text:
    BOB HARPER v. STATE.
    No. A-3351.
    Opinion Filed Oct. 1, 1921.
    (200 Pac. 879.)
    (Syllabus.)
    1. Jury — Qualification of Juror — Opinion as to Guilt. Where a juror may at one time have had an opinion as' to the guilt or innooenee of a defendant, based upon what he heard or read, but has no such opinion at thei time of the trial, held, under the facts in-this case, that the juror was qualified. • ■

      2. Jury — Summoning Talesmen After Exhaustion of Panel. Where the regular panel has been exhausted, held proper to summons talesmen to complete the jury.
    3. Appeal and Error — Harmless Error — Remarks of Court — Separation of Jury. Where both sides agree that the jurors may separate before the cause is finally submitted to them, held, there was np error in permitting them to do so, and that the remarks • of the court -relative thereto were not prejudicial.
    4. Trial — .Remarks of County Attorney Held Proper. Certain remarks of the county attorney, made during the progress of the trial, held not prejudicial.-
    5. . Appeal and Error — Findings Against Jurors' Misconduct not Disturbed. The findings of the court cfoncerning alleged misconduct of certain jurors, urged as grounds for a new trial, under the circumstances in this case will not be disturbed.
    ®. Trial — Court’s Reprimand of Bailiff in Jury’s Presence. Certain remarks of the court in reprimanding a bailiff in the presence of the jury held proper.
    7. Hlomicide — Instruction on Manslaughter in Murder Trial. Where the defendant is charged with murder, an instruction defining manslaughter in the first degree is pkoper where the evidence on both sides is conflicting concerning their motives, their aggressiveness, and elements of self-defense.
    Appeal from District Court, Pittsburg County; R. W. Higgins, Judge.
    Bob Harper was convicted of manslaughter in the first degree and sentenced to 14 years’ imprisonment in the state penitentiary, and he appeals.
    Affirmed.
    A. S. McKennon, Harris & Lackey, and Wilkinson & Scott, for plaintiff in terror.

      S. P. Freeling, Atty. Gen., and W. C. Hall, Asst. Atty. Gen., for the State.
   BESSEY, J.

Bob Harper, plaintiff in error, hereinafter denominated the defendant, on November 18, 1917, was convicted of manslaughter in the first degree, for the killing of Ab Lawrence at Hartshorne, Pittsburg county, Okla., on the night of August 15, 1917, and his punishment was by the jury fixed at imprisonment for 14 years in the state penitentiary.

The defendant, Bob Harper, had been living in Harts-horne for about 20 years, and was formerly chief of police of that town. At the time of the homicide in issue here he was engaged in conducting a soft drink establishment in a room partially occupied by a billiard hall conducted by other parties, on the main street of Hartshorne. Ab Lawrence, at the time he was killed, was in the employ of the Rock Island Coal Company, working in the capacity of hoisting engineer in one of their .mines near Hartshorne. He, .too, had been a resident of Hartshorne for a number of years, and at the time of the homicide both the defendant and the deceased were residing near the business portion of the town.

For some reason, not made clear by the testimony, there had been ill feeling between the parties for some months, and the deceased, a short time prior to the homieide, had assaulted the defendant. There is evidence tending, to. show that each of the parties had made threats of violence towards the other.

On the night in question, just about dark, these two men met on a frequented path leading from the railway right of way to the main business' street of Hartshorne, going in opposite directions. The deceased was armed with a 32, double-action automatic pistol, and the defendant was armed with a 45, single-action Colt’s revolver. Numerous witnesses testified that they heard a number of shots fired in rapid suecession, and that the sound of the reports of the firearms indicated that one was of larger caliber than the other. The evidence is conflicting as to which of the pistols was fired first. Upon this question there were 25 or more witnesses whose testimony was heard, and from the verdict of the jury we assume that the jury was convinced beyond a reasonable doubt that the defendant was the aggressor, or, if not the aggressor, that the killing was without justification.

The errors complained of by the plaintiff in error may be summarized as follows:

(1). That the court erred in overruling defendant’s challenge to Juror J. E. Elliott.

(2). That the court erred after the regular jury panel was exhausted in directing the sheriff to select persons for jury service in this case from the residents of the county who might be found in the vicinity of McAlester, where the case was being tried, over the objections of the defendant, who asked that the names of the talesmen be drawn from the jury box.

(3). That the court erred in asking the attorneys, in the presence of the jury, if they desired that the jury should be kept together during the progress of the trial.

(4). Alleged misconduct of the county attorney in propounding questions to jurors, and, in his opening statement to the jury and in the examination of. witnesses, making statements inferentially indicating that the defendant had interfered with the marital relations of the deceased and had ruined his home.

(5). Misconduct of certain jurors during the progress of the trial.

(6). Misconduct of the court in his remarks reprimanding a deputy sheriff for his conduct, in the presence of the jury.

(7). Error of the court in defining manslaughter in Ms instructions to the jury.

First. In relation to the qualifications of Juror J. E. Elliott, this juror testified that he had heard about this homicide soon after it occurred, and that he had, or might have had, an opinion at that time, but that he did not give the matter much thought or any serious consideration, and that he had no opinion at the time of the trial, and believed that he could give the defendant a fair and impartial trial, according to the law and the evidence. From an examination of this part of the record we believe that this juror was qualified. Be that as it may, it appears that the defendant waived his ninth peremptory challenge. If defendant was aggrieved by the bias or alleged ineompetency of this juror, he should have challenged him peremptorily.

Second. After the jury panel was exhausted the court .made the following announcement:

“The attorneys will please come up to the bench. (At•torney for state and defendant called to one side by the •court.) What I want to speak to you about is this: It has been the unbroken rule and precedent of this court as long as T have been judge, and of Judge Cole, who preceded me, to ■.send the bailiff out to bring in talesmen where the panel is not sufficient, and I do not believe that it is my duty to depart from this rule. It would be questioned if I should do :So. It is my intention, feeling that Mr. J. D. Ray is a suitable person in every way, he has my confidence as to his honesty and integrity, apparently had Judge Cole’s confidence, •and if there be any reason why he should not act in that capacity I would be glad to know it, if he should not bring in talesmen, if there is any reason against it, but I would want the reason given.”

The defendant objected to the selection of talesmen to -complete the jury and objected to J. D. Ray as not being a proper, person to make the selection, which objection was by -.the court overruled. The court then spoke as follows:

“Mr. Bay, will you come forword? You have been appointed by the sheriff bailiff of this court and approved by the court, and I find now that the jury panel is not sufficient, is insufficient, and it is necessary to bring in some other jurors to try this ease. I authorize and empower you to bring in eight men possessing the qualifications of petit jurors,: and I want you to bring in honest men, men of good moral character, men that are good citizens, and be careful about getting any one, picking up any one, that may be about the courthouse. Use your best judgment, I am not dictating to you one way or the other, but use your best judgment to get men to be brought in, true and good men that know absolutely nothing about the ease and have no interest whatever in the case. Around the courthouse it may be that parties you would pick up would have some interest in the ease one way or the other. Try and bring in men of such high standing that all parties to this suit will know that we have done our work well, and I will give you 30 minutes to have them here.”

Section 5000, B. L. 1910, provides:

“When the requisite number of jurors cannot otherwise be obtained, the sheriff shall select talesmen to supply the deficiency from the bystanders, or the body of the county, as the court may direct.”

After an intermission the bailiff, Mr. Bay, reported into court with eight talesmen, who were sworn and qualified to answer questions touching their qualifications. From the prospective jurors so brought in Jurors Walker and Duncan were .accepted by both the state and the defendant, and the defendant and the state both waived their ninth peremptory challenge, indicating that the defendant was at that time satisfied with the personnel of the jury. We see no objections to selecting a jury in the manner followed by the trial court in this case; in fact, our statute provides for such selection, in the discretion of the court. A jury of impartial men is all that one charged with crime can demand, and when such is procured the law is satisfied, and every constitutional'right given to Mm for his protection has been fulfilled. Brown v. State, 14 Okla. Cr. 609, 174 Pac. 1102; Warren v. State, 6 Okla. Cr. 1, 115 Pac. 812, 34 L. R. A. (N. S.) 1121.

The third assignment of error does not seem to be supported by the record. At page 602 of the record the trial court says:

“That after the jury was impaneled and before the jury separated the court called all the attorneys to one side and asked if it was their desire that the jury be kept together, or that the jury be permitted to separate. The attorneys representing the defendant asked to consult among themselves, retiring to the judge’s chambers. That afterwards they returned and said that there was no objection. The county attorney, but not in the hearing of the jury, stated that he did not desire the jury to be kept together. I took that precaution for fear some attorney might say that they didn’t object to the jurors not being kept together and for fear that the jury might charge it up to the other side that did require' them to be kept together, is the reason why I called the attorneys to one side.”

However this may be, there would be no impropriety in a judge’s making inquiry in open court-as to whether the parties desired the jury to be kept together. In this case it seems that the court took the precaution to make the inquiry privately, so as to obviate all question of prejudice. Horn v. State, 13 Okla. Cr. 354, 164 Pac. 683.

Fourth. It is next contended that there was prejudicial error in the conduct of the county attorney in repeatedly making suggestions indicating that there were improper relations between the defendant and the wife of the deceased. The testimony shows that immediately after the shooting, while the deceased lay prostrate upon the earth, mortally wounded, he stated that the defendant had ruined Ms home and then shot him all to hell. This statement was admissible as a part of the res gestae, and was susceptible of the interpretation placed upon it by tbe county attorney. The trial court, however, at numerous times admonished the jury that the question of whether or not the defendant was guilty of improper relations with the wife of the deceased had nothing to do with this case, and that such facts, if believed by the jury, would not afford either the deceased or the defendant any justification -for making an assault upon the other. Offitt v. State, 5 Okla. Cr. 48, 113 Pac. 554.

Fifth. To the affidavits filed in this case attempting to impeach the conduct of certain jurors during the progress of the trial, alleging that certain jurors mingled with certain of the state’s witnesses and conversed with them, the state introduced counter affidavits, and the court, in passing upon the motion for a new trial, tried the issue of fact raised by these affidavits. The record shows by a clear preponderance of the evidence that the jurors were guilty of no misconduct, and that the defendant was not prejudiced by any act of the jurors. The alleged misconduct was before the cause was' finally submitted to the jury, and under an agreement of counsel that the jurors might separate. Burns v. State, 8 Okla. Cr. 554, 129 Pac. 657.

Sixth. In the progress of the trial information came to the trial court that the deputy sheriff had taken the defendant to a hotel dining room where soúie of the jurors were being served with meals. The court, in the presence of the jury, told the deputy sheriff that this was improper, concluding his remarks by saying:

“You must not hold it against the defendant or'the state of Oklahoma, but I thought, gentlemen, I would like this explained to you, and what I say to you the attorneys representing the defendant and the attorneys representing the state will agree with me in, for they don’t want anything but a fair trial. You gentlemen will have to be kept together from now on. Gentlemen of the jury, charge it up to the court, but do not charge the holding of you gentlemen together to any of the parties to this action. Gentlemen, I thought I owed this duty to the defendant and to the state.”

We think the court did his duty in making the statement he did, and that neither party could have been prejudiced thereby. There was nothing in these remarks indicative of partiality or unfairness.

Seventh. It is contended by the defendant that under the evidence he was either guilty of murder or should have been acquitted on the ground of self-defense, and that the submission of an instruction on manslaughter was error, under the .holdings of this court in the case of Leseney v. State, 13 Okla. Cr. 247, 163 Pac. 956. In the first place, we do not so interpret this evidence. The evidence touching on motive, aggression, and justifiable acts of self-defense on the part of both parties was conflicting, fully justifying the submission of an instruction on manslaughter in the first degree. Even if it- were conceded that the evidence seemed to indicate that the defendant should have been found guilty of murder or acquitted on the ground of self-defense, this court has since refused to follow the rule laid down in the case of Leseney v. State, supra, but upon this question has followed the rule announced in the case of Irby v. State, 18 Okla. Cr. 671, 197 Pac. 526, and cases therein cited. Quoting from this opinion:

“It is contended that under the evidence the defendant should either have been convicted of murder or acquitted, and that no instructions for manslaughter in the first degree should have been given, In support of this contention we are cited by counsel for defendant to Leseney v. State, 13 Okla. Cr. 247, 163 Pac. 956, in which it was held reversible error to' instruct on manslaughter in the first degree when the evidence tended to show that the defendant was guilty of murder alone, and there was no evidence to support the charge of manslaughter in the first degree. In all other cases it has been uniformly held by this court that, even if the evidence did not warrant an instruction for manslaughter, it is an error in the defendant’s favor of which he has no cause to complain. Under the provisions of the Code of Criminal Procedure: ‘The jury may find the defendant guilty of any offense, the commission of which is necessarily included in that with which he is charged, or of an attempt to commit the offense.’ Section 5923, Rev. Laws (1910). * * *
“It is the province of the jury, if the defendant is found guilty, to determine and fix the degree of their verdict, and it has been uniformly held by this court that, if the jury in a homicide case find the defendant guilty of 'a lower degree, where the law and the facts make it murder, it is an error in favor of the defendant of which he cannot complain. ’ ’

From the record as a whole it appears that the trial court, at every stage of the proceedings, accorded to the defendant every safeguard to which he was entitled, and that counsel for the defendant and the county attorney and special counsel for the state skillfully and decorously performed their duties.

We think the defendant had a fair trial, and the judgment of the trial court is affirmed.

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


source: Caselaw Access Project

author: PEE CUEIAM.

license: Public Domain

text:
    Ex parte W. Z. GRAHAM.
    No. A-4092.
    Opinion Filed Oct. 8, 1921.
    (200 Pac. 878.)
    Original application by W. Z. Graham for writ of habeas corpus to be let to bail.
    Bail denied, and petition dismissed.
    O, L. Eider and James S. Davenport, for petitioner.
    Jess L. Ballard, Co. Atty., and Preston S. Davis, for respondent.
   PEE CUEIAM.

Petitioner, W. Z. Graham, filed his petition in this court September 29, 1921, wherein it is averred that he is unlawfully restrained and imprisoned in the county jail of Craig county, OMa., by H. E. Ridenhour, sheriff of Craig county; that he is held in custody by virtue of a commitment issued by Hon. Frank L. Haymes, county judge of Craig county, as an examining magistrate, upon a preliminary examination wherein petitioner was charged with the murder of one Love.

It is further alleged that petitioner applied to Hon. A. C. Brewster, district judge presiding in Craig county, to.be released on bail in this case, and that upon a hearing before said judgé bail was denied.

Petitioner further alleges that the proof of his guilt of murder as charged is not evident, nor the presumption thereof great, and in support of his application he has attached a transcript of the evidence taken at the preliminary examination, and also the additional evidence taken at the hearing before the district judge.

The cause was orally argued and submitted on the 5th day of October, 1921.

Upon a consideration of the evidence and arguments, we conclude that petitioner has not met the burden placed upon him by law, and therefore is not entitled to be let to bail as prayed.

Bail is therefore denied, and the petition is dismissed.


text:
    JOHN PATTON et al. v. STATE.
    No. A-3495.
    Opinion Filed Oct. 8, 1921.
    (200 Pac. 878.)
    Appeal from County Court, Oklahoma County; W. R. Taylor, Judge.
    John Patton and Carl Henninger were convicted of a violation of the prohibitory liquor laws, and they appeal.
    Judgments affirmed.

      Pruiett, Sniggs, Patterson. & Morris, for plaintiff in error.
    S. P. Freeling, Atty. Gen., and W. C. Hall, Asst. Atty. Gen., for the State.
   PEE CUEIAM.

John Patton and Carl Henninger jointly . tried and convicted in county court of Oklahoma county of the crime of the unlawful possession of intoxicating liquor, and each sentenced to serve a term of 60 days in the county jail and pay a fine of $250. The only contention advanced as ground-for reversal of the judgment is that, the evidence is insufficient to sustain the conviction. The evidence of the state was to the effect that these defendants had in their possession 60 quarts of whisky, and that the same was found at a residence occupied by them on East Seventh street, in the city of Oklahoma City, on the 4th day of July, 1918, that said whisky was contained in quart bottles labeled, "Old Taylor”; that the bottles were packed in cartons, and each had a government seal or stamp over the cork. No defense was interposed for either defendant. The argument is advanced that this evidence is insufficient, that it is based merely on the conclusion of the witnesses that the liquor found was whisky, because no investigation was made of the contents of the bottles, and the liquor seized by the officers was not introduced in the evidence. While these officers testified that the defendants were possessed of 60 quarts of whisky, it is apparent from the record that their knowledge and belief that the bottles contained whisky was based on actual personal observation by them. On cross-examination it was disclosed that the' data upon which these officers- based their belief, were the "Old-Taylor” labels on the bottles, their general appearance, of the fact that they were packed in cartons, and, further, that each had a government seal or stamp, across, the cork. That- a person or thing may be identified by its appearance and other qualities witnessed by personal observation is not to be disputed. Wigmore on Evidence, § 657; Com. v. Dowdican, 114 Mass. 257.

The weight to be given the testimony of the state’s witnesses was solely for the jury. Whether their knowledge or belief that what was seized was whisky was the result of rational inferences based on adequate data from personal observance was for the jury to determine. The jury decided this issue adverse to the contention of the defendants. In the absence of any defense interposed by either defendant, the court is convinced that the proof adduced for the state is ¿amply sufficient to support the judgments.

It is therefore ordered and adjudged that the judgment «of conviction as to each defendant be affirmed.


author: PER CURIAM.

text:
    D. R. NEPTUNE v. STATE.
    No. A-3606.
    Opinion Filed Oct. 8, 1921.
    (200 Pac. 1008.)
    Appeal from Superior Court, Creek County; Gaylord R.. ’Wilcox, Judge.
    D. R. Neptune was convicted of the crime of polluting «breams, and appeals.
    Reversed and remanded.
    A. A. Davidson and C. P. Chapman, for plaintiff in error.
    S. P. Freeling, Atty. Gen., and E. L. Fulton, Asst. Atty. ‘Gen., for the State.
   PER CURIAM.

This is an appeal from a judgment of «conviction based on section 3301, Rev. Laws 1910, as amended by section 11, c. 185, Sess. Laws 1915, for depositing crude oil in Euehee creek, Creek county, Okla.

That section 3301 as amended is a constitutional enactment was held in the recent case of State v. Wheatley, 20 Okla. 28, 200 Pac. 1004, but the courts in construing said statute will not give it a construction which will lead to absurd results not intended by the lawmakers.

That statute was [intended to keep the streams, lakes, and ponds of this state free from deleterious substances primarily for the purpose of protection of fish and game and to encourage the breeding thereof. Where a prosecution is instituted under such statute there should be a showing that the stream, lake, or pond is suitable for the breeding of fish or game or else is inhabited by them and that the acts of the defendant were such as are intended to be prohibited under that statute; that is, that the deposits of the substances were in such quantities as to be deleterious. Certainly it was not the intention of the Legislature to make a criminal out of one who has put a gallon of crude oil in the Arkansas river, or of one who has placed a gallon of salt water or a small quantity of sawdust into a flowing stream. To so construe the law would lead to absurd results.

We find no showing in this record that Euchee creek is a stream suitable for the breeding of fish or game, or that it was inhabited by such at the time of this alleged offense.

While, there is some evidence that crude oil and perhaps some salt water was permitted to escape into said creek, from the lease of the Mid-West Oil Company, of which defendant was superintendent, there is no showing of the effect of these substances on Euchee creek proper. All the evidence as to pollution is directed to proof that crude oil was seen by the witnesses in the big dam reservoir about four miles distant from the lease of the Mid-West Oil Company, without any showing that Euchee creek was polluted between the location of the Mid-West lease and where it emptied into the reservoir. The relevancy of this testimony does not appear from the record. There should have been some connection shown between the alleged acts of defendant in allowing or permitting oil to escape into Euehee creek on the Mid-West lease and the pollution of the big dam reservoir forming the city of Sapulpa’s water supply four miles or more away.

In the absence of a showing that Euehee creek was a stream suitable for breeding fish or game or that it was inhabited by such, and also because of failure to prove the effect of the alleged depositing by defendant of crude oil and salt water on the waters of Euehee creek proper and also in admitting evidence of the pollution of the big dam reservoir, over objection and exception of defendant, without connecting such pollution with the alleged pollution by defendant of Euehee creek proper, we think the judgment should be reversed for want of sufficient evidence to support a conviction under the statute on which this prosecution is based and also for the admission of incompetent and irrelevant evidence over objection and exception of defendant, which evidence was prejudicial to him because admitted without sufficient predicate for its introduction.

If defendant had been prosecuted under section 6810, Rev. Laws 1910, for willfully and maliciously polluting the source of the city of Sapulpa’s water supply (which it was the evident purpose of this prosecution to protect), and the information had been drawn to charge an offense under said section, notice would have been afforded defendant that evidence of the pollution of the big dam reservoir would be introduced against him.

The Attorney General has filed a confession of error in this case covering some of the points here discussed and others we deem unnecessary to comment upon. For reasons stated, we think the confession of error well founded upon the points stated, and that the judgment should be reversed and cause remanded for' further proceedings not inconsistent with this opinion.

Judgment reversed and cause remanded.


author: BESSEY, J.

text:
    C. T. TALLIAFERRO v. STATE.
    No. A-3579.
    Opinion Filed Oct. 13, 1921.
    (200 Pac. 1068.)
    (Syllabus.)
    1. Appeal and Error — Extension by Appellate Court of Statutory Time for Making and Serving Case-Made. Under the provisions of sections 5246 and 5247, Rev. Laws 1910, in case of accident or misfortune which could not have been reasonably avoided by the party appealing, ithe appellate coulrt may, upon a proper showing, make an order fixing the time f|or making and serving a case, or filing the same in the appellate court, beyond the time allowed by statute, but not beyond the time within which an appeal may be commenced in the appellate court.
    2. Evidence — Incompetency—Unidentified Samples in Liquor Case. Where the accused is on trial for the willful and unlawful selling lof “spirituous liquor, to wit, alcohol, commonly called Jamaica ginger,” it is prejudicial error to permit the state to introduce in evidence unidentified samples of flavoring extracts of ginger, not shown to have been sold by the defendant nor to have been in his possession, and to plermit the state to perform experiments with such extract in the presence of the jury.
    3. ' Trial — Improper Remarks of Court Directing Witness to be Held for Perjury. .The court should not, either by • word or action, intimate to the jury that he believes the defendant guilty; and where the remarks of the court, expressing such intimation, are made in connection with an order of the court, in the presence of the jury, directing a witness on the stand to be held on a charge of, perjury, it is prejudicial error.
    4. Same — Procedure Should be in Absence of Jury. In order to eliminate any intimation to the jury of the judge’s opinion of the weight of the testimony, where it becomes necessary or advisable to order a witness committed for perjury during the trial, the jury should be directed to retire, and the order should be made in the absence of the jury.
    Appeal from County Court, Noble County; A. Duff Till-ery, Judge.
    C. T. Talliaferro was convicted of a illegal sale of spirituous liquor and sentenced to serve 90 days in tbe county jail and pay a fine of $500, and he appeals.
    Reversed and remanded.

      P. W. Cress, for plaintiff in error.
    S* P. Freeling, Atty. Gen., and E. L. Fulton, Asst. Atty. Gen., for the State.
   BESSEY, J.

C. T. Talliaferro, plaintiff in error, in this opinion designated the defendant, was convicted on February 24, 1919, in the county court of Noble county, of willfully and unlawfully selling, on November 13, 1918, to Ralph Shiffer, “four ounces of spirituous liquor, to wit alcohol, commonly called Jamaica ginger.” The court fixed his punishment at imprisonment in the county jail for 90 days and a fine of $500.

It is first urged, on the part of the state, that the appeal taken in this ease was filed too late, and that for this reason this court is without jurisdiction to review the case. Section 5246, R. L. 1910, among, other things, provides that, in case of accident or misfortune the trial judge, upon notice to the adverse party, may make an order fixing the time for filing a case-made beyond the time allowed by statute, but not beyond the time within which an appeal may be commenced in the appellate, court. Section 5247, following, authorizes the appellate court to make such an order after the trial court has refused to do so. That was done in this ease, by order of June 25, 1919, a portion of which is here quoted and is self-explanatory, as follows:

“It is therefore ordered, adjudged, and decreed that on account of accident and misfortune which could not have been reasonably avoided by the party appealing that the time for filing said appeal and ease-made in the Criminal Court of Appeals of the State of Oklahoma be and the same is hereby extended for an additional period of 60 days beyond the time allowed by statute within which to take the appeal, and that the full 120 days’ period be and the same is hereby granted to the plaintiff in error, defendant below, within which to file his appeal in this cause.”

The assignments of error urged by the defendant may foe summarized as follows:

(1). That the information is indefinite and duplicitous.

(2). That the defendant’s application for á change of judge should have been' granted.

(3)’. That the defendant’s motion for a continuance should have been sustained. '

(4). That the defendant’s motion challenging the jury-panel should have been sustained.

(5). That the evidence adduced by the state was insufficient to warrant a conviction.

(6). Prejudicial misconduct of the trial judge, preventing the defendant from having a fair trial.

(7). The introduction of incompetent and prejudicial testimony on the part of the state, over the objections of the defendant.

• It would serve no good purpose and would extend this opinion unnecessarily to set out and analyze this record as It related to the various errors of which complaint is made. It will be necessary only to notice the question of the sufficiency of the evidence and the alleged misconduct of the trial court.

The state offered, as its proof in chief, the testimony of three witnesses, Ralph Shiffer, Everett Nelson, and Fred Beers. Witness Shiffer testified in substance that he purchased from the defendant in his store at Perry two small bottles of ginger extract, that he mixed this extract with a short quart of alcohol, and that he and two others drank this mixture. The testimony indicated that the witness was intoxicated at the time he began drinking this mixture; It seems that the county attorney had procured from some store other than that belonging to the defendant a two-ounce sample bottle of flavoring extract of ginger. Tins was not identified as ever having been in the possession of the defendant. The witness’ attention was called to this sample bottle, and his examination proceeded and ended as follows:

Q. You don’t remember telling the court that you became intoxicated on stuff just like that in that bottle?
By Mr. Johnston: We object to that as incompetent, irrelevant, and immaterial.
By the Court: Overruled. Exception allowed.
A. I remember of telling him of drinking that stuff when I was intoxicated.
By the Court: Don’t you remember telling the court that you got drunk on that stuff you got from him?
By Mr. Johnston: Objected to as incompetent, irrelevant, and immaterial.
A. I don’t remember it.
By Mr. Johnston: Objected to as incompetent, irrelevant, and immaterial, and note that each question and answer is objected to here.
Q. You came to the court on a charge of drunkenness?
A. Yes, sir.
By Mr. Johnston: Objections.
.By the Court: And you were asked where you got the liquor that made you drunk, or ginger?
By Mr. Johnston: Objected to as incompetent, irrelevant, and immaterial.
A. Yes, sir.
By the Court: And you stated that you got it from Tallia-ferro? You stated that you were drinking extract; didn’t you state that you got it from Talliaferro? A. No, sir.
By the Court: Mr. County Attorney, I will ask you to take charge of this man and bring proceedings against him on a charge of perjury. Mr. Sheriff, take the witness up to the jail and-
By H. E. St. Clair: We object to this.

Under the circumstances in this case, the introduction in evidence of this sample bottle of flavoring extract of ginger, not identified as ever having belonged to the defendant, or having been in his possession or sold by him, was incompetent and prejudicial.

The other two witnesses for the state, Nelson and Beers, were professional druggists who were permitted to testify that this bottle of flavoring extract of ginger, marked “State’s Exhibit B, ’ ’ contained ginger and alcohol. The county attorney, in the presence of the jury and in the presence of each of these witnesses, poured out a portion of State’s Exhibit B and burned it, and these witnesses in effect testified that it was their opinion, from the color of the flame, the odor, appearance, and taste, that the contents of this bottle was composed of alcohol, ginger and water. No chemical analysis was offered, but in the opinion of these witnesses the alcoholic content exceeded eight per cent.

In view of the fact that this small bottle, State’s Exhibit B, was not identified as belonging to the defendant or coming from his place of business, and no showing was made that the defendant had anything to do with the samples introduced in evidence, this testimony, and experiments made with State’s Exhibit B in the presence of the jury, in our' opinion, was incompetent and prejudicial.

It will be observed from the testimony hereinabove, quoted that the trial judge interfered with the examination of the witness Shiffer in such a manner as to indicate to the jury that the court believed the defendant was guilty, by the remarks made by the court in the presence of the jury at the time he ordered the witness held on a charge of perjury. The general rule is that the commitment of a witness for perjury, during the trial and in the presence of the jury, is prejudicial error. Notes, Swink v. State, 19 Ann. Cas. 422. Where such action amounts to an intimation of an opinion on the part of the judge as to the guilt or innocence of the defendant, a commitment of a witness for perjury in the presence of the jury is error. 26 R. C. L. 1020; Reed v. State, 5 Okla. Cr. 365, 114 Pac. 1114.

In the case of McNutt v. United States (C. C. A.) 267 Fed. 670, quoting from the opinion:

“If the thought suggests itself that Paine was not the defendant’s witness, the answer is that it was because, though called by the prosecutor, he commenced to testify to a fact favorable to the defendant that he was taken in hand by the court and at the end of his testimony directed to be committed for perjury.”

From the above quotation it would appear that the situation in the McNutt Case was similar to that in the ease at bar. So soon as the state’s witness began to testify favorably to the defendant, the court took him in charge and proceeded with his examination, and when it developed that his testimony was unfavorable to the state, the court, by his remarks made in connection with his order committing the witness for perjury, left a strong impression with the jury that he believed the defendant guilty. This was prejudicial error.

Some of the other assignments of error seem to have jnore or less merit, but it will be unnecessary to consider them here. For the reasons above stated, the cause is reversed and remanded. It might not be out of place to suggest that if this ease is retried below the information would be made more definite and drawn in such form as to avoid duplicity.

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


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    WILL LAYLAND v. STATE.
    No. A-3669.
    Opinion Filed Oct. 22, 1921.
    (201 Pac. 266.)
    Appeal from County Court, Johnston County; C. M. Crow-ell, Judge.
    Will Layland was convicted of the crime of pointing a weapon at another, and appeals.
    Appeal dismissed.
    T. G. Ramsey and J. S. Ratliff, for plaintiff in error.
    The Attorney General, for the State.
   PER CURIAM.

This is an attempted appeal from a judgment of conviction rendered against the defendant in the county court of Johnston county on the 6th day of August, 1919, wherein the defendant was • convicted of the offense of pointing a weapon at another and sentenced to serve 3 months in the county jail and to pay á fine of $50.

The petition in error and ease-made were not filed in this court until the 9th day of December, 1919, more than 120 days days after the rendition of the judgment. Section 5991, Rev. Laws 1910, provides:

“In misdemeanor cases the appeal must be taken within sixty days after the judgment is rendered: Provided, however, that the trial court or judge may, for good cause shown, extend the time in which such appeal maj be taken not exceeding sixty days.”

Petition in error and case-made not having been filed in this court within the 120 days within which an appeal may be taken in misdemeanor cases, where proper extension of time is granted by the trial judge beyond, the 60 days, it is apparent that this court has not acquired jurisdiction of this appeal and the same must be dismissed.

It is therefore ordered that the appeal be dismissed.


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    Ex parte JEROME CHAMBERS.
    No. A-4098.
    Opinion Filed Oct. 29, 1921.
    (201 Pac. 393.)
    Jerome Chambers was charged with murder and committed without bail by the examining magistrate, and the district judge denied his application for bail, and he seeks bail by habeas corpus.
    Prisoner admitted to bail.
    Pryor & Stokes and Joel E. Hall, for petitioner.
    Lewey 0. Gils'trap and Crump & Carver, for respondent.
   PER CURIAM.

The petitioner, Jerome Chambers, was charged with the murder of A. J. Horton in Seminole county on the 15th day of September, 1921, and was committed without bail to answer this charge by the examining magistrate. Later the petitioner made application to the district judge of Seminole county to be admitted to bail, and the district judge, upon hearing, denied the application.

The testimony before us seems to disclose that the petitioner, in the heat of passion, assaulted the deceased by striking him on the head with a pistol; with an intent to severely punish the person assaulted, but without an intent to kill; that the assault ended voluntarily, and both the defendant and the deceased left the scene of the altercation; that the 'deceased some hours later became unconscious, and died on the following day from the effects of the blow.

In our view of the evidence before us there was probably no premeditated design evinced by the petitioner to effect the death of the person assaulted, nor does it seem probable that the assault was perpetrated in a manner showing a depraved mind, regardless of human life and imminently dangerous to others. Unless other testimony is later adduced, showing a different state of facts, the accused is probably guilty of manslaughter, and not of murder.

The petitioner will therefore be admitted to bail in the sum of $15,000 by making a good and sufficient bond in that sum within 15 days from this date, to be approved by the court clerk of Seminole county.


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    Ex parte CHARLIE BAKER.
    No. A-4080.
    Opinion Filed Oct. 29, 1921.
    (201 Pac. 397.)
    Charlie Baker was charged with murder, and his application to the district court for bail was denied, and he seeks bail by proceeding in habeas corpus.
    Bail denied.
    Anglin & Stevenson, for petitioner.
    Geo. C. Crump and Hugh A. White, for the State.
   PER CURIAM.

Charlie Baker, the petitioner, was on the 29th day of July, 1921, arrested, charged with the murder of Thurman Hines. Later an information was filed in the district court of Hughes county charging the petitioner with murder, and he has since been held in the county jail without bail. On August 29, 1921, application was made to the district judge of Hughes county to admit petitioner to bail, and upon hearing the district judge denied the application. On September 16,1921, application for bail was filed in this court.

The testimony before us indicates that at the time of and before the homicide petitioner was city marshal of the town of Gerty, in Hughes county, that there was a public dance in a hall over a drug store on the night of the homicide, and that the petitioner on that day and night had been drinking heavily of several kinds of intoxicating liquor, and at the time of the homicide was in a state of voluntary intoxication; and that he and several companions, probably also under the influence of liquor, went to this dance, where the killing occurred at about 10:30 on the night of July 28, 1921.

The testimony indicates that the petitionér was not so drunk as to be unable to deliberate. To us the proof seems evident and the presumption great that although there may have been no intention on the part of the petitioner to take the life of Thurman Hines, or possibly of any one else, yet he did kill Thurman Hines in a manner imminently dangerous to others and evidencing a depraved mind, without regard for human life.

The application for bail is therefore denied.


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    Ex parte WILLIAM JOHNSON.
    No. A-4076.
    Opinion Filed Oct. 29, 1921.
    (201 Pac. 533.)
    (Syllabus.)
    1, Municipal Corporations — Larger Powers of Cities Under Special Charter. Within the limits prescribed by the Constitution and statute laws of this state, cities existing under a special charter form of government may have larger powers of self-government than are accorded to cities existing under general laws.
    2, Sunday — Power of State or City to- Prohibit Moving Picture Shows on Sunday. It is within the authority of the state, in the exercise of its police powers, to prohibit moving picture shows on Sunday; and such authority may be, by general law or by special charter, delegated to cities in the exercise of local self-government.
    3. Municipal .Corporations — Necessity or Expediency of Specific Police Regulations Decided by Council or People*. It is for the lawmaking body of a municipality or for the people themselves, in the exercise of the initiative and referendum, to' determine, within the bounds of reason, the necessity or expediency of specific police regulations, subject only to the limitations prescribed by the Constitution and statutes of this state.
    4. Same — Further Regulations by City on Subject Covered by State Law. Where the Legislature has made or may by general law mahe a specific police regulation, that fact of itself will not prevent the lawmaking power of a city from making further regulations on the same subject, not inconsistent with general laws. A municipality may move in the same direction as the Legislature, but not contrary to nor in an opposite direction.

      5. Constitutional Law — Constitutionality of Law Prohibiting M°v-ing Picture Shows on Sunday. The prohibiting of moving picture shows on Sunday is not unconstitutional as class legislation, nor does it confiscate nor impair the value of property without due process of law, or deprive the accused of the equal protection of law under the federal Constitution.
    6. Jury — Right to Jury Trial Where Punishment for Violation of Ordinance is Imprisonment or Fine Exceeding $20. In this state persons charged with the violation of a city ordinance, where the punishment is or may be imprisonment, or a fine and costs in excess of $20 with or without imprisonment, are entitled to a trial by jury. A municipal court in this state may summarily and without a jury impose a fine and costsl not in excess of $20, and may imprison the accused for the payment of such penalty, but not otherwise.
    ■William Johnson was convicted of operating a moving picture show on Sunday in the city of Bartlesville, and his punishment fixed at a fine of $50 and costs, in default of which he was incarcerated in the city jail, and he petitions for writ of habeas corpus.
    Writ allowed, and respondent ordered to release petitioner.
    Foster & O’Neil, for petitioner.
    E. L. Fulton, Asst. Atty. Gen., A. 0. Harrison, and D. A. Riehardson, for respondent.
   BESSEY, J.

William Johnson, the petitioner, was ©n the 4th day of September, 1921 (Sunday), arrested for violating certain ordinances of the city of Bartlesville, by operating and ¡maintaining a moving picture show in said city on Sunday. On the 6th day of September, 1921, the petitioner was tried on this charge and found guilty, and his punishment was fixed at a fine ,of $50 and costs, amounting to $6.75, in default of the payment of which the petitioner was committed to and incarcerated in the city jail until such fine and costs should be paid.

At the trial the petitioner pleaded not guilty and demanded a trial by jury, which was by the court denied. Application was made to the district court of Washington county for petitioner’s release on a writ of habeas corpus, which application was by that court denied. Whereupon a like application was lodged in this court, which is now under consideration.

The grounds alleged in the application may be summarized as follows:

(1). That the ordinances under which the petitioner was tried and convicted, being ordinance No. 580, and No. 882, amendatory thereto, are void for the reason that the city of Bartlesville, under the law and the provisions of its charter,is without authority to enact an ordinance regulating or prohibiting the operation of moving picture shows in Bartles-ville on Sunday.

(2). That the ordinance, as amended, provides for a penalty in excess of the maximum ^penalty prescribed by statute for work and labor done and performed on Sunday and is therefore void.

(3). That the ordinance is class legislation, unconstitutional and against common rights, and its enforcement is calculated to and has deprived this petitioner of his liberty without due process of law.

(4). That the petitioner was deprived of his right of a trial by jury.

The ordinance complained of, as amended, is as follows:

“An ordinance prohibiting the operation and running of moving picture shows, inclusive of any vaudeville acts, and likewise the staging and producing of theatrical entertainments on Sunday, providing penalties for violation, repealing all conflicting ordinances, and declaring an emergency.
“Be it ordained by the board! of commissioners of the city of Bartlesville, Oklahoma:
‘' Section 1. It is hereby declared unlawful for any person, firm or corporation to operate or conduct or to cause to be operated or conducted within the limits of this city, any moving picture show, or to exhibit for hire or otherwise any moving pictures, inclusive of any so-called vaudeville acts or performance on the Sabbath day, or the first day of the week, commonly known and designated as Sunday.
“Section 2. It is hereby declared unlawful for any person, firm or corporation to stage, exhibit or produce or to cause to be staged, exhibited or produced, any form of theatrical entertainment for hire, or otherwise, within the limits of this city on the Sabbath day or the first day of the week, commonly known and designated as Sunday.
‘ ‘ Section 3. Any person assisting in any fashion as servant, agent, laborer or employee, or otherwise, in a violation of the provisions of sections 1 and 2 of this ordinance shall likewise foe deemed guilty of a misdemeanor and shall be punished as provided by the terms of this ordinance.
“Section 4. Any person, firm or corporation adjudged guilty of the violation of any of the provisions of this ordinance, upon conviction shall be fined in a sum of not more than fifty dollars ($50.00) nor less than five dollars ($5.00), together with the costs of the action.
“Section 5. All ordinances or parts of ordinances in conflict herewith are hereby repealed.
“Section 6. Owing to the fact that at the present time there is no adequate ordinance in force in this city covering the subject of this ordinance, and to the further fact that certain persons, firms and corporations are about to stage, exhibit and produce certain theatrical entertainments and moving pictures on the Sabbath day,
“Now, therefore, for the preservation of the public peace, an emergency is hereby declared to exist by reason whereof this ordinance shall be in full force and effect from and after its due passage, approval and publication as required by law. ’ ’

Section 3, art. 18, of our Constitution provides that any city containing more than 2,000 inhabitants may frame a charter for its own government, consistent with and subject to the laws of this state, which when approved shall be the organic law of the city.

Section 4, art. 1, of the charter of the city of Bartles-' ville is, in part, as follows:

“The city shall have all the powers conferred upon cities' of the first class by the Constitution of the state of Oklahoma and by the laws of the state not rendered inoperative by the adoption of this charter, and shall have all such legislative, executive, and judicial power as is necessarily incident to or proper in the conduct of its business and affairs and such as ■will promote the interests and secure the rights of its inhabitants, as fully as if specifically enumerated herein. The enumeration of any particular powers shall in no wise limit the plenary powers above provided for said city.”

Section 1, art. 5, of said charter is as follows:

“The board of commissioners shall consist of three members, elected in the manner prescribed by this charter, and, except as otherwise provided herein, shall be vested with all legislative powers of the city.”

Within the limitations prescribed by the Constitution, it' was clearly the intent of the framers of the Constitution to delegate local self-government to cities under a charter form of government in a larger measure and to a greater extent than is accorded cities existing under general law. Under the general laws of this state municipal corporations are vested with local police powers delegated to them by statute, speeifi-. cally expressed or necessarily implied. Cities may make and enforce within their limits all such local police, sanitary, and other regulations as are calculated to promote the health, sanitation, comfort, convenience, and welfare of the community, not in conflict with the Constitution and general laws. If cities existing under general laws have these powers, cities existing under special charters may have all these and more, depending upon he provisions of the charter.

It is practically impossible to define with precision the term “police power” because of the vast variety of conditions and circumstances governing its application. Chief Justice Shaw states:

“It is the power to make, ordain, and establish all manner of wholesome and reasonable laws, statutes, and ordinances, either with penalties or without, not repugnant to the Constitution.”

It is always easier to determine whether a particular case comes within the general scope of its powers than to give an exact abstract definition of the power itself. 3 McQuillin on Municipal Corporations, §§ 889, 890, 894.

It is well recognized that police regulations appropriate for a rural community, a small city, or a large city may be quite different. For instance, traffic regulations relating to the operation of automobiles in a city of 2,000 inhabitants, while entirely appropriate and adequate in that city, might not be appropriate nor adequate in a city of 100,000 inhabitants. It is for the local lawmaking power to determine the necessity or expediency of such regulations, and when made they will not be disturbed so long as they reasonably tend to promote the order, comfort, or welfare of the community and are not in conflict with some general law. To us it seems that in doubtful cases the courts should have a greater inclination to uphold an ordinance passed as in this case, pursuant to a referendum vote of the people, than where the ordinance is enacted on the . initiative of the lawmaking body alone.

This court held iñ the ease of State v. Smith, 19 Okla. Cf. 184, 198 Pac. 879,that it was within the power of the state Legislature to prohibit moving picture shows on Sunday. If the state has that power and fails to exercise it, we think the city of Bartlesville may do so under its express and implied powers, derived from the Constitution, general laws, and its charter. Even if the Legislature should hereafter, by general law, specifically prohibit moving picture shows on Sunday, the law-making body of the city might still legislate upon the same subject so long as it did so without being in conflict with the general law. In other words, a municipality may move in the same direction as the Legislature, but not contrary to nor in an opposite direction. 3 McQuillin on Municipal Corporations, § 894; Ex parte Johnson, 13 Okla. Cr. 30, 161 Pac. 1097; Ex parte Monroe, 13 Okla. Cr. 62, 162 Pac. 233.

The express and implied powers granted to municipalities in this state, relating to police regulations, cover a multitude of subjects, among those enumerated in the statutes being to enact, ordain, alter, modify, or repeal any and all ordinances, hot repugnant to the laws of the United States, and the Constitution and laws of this state, as shall be deemed' expedient for the good government of the city, the preservation of the peace and good order, the suppression of vice and immorality, and measures affecting the health and general welfare of the community. Section 572, R. L. 1910, et seq. Where such powers are delegated to municipalities in general terms, the lawmaking power is not limited to the treatment of subjects specifically named, but there is the implied power of determining, within the bounds of reason, when any specific act or omission is deemed to be inimical to the good order or general welfare of the community.

It is well recognized in this country that the cessation from ordinary labor one day in seven is a salutary regulation, calculated to promote the peace, health, and good order of the people. We hold, therefore, that the regulation or prohibition of Sunday amusements is not unreasonable, and is a necessarily implied power granted to municipalities Under the •Constitution, statutes, and charter of the city, in the exercise of its police power. 3 Dillon on Municipal Corporations (5th Ed.) § 719.

On Sunday regulations, see 25 R. C. L. 1416, 1417, and cases cited; on delegated police power, 19 R. C. L. 728 et seq.; 3 MeQuillin on Municipal Corporations, § 894; Ex parte Bochmann, 20 Okla. Cr. 78, 201 Pac. 537; on moving picture shows, 3 McQuillin on Municipal Corporations, 958; on Sabbath observance, 3 McQuillin on Municipal Corporations, § 963,. and State v. Smith, 19 Okla. Cr. 184, 198 Pac. 880.

A municipality may pass and enforce ordinances prohibiting acts or omissions which are also prohibited by statute. Oklahoma City v. Spence, 8 Okla. Cr. 121, 126 Pac. 701; In re Simmons, 4 Okla. Cr. 662, 112 Pac. 951, on rehearing, 5 Okla. Cr. 399, 115 Pac. 380. The doctrine announced in these cases has never been changed in this state, so far as we know, except that the right to a trial by jury in municipal courts has been modified, as will be noticed further on in this opinion.

In our opinion, this ordinance is not class legislation, does not confiscate nor impair the value of the property of the accused, in the sense that it deprives him of due process of law, and is not in violation of any other constitutional right. In the present complex state of society, individuals may be required to yield certain rights and privileges they once enjoyed, in order that the majority may enjoy other rights and privileges of more importance. Individual rights and privileges, in many cases, must yield and be subservient to the rights and comforts of the people as a whole.

Not many years ago it was earnestly contended by those engaged in the liquor business that they had a natural and constitutional right to manufacture and use intoxicating liquor. The brewers and distillers engaged in this business claimed that liquor was property, and that a state statute prohibiting the manufacture and sale of liquor directly and indirectly deprived them of their property without due process of law; that the enactment of prohibitory and local option laws was confiscatory in effect because the enforcement of such laws tended to- depreciate and make valueless their breweries and distilleries and other property and equipment used in their business. At one time this may have been an open question, but it has now been uniformly held that, while such rights did exist, it was within the authority of the state, in the exercise of its police power, to extinguish and abolish these rights in the interest of society as a whole. This question is-ably treated by Mr. Justice Harlan in the case of Peter Mugler v. State of Kansas, 123 U. S. 623, 8 Sup. Ct. 273, 31 L. Ed. 205.

This ease has been well and comprehensively briefed by-counsel on both sides. To refer to all the decisions cited by counsel would extend this opinion to too great a length. There' has been so much written in the text-books and law reports: upon the subject of police powers that to analyze all the citations given would amount to writing a treatise on that subject. A careful reading of the Mulger Case will be sufficient to illustrate the point here involved.

We next come to the question of whether or not a violation of a municipal ordinance is criminal in its nature and whether or not one charged with the violation of an ordinance is entitled to a trial by jury. Section 1, c. 147, Session Laws; of 1915, concludes as follows:

"Such proceedings are hereby declared to be criminal in their nature; and except as otherwise specifically provided,, shall be governed by, and subject to, general laws relating to criminal procedure.”

This section was amended by Act Mareh 5, 1917, Session. Laws of 1917, p. 190, wherein it is provided:

"In the trial of all cases in said municipal courts, where the offense as defined by the city ordinance is punishable by a. fine only, the defendant shall be tried without a jury, but in all cases where the defendant is charged with the violation of' a city ordinance, and where said offense may be punishable by imprisonment, the defendant shall be entitled to a trial by jury in the justice of the peace court within said city.”

While this amendatory section does not in specific terms state that a violation of a city ordinance is criminal in its nature, the declaration that “Where the offense may be punishable by imprisonment the defendant shall be entitled to a trial by jury”-indicates that such action is criminal in its nature.

Section 4646, R. L. 1910, provides:

“Actions are of two kinds: first, civil; second, criminal.”

Section 5544, R. L. 1910, defines a criminal action thus:

“The proceeding by which a person charged with a public offense is accused and brought to trial and punished, is known as a criminal action.”

Taking into consideration the provisions of the Code of Criminal Procedure, together with the Constitution and statutory enactments relating to municipal courts, we cannot conceive how any action where an accused will or might be subjected to imprisonment on any charge amounting to more than a petit offense can be anything but a criminal action. It has been so decided by this court in a number of cases. To review the reasons and arguments here in detail would -extend this opinion unnecessarily. Those who desire to analyze the reasons for such holding are referred to the following decisions of this court. Ex parte Tom Johnson, 13 Okla. Cr. 30, 161 Pac. 1097; Ex parte Monroe, 13 Okla. Cr. 62, 162 Pac. 233; Ex parte Doza, 13 Okla. Cr. 287, 164 Pac. 130; Ex parte Gownlock, 13 Okla. Cr. 293, 164 Pac. 130; Ed Franks v. City of Muskogee, 14 Okla. Cr. 391, 171 Pac. 492; City of Blackwell v. Burgett, 14 Okla. Cr. 682, 166 Pac. 442; Miller v. State, 17 Okla. Cr. 734, 191 Pac. 1119; Ex parte Joe King, 13 Okla. Cr. 51, 161 Pac. 1102.

In the King Case, in the Franks Case, and in the Blackwell Case the offenses charged were not crimes under the statutes ; in all the other cases cited the offense made so by ordinance was also a violation of statutory law, but this court has made no distinction in this regard. The test as to whether or not the accused 'is entitled to a jury is whether or not the punishment will or might be imprisonment, or a fine and costs in excess of $20 for the nonpayment of which the accused may be imprisoned. The dividing line between mere petit offenses that could be tried summarily without a jury and the graver offenses of a criminal character, where the accused is entitled to a jury, must be arbitrarily made at some point. The federal Constitution, the statutes of this state, and decisions of this court have fixed the dividing line at a penalty of $20, including costs. In other words, a municipal court, under the holdings of this court, may summarily and without a jury impose a fine and costs not in excess of $20, and may imprison the accused for the nonpayment of such fine, but not where the punishment is or may be in excess of this sum. See, also, Ex parte Bochmann, 20 Okla. Cr. 78, 201, Pac. 537.

Under the conditions here the petitioner was imprisoned for the nonpayment of a fine and penalties in excess of $20, and following the rule laid down by this court in other decisions, the petitioner was wrongfully denied the right of a trial by jury.

For the reasons stated the writ is allowed, and the re-, spondent is ordered to release the petitioner.

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


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    Ex parte CORNELIUS PHILLIPS et al.
    Nos. A-4084, 4085.
    Opinion Filed Oct. 29, 1921.
    (201 Pac. 392.)
    J. W. Phillips and Alexander Watson were charged with-murder and held without bail by order of the examining magistrate, and, bail being refused them by the district court, they bring habeas corpus.
    Writ denied as to J. W. Phillips, and allowed, as to Alexander Watson.

      Cornelius Hardy, H. H. Brown, and P. B. H. Shearer, for petitioners.
    E. L. Fulton, Asst. Atty. Gen., and W. D. French, Co. Atty., and J. S. Ratliff, for respondent.
   PER CURIAM.

The petitioners in this ease were separately charged with the murder of J. M. (Marion) Williams at Tishomingo, Johnston county, on August 3, 1921, and are being held without bail, pursuant to an order made by the examining magistrate after a joint preliminary hearing. Both petitioners were denied bail by the district court of Johnston county. The applications here are Nos. 4084 and 4085, and by agreement of parties were by this court heard and considered together.

The record before us consists of the testimony taken before the examining magistrate against both petitioners at their joint preliminary; affidavits in support of and in resistance of petitioners' applications here; and the oral testimony of both petitioners offered before this court.

From a careful consideration of all these it is the opinion of the court that, according to the showing thus far made, the proof is evident and the presumption great that J. W, Phillips is or may be guilty as charged and is not entitled to bail, and his application for bail is therefore denied.

As to the application of Alexander Watson, the charge of murder against him is predicated upon a charge of conspiracy, and, so far as is shown here, this theory of the case for the most part must stand of fail upon the testimony of two illiterate witnesses, who at different times, under pressure and upon the receipt of money without consideration made statements exonerating the petitioner Alexander Watson, later, under influence and pressure and upon the receipt of money without consideration, these two witnesses repudiated and still repudiate their statements first made; which later statements tend to implicate this petitioner as a conspirator with the other petitioner, J. W. Phillips.

Under this state of facts we cannot say that the' proof as to Alexander Watson is evident or the presumption great that he is guilty of the crime of murder as charged. It is therefore ordered that the petitioner Alexander Watson be admitted to bail in due form of law in the sum of $25,000 upon the making of a good and sufficient bond to be approved by the court clerk of Johnston county, Okla., and the respondent, the sheriff of Bryan county, upon proof of the execution and approval of such bond, is ordered to release the petitioner Alexander Watson.


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    Ex parte ANDY BOCHMANN.
    No. A-4082.
    Opinion Filed Oct. 29, 1921.
    (201 Pac. 537.)
    (Syllabus.)
    1. Municipal Corporations — Prosecution in Municipal Court — Necessity for Verified Complaint. In this state a municipal court is a constitutional court and as such is bound by the constitutional provision found in section 17 of the Bill of Rights: “Prosecutions may be instituted in courts not of record upon a duly verified . complaint.”

      2. Same — Prosecutions Governed by Constitution and Laws on Criminal Procedure^ iünder the federal Constitution and under our Constitution (section 17, Bill of Rights) and section 5544, R. L. 1510, and the Act of March 15, 1917 (Sess. Laws, c. 127), any prosecution for the violation of a municipal ordinance, where the punishment is or may be imprisonment, involving a fine and costs in excess of $20 is an action criminal in its nature, and, as'such, is governed by the Constitution and laws relating to criminal procedure, so far as applicable.
    :3. Same — Necessity for Verified Written Complaint. That part of section 650, R. L. 1910, providing that “The complaint when made by the marshal, assistant marshal or regular policeman against any person arrested without process * * * need not be in writing,” is in conflict with section 17 of the Bill of Rights. Held, that all prosecutions of a criminal nature should be maintained upon a verified written complaint.

      4. Jury — When City Court May Try Without Jury. A municipal court in this state may summarily and without a jury impose a fine and costs not in excess of $20 and may imprison the accused for the nonpayment of such fine and costs, but not where the punishment is or may be imprisonment, or is or may be a fine and costs in excess of this sum.
    5. Municipal Corporations — Vagrancy—Piolice Regulations Consistent with State Laws. Vagrancy is made an offense by general law, as well as by the Ordinances of the city of Lawton. A municipality may enact police regulations not inconsistent with general laws on the same subject. The municipality may move in the same direction as the Legislature, but not contrary to nor in an opposite direction.
    Andy Boehmann was convicted of vagrancy in violation of an ordinance of the city of Lawton, OMa., and sentenced to a fine of $20 and costs amounting to $6, in default of which he was committed to the city jail, and he applied to the county court of Comanche county for a writ of habeas corpus, which was denied, whereupon he filed an application in this court for habeas corpus.
    Writ allowed, and respondent ordered to release petitioner.
    C. R. Reeves, for petitioner.
    E. L. Fulton, Asst. Atty. Gen., ad S. I. McElhoes, for respondent.
   BESSEY, J.

Andy Boehmann, hereinafter referred to as the petitioner, was on the 3d day of September, 1921, convicted of vagrancy, in violation of a city ordinance of the city of Lawton. This ordinance was passed as an emergency measure by the board of commissioners on the day preceding the conviction. The penalty assessed was a fine of $20 and costs amounting to $6, and in default of the payment of this fine and costs the petitioner was committed to the city jail of Lawton, there to be held until the fine and costs' should be paid. Application was made to the county court of Comanche county for a writ of habeas corpus, which application was denied, whereupon this application was filed in this court.

From the record before ns it appears that this arrest and conviction was one of a series against this petitioner; that a former ordinance had provided for a maximum penalty of a fine of $100 and imprisonment for a period of 30 days. From an arrest and .imprisonment under the latter named ordinance the petitioner was, on the 2d day of September, 1921, discharged by a writ of habeas corpus granted by the county court of Comanche county. Upon the same day the emergency ordinance here in controversy was passed, the scope and terms of both ordinances being the same, except that the later one reduced the maximum penalty for its violation to a fine of $20 and costs. This ordinance provides, as follows:

“An ordinance defining vagrancy, prescribing a penalty therefor, and declaring an emergency.
“Be it ordained by the board of commissioners of the city of Lawton, Oklahoma:
“Section 1. The following persons are vagrants within the meaning of this ordinance:
“First. An idle person who lives without any means, or who has no visible support and makes no exertion to obtain a livelihood by honest employment.
“Second. Any person who strolls or loiters idly about the streets of the city of Lawton, having no local habitation and no honest business or employment.
‘' Third. Any person who strolls about to tell fortunes or to exhibit tricks not licensed by law.
“Fourth. Any common prostitute, any manager or controller of a house of prostitution or ill fame or any one employed therein as barkeeper, caller of figures for dances, or habitual frequenters thereof.
“Fifth. Any professional gambler or gambler commonly known as a tin-horn gambler, card player, or card sharp.
“Sixth. Any person who goes about to beg alms, who is not afflicted or disabled by a physical malady or misfortune.
“Seventh. Any habitual drunkard.
“Eighth. Any person who abandons or neglects or refuses to support his family.
“Section 2. Any person violating any of the provisions of the above and foregoing sections shall be fined in any sum not exceeding $20.
“Section 3. It being immediately necessary for the preservation of the public peace, health and safety, an emergency is hereby declared to exist, by reason of which this ordinance shall take effect and be in full force and effect from the date of its passage.
“Passed this 2d day of September, 1921.’'

The petitioner here contends:

(1). That the ordinance is void because it was never published nor enrolled.

(2). That the municipal court had no jurisdiction of the petitioner because there was no written verified complaint filed against him.

(3). That the alleged judgment of conviction rendered and entered was void, for the reason that the petitioner was not informed of the specific accusation against him and that no witnesses were sworn and no testimony was introduced, and that he had no trial as contemplated by the Constitution and laws of this state.

(4), That the petitioner was arrested without a complaint showing probable cause and without a warrant, at a time when he was not engaged in the commission of an offense and not having been charged with nor suspected of committing a felony.

(5). That the petitioner was denied the right of a trial by jury.

As to the claim that the ordinance under which petitioner’s arrest was made is void because it had not been published nor enrolled at the time of the arrest, it seems that the publication was not necessary under the provisions of section 40 of the charter of the city of Lawton. This court will take judicial notice of the provisions of municipal charters in this state. Section 40 of the charter, among other things, provides i-

“An emergency ordinance shall take effect and- be in' force immediately upon its passage.”

It is true that the law and the charter contemplate that all ordinances shall be recorded at length by the clerk in an ordinance book immediately after their passage, but this is a ministerial duty of the clerk, the omission of which will not affect the validity of the ordinance. Marth v. City of Kingfisher, 22 Okla. 602, 98 Pac. 436, 18 L. R. A. (N. S.) 1238.

The only' written record, file, or document appearing in this case appears to be the police court docket, as follows:

Police Court Docket

City of Lawton, Oklahoma, Plaintiff, v. Andy Bochmann, Defendant

Case No. 964.

City Attorney.

Carl Froneberger, Witness.

- Logan, Witness.

In the Police Court of the City of Lawton, State of Okla. Before -, Police Judge. -, Acting Police Judge.

And now on this 3d day of September, 1921, comes the defendant, arrested by Policeman Logan, upon warrant issued upon witness complaint (or upon verbal charge of said offi-eer) alleging that said defendant did within the corporate limits of said city unlawfully and willfully violate ordinance No.-in the following manner, to wit, vagrancy.

And said defendant being arraigned at the bar and demanded of how he would acquit himself, for plea says he is not guilty.

Therefore the court finds that the defendant is guilty as charged and it is ordered by the court that the said defendant pay a fine of $20, together with the costs of this case taxed at $6, and serve-days in the city jail and the defendant stand committed until fine and costs are paid.

John Manning, Police Judge.

It is conceded that there was no formal written complaint, verified or otherwise, made in this case.

Section 1, art. 7, of the Constitution provides:

“The judicial power of this state shall be vested in the Senate, sitting as a court of impeachment, a Supreme Court, district courts, county courts, courts of justices of the peace, municipal courts, and such other courts, commissions or boards, inferior to the Supreme Court, as may be established by law.”

Section 647, B. L. 1910, provides that the police judge shall haye original exclusive jurisdiction to hear and determine all offenses against the ordinances of the city.

Section 17 of the Bill of Bights provides:

“Prosecutions may be instituted in courts not of record upon a duly verified complaint.”

Prom Section 1, art. 7, of the Constitution, quoted above, it will be seen that the municipal court is a constitutional court, and it would seem that the constitutional provision requiring a verified complaint is mandatory upon such a court. This conclusion is confirmed by the provisions of section 1, c. 147, Session Laws of 1915, as amended by Act March 15, 1917 (Session Laws, p. 190). Section 1, c. 147, Session Laws of 1915, is as follows:

"The term ‘municipal courts’ as herein used is hereby defined to mean and include all the courts of the state of Oklahoma, organized and existing in the various towns and cities thereof which shall have and possess, under the laws of the state, original jurisdiction to hear and determine offenses against the ordinances of municipalities, and an ‘offense’ is hereby defined to mean the doing of some act or the failure to perform some duty, commanded by some municipal ordinance or by law and for the violation of which a penalty or punishment is provided thereby. Such proceedings are hereby declared to be criminal in their nature; and except as otherwise specifically provided, shall be governed by, and subject to, general laws relating to criminal procedure.”

So the law stood until the act of March 15, 1917, was passed, entitled "An act amending sections 1, 3, 4 and 6, and repealing section 11 of the act of 1915,” etc. Section 1 of this amendatory act is as follows:

"The term municipal courts, as herein used, is hereby defined to mean and include all courts in the state of Oklahoma, organized and existing in the various towns and cities thereof, that shall have and possess under the Constitution and laws of the state, original jurisdiction to hear and determine offenses against ordinances of municipalities, and offense is hereby defined to mean the doing of some act prohibited, or the failure to perform some duty commanded by the municipal ordinances, and for the violation of which a penalty or punishment .is provided. It is further provided that in the trial of all cases in said municipal courts where the offense as defined by the city ordinance is punishable by a fine only, the defendant shall be tried without a jury, but in all cases where the defendant is charged with the violation of a city ordinance, and where said offense may be punishable by imprisonment, the defendant shall be entitled to a trial by a jury in the justice of the peace court within said city, * * * and it shall be the duty of the city attorney to prosecute said offense in such justice of the peaee or county court in the name of the city, said jury to be drawn and selected in the justice court in the same manner as provided by law for juries in said justice of the peace courts, and each juryman shall receive fifty (50) cents per day for each trial, same to be taxed-as costs in the ease and jury trials in the county court to be conducted in all respects the same as now provided therein. All fines collected by the justice of the peaee or county court in the trial of such eases shall be paid to the city treasurer and his receipt taken therefor, and all such fines shall be credited to the general fund of such city. And, provided further, that when any person is arrested, charged with any offense as herein defined, he shall be taken forthwith before the municipal judge, the county judge, or some justice of the peace having-jurisdiction, and the amount of his bail shall be fixed and an opportunity given him to make such bail, and such judge or justice of the peace shall admit said defendant to bail in the amount and manner provided by the ordinance of said city.”

While this amendatory section does not in specific terms state that a violation of a city ordinance is criminal in its nature, the declaration that “an offense is hereby defined to mean the doing of some act prohibited or failure to perform some duty commanded by the municipal ordinances, and for the violation of which a penalty or punishment is provided,” considered with- the other provisions of this act indicates that the proceeding is criminal in its nature in every case, excepting mere petit offenses, in which the punishment is or may be imprisonment.

Section 4646, R. L. 1910, provides:

“Actions are of two kinds: First, civil; second, criminal. ’ ’

Section 5544, idem, defines a criminal action thus:

“The proceeding by which a party charged with a public offense is accused and brought to trial and punishment, is known as a criminal action.”

Taking into consideration the provisions of the Code of Criminal Procedure, together-.with the Constitution and statutory enactments relating to municipal courts, we cannot conceive how any action in which an accused will or might be .subjected to imprisonment on any charge amounting to more than a mere petit offense can be anything but a criminal action. It has been so decided by this court in a number of •cases. To review the reasons and arguments here in detail would extend this opinion unnecessarily. Those who desire to ••analyze the reason for such holding are referred to the following decisions of this court: Ex parte Tom Johnson, 13 Okla. Cr. 30, 161 Pac. 1097; Ex parte Monroe, 13 Okla. Cr. 62, 162 Pac. 233; Ex parte Doza, 13 Okla. Cr. 287, 164 Pac. 130; Ex parte Gownlock, 13 Okla. Cr. 293, 164 Pac. 130; Ed Franks v. City of Muskogee, 14 Okla. Cr. 391, 171 Pac. 492; City of Blackwell v. Burgett, 14 Okla. Cr. 682, 166 Pac. 442; Miller v. State, 17 Okla. Cr. 734, 191 Pac. 1119; Ex parte Joe King, 13 Okla. Cr. 51, 161 Pac. 1102.

In the King Case, in the Franks Case, and in the Blackwell. Case, the offenses charged were not crimes under the •statutes; in all the other cases cited the offense made so by ordinance was also a violation of statutory law, but this court ’has made no distinction in this regard. The test as to wheth•er or not the accused is entitled to a jury is whether or not' the punishment will or might be imprisonment, or a fine and costs 'in excess of $20, for the nonpayment of which the accused may be imprisoned. In other words, a municipal court, under the holdings of this court, may summarily and without a jury 'impose a fine and costs not in excess of $20, and may imprison the accused for the nonpayment of such fine and costs, but not where the punishment is or may be imprisonment, or is or may he a fine and costs in excess of this sum. Ex parte Johnson, 20 Okla. Cr. 66, 201 Pac. 533.

Section 650, R. L 1910, provides:

“The complaint, when made by the marshal, assistant marshal or regular policeman against any person arrested without process and in custody, need not be in writing.”

Section 5654, E. L. 1910, provides how a peace officer may make an arrest without a warrant, as follows:

First. For a public offense, committed or attempted in his presence.

Second. When the person arrested has committed a felony, although not in his presence.

Third. When a felony has in fact been committed and he has reasonable cause for believing the person arrested to have committed it.

Fourth. On a charge, made upon reasonable cause, of the commission of a felony by the party accused.

Every person accused of an offense, under the Constitution and statutes of this state, has a right to be informed of the nature and cause of the accusation against him. He has a right to be represented by counsel and to have compulsory process to obtain witnesses in his behalf. It is difficult to see how this can be safely and orderly accomplished without a definite written accusation or complaint. McQuillin on Municipal Ordinances, §§ 305 and 306.

Doubtless it was for this reason that our Constitution provides for a verified written complaint, and a written complaint is required in municipal courts in nearly ali of the states. .The exceptions, so far as we are able to ascertain, are in Nevada, Massachusetts, and Arkansas, where a complaint may be made orally and made a matter of record by the police magistrate. 3 McQuillin on Municipal Corporations, § 1045 and notes.

There are many loose, general statements in the books as to the authority of a peace officer to make an arrest for a misdemeanor without a warrant. At common law officers had power to arrest for the commission of a misdemeanor when the offense was committed in the presence of the officer. Onr statutes on this subject follow the common law. This rule, of course, does not apply where the accused is charged with or suspected of a felony.

If a prosecution in a municipal court, under our Constitution and statutes, may be maintained without a written complaint against one in custody, arrested without a warrant, it necessarily follows that such arrest and custody must be for an offense committed or attempted in the presence of the officer. Otherwise, the arrest and detention of the accused would be in violation of both the Constitution and the statutes. It may be that the offense of vagrancy, according to the several definitions of the offense contained in the ordinance, could be committed in the presence of the arresting officer. Upon this point the record in this case is silent, and to obviate such uncertainties and possible miscarriage of justice there should be some kind of complaint or written accusation to promote and facilitate an orderly investigation of a specific, definite charge, to which the accused could intelligently plead and from which he could appeal if he so desired.

Where the Constitution and statutes touching upon the same proposition are in conflict, and irreconcilably so, the Constitution must of course prevail. This is especially true where the constitutional provision is definite, certain, and mandatory, evincing a clear policy intended by the framers of the Constitution, and where such policy is salutary and reasonable.

In this country every person accused of an offense must be given an opportunity to defend himself. He has the right of being confronted with his accusers and of being apprised of the accusations against him. This is a maxim of natural justice, dear to every human heart and associated with every principle of our jurisprudence. Conviction founded upon ex parte accusations is the most terrible species of despotism that the human mind can conceive. It is not only a violation of the most obvious dictates of common lav?, but it is destitute of every principle by which the social compact is supported. 3 MeQuillin on Municipal Corporations, § 1036 and notes.

We hold, therefore, that in all cases involving a penalty for the violation of a municipal ordinance, pending before a municipal judge, prosecutions should be predicated and maintained upon a verified written complaint.

The petitioner contends that no witnesses were sworn and no testimony introduced, and the record of the proceedings and admissions of counsel might bear out this contention. Otherwise the record is silent upon this question.

“In no ease shall a judgment of conviction be rendered, except upon sufficient legal testimony given at a public trial, or upon a plea of guilty made in open court.” Section 650, E. L. 1910.

In courts not of record there should be a showing that this provision of the statute was observed. Presumptions of the regularity of proceedings of courts of record do not apply to municipal courts and other courts not of record.

Under the conditions here the petitioner was imprisoned for a nonpayment of a fine and penalties in excess of $20, and, following the rule laid down by this court in other decisions, the petitioner has a right to a trial by jury, and under the circumstances here such right to trial by jury was not waived.

For the reasons stated the writ is allowed, and the respondent is ordered to release the petitioner.

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


text:
    ED BLUNT v. STATE.
    No. A-3583.
    Opinion Filed Oct. 31, 1921.
    (201 Pac. 392.)
    Appeal from District Court, Oklahoma County; Prank Mathews, Special Judge.
    Ed Blunt was convicted of manslaughter in the first degree, and he appeals.
    Appeal dismissed.
    Pruiett, Sniggs, Patterson & Morris, for plaintiff in error.
    S. P. Freeling, Atty. Gen., and E. L. Fulton, Asst. Atty. Gen., for the State.
   PER CURIAM.

This is an attempted appeal from a judgment of conviction rendered in the district court of Oklahoma county against the defendant, Ed Blunt, for the crime of manslaughter in the first degree; the punishment assessed at imprisonment in the state penitentiary for a term of 10 years.

The Attorney General has filed a motion to dismiss the appeal on the ground that no notices of appeal were served on the county attorney or court clerk, and no summons in error was issued and served upon Attorney General, or the same waived. ' Responding to said motion, counsel for defendant rely solely upon notice given in open court, as provided in chapter 219, Session Laws 1917, as sufficient to give this court jurisdiction of the appeal.

In the case of Burgess v. State, 18 Okla. Cr. 574, 197 Pac. 173, this court held:

“Chapter 219, Sess. Laws 1917, did not repeal sections 5989, 5992, and 5997, Rev. Laws 1910, relating to the manner and methods of taking an appeal in criminal causes and giving notice thereof. Said chapter 219 relates solely to the giving of notice of appeal in civil causes, and has no application to criminal appeals.
“Where appellant, within the time allowed for taking an appeal, served no notice of appeal upon the clerk of the court or county attorney, as provided by Rev. Laws 1910, §', 5992, and no summons in error was issued and served upon the Attorney General, nor any waiver of the issuance and' service, ever made by him, within section 5997, or any general appearance entered by him, the Criminal Court of Appeals has no jurisdiction to entertain the appeal on its merits, and will dismiss it.”

The sufficiency of an oral notice to confer jurisdiction of an appeal in a criminal cause was directly passed upon in the Burgess Case, and decided adversely to contentions of defendant’s counsel in this case. We see no reason at this time to depart from the holding in the Burgess Case. The same is adhered to, and for reasons stated in that opinion this appeal is dismissed.


author: MATSON, J.

text:
    CHARLES A. WILSON v. STATE.
    No. A-3708.
    Opinion Filed Oct. 31, 1921.
    (201 Pac. 393.)
    (Syllabus.)
    Appeal and Error — Sufficiency of Evidence to Sustain Conviction. Where there is evidence, apparently credible, in the record, which, if believed, is sufficient to sustain the judgment, this court will not reverse the case on the sole ground of the insufficiency of the evidence.
    Appeal from District Court, Blaine County; Thos. A. Edwards, Judge.
    Charles A. Wilson was convicted of rape in the first degree, and he appeals.
    Affirmed.
    I. H. Lookabaugh, for plaintiff in error.
    S. P. Freeling, Atty. Gen., and E. L. Fulton, Asst. Atty. Gen., for the State.
   MATSON, J.

This is an appeal from a judgment of conviction for rape in the first degree, rendered against the de-fendañt in the district court of Blaine county, on the 10th day of September, 1919, with punishment assessed at imprisonment in the state penitentiary for a period of 15 years, the minimum punishment for said offense. But one question is presented for review, viz., the insufficiency of the evidence to sustain the conviction.

The prosecutrix testified that on the night of the first Monday in June, 1918, the defendant escorted her home by automobile from a circus or tent show in the town of Okeene, a distance of several miles, and that on the way home the defendant forcibly pulled her from the car, threw her upon the ground, and ravished her against her will and by means of force and violence; that the prosecutrix resisted by fighting, striking, kicking, and scratching the defendant, but that the defendant overcame her resistance and accomplished the act of sexual intercourse. The defendant denied having any sexual intercourse with the prosecutrix, but admitted that on one occasion he did take her in an automobile to her home from the town of Okeene, and admits that he pulled or jerked her out of the car; but in explanation of his conduct the defendant contends that the car had stopped at the top of a steep grade and defendant, seeing that the car would likely roll back down the grade and onto a dangerous bridge, asked the prose-cutrix to jump out of the car, and upon her refusal to do so defendant pulled her out of the car, in order to protect her from the danger of car’s likely skid down the hill.

The evidence of the prosecutrix is corroborated by that' of her mother, to the effect that on the next morning the prose-cutrix was very sore, to such an extent that she was unable to get out of bed; that her clothing was torn in several places, and that about four blood spots the size of a quarter were discovered on her underclothing and the skirt of her dress, and that the prosecutrix at that time told her (the mother) that the defendant had ravished her the night before. The prose-cutrix is also corroborated in her statement that the defendant took her to the tent show in Okeene that night, and then home in her car, by the testimony of one Irene Gray, a girl about her age, who lived on a farm owned by the defendant about 5 miles from Okeene. The Gray girl testified that she.was with the defendant and the prosecutrix, Mary Beekloff, at the show that night, and rode with them as far as the defendant’s farm, where she left them. The defendant denied this; at least, he said he did not remember it. Defendant, while denying the commission of the crime, admitted that he might have suggested. to the prosecutrix that they have sexual intercourse; but he says he had no intention of having sexual intercourse with her. The testimony of the defendant is evasive, and at times contradictory, and we believe, on the whole, apparently incredible.

The defendant was a man of mature years, with children near the age of the prosecutrix; the prosecutrix being a little over 17 years of age at the time of the commission of this offense. The testimony of the prosecutrix is sufficient to support a conviction of rape, as defined in the fourth subdivision of section 2414, Rev. Laws 1910. The act occurred in á secluded place on a public highway, near the hour of midnight; the nearest house, according to the testimony of the prosecut-rix, being about a half mile distant. The prosecutrix resisted with all the force at her command at the time, and this resistance was overcome by the superior strength of the defendant. The clothing of the prosecutrix was badly torn, and there were blood spots upon her undergarments, and also upon the skirt of her dress.

This evidence was sufficient to support the conviction if believed by the jury, and it was the exclusive province of the jury to determine and decide the weight of the evidence and the credibility of the witnesses. Where there is evidence, apparently credible, in tbe record, which, if believed,' is sufficient to sustain the judgment, this court will not reverse the case on the sole ground of the insufficiency of the evidence.

For reasons stated, the judgment is affirmed.

DOYLE, P. J., and BESSEY, J., concur.