. That the defendants’ home was 300 yards south from Payee’s. That there was a branch between. About 8 o’clock p. m. on the 17th day of February, 1907, he went with others to Ingram’s house and arrested Will and Tom. That Will Ingram had a scratch under his left eye, and that he asked him, “What scratched your face there ?” and he said he had run against a wire up in the lot that morning.

As a defense the defendants sought to prove an alibi, and that it was a case of mistaken identity of the defendants as the parties who committed the crime. More than 20 witnesses testified to the presence of the defendant in and about the village of Elk on the day that the crime was committed. However, a careful examination of this testimony shows the absence of the defendant for a brief period about the hour of noon on said day. The defendant or his codefendant did not testify upon the trial.

Upon a careful reading of the evidence in this case,. there can be no doubt but that the verdict of .the jury is amply supported, if they believed the evidence given on the part of the prosecution. That the jury did believe the evidence on the part of the prosecution is clearly established by the fact that they found the defendant guilty of the crime charged.

The prosecutrix testified positively to the identity of the defendants, as the parties who ravished her. In this she was corroborated by her little brother, and we can find no sufficient reason for believing that this testimony is not worthy of belief. Without going into a detailed discussion of the instruction given, it is sufficient to say that they correctly and fully expounded the law of the case, including the defense of alibi. The defendant was represented by counsel preeminent in their profession, and all that ability and skill could do was done for him.

From the record before us it appears that justice has been done, and the judgment ought not to be set aside, except for some plain error in the proceedings, which was, or might be, prejudicial to the defendant. We are unable to find any such error in the record.

Wherefore the judgment of the district court of Carter county, as to the defendant Will Ingram, is affirmed.

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