text:
    Moses Wells v. Territory.
    No. 1995,
    Okla. T.
    Opinion Filed December 9, 1908.
    (98 Pac. 483.)
    1. INDICTMENT AND INFORMATION — Duplicity. Under the provisions of Code Cr. Proc. sec. 224 (Wilson’s Rev. & Ann. St. 1903, sec. 5360), providing that: “An indictment must charge but one offense; but where the same acts may constitute different offenses, or the proof may be uncertain as to which of two or more offenses accused may be guilty of, the different offenses may be set forth in separate counts in the same indictment, and the accused may bo convicted of either offense” — an indictment is bad for duplicity that charges two distinct offenses in one count — that is. the uttering of a check knowing it to be forged, and the forging of the indorsement thereon and then uttering the same — and a demurrer thereto should be sustained.
    2. CRIMINAL LAW — Immaterial Variance. Section 482, Code Cr. Proc. (Wilson’s Rev. & Ann. St. 1903, sec. 5618), provides that: “On an appeal the court must give judgment without regard to technical errors or defects, or to exceptions which do not affect the substantial rights of the parties.” Where the indictment charges that the check was delivered to Katz Bros., a firm composed of Jacob Katz and Isaac Katz, partners, doing business under the firm name of Katz Bros., if the check was, in fact, passed to Katz Bros., a corporation, doing business under the corporate name of Katz Bros., of which corporation Jacob Katz and Isaac Katz were stockholders and officers, such variance is not material.
    3. FORGERY — Intent—“Uttering Forged Check.” To- constitute the offense of uttering a forged check, there must be an intent to cheat and defraud, and a knowledge of the falsity of the instrument.
    4. SAME — Instructions—Knowledge of Accused. Under a statute defining the offense of uttering forged instruments knowing them to be forged, it is error to instruct the jury that they should find that defendant had knowledge of the forgery. “If he had notice of any suspicious facts or circumstances which were sufficient to put a reasonably -prudent and cautious person upon inquiry, which, if followed up, would have led to knowledge of its forgery, then he would be chargeable with notice of the character of the check.”
    5. SAME — Guilty Knowledge. Guilty knowledge that an instrument is forged may be found if the jury is satisfied from the facts and circumstances shown by the testimony that the defendant had reason to believe it was forged; but the inference is for the jury, and does not follow of necessity.
    (Syllabus by the Court.)

      Error from District Court, Payne County; J. H. Burford, Judge.

    Moses Wells was convicted of forgery, and brings error.
    Reversed and remanded.
    Plaintiff in error, Moses Wells, hereinafter referred to as “the defendant,” was. prosecuted by indictment for the crime of forgery, in the district court of Payne county, Okla. T., at the April term, 1906, which indictment, omitting the formal parts, reads as follows:
    “Territory of Oklahoma v. Moses Wells. Indictment. Of the April term of the district court of the first judicial district of the territory of Oklahoma, within and for Payne county, in said territory, in the year of our Lord, one thousand nine hundred and six, the grand .jurors, having been first duly chosen, selected, impaneled, sworn and charged to inquire of the offenses against the laws of the territory of Oklahoma, committed within said county, in said territory of Oklahoma upon their oath aforesaid, in the name and by the authority of the territory of Oklahoma, do find and present: That at and within said Payne county, in said territory, on the twenty-fifth day of July, in the year of our Lord one thousand nine hundred and five, Moses Wells, late of the county aforesaid, on the twenty-fifth day of July, in the year of our Lord one thousand nine hundred and five in the county of Payne nad territory of Oklahoma aforesaid, then and there unlawfully and feloniously sell, exchange and deliver to Katz Brothers, a firm composed of Jacob Katz and Isaac Katz, partners, doing business under the firm name of Katz Brothers, for the consideration of about thirteen dollars of good and lawful money of the United States and of the -value of about thirteen dollars, the exact value and description of which is to the grand jurors unknown, and various articles of clothing, goods, wares and merchandise of about the value of eight dollars, the exact description and value of which is to the grand jury unknown; a forged and counterfeited check of the tenor, purport and effect following: ‘Billings, Oklahoma, July 18, 1905. No. 8. Citizens’ Bank of Billings: Pay to Paul Brown, or bearer, $21.00. Twenty-one Dollars. H. Biffer. (Shadinger Ptg. Co. Abilene, Ivan.)’ — which instrument had endorsed on the back thereof, ‘Paul Brown,’ with the felonious intent to have the same uttered and passed, and he, the said Moses Wells, before delivering said forged and counterfeited check to Katz Brothers, wrote and endorsed on the back thereof the name ‘Paul Brown,’ and he, the said Moses Wells, at the time he so sold, exchanged and delivered the said forged and counterfeited check to said Katz Brothers, knew the same to be forged and counterfeited, contrary to the form of the statutes !in such cases made and provided, and against the peace and dignity of the territory of Oklahoma.”
    To this indictment the defendant entered a general demurrer, which was, by the court, overruled, to which ruling of the court the defendant excepted. The case coming on for trial by a jury, the territory offered its evidence and rests.1 Whereupon the defendant moved the court to direct a verdict of not guilty, for the reasons: First, that the evidence offered by the territory u not sufficient to sustain a verdict of guilty; second, that there is a fatal variance between the allegations of the indictment and the proof offered in the case — which motion was, by the court, overruled, and the defendant excepted. Evidence was then introduced by the defendant and the territory and the defendant renewed his motion to direct a verdict, which motion was over ruled, and exception taken. The court instructed the jury, arguments were made by counsel, and the jury retired to deliberate, and thereafter returned into court their verdict, which was a general verdict of guilty. Motion for new trial was regularly made, and on the 23d day of April, 1906, the court overruled said motion; to this the defendant duly excepted. The court then sentenced defendant to confinement in the territorial penitentiary for a term of two years, to all of which the defendant duly excepted, and gives notice of an appeal, which appeal was duly perfected to the Supreme Court of the territory of Oklahoma. Upon the admission of Oklahoma as a state, the cause was transferred to the Supreme Court of Oklahoma. Under the provisions of the act creating the Criminal Court of Appeals, the cause was transferred to, and is now before, this court for review.

      Lowry & Lowry, for plaintiff in error.—
    On question of fatal variance between allegation of partnership and proof of corporation: Cutler v. Territory, 8 Okla. 101; State v. Murphy, (R. I.) 16 L. R. A. 550; State v. Harrison, 69 N. C. 143; United States v. Keen, Fed. Cas. No. 15, 510 (1 McLean, 429) ; Sykes v. People, 132 111. 32.
    On necessity of proof of guilty knowledge: Wilson’s Rev. & Ann. St. 1903, c. 25, §523; A. & E. Enc. Law (1st Ed.) Vol. 1,491; 1 Whar. Crim. Law, § 742; Sands v. Com., 2o Gratt. (Va.) 800; Elsey v. State, 47 Ark. 572; Parker v. People, 97 111. Lean, 429, Sykes v. People, 132 111. 32.

      W. 0. Cromwell, Don C. Smith, J. H. Kline, and W. C. Reeves, Asst. Atty..Gen., for defendant in error.—
    On the sufficiency of the indictment: Heatley v. Territory, 15 Okla. 72; Bay singer v. Territory, 15 Okla. 386.
    On the question of variance: Connella v. Territory, 16 Okla. 365; State v. Hastings, 53 N. H. 452; United States v. Mason, 26 Fed. Cas. 1192.
   DOYLE, Judge.

The first assignment of error relied on by the defendant to reverse this case is the overriding of the defendant’s demurrer to the indictment. The third ground of said demurrer is as follows: “(3) That said indictment upon its face attempts to charge more than one offense' against the laws of the territory of Oklahoma.” Section 224, Code Cr. Proc. (Wilson’s Rev. & Ann. St. 1903, § 5360), prescribes that an indictment must charge but one offense; but where the same acts may constitute different offenses, or the proof may be uncertain as to which of two or more offenses accused may be guilty of, the different offenses may be set forth in separate counts in the same indictment, and the accused may be convicted of either offer se.

We believe the indictment is bad for duplicity, in charging two distinct offenses in one count; that is, the uttering of the check, knowing it to be forged, and the forging of the endorsement thereon, and then uttering the same. The offenses are distinct, arising upon different acts, and each constitutes the offense of forgery in the second degree. Under the foregoing provisions of the Code, it was necessary to set forth the separate counts, the uttering and the selling or exchanging of-said check, knowing it to be forged, and the forging of the endorsement thereon, and the selling, exchanging, and delivery with the forged endorsement.

It is a general rule that when a statute makes it an offense to do some one or another act, naming them disjunctively, eithet of which would constitute one and the same offense, the acts may be charged conjunctively in .one count as constituting a single offense, and it has been held that: "Where the making and uttering of a ficitious instrument is one continuous transaction, they may be properly charged in one count as a single offense.” 19 Cyc. p. 1410; People v. Dole, 122 Cal. 486, 55 Pac. 581, 68 Am. St. Rep. 50; Selby v. State, 161 Ind. 667, 69 N. E. 463; State v. Greenwood, 76 Minn. 207, 78 N. W. 1044, 1117. Having examined the foregoing cases, we think there is a distinctive difference between these cases and the case at bar.

“Possession of forged paper by a defendant with a claim of title thereunder, if unexplained, raises a conclusive presumption that he forged it, or procured it to be forged.” (19 Cyc. p. 1412.)
“Nevertheless, proof that the defendant uttered a genuine instrument, with forged indorsement in blank by the payee thereof, raises no such presumption.” (19 Cyc. p. 1413.,)

In the case of Miller v. State, 51 Ind. 405, Worden, J., in part, says:

“We do not think it can be laid down as a rule of law that the uttering and publishing as true of a commercial instrument, with the name of a payee forged thereon, raises a presumption that the person uttering and publishing is guilty of forging the indorsement.”

Section 221, Code Cr. Proc. (Wilson’s Rev. & Ann. St. 1903, § 5357), provides the indictment must contain:

“(2) A statement of the acts constituting the offense, in ordinary and concise language, and in such manner as to enable a person of common understanding to know what is intended.”

And section 222, Code Cr. Proc. (Wilson’s Rev. & Ann. St. 1903 § 5358), provides:

“The indictment must be direct and certain as it regards: * * * (2) The offense charged.”

The aforesaid indictment does not conform to the requirements of our Criminal Code. It is charged that the defendant did unlawfully and feloniously sell and deliver to Katz Brothers, for the consideration named, a forged and counterfeited check. It is further charged in the same count that the defendant, before delivering said • forged and counterfeited check, wrote and indorsed on the back thereof the name of “Paul Brown.” It appears from the copy of the check set forth that the same purports to be signed by PI. Biffer, as drawer, and is payable to Paul Brown, and it is alleged that the name of Paul Brown was indorsed on the back of the check in blank. Such check at the time of delivery might have been a forged and counterfeited check by reason of the forging of the name of H. Biffer, as drawer, although the signature of Paul Brown, as indorser, might have been genuine; or such check might have been a forged and counterfeited check at the time of such delivery, by reason of the forgery thereon of the name of Paul Brown as indorser, although the check might have been a genuine check of H. Biffer, drawer. The defendant could not, in advance, know from the allegations of the indictment whether he was to be tried for forging the name of Paul Brown, as indorser, to a genuine check, or of knowingly uttering the check to which the name of H. Biffer had been forged. Under the indictment, proof that he knowingly uttered and forged a counterfeited check to.which-the name of PI. Biffer, as drawer, had been forged, even though the signature of Paul Brown, indorsed thereon had been genuine, would have been sufficient to convict the defendant; or proof that he knowingly uttered the genuine check of H. Biffer with the forged signature of Paul Brown thereon, as indorser, knowing the same to be forged, would have been sufficient to convict the defendant.

On the trial it was controverted that the defendant sold, exchanged, and delivered the alleged forged check. The territory introduced the testimony of H. Biffer, who testified that the signature to the check was not his signature; and also introduced testimony tending to show that the defendant, Moses Wells, at the time he delivered the check, wrote on the back thereof the name of Paul Brown. The defendant testified that the signature of Paul Brown was genuine, and was written thereon by the person from whom he received the check, and whom he had known as Paul Brown, and that he did not write the indorsement thereon, The defendant also introduced evidence tending to show that the signature of PI. Biffer to the check was genuine.

Under this indictment the defendant was compelled, by proof, to meet the allegations of two distinct and separate offenses, upon either of which the jury might find him guilty of forgery; and he could not know in advance by any of the allegations of said indictment upon which of the' two the territory might rely. The jury may have found, in fact, that the signature of H. Biffer to the alleged forged check was genuine, and convicted the defendant of uttering a check with the forged name of Paul Brown thereon; or the jury may have found from the evidence that the signature of Paul Brown was genuine, as claimed by the defendant, but that the signature of H. Biffer was forged, and that the defendant knowingly delivered 4he check with said forged signature of H. Biffer to Katz Brothers with the intent of having the same passed as genuine. We believe that the indictment charges more than one offense. The second offense charged, if not forgery, under the proof, might be false pretense, or false personation; and it is not sufficiently direct and certain. We are, therefore, of opinion that the defendant’s demurrer to the indictment should have been sustained.

The second assignment of error is that the court erred in refusing to instruct the jury, at the close of the testimony of the territory, to find a verdict of not guilty. Section 373, Code Cr. Proc. (Wilson's Ann. St. 1903, § 5509), provides:

“If at any time after the evidence on either side is closed the court deem it insufficient to warrant a conviction it may advise the jury to acquit the defendant, but the jury are not bound by the advice, nor can the court for any cause prevent the jury from giving a verdict.”

In this case we believe there was evidence sufficient to go to the jury. However, defendant contends that there was a fatal variance. The indictment alleges that the alleged forged check was, by the defendant, sold, exchanged, and delivered to Katz Brothers, a firm composed of Jacob Katz and Isaac Katz, panners, doing business under the firm name of Katz Brothers. The proof was that Katz Brothers was a corporation, organized under the laws of the territory of Oklahoma. At the close of the testimony defendant again moved the court to instruct the jury that in the opinion of the court the evidence was not sufficient to sustain a verdict of guilty, and that there was a fatal variance between the allegations of the indictment and the proof submitted. This motion was, by the court, overruled, and exception taken. Whereupon the defendant requested the giving of three separate instructions, all to the same effect. No. 3 reads as follows:

“Instruction No. 3. The burden is upon the territory in this case to establish by the evidence, beyond a reasonable doubt, that the defendánt did sell or exchange to Katz Brothers, a firm composed of Jacob Katz and Isaac Katz, partners, doing business under the firm name of Katz Brothers, the forged and counterfeited check set forth in the indictment, and proof of the selling or exchanging said check to Katz Brothers, corporation, duly incorporated, is not sufficient to sustain the allegation of the indictment. Refused; and excepted to by the defendant. John H. Bur-ford, Judge.”

The court instructed the jury that such variance was not material, which instruction reads as follows:

“Instruction No. 4. The indictment charges that the check was delivered to Katz Brothers, a firm composed of Jacob Katz and Isaac Katz, partners doing business under the firm name of Katz Brothers. If the check was, in fact, passed to Katz Brothers, a corporation, doing business under the corporate name of Katz Brothers, of which corporation Jacob Katz and Isaac Katz.were stockholders and officers, such variance is not material.”' •

To which instruction defendant specifically objected and exr cepted. The intent to cheat and defraud is the essential element of the crime of forgery. Section 523, c. 25, Wilson’s Rev. & Ann. St. 1903, provides:

“Sec. 523. Every person who sells, exchanges or delivers for any consideration, any forged or counterfeited promissory note, check, bill, draft, or other evidence of debt, or engagement for the payment of money absolutely, or upon any contingency, knowing the same to be forged or counterfeited,' with intent to have the same uttered or passed, or who offers any such note dr other instrument for sale, exchange or delivery for any consideratiori, with the like knowledge and intent, or who receives any such note or other instrument upon a sale, exchange or delivery for any consideration with the like knowledge and intent, is guilty of forgery in the second degree.”

The foregoing provision sets forth the offense sought to be charged by the indictment in this case; and by this provision, ¡He gravamen of the offense is the sale; exchange, or delivery of the instrument for a consideration, knowing it to be forged or counterfeited, with the intent to cheat and defraud. The defendant, testifying, admitted the sale, exchange, and delivery of the check to Katz Brothers. The descriptive words in the indictment, as to who composed the firm of Katz Brothers was entirely unnecessary, and should be regarded as surplusage.

Wharton says:

“There can, it is well said, be no use in requiring proof of allegations which are impertinent; the identity of those which are essential to the claim or charge with the proof is all that is material.” (Whar. Crim. Ev. [9th Ed.] par. 139.)
“It is a general rule which runs through the whole criminal law that it is sufficient to prove- so much of the indictment as shows the defendant has committed the substantive crime therein specified; and, in the case of redundant allegations, it is-sufficient to prove part of what is alleged according to its legal -effect, provided, that that which is alleged but not . proved be neither essential to the charge, nor describe or limit that.which is essential:” .(1 Chitty Crim. Law, 250; State v. Myers, 99 Mo. 107, 12 S. W. 516.)

Technical errors or defects which do not affect the substantial rights of the parties are to be disregarded under our statute. Section 482, c. 68, Code Cr. Proc. (Wilson’s Rev. & Ann. St. 1903, § 5618), provides:

“Sec. 482. On an appeal the court must give judgment without regard to technical errors or defects or to exceptions which do not affect the substantial rights of the parties.”

We believe that the defendant was not prejudiced by the alleged variance in any way. We are, therefore, of opinion that the trial court rightfully refused the instructions offered by the defendant, and correctly stated the law applicable to this feature of the case in the instruction given.

In the third assignment of error it is,claimed that the court committed error in admitting certain testimony offered by the territory, over the objection of the defendant. We do not deem it necessary to comment upon this assignment, except to say that, over the objection as made, the testimony was competent.

The fourth and last assignment of error is predicated upon instructions given, Nos. 4, 5, and 6. Instruction No. 4 has been heretofore discussed. The objection to instruction No. 6, we believe, was not well taken.

Instruction No. 5 reads as follows:

“If the defendant sold the check to Katz Brothers at the time and place alleged, and said check was not the genuine check of H. Biffer, then a material question to be determined by you is, whether or not he knew it was forged at the time he obtained the goods and money on it from Katz Brothers. If he had no knowledge that it was forged, or had no knowledge of any facts cannot be convicted in this case. In determining the question as relating to its execution which would put a reasonably prudent and cautious person upon inquiry as to its genuineness, then he to whether he had knowledge or notice that the check was a forged instrument at the time it was delivered to Katz Brothers, you will fake into consideration the evidence relating to the handwriting on the check, the indorsement of the name of Paul Brown on the back of the check, the evidence as to who wrote said name on the back of the check and where it was written, and whether the indorsement on the back of the check was written by the same person who wrote the name of Paul Brown in the face of the check, and all facts and circumstances in evidence which would in any manner inform the defendant, or notice, or create in his mind a reasonable suspicion as to its genuineness, and if the defendant himself forged the check, or if he had notice that it was forged, or if he had notice of any suspicious facts or circumstances which were sufficient to put a reasonably prudent and cautious person upon inquiry, which, if followed up, would have led to knowledge of its forgery, then he would be charged with notice of the character of the check.”

Section 523, c. 23, Wilson’s Rev. & Ann. St. 1903, hereinbefore set forth, expressly provides that a person, to be guilty of forgery in the second degree, must sell, offer for sale, exchange or deliver for a consideration, or receive for a consideration, a forged or counterfeited check, etc.,'knowing the same to be forged or counterfeited. Under this provision of the law requiring knowledge of. the character of the instrument, we believe that the court committed error in using the qualifying language in the foregoing instruction; and we believe the court erred in so instructing the jury as to what constituted or amounted to knowledge on part of the defendant.

“To constitute uttering and publishing a forged instrument, it is necessary that there should be knowledge on the part of the defendant that the document is false and fraudulent.” (A. & E. Enc. of Law [1st Ed.] vol. 8, 491.)

Mr. Wharton says:

“In cases of uttering and publishing a scienter must be averred, though it is sufficient that this averment should be given in general terms.” (Whar. Crim. Law, vol. 1, § 742.)
“Uttering is offering a forged instrument knowing it to be such, whether such offer is accepted or not, with a representation by words or action that it is genuine, with an intent to defraud; and it is a public offense. While the making of a forged instrument and the uttering of it by the same person as one transaction constitute but one offense, one may be guilty of uttering an instrument forged by another; but'to constitute the offense it is essential that the person uttering the forged instrument have actual knowledge of its falsity. It is not sufficient that a person uttering an instrument has- reasonable cause to believe it was forged.” (19 Cyc. p. 1388.)

. In the case of Elsey v. State, 47 Ark. 572, 2 S. W. 337, Mr. Justice Battle, speaking for the court, in part says:

“Another question in this case, presented by the evidence, and the instruction requested by appellants and refused by the court, is, what is necessary to constitute an uttering? To utter and publish a document is to offer, directly or indirectly, by words or action, such document as good. To constitute the offense of uttering and publishing a forged writing, it is necessary that there be an intent to defraud, and that there should be a knowledge of the falsity of the document.”

In Carver v. People, 39 Mich. 786, that eminent jurist, Justice Cooley, expressing the opinion of the court, says:

“Many of the exceptions relied upon in this case appear to us frivolous, but two which are taken to the charge are fatal to the conviction The circuit judge instructed the jury that if they found the accused uttered the instrument having reasonable cause to believe it was forged, they should find them guilty. This was a serious error. The statute punishes those only who utter and publish- forged instruments knowing them to be forged, but this instruction required a conviction if the jury believed the accused were merely negligent in uttering an instrument in respect to which the facts should have put them upon their guard. No doubt, if the jury-are satisfied the accused had reason to believe the instrument was forged, they might find the guilty knowledge. But knowledge of a thing and reason to believe in its existence are not identical, and the finding of the one is not equivalent to the finding of the other. The one falls short of the other exactl}' as gross carelessness falls short of criminal intent. It is a state of things from which knowledge might be inferred, and under the circumstances of this case probably ought to have been inferred ; but the inference was one the jury might or might not draw, according as they were or were-not satisfied of the privity of the accused with the, fraudulent practices of Dingmarí. They were not .required to deduce the conclusion if they had reasonable doubts of the guilty-knowledge.”

The forgoing authorities properly state the law as we'-find 'it: The instruction wás- clearly 'erroneous, and misleading to the jury. The defendant’s objection to this instruction was well taken.

For the reasons stated, the judgment of the district court of Payne county, Okla. T., is reversed, and the cause remanded to the district court of Payne county, Okla..

FURMAN, Presiding Judge, and BAKER, Judge, concur.


source: Caselaw Access Project

author: FURMAN, Presiding Judge

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text:
    Bryan Reed v. Territory.
    No. 2061,
    Okla. T.
    Opinion Filed December 10, 1908.
    (98 Pac. 583.)
    1. INDICTMENT AND INFORMATION — -Language of Statute. When, an indictment uses substantially the same language in charging an offense as is used in the statute in creating the offense, the indictment is sufficient.

      2. SAME — Jury—Motion to Set Aside Indictment — Sufficiency—Affidavit— Selection and Drawing of Panel — Officer Who may Act as Deputy, (a) A general allegation that the grand jury which found the indictment was not properly and legally drawn is too indefinite and uncertain to require notice.
    (b) Under the act of Congress-, of February 9, 1'906, 34 Stat. 11, c. 155, a deputy clerk could perform the purely ministerial duties directed to be performed by the clerk of the court, in the matter of recording the list of the jurors upon the journals of the court, and certifying to the correctness thereof.
    (c) An application to take evidence to -sustain a motion to set aside an indictment, upon the ground that the jury was not properly drawn and impaneled, must be supported by an affidavit in which the allegations of the motion are alleged to be true.
    (d) It is not error to overrule a motion to set aside an indictment, when the facts alleged in the motion are not sufficient, to show that the.motion should be sustained, if proven to be true.
    3. SAME — Pleas in Abatement — Pendency of Other Indictment or Information — Continuance — Grounds — Sufficiency of Application, ('a) The fact that an indictment or information is pending against' .a defendant will not, of itself, prevent a grand jury from finding another indictment against the defendant for the same offense.
    (b) The pendency of an indictment or information again’^4- á defendant, when there has been no jeopardy upon it, cannot be pleaded, either in abatement or bar to a second indictment or information for the same offense.
    (c) The pendency of an indictment or information, when there has been no jeopardy upon it, cannot be set up as ground for continuance, when trial is sought on.a new indictment or information presented against the defendant for the same offense.

      (d) An application for a continuance should -allege that the defendant could not prove, by other witnesses, the same facts which he desires to prove by the absent witness, unless the testimony of the absent witness is intrinsically more valuable than that of the witnesses by whom the same facts could be proven, and then the facts which make this true must also be stated in the application.
    (e) An application for a continuance, which consists of a statement of negative conclusions of fact, is not sufficient.
    4. CRIMINAL LAW — Evidence by Inspection by Jury — Contents of Bottle. It is not error to permit a jury to inspect, look at, and smell the contents of a * bottle which has been properly identified and admitted in evidence and is alleged to contain whisky.
    5. SAME — Evidence—Judicial Notice — Geographical Facts, (a) Courts of this state take judicial notice of th* boundaries of the state and of the counties in the state, and also of the geographical locations and positions of the towns and cities within their jurisdictions.
    (b) See sufficient proof of venue.
    6. INTOXICATING LIQUORS — Sale Without License — Evidence—Suffici- . • ency. See case where there was sufficient proof on part of the state of the fact that the defendant did not have license to retail malt, spirituous, or vinous liquors.
    (Syllabus by the Court.)

      Appeal from District Court, Payne County; J. H. Burford, Judge.

    Bryan Reed was convicted of selling intoxicating liquor without a license, and appealed to the Supreme Court of Oklahoma Territory, whence the cause was transferred under the Constitution of Oklahoma and the enabling act to the Supreme Court of that state, and from that court to the Criminal Court of Appeals.
    Affirmed.
    Bxyan Reed (hereinafter called defendant) was convicted in the district court of Payne county on the nth day of October, 1906, of the offense of having sold intoxicating liquor at retail without first having obtained a license therefor. A motion for a new trial was made and overruled, and on the 1st day of November, thereafter, defendant was sentenced by the court to pay a fine of $300 and costs. An appeal was taken to the Supreme Court of Oklahoma Territory. Upon the admission of the state of Oklahoma into the Union, under the terms of the Constitution and the enabling act, the case was transferred to the Supreme Court of the state. When the Criminal Court of Appeal's was created, as directed by law, the Supreme ('outi transferred the case to this court.

      Burdick & Reece, for appellant.—
    On question oi e-mr n, permitting jnrp to smell bottle in evidence: State v. Lindgrove, 1 Kan. App. 51, 41 Pac. 688; Wads-worth v. Dunnam, 117 Ala. 661, 23 So. 699; State v. Eldred, 8 Kan. App. 625, 56 Pac. 153; State v. Reynols, 5 Kan. App. 519. 47 Pac. 573; State v. Toggins, 10 Kan. App. 455, 62 Pac. 247.
    On question of burden of proving non-existence of license: Wharton on Criminal Evidence, 720; Gwrver v. Territory, 5 Okla. 342; United States v. Nelson, (1886) 29 Fed. 202; Pendergast v. City of Peru, 20 111. 51 (10 Peck) ; State v. Schwerter, 27 Kan. 449; Commonwealth v. Moglan, 119 Mass. 109.

      W. C. Reeves, Asst. Atty. Gen., and Fred S. Caldwell, for the Territory.
   FURMAN, Presiding Judge

(after stating the facts as above.) The defendant complains that the trial court erred in overruling his demurrer to the indictment. The specific point relied upon is that the indictment charges that the defendant did sell at retail, for the price of 25 cents, to James Hoggatt “one half-pint of spirituous liquors, to-wit, whisky, without first having complied with the provisions of law and obtained a license as a vendor of malt, vinous, and spirituous liquors.”

The statute upon which the indictment is based is in this language:

“Any person who shall sell at retail or give away upon any pretext, malt, spirituous, or vinous liquors, or any intoxicating drinks without first having complied with the provisions of this act, and obtained a license as herein set forth,” etc. (Wilson’s Rev. & Ann. St. 1903, § 3407.)

While it is true that the exact language of the statute is 1 ot followed in the indictment, yet the words used are of similar and equal import with those used in the statutes, and the indictment substantially charges the offense named in the statute, -nd is therefore sufficient. Weston v. Territory, ante, p. 407.

Second. The defendant complains of the action of the t:ial court in refusing to sustain his motion to dismiss the indictment upon the ground that the grand jury was not regularly drawn. The general charge that the grand jury was not properly and .legally drawn is too uncertain and indefinite to require notice. The specific allegations of irregularity state that the deputy clerk performed duties which, under the statute, should have been .discharged by the clerk. It is true that section 1 of the act of Congress of February 9, 1906, 34 Stat. 11, c. 155, providing for the selection of grand and petit jurors in Oklahoma Territory, does state that, after the names of the jurors have been selected, the clerk shall record said list upon the journal of the court and certify to. the correctness thereof. And the statute further provides that, as soon as said list is completed and recorded, the clerk of the district court shall forthwith write each name upon separate pieces of paper and place them in a box, etc. If these acts required .•the exercise of judicial powers, then .they could not have been performed by the deputy clerk in the absence of a statute giving the deputy this power. But it appears upon their face that these were purely ministerial acts, and it was therefore ' within the power of the deputy clerk to perform them; and his action is just as regular and binding as if it had been performed by his principal. 7 Cyc. p. 248, is as follows:

“In the absence of any statutory provision or implication to .the contrary, a deputy clerk is authorized to perform any official ministerial act that may be do,ne by his principal, except to make a deputy. Thus it has been held that a deputy clerk may administer oaths, take affidavits and acknowledgements, take claims of witnesses for attendance, approve bonds, make certificates, issue 'and test writs, draw the names of grand jurors, and order the seizure of personalty in an action of claim and delivery.”

The defendant filed an application to take evidence in support of his motion to set aside the indictment. This application was based on section 5399, Wilson’s Rev. &Ann. St. 1903, which is, in part, as follows:

“To enable the defendant to make proof of the matter set up as grounds for setting aside the indictment, the defendant may file his application before any court of record in the county, setting out and alleging that he is indicted in the district court, naming it, and setting out a copy of his motion to set aside the indictment, and alleging all under oath, that he is acting in .good faith, and praying for an order to examine witnesses in support thereof.”

It will be observed that the statute in express terms states that this application must allege “all under oath.” The affidavit in this case fails to comply with this statute, because it does not allege that the facts stated in the application are true. It was therefore not sufficient to authorize the court to make an order, to take evidence in support of the motion to set aside the indictment. Two things must concur before a court would be authorized to make the order prayed for: First. The facts alleged in the application must be sufficient, if true, to set aside the indictment which we have held was not true of the application in this case. Second. The affidavit must state that the allegations made in the application are true. This was not done in the affidavit. For these reasons there was no error in the action of the court in overruling the motion and refusing to take evidence.

Third. Defendant complains that the trial court erred in overruling his application for a continuance. The first ground relied upon was that there was then pending in the probate court of Payne county an information against the defendant for the same offense, and that defendant had an agreement with the county attorney that the case so.pending in the probate court should be continued to await the result of some other case pending on appeal in the Supreme Court of the territory. It is almost universally recognized that a grand jury can find a valid indictment against a defendant, notwithstanding the fact that another indictment or information is pending against the accused for the same offense, and the pendency of the other indictment or information, when there has been no jeopardy on it, cannot be pleaded either in abatement or in bar of the second indictment. The indictment having been legally returned into court, it was the duty of the court to dispose of it, just as if the information was not pending.

The second ground relied upon for the continuance was the absence of R. B. Bryan, who was alleged to be a material witness for the defendant, and who was at that time in the territory of New Mexico. There are two objections to the motion for a continuance: First. It does not allege that the defendant could not prove, by other witnesses, the same facts desired to be proven by the absent witness. In the case of Murphy et al. v. Hood & Lumley, 12 Okla. 595, 73 Pac. 261, the Supreme Court of Oklahoma Territory held that this omission was fatal to an application for a continuance. While we concur in this view as a general proposition, yet we do not desire to be understood as holding that it should be enforced in all cases. It might occur that cases may arise in which the testimony of an absent witness might be intrinsically more valuable than that of any other witnesses available. When such contingency arises, the application for a continuance should state the facts fully which would take the case out of the general rule. Secondly. The application for a continuance, omitting the question of diligence, stated that:

“That affiant believes said witness will prove the following facts, to-wit: 'That the said R. B. Bryan, on the 12th day of May, 1906, was a resident of the town of Glencoe, Payne county, territory of Oklahoma, and the owner and proprietor of a drug store in said town, and that Bryan Reed worked for him as a clerk in said drug store; that said R. B. Bryan was then giving his personal attention to said business, and was in his said store' as usual on the 12th day of May, 1906, and that his said clerk, Bryan Reed, was present in the store on that day; that he is well acquainted with james Hoggatt, and that said person did not purchase or obtain any whiskey or any spirituous or intoxicating liquor on said 12th day of May, 1906, or at any other time, from any one in said drug store or from Bryan Reed; that said R. B. Bryan and Bryan Reed were both present in the store at work together throughout the said 12th day of May, 1906, as upon other days, and that said R. B. Bryan would have seen said James Hoggatt if he had obtained or purchased any whisky or other intoxicating liquor from said Bryan Reed on said day or at any other time.”

It is seen that the evidence of the absent witness, as set out in the application for the continuance, consisted so far as this case is concerned, in statements of negative conclusions of fact, and that it shows upon its face that if this defendant was not guilty of the offense charged there was better evidence of this than that on account of which the continuance was sought. No attempt was made to procure the testimony of James Hoggaa, and a continuance on account of his absence was not sought. There was, therefore, no error in the action of the court in overruling the application for a continuance.

Fourth. It appears from the record, that upon the trial of this cause a government witness produced a bottle which he testified contained whisky, and identified it as being the bottle of whiskey that he had purchased from defendant. This bottle was introduced in evidence, and the jury were permitted to look at and smell the contents of the bottle. To all of which the defendant duly objected and excepted. Counsel in their brief say “the evidence must either be oral or written, and the jury cannot act as witnesses as well as triers of facts.” It is true that counsel cite cases from the -Supreme Courts of Kansas and Alabama in support of their position, but we cannot agree with their contentions. Both upon reason and authority we submit that there are three channels through which tribunals of fact receive evidence, namely, inspection, documents, and oral testimony. No jury ever decided any controverted question of fact without using one or more of their five senses. The senses of hearing and sight are used in every case for more purposes than that of simply seeing the witnesses and hearing their words. Through these senses impressions are made upon the minds of the jurors which cause them to accept as true, or reject as false the statements made by the several witnesses. Thus the exercise of these senses, on the part of the jurors, affects their verdicts. But this does not make them witnesses in the case. They have simply tested the credibility of the witnesses by the personal experience and observations of the jurors. A thousand things in the lives and observations of the jurors may influence them in doing this, but a knowledge of these things 'has never been regarded as making the jurors witnesses in the case. In this case the jurors were permitted to smell the contents' of the bottle offered in evidence, to enable them to decide as to whether the prosecuting witness had told the truth about its being whiskey. By this the jurors did not learn any facts independent of the evidence; they simply tested the facts in evidence by the use of one of their senses. Or, in other words, they were permitted to hold an autopsy on part of the evidence already before them, to test its true character.

Our statute permitting the inspection of places and premises, referred to in the evidence, when, in the opinion of the court, such inspection will promote the ends of justice, clearly recognizes the right of a jury to receive evidence by inspection If this is true with reference to places and premises, which cannot be incorporated in the record or introduced in evidence before the jury in the court room, why should it not be true as to any other object or thing which is introduced in evidence before the jury, under the direction of the trial court? If the jury can exercise the power of inspection through the sense of sight, why should they not exercise the power of inspection through any or all of their other senises ? We hold that they have this power as to all objects and things introduced in evidence before them, subject ta the discretion and control of the trial court, a proper understanding of which depends upon the common experience of men. In a matter requiring expert knowledge this would not be true.

We are fully sustained in these views by the following authorities:

After discussing the subject of inspection by the jury, or autoptic evidence, at length, Mr. Wigmore, in the second volume of his work on Evidence, in section 1152, says:

“In short, it does not appear that there is, in the nature of the process, any distinction to be taken as regards the kind of fact presented for inspection. Anything cognizable by the senses of the tribunal may thus be offered.”

17 Cyc. p. 290, is as follows:

“The tribunal of fact receives evidence through three channels — inspection, documents, and witnesses. Evidence gained by inspection covers facts which the tribunal cognizes with its own senses; sees, hears, smells, tastes, or otherwise perceives for itself.”

This question of the right of a party to introduce autoptic evidence, which is the same thing as inspection'by the jury, came up in the case of Gentry v. McGinnis, 3 Dana (Ky.) 382, 386. This case involved the question as to whether the plaintiff was a white or negro woman. Chief Justice Robertson said:

“The counsel denies that personal inspection by the jurors on the trial is proper or allowable evidence * * * To a rational man of perfect organization the best and highest proof of which any fact is susceptible is the evidence of his own senses. This is the ultimate test of truth, and is therefore the first principle in the philosophy of evidence. * * * Hence autopsy, or the evidence of one’s own senses, furnishes the strongest probability, and indeed the only perfect and indubitable certainty of the existence of any sensible fact. * * * (Jurors), when they decide altogether on the testimony of others, do so only because the fact to be tried is unsusceptible of any better proof. Their own personal knowledge of the fact would always be much more satisfac,tory_ to themselves, and afford much more certainty of truth and justice. * * * Hence the policy of having a jury in the vicinage; and hence, too, jurors have not only been permitted, but required, to decide on autoptical examination wherever it was practical and convenient.”

Wharton on Criminal Evidence (9th Ed.) § 312, is as follows:

“The remains of a deceased person may be produced, when in a fit condition, for the purpose of showing the nature of an injury. So all instruments by which an offense is alleged to have been committed; all clothes of parties concerned, from which inference may be drawn; all materials in any way part of the res gestae may be produced at the trial of the case. Injury to the person may also be proved by inspection. Thus in an action to recover damages for an injury to a limb, the injured limb may be exhibited on trial, to be inspected by the court and jury while the surgeon who was employed to set it testifies as to the injury. When the issue is infancy, on an indictment, the court and jury may decide by inspection, and so when the question arises as to the color of a person. On an issue of bastardy, the jury may judge of likenesses by inspection; and so on an issue of adultery, for the purpose of connecting a child with a putative father.”

In Commonwealth v. Stevens, 142 Mass. 457, 8 N. E. 344, the court said:

“The small bottle of whiskey produced by the witness Pease was properly admitted in evidence; it being identified as the whiskey which he bought of the defendant.”

In State v. McCafferty, 63 Me. 224, Justice Dickerson, in rendering the unanimous opinion o.f the court, said:

“The leave granted to the jury by the court to take to their room a bottle of the liquor introduced in evidence, not as the liquor seized, but as liquor manufactured and sold by the same person under the same name as the liquor seized, was unobjectionable, coupled with the instruction to the jury not to consider the qualities of such liquor unless they should find from the evidence in the case that it was the same'kind as that seized.”

We think that the court went too far in permitting the jury to take to their room the bottle of liquor introduced in evidence, on account of the danger of abuse of the privilege. In the absence of a statute to the contrary, the jury should not be permitted to have any kind of beer or intoxicating liquor in their room.

In the case of People v. Kinney, 124 Mich. 486, 83 N. W. 147, the Supreme Court of Michigan held that:

“After Mahoney had given his testimony, the prosecution .offered the bottle of cider in evidence. Counsel for respondent objected to this offer on the ground that it was-incompetent irrelevant, and immaterial. The court said: ‘Unless the evidence in this case'shows that the contents of this bottle is in the same condition it was on October 5th, it would be of-no value as evidence; but, if the evidence has any tendency, to show it in the same condition, it would be admissible.’ It was received in evidence, and the court then said: ‘There is a tumbler, gentlemen, if you want to taste of it — any of you.’’ Respondent’s counsel objected to these remarks of the court instructing the jury that they might taste it. The argument of respondent’s counsel here is that if the jury, by tasting it, smelling or drinking it, as they were ordered by the court, thereby acquired knowledge or formed opinions of its properties, as to whether it was hard or fermented cider, those tasting or smelling it could not give evidence to their fellow jurors without being sworn. There is nothing in the record showing or tending to show that any of the jurors smelled or drank of it, nor is there any evidence that the bottle was placed in their hands for examination. The record is entirely silent upon that subject; but, even if it had been handed them and they had tasted it, we think it would not have been error.”

In Schulenberg v. State, 112 N. W. 304, the Supreme Court of Nebraska said:

“The authorities are somewhat in conflict as to the propriety of permitting jurors to taste of liquor in prosecutions of this character, and the question has never before been in this court for determination. The Appellate Court of Kansas in State v. Lindgrove, 1 Kan. App. 51, 41 Pac. 689, 'held that it was error to permit jurors to taste of liquor produced in evidence. The reasoning seems to be that the jurors thus obtained private grounds of the belief, and that, after tasting of the liquor, they were properly witnesses in the case and disqualified as jurors. We are unable to concur in that reasoning. If a belief founded on the evidence during the progress of a trial can be held to be a private ground of information, then it may be so held because of a belief founded on any class of evidence. In Commonwealth v. Brelsford, 161 Mass. 61, 36 N. E. 677, it is said: ‘There are grave reasons against giving liquor to a jury to drink for the purpose of determining whether or not it is intoxicating.’ We entirely agree with the sentiment there expressed, where such course is taken by direction of the court, express or implied. The tasting should not be compulsory.”

In the case of Weinandt v. State, (Neb.) 113 N. W. 1041, it is held that:

“While the court would have no authority to direct or compel the jury to taste or sample liquors, it was not error to permit them to taste thereof if they so chose.”

When the trial court is of the opinion that the ends of justice will be advanced by permitting the jury to examine or inspect anything that has been introduced in evidence, the court may permit this to be done, but the examination or inspection must be in open court, and in the presence of the defendant, and at all times subject to the control of the court. Our statute, permitting an inspection by the jury of places or premises, when in the judgment of the court the ends of justice will be promoted thereby, simply an extepsiorj of Jhe, po.wer of inspection to places and premises which cannot be brought into court. Thus :we see that our statute’ recognizes,; indorses, and extends the power of inspection. ' There was no abuse of the power of the tidal court in permitting the jury in‘this case to smell the contents of the bottle introduced in evidence.

Fifth. Defendant complains that the venu.e wqs not proven in this case. The indictment laid the venue in Payne county, territory of Oklahoma. The witness Pennington testified that the whiskey was- purchased from the defendant in Glencoe, Okla., ■and that defendant was a clerk in the drug store of R. B. Bryan, which drug store was in Glencoe, Okla; C. E. Donart testified .that .he - was deputy clerk of Payne county, and that the record dijd;not show that R. B; Bryan had a license to retail malt, spirituous, ¡or yinous'liquors in Glencoe, Okl^., on the 12th day of May, rtjoS:- The; courts of-this state take judicial notice of the boundárieS of the state and of counties in the state, and also of the geographical position and location of cities, and towns within their jurisdiction! Harvey v. Territory, 11 Okla., 163, 65 Pap. 837. Under this rule the evidence in the case was sufficient to support the venue of the case.

Sixth. The defendant complains that there was no sufficient’ evidence that R. B. Bryan did not have a license to retail malt, spirituous, and.vinous liquors. The deputy county clerk testified that the records of his office did not show that any such license ■had been granted to R. B. Bryan. We are at a loss to know how any- better proof of a want of license to retail liquors could be made than, was made in this case’. Black on Intoxicating Liquors cites and discusses all of the authorities, and then, on page 507, sums up as follows:

“The rule established by’the vast preponderance of authority is that, in cases Where a license to sell, if produced and relied on, would constitute a complete defense to the action, the prosecution is not bound to produce any evidence in support of the negative allegation that the sale was made without license, but, on the contrary, the defendant must assume the burden of proving that he was licensed. Various reasons have at different 'times been advanced in support of this rule. Thus, Dr. Bishop thinks that a prima facie case is made out for the prosecution, without evidence on this point, by the presumption that the defendant belongs to the general mass of people, who are unlicensed, rather than to the exceptional class of license holders, and that, as there was certainly a time when he was not licensed, the presumption of continuance applies, which presumptions the rule requires him • to-overcome by proof. But we believe the rule is sufficiently justified by considerations of convenience and reasonableness." It is 'a general and well-settled principle that: ‘Where the subject-matter of a negative averment Jies peculiarly within the knowledge of the other party, the averment is taken as true, unless disproved by that party. Such is the case in civil or criminal prosecutions for a penalty for doing an act which the statutes do not permit to be done by any person except those who are duly licensed therefor; as, for selling liquors, exercising a trade or profession, or the like. Here the party, if licensed, can immediately show it withouj the least inconvenience, whereas,- if proof of the negative were required, the inconvenience would be very great.’ Another view advanced by the court in Georgia is that a plea of ‘not guilty’ to % charge of selling withou't license amounts to an allegation of sell? ing with license, and the rule applies that he who alleges affirmar tive must prove it, especially if it is peculiarly within his knowledgé.”

Finding that no material error was committed on the trial of this case, the judgment is in all things affirmed.

BAKER and DOYLE, Judges, concur.


author: BAKER, Judge PER CURIAM.

text:
    S. C. Cavett v. Territory.
    No. 1983,
    Okla. T.
    Opinion Filed December 23, 1908.
    (98 Pac. 890.)
    1. GRAND JURY — Summoning Talesmen — Common Law. It was not error, at the time this case was tried in the court below, to summon a grand jury by means of an open venire issued to the United States marshal of the county to summon a grand jury frqm the body of the county, -when the names were exhausted from the regular jury box of the county. " '
    2. SAME. The district courts of the territory of Oklahoma possessed common-law jurisdiction, and had the power to invoke the common-, law method of summoning- grand juries, when the list of names selected as jurors for the county were exhausted, and the jury box was empty. (S.-niabus by the Court.)

      Error from District Cowrt, Pottawatomie County; B. F. Bur-well, Judge.

    S. C. Cavett was convicted of manslaughter in the second degree, and he brings error.
    Affirmed.
    The accused was by the grand jury of Pottawatomie county, Okla., at the September, 1904, term of the district court of said county,.indicted for the crime of murder. Upon being arraigned, he asked for and was given time in which to plead to said indictment. On the 4th day of October, 1904, he filed in said court a general demurrer to the sufficiency of the indictment. This demurrer was overruled, to which ruling the accused duly excepted, and on the same day filed in said court his motion to quash and set aside the indictment for the following reasons:
    “First. Because said indictment -was not found, indorsed, presented, and filed as prescribed by the statutes in such case made and provided. Second. Because the grand jury which found and presented said indictment was not drawn and impaneled as provided by law.”
    The motion to quash and set aside the indictment was heard upon a statement of facts, agreed to by counsel for both the accused and the territory, which agreement is in the words following, to-wit:
    “It is hereby agreed by the attorneys for the territory and the defendant, S. C. Cavett, on trial for murder, on the hearing of the motion of the defendant to set aside the indictment, that the court may decide this motion upon the following statement ol facts: That the grand jury that returned the indictment in this case was summoned by the deputy marshal on an open venire, the names of the jurors, at the date of the summoning of this jury, having been exhausted from the jury box; that among the names of jurors returned by said deputy marshal was the name of J. R. Pring, who was excused from jury service — from sitting on the jury — by the court, without assigning any reason therefor, which was placed upon the record.”
    ( There apperas in the record, following said stipulation, this statement by the court below:

      “I will state to counsel that, in the event the record is made out in this case, the court will formulate a statement, and'give the reasons why this juror was excused.”
    Said last-named motion was also overruled, to which ruling the accused duly excepted, and thereupon entered his plea of not guilty.
    Thereafter, on the 5th day of July, 1905, put upon his trial upon said indictment, the accused was convicted of the crime of manslaughter in the second degree, and in due time filed his motion to set aside the verdict and grant him a new trial, for the following reasons: (1) Because the verdict was contrary to the evidence; (2) because the verdict was- contrary to the law; (3) because the court misdirected the jury in matters of law occurring during the trial; and (4) because the court erred in the decision of questions of law arising during the course of the trial. Said motion was overruled, to which ruling the accused duly excepted, and filed his further motion to set aside the verdict against him and arrest the judgment therein, for the reason:
    “The grand jury which found and presented said indictment was: not constituted in manner required by law, and was illegally constituted and without authority or jurisdiction to find and present said indictment.”
    Both of said motions being overruled, to which rulings the accused duly excepted. Thereupon the court, entering judgment upon said verdict, sentenced the accused to be imprisoned in the territorial penitentiary at Lansing, state of Kansas for a term of three years.
    Roy Hoffman, J. B. A. Robertson, and 5". A. Cordell, for plaintiff in error.—
    On question of legality of grand jury: Statutes of Oklahoma 1893, Secs. 3093 — 3°95> 3°98, 3100 — 3102, 5025-5033, 5036, 5037, 5045; Session Laws 1895, c. 41, art. 1, secs. 13-15, 19, 20; Sharpe v. U. S. 138 Fed. 881; Ex parte Farley, 40 Fed. 66; CA'n-ton v. Engelbrecht, 13 Wall. 424; Clough v. Curtis, 134 U. S. 361.

      Charles West, Atty Gen., and W. C. Reeves, Asst. Atty. Gen., for the Territory.—

      On question of legality of grand jury: Wilson’s Rev. & Ann. St., secs. 4200, 5151; Goodson v. U. S., 7 Okla. 117; Moran v. Territory, 14 Okla. 544.
    On question of sufficiency of indictment: Watcher v. Territory, 18 Okla. 528.
   BAKER, Judge

(after stating the facts as above). Complete and instructive briefs were filed on both sides in this case. The accused urges the following assignments of error: First, the court erred in overruling motion for new trial; second, in overruling motion in arrest of judgment; third, in giving erroneous and misleading instructions to the jury; fourth, in overruling demurrer to the indictment; fifth, in not sustaining the motion to quash and set aside the indictment; sixth, in admitting evidence on the part of the territory which is .incompetent, irrelevant, immaterial, and prejudicial to the rights and interests of the accused; seventh, in refusing and ruling out.competent legal evidence offered by the accused; eighth, in misdirecting the jury on questions of law; and, ninth, in ruling on questions of evidence at the trial — all of which errors were excepted to by the accused at the time.

Taking up the assignments of error stated in the brief of the ■accused, we are confronted, first, with the proposition: Was the grand jury that found the indictment against the accused legally constituted and impaneled? It is urged by the accused that it was error for the court to direct a deputy sheriff, by means of an open venire, to summon a grand jury for said court from the body of the county, notwithstanding the names constituting the regularly selected jurors to act as grand and petit jurors for said county for 'said term had become exhausted, and the jury box of said county was empty, and urge with much apparent confidence that said grand jury should have been selected in all respects as required by the then existing jury statutes of the territory of Oklahoma, and that any deviation from s'aid statutes in the manner of selecting a grand jury would be prejudicial error and entitle the accused to a new trial. We have care fully'read all the statutes cited by .the accused, as well as sections 4200 and 5151, Wilson’s Rev. & Ann. St. Okla. 1903, which provide:

.“Section 4200. The common law, as modified by constitutional and statutory law, judicial decisions and the conditions and wants of the people, shall remain in force in aid of the general statutes of Oklahoma. * * *”
“Sec. 5151. The procedure, practice and pleadings in the district courts of this territory, in criminal nature, not specifically provided for in this chapter, shall be in accordance with the procedure, practice and pleadings of the common law, and assimilated as near as may be with the procedure, .practice and pleadings of the United States or federal side of said court.”

The record in this case shows that, when the district court of Pottawatomie county reached the case at bar, the names of jurors provided under the various statutes of said territory had become exhausted, and the jury box of said county was empty. It is urged by the accused that the statutes pertaining to the selection of names for jurors of said county should have been enforced. In the light of section 4200, above quoted, and the decisions of the Supreme Court of the territoiy of Oklahoma, and the authorities hereinafter cited, this court thinks it was unnecessary to do so, and that the common-law method of selecting a jury could legally be resorted to, and that it was not error in this case to summon the ■grand jury by means of an open venire from the body of the county, that the grand jury in this case was in all respects-a legal one, and the rights and interests of the accused in no way injuriously or prejudicially affected.

The Supreme Court of Oklahoma Territory, in the case of Goodson v. United States, 7 Okla. 146, 54 Pac. 423, 432, held:

“Our district courts are courts of common-law jurisdiction, and under the foregoing statutory provisions (sections 4200 and 5151, Wilson’s Rev. & Ann. St. 1903) may resort to the common law in any matter of practice where the statutory method of procedure is inapplicable, or in any case where specific provision is not made for the practice by the statutes.”

The above rule has been followed and approved by the court in the following later case: Smith et al. v. Territory of Oklahoma, 14 Okla. 518, 79 Pac. 214. In this case the court say:

“The district courts of Oklahoma possess common-law jurisdiction, and these courts have the power and authority to invoke the common-law method of summoning a grand jurjr when no other provision is made by the statute, or when the provision so made is inadequate.”

It is ably contended by counsel for the accused that the district courts of the territory of Oklahoma are the creatures of statute, 'and have no jurisdiction except that which is specifically granted them by the statute, and that said court could do no legal act except in compliance with the statutes. This is not the view taken by the Supreme Court of the territory of Oklahoma, nor is it so held by the Supreme Court of the United States. We find a very well-considered and ably decided case practically on “all-fours” with the case at bar in Clawson v. United States, 114 U. S. 477, 5 Sup. Ct. 949, 29 L. Ed. 179 (a Utah case). The examination of this case discloses the fact that under section 4 of the act of Congress dated June 23, 1874 (chapter 469, 18 Stat. 254), which relates to courts and judicial officers in the territory of Utah, which statute provides for the selection of a jury, is 'very much like the provisions of the statutes in force in Oklahoma Territory at the time this case was tried below. The court in this case held, on the trial of an indictment, the names in the jury box of 200 jurors, provided for 'by said act, being exhausted when the jury to try this case was being impaneled, that the district court legally issued an open venire to the United States marshal of the territory, to summon jurors from the body of the judicial district, and the jury was composed of persons thus summoned. The sjdlabus of the case reads:

“In the trial of an indictment, if the names in the jury box of 200 jurors provided for by statutes are exhausted when the jury is only partly impaneled^ the district court may issue a venire to the United States marshal for the territory to summon jurors from the body of the judicial district, and the jury may be completed from persons thus summoned.”

Mr. Justice Blatchford, speaking for the court, says:

“It is assigned for error that the petit jury was illegally constituted, in that the court had no right to summon petit jurors on an open venire. The argument is: That the provisions of section 4 of the act of June 23, 1874, are, on their face, exclusive; that the method prescribed by that section for'obtaining jurors is the only one that can be employed; that only the probate judge and the clerk of the court can select the jurors and make the jury list; that the grand and petit jurors for a term must be drawn by the marshal from a box containing names of persons thus selected, and constitute the regular grand and petit juries for the term; that if, during the term, any additional grand or petit jurors are necessary, they must be drawn by the marshal in open, court from the same box; and that if the 200 names are all drawn out, for grand or petit jurors, at any time during the year, there can be no more indictments found or any more civil or criminal jury trials had in t!he court of the district for the rest of the year because it is provided in section 4 that the jurors drawn from the box shall be jurors only for the term, of which there are four in the year; and that the names drawn shall not be again placed in the box until a new jury list is made, which is to be done annually in January.”

Further commenting in the opinion,, the leaméd justice says:

“But the act does not directly or by implication or intendment exclude the use of an Open venire when the 200 names are exhausted during the year. * * * There is no doubt that jurors must be drawn from the 200 names; or those of them remaining in the box, so long as any remain; but the question is: What is to be done when these names are exhausted, if there is no method that can be resorted to to obtain jurors?”

See 1 Chit. Crim. Law, 518; 2 Hale, P. C. 265, 266; United States v. Hill, 1 Brock. 156, Fed. Cas. No. 15,364; Mackey v. People, 2 Colo. 13; Stone v. People, 2 Scam. (Ill.) 326; Straughan v. State, 16 Ark. 36-43; Wilburn v. State, 21 Ark. 198, 201; Gibson v. Com., 2 Va. Cases, 111-121; Shaffer v. State, 1 How. (Miss.) 238; Woodsides v. State, 2 How. (Miss.) 655; State v. Harris (Supreme Court of Iowa September, 1884) 17 Chi. Leg. N. 58.

It is a well-recognized legal principle that a venire to summon jurors is a writ necessary to the exercise of the jurisdiction of the court and agreeable to the usages of law. Therefore where it is not forbidden or excluded, and where the affirmative provisions of the law have, so far as they extend, been first observed, the open venire will in such case issue. The doctrine just stated is upheld and approved in the case of Moran v. Territory of Oklahoma, 14 Okla. 544, 78 Pac. 111.

The able counsel for the accused rely strongly upon the case of Sharp v. United States, 138 Fed. 881, 71 C. C. A. 258. This court is unable to agree with counsel for the accused that this case is in any manner analogous with the case at bar, for the very apparent reason that the decision in the Sharp Case was based entirely upon irregularity in drawing and impaneling the jury, which was undertaken to be done under the provisions of Wilson’s Rev. & Ann. St. 1903, c. 46. In the Sharp Case, the list selected as provided by said chapter had not become exhausted, while, in the case at bar, the names of the jurors returned by the selection board, as provided by said statute, had been exhausted, and the box was empty, and the court impaneled the jury in the case at bar under the common law, by means of the open venire complained of by the accused. We think that, under the circumstances prevailing in the case at bar, -there was nothing in the record to show that the substantial rights of the accused were in any manner affected by summoning on the jury that indicted the accused persons disqualified for 'any cause. No such claim is made, and the record shows that all the jurors were men well qualified to act as grand jurors. The accused was in no manner injured in his substantial rights.

The accused complains that the court below erred in releasing from grand jury service one J. R. Pring, who had been summoned to serve as a grand juror, at the term of the court at which the indictment against the accused in the case at bar was returned, and he bases his complaint entirely upon the proposition that the court, in releasing said juror from such service, did not enter his reasons of record. Not that if the reason had been entered, that it would disclose an improper or unlawful reason but simply urges that the court erred because some reason was not entered of record. The record shows that the trial court did not enter of record at- the time of the discharge of said juror from service, his reason for such discharge, but entered in the record the following statement: “If desired by the accused I will formulate a statement and give the reasons why the' juror (referring to Pring) was excused.” This court presumes that, inasmuch as the court below offered to enter its reason for the release of said juror of record, if the accused desired, and the accused not 'having requested the court to enter such reason of record, the reason for the discharge of said juror was in fact good and legal, and not prejudicial to the rights of the accused, and if the court’s reasons for such discharge were in fact illegal, insufficient, and prejudicial to the accused, he would have had such alleged reasons appear of record in order that this court would thereby be fully advised of the error of said court, and the rights of the accused fully protected. The accused has waived any right he may have had growing out of the action .of the court below in releasing said juror, by not requesting the court below to enter or record the reasons, if any, for such release. The rights of the accused therefore have not been abridged or prejudiced in the release of said juror.

The accused also urges that the court committed error in overruling both the demurrer to the indictment herein and the motion to quash and set aside the indictment. The reasons assigned by the accused in both the demurrer and the motion being practically the same and raising the same questions of law, we will consider them together. The accused urges, in his demurrer, in substance that the indictment does not substantially conform with the requirements of article 7, c. 68, Cr. Proc. (Wilson s Rev. & Ann. St. Okla. 1903, §§ 5349-5378), that more than one offense is charged in the indictment, that the facts in the indictment do not constitute a public offense, and that the indictment does not set out the offense attempted to be charged in such plain language as it would enable a person of common understanding to know what is to be meant. This brings us to a consideration of the statute defining the crime of murder. Section 2167, Wilson’s Rev. & Ann. St. Okla. 1903, defines homicide as follows:

“When a person without authority of law and with a premeditated design to effect the death of the person killed, or any other human being.”

The statute just quoted gives a plain and correct definition of murder. Therefore, if the homicide complained of is a result of a premeditated design to effect the death of the person killed, and is without authority of the law, it is murder, and can be alleged and described in plain ordinary words. It is self-evident, from the reading of the indictment in this case, that it contains about all the unnecessary and redundant verbiage that a lawyer, skilled as a pleader, is capaole of incorporating into a charge without actually-invalidating it. We do not, by any means, commend this indictment, and sincerely hope that it will not be followed. It is not an exhibition of good pleading by any' means', but, nevertheless, we think it charges fully the crime of murder, as defined by the statute, and, when shorn of the unnecessary words in it contained, it alleges, substantially, that S. C. Cavett, late of Pottawatomie county, Okla., willfully, purposely, and feloniously, and of his deliberate and premeditated malice, and without authority of law, and with a premeditated design to effect the death of one Gilliland, did make an assault upon the body of him, the said J. A. Gilliland, with intent him, the said J. A. Gilliland, willfully, unlawfully, and feloniously, and'purposely, and of his deliberate and premeditated malice to kill and murder, and that he did kill said J. A. Gilliland. If the above averments can be fairly gathered from the statements embraced in the indictment, then, in the opinion of this court, it sufficiently charges the crime of murder.

The sufficiency of this indictment seems to be well settled in an able opinion rendered by Chief Justice Burford in the case of James Walcher v. Territory of Oklahoma, found in 18 Okla., at page 528, 90 Pac., at page 887, in which the court said:

“The facts necessary to be alleged are: First, that James Walcher shot and killed John F. Stone in Kingfisher county, Okla.; second, that he shot him with a loaded gun; third, that he discharged the gun at the deceased with aJpremeditated design to take his life. If these three material everments can be gathered from the profuse and confused averments embraced in the indictment, then it sufficiently charges the crime of murder. * * *”

It cannot be successfully claimed in this case that the indictment omitted any one of the three necessary ingredients or averments. The indictment in this case can well be analyzed, in plain, modern, common-sense English, to mean this: That on the 13th day of August, 1904, in Pottawatomie county, Oklahoma Territory, S. C. Cavett made an assault upon J. A. Gilliland with the intent to kill and murder him; that said S. C. Cavett then and there unlawfully, purposely, and of his deliberate and premeditated malice with intent to kill J. A. Gilliland, with a certain knife, cut, stabbed, and mortally wounded said J. A. Gilliland then and there giving said J. A. Gilliland with intent aforesaid, two mortal wounds, from which the said J. A. Gilliland died. This court is therefore of the opinion, and so holds, that said indictment charges the crime of murder. This court also finds that the indictment in this case was properly found, indorsed, presented, and filed as prescribed by law and that but one offense is therein charged.

The next error complained of is that the court erred in permitting counsel for the prosecution to indorse the list of names of witnesses on the indictment after such counsel had made his statement to the jury, and after such jury had been sworn to try the case. From an examination of the record it appears that some 60 or more names of persons who had been examined before the grand jury, were indorsed on the indictment, and it nowhere appears in the record what names, if any, were added to said list after the trial of this case had been commenced, and the record is absolutely silent as to how the accused was or could have been prejudiced in his substantial and material rights in the indorsement of such names, and we have not been able to find any well-considered authority that holds that, in the absence of a showing in the record, the accused was prejudiced by the indorsement of such names, or that the mere adding and indorsing additional names oh the indictment was prejudicial error.

This brings us to the fifth assignment of error, which is directed against the two instructions of the court, namely, change No. 19 and charge No. 20. They are as follows:

“Instruction No. 19. Evidence had been introduced by the defendant for the purpose of showing that the deceased, just prior to the difficulty, and after the difficulty, on the street by the bank, wa's looking for the defendant in different places of business in the town of McLoud ; and in this connection, if you find that he was looking for the defendant for the purpose of having a difficulty with him, even this would not justify the defendant striking the deceased with the knife, unless, at or just prior to such time, the deceased made demonstration such as would reasonably cause the defendant to believe that the deceased was about to shoot him or to do him bodily harm, and that it reasonably appeared necessary to the defendant to strike in defense of his own person.
“Instruction No 20. You are further instructed that one is not justified in assaulting another through mere fear, cowardice, or malice, but the law requires that he act with reasonable courage, taking into consideration his age, experience, temperament^ and all other matters disclosed upon trial, tending to show as to whether or not, situated as the defendant was, and viewing the transaction from his standpoint and with his knowledge and information, he had reasonable ground for fear of bodily harm. Before one is justified in assaulting another, he must reasonably believe that he is in danger of receiving bodily harm at the hands of his adversary.”

The court finds, after carefully reading all the evidence disclosed by the record, which is very voluminous, and in many instances contains much cumulative evidence and many repetitions, the evidence with reference to the facts showing the conduct of the parties on the day of the homicide, and the occurrences of that day, and a short time prior to, and at the time of the tragedy,' are substantially undisputed except in a few minor details. It is clearly shown by the evidence that the accused and the deceased were brothers-in-law, and some years prior to the killing had many quarrels and misunderstandings, which in each instance, it appears from the evidence, were forgiven on both sides and good will between the parties always restored. The testimony also shows that the deceased made many threats against the accused; but that they had not been taken seriously by the accused is shown by his testimony, „in which he says, in answer to questions, as shown on page 309 of the record:

“How long was it after you 'had your trouble somewhere about four years ago until your friendly relations were established again? Answer. Why, right away — just a day or so. Q. Then did you and he continue on speaking terms and friendly so far as you know up to the time of this trouble? A. Yes, sir.”

It is apparent from the evidence that the threats made by tnc deceased could have made but little impression upon the mind of the accused, and engendered but little fear in his breast, and it is clearly shown that, on the day of the killing, the accused met the deceased upon one of the main business corners of the principal business streets of the town of McLoud The accused, being armed with a knife (and apparently the same knife that afterwards inflicted the mortal wound upon the deceased), assaulted the deceased by making demonstrations with his knife toward the deceased. The accused and the deceased, upon parting, threatened one another The accused, if not actually looking for trouble with the deceased, was faking no .steps whatever to prevent it. After the meeting at the bank comer of the day of the killing, and a short time before the tragedy, the 'accused went to the saloon of his brother, Bud Cavett, in said town, and the deceased went to a hardware store and purchased a pistol, and then went to the front of the saloon where the accused had gone: The accused was inside of the saloon in a back room when the deceased reached the front door of the saloon. In the saloon with the accused was his brother and little son. At the particular moment that the deceased reached the front door of the saloon, the town marshall of McLoud stood in the front door. For the deceased and the accused to get together at that particular time, it was necessary for either one or the other to pass the city marshal. The accused, being armed with a knife, instead of seeking to prevent a personal encounter with the, deceased, who was then armed with a pistol (which the accused says he knew), rushed out of the front door into danger, passing the marshal on his way to his victim, struck the deceased on the top of the head with some hard instrument, the blow causing the deceased to immediately drop his pistol and fall on “all fours” to the sidewalk, after which the accused immediately inflicted the mortal wounds.'

The jury, from the testimony, were justified in believing that the accused was looking for trouble, was the aggressor, as he had been on the street before, instead of avoiding trouble and possibly the necessity for taking life, by going out of the back door of the saloon, and thus avoiding the deceased, and taking steps to protect himself from the violent action of the deceased by having him put under a peace bond, and giving him time for his mind to cool and restore friendship, which had, according to the testimony, been often done before. The court is therefore of the opinion that the court below properly instructed the jury, predicated upon the testimony shown by the record, and that the jury was fully authorized in rendering a verdict of manslaughter in this case, and that the whole charge, including the two instructions complained of, was in all respects a fair, proper, and legal charge in the light of the evidence, and was not prejudicial, and in all respects properly safeguarded the legal rights of the accused. Reading the whole charge carefully, and then reading the two instructions complained of in connection therewith, we are unable to find how it was possible that the instructions complained of could be prejudicial to the rights of the accused.

We fail to find that the court erred in admitting or rejecting evidence offered on either side in this case, and finding that the accused had in all respects a fair and impartial trial, and finding no prejudicial error in the record, we affirm the judgment of the court below at the costs of the accused, and direct the sheriff of Pottawatomie county, Okla., to carry the judgment of the lower court into effect immediately.

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

On Motion For Rehearing.

PER CURIAM.

The plaintiff in error filed his motion for rehearing herein, in which he contends: That the judgment of the district court in this case is wrong, and that the decision of the court affirming the same is therefore wrong, and both should be reversed, for the reason that the judgment of this court delivered December 23d last, is contrary to the law, and is not sustained by the law. That said decision was rendered under a misapprehension of the law.

The petition for rehearing sets forth a lengthy discussion of the authorities relied upon by the plaintiff in error, and lays special stress upon the claim, that the grand jury in the case at bai was impaneled contrary to law and in contravention of the doctrine laid down by the United Circuit Court of Appeals in the case of Sharpe v. United States, 138 Fed. 881, 71 C. C. 258. That this court disregarded in its decision of this case that portion of section 4200 of Wilson’s Revised and Annotated Statutes of Oklahoma of 1903, which reads as follows:

“But the rule of the common law, that statutes in derogation thereof, shall be strictly construed, shall not be applicable to any general statute of Oklahoma; but all such statutes shall be liberally construed to promote their object.”

Counsel for the accused urg'e at length, in the petition for rehearing, that this court, in considering the case of Clawson v. United States, 114 U. S. 477, 5 Sup. Ct. 949, 29 L. Ed. 179, overlooked the distinction between that case and the case at bar, insomuch as in the Clawson Case the jury complained of was a petit jury, and in this case the jury complained of was a grand jury. The accused also contends that this court gave consideration to cases that were decided by the courts of the territory of Oklahoma prior to June 12,1905, the date of the decision of the Sharpe Case, supra. Counsel for the accused in the petition for rehearing raise no new questions, nor do they cite any additional authorities. All the questions raised by the petition for rehearing were urged in the brief of the accused filed in support of the petition in error, and were fully and carefully considered by this court.

This court, after again fully considering this case and all the authorities cited b)r the able counsel for the accused, and carefully considering the allegations of the petition for rehearing, and the authorities therein cited, is still of the opinion that there was no prejudicial error in the record, and that all the material rights of the accused have been fully respected and protected, and that the decision of this court handed down on the 23d of December, 1908, is just and proper, and therefore the petition for rehearing should be, and the same is, hereby overruled.