text:
      In re WALTER JAMES.
    No. A-881.
    Opinion Filed November 21, 1910.
    1. STATUTES — Repeal — Repugnant Acts by Same Legislature— Priority. Where two acts containing repugnant provisions are passed by the same Legislature, and the question of priority is the determining factor as to which shall control, ordinarily the act which last received executive approval, or was last passed over the executive’s veto, will be held to repeal the repugnant provisions of the other act.
    2. SAME — Special Act — Later General Act — Repeal. When it is apparent that the Legislature intended a later general act, broad enough in its terms to include matters provided for by a former special act, to be exclusive, designed it to cover the whole subject matter to which it relates, and to embrace the entire law on the subject, then such general act will repeal the repugnant provisions of the prior special one.
    3. SAME. When an earlier statute is special in the sense that it applies to a single case, of which there are many in the state, and a later statute is general in its operation, applies to all such eases, and is intended to secure uniformity througiiout the state, then the earlier statute is repealed 'by the later.
    4. COURTS — County Court Terms — Statutes Controlling. The Act of the Legislature approved March 23, 1909 (sections 2008-2D11 inclusive, Snyder’s Comp. L. Okla.), fixing the terms of the county court in the several counties of the state, was intended to embrace all the law on the subject and to provide uniformity in the terms of such court in the several counties, and repeals the act approved March 12, 1909 (art. xiii, chap. 14, Session Law® of 1909.), fixing the' terms of the county court of Wagoner County at Coweta.
    5. COURTS — Observance of Legal Terms — Validity of Proceedings. An assemblage of the proper officers at the proper place, but at a time not authorized by law, does not constitute a court; and any judicial proceeding then had, which under the law can be had only in term time, are null and void.
    (Syllabus by the Court.)

      Original Proceeding by Writ of Habeas Corpus.

    Application of Walter James for writ of habeas corpus.

    Writ granted.

      Mistier '& Haskell, for petitioner.

      Fred 8. Caldwell, for the State,
   RICHARDSON, Judge.

The Second Legislature of this state passed an act providing that sessions of the County Court in Wagoner County should be held at Coweta as well as at the county seat; and that the terms should begin at Coweta on the third Mondays in February, May, August and November, of each year, and should continue not exceeding four weeks. This act was approved March IS, 1909. (Art. XIII, chap. 14, Session Laws of 1909). Subsequently the-same Legislature passed another act entitled, “An Act providing for terms of the county court in the several counties of the State of Oklahoma,” section 1 of which provides that the county court in the several counties in this state shall convene at the county seat on the first Mondays of January, April, July, and October of each year; section 3 provides that if there is one and only one place other than the county seat where it is provided by law that terms of the county court shall be held, the terms of said court shall commence' at such place on the first Mondays of February, May, August and November of each year, and continue for a period of three weeks, if the public business requires it; section 4 makes provision for the terms in counties having two places of holding county court other than the county seat; and section 5 repeals all laws in conflict with the act. This act was approved March 23, 1909, eleven days after the approval of the Coweta act. Neither act carried the emergency clause, and therefore neither became effective until June 11, 1909,.90 days after the adjournment of the Legislature. Coweta is the only place in Wagoner County other than the county seat where provision has been made by law for holding terms of the county court of that county.

The county court was convened at Coweta-on the third Monday in August, 1909, as provided in the act approved March 12, and did not convene on the first Monday in August as provided in the subsequent act. .On September 3, 1909, at this purported term of the court, the petitioner wás tried and convicted of violating the prohibition law, and was sentenced to pay a fine of $250.00 and to be imprisoned for a period of ninety days. He undertook to appeal from this judgment, but failed to serve the statutory notices of appeal, and for that reason his appeal was dismissed. James v. State, infra, 109 Pac. 255. Being imprisoned under a commitment issued upon this judgment, he has applied to this court for a writ of habeas corpus to the end that he be discharged from such imprisonment. He contends that the trial and judgment were void for the reason that under the law the county court should have convened at Coweta on the first Monday in August, 1909, the same being August 2, and could have continued in session but three weeks; and that the court not being convened within two days after the first day of the term as fixed by law, the term lapsed under section 6255 of Snyder’s Comp. K Oída. ¿’and' thát even if it did not lapse, the term nevertheless expired by legal limitation at the end of three weeks, which wa'S before petitioner was tried.

The sole question involved is, which of the two acts above mentioned controls in fixing the terms of the County Court of Wagoner County at Coweta? If the provisions of the act approved March 12, 1909, control, then the term was a legal one and petitioner must be remanded to custody. If the subsequent .act controls, then the assemblage of officers and persons who tried petitioner on September 3, 1909, did not constitute a court, the trial and judgment were void, and petitioner should be released.

It has been suggested that inasmuch as both acts were passed by the same Legislature, and were each to take effect at the same time, neither could repeal the other; but this is not, the law. Where two acts which contain repugnant provisions are passed by the same Legislature, ordinarily that which last received executive approval, or was last passed over the executive’s veto, will be held to repeal pro ianio the other. Thus it was held in Rex v. The Justices of Middlesex, 2 B. & Ad. 818, 22 E. C. L. 190, that, “Where two acts of parliament, which passed during the same session, and were to come into operation the same day, are repugnant to each other, that which last received the royal assent must prevail, and be considered pro tanto a repeal of the other.” ’Again in Strauss v. Heiss, 48 Md. 292, it is said: “The Act of 1872, ch. 203, and the Act of 1872, eh. 375, being inconsistent with and repugnant to each other, the latter act, having been approved subsequently to the former, repeals the same and becomes the law, though both acts were signed and approved by the Governor on the same day.” In Southwark Bank v. Commonwealth, 26 Pa. St. 446, it is held that, “The general rule is that where two statutes contain repugnant provisions, the one last signed by the governor is a repeal of the one previously signed.” And in Mead v. Bagnall, 15 Wis. 171, the rule is declared as follows: “When the legislative intent is to be inferred from the priority of one act to another, regard must be had to the dates of approval of the acts, and not to the dates of their publication.” As a matter of fact, in this instance the general act was not only approved subsequent to the approval of the Coweta act, but was also passed by the Legislature after the pass&ge of the latter act; and therefore if the matter of priority determines this question, the general act must prevail.

The act approved March 23, 1909, professed to fix the terms of the county court in the several counties in this state; it had no other purpose. That approved March 12, 1909, created Coweta a county court town, and fixed the terms of the county court to be held at that place. The one act was therefore in a sense special; the other general. There are authorities to the effect that an act creating a court in a single county, or specially fixing the terms of court in a single county, or regulating the procedure therein, is not a local or special act, because such matter relates to the administration of the laws of the state, and affects equally all persons who are, or may come, within the jurisdiction of such court. Whether this rule is sound we need not stop to determine; for in our opinion, whether the Coweta act be general or special, it was repealed pro tanto by the subsequent act.

The rule that a later statute, general in its terms and broad enough to include matters provided for by a former special act, will ordinarily not affect the special provisions of such former act' is not a provision of substantive law, but is merely one. rule for determining the legislative intent; and when it is apparent that the Legislature intended to make the later act exclusive, designed it to cover the whole subject-matter to which it relates, and to embrace the entire law on the subject, it Will repeal the repugnant provisions of all former acts, general or special. “When an earlier statute is special only in the sense that it applies to a single ease, of which there are many in the state, and the later statute is general in its operation and applies to all such cases, then the earlier one is repealed by the later.” 26 Am. & Eng. Enc. L. 743. See, also, Southport v. Ogden, 23 Conn. 128; Coe v. Meriden, 45 Conn. 155; Nusser v. Com., 25 Pa. St. 126. Thus it is said in 1 Lewis’ Sutherland on Statutory Construction, sec. 276:

“The question is one of intent. There is no rule of law which prohibits the repeal of a special act by a general one, nor is there any principle forbidding such repeal without the use of words declarative of that intent. The question is always one of intention, and the purpose to abrogate the particular enactment by a later general statute is sufficiently manifested when the provisions of both cannot stand together. * * * Special or local laws will be repealed by general laws when the intention to do so is mmifesi, as where the latter are intended to establish uniform rules for the whole state.”

See also Allaby v. Mauston Electric Service Co., 135 Wis. 345 116 N. W. 4, 16 L. R. A. (N, S.) 420; People v. Dalton, 158 N. Y. 175, 52 N. E. 1113; State v. Butcher, 93 Tenn. 679, 28 S. W. 296; State v. Sullivan, 62 Minn. 283, 64 N. W. 813; State v. Pearcy, 44 Mo. 159; Howard v. Hulbert, 63 Nan. 793, 66 Pac. 1041, 88 Am. St. Rep. 267. In this case we think it manifest that the Legislature intended the general act to cover the entire law relating'to the terms of the county courts in this state, to provide uniformity in the terms, and to repeal all previous legislation on the subject. In the first place, the act is entitled “An act providing for terms of the county court in the several counties of the State of Oklahoma”; and it professes to fix the terms in the “several”, that 'is. in all, the counties in the state. It divides the counties into three classes; 1st, those in which county court is held only'at the county seat; 2nd, those in which county court is held at one and only one place other than the county seat; and 3rd, those in which county court is held at'two places other than the county seat; and it makes full provision for each class. Under the Constitution county court cannot be held at more than two places other than the county seat; and these three classes therefore embrace every county in the state. In the next place, the act expressly repeals all laws in conflict with its provisions. As to the effect of such repealing clause upon prior special acts; see Quinn v. Cumberland Co., 162 Pa. St. 55, 29 Atl. 290; Com. v. Weir, 165 Pa.St. 284, 30 Atl. 835; State v. Sullivan, 62 Minn. 283, 64 N. W. 813; 1 Lewis’ Sutherland Statutory Construction, - sec. 256. 'Finally, we think the fact that the Legislature intended to repeal the special act in question and all others like it, is rendered certain by a consideration of the state of the law at the time of the passage of the act. Every one of the county court towns in this state, other than the county seats and other than Talihina, which place was made a county court town by the Constitution, was created by a separate and in this sense special act of the Legislature; the terms of court in each of such places were fixed by the act creating it a court town; and the terms of the county court .at Talihina had already been fixed by an act of the Legislature of 1907-8. Therefore unless the general statute was intended to repeal, and had the effect of repealing, these special acts, then sections 3, 4 and 5 thereof were wholly and necessarily without meaning or application, for the reason that there were no county court towns to which they could apply, the terms of all such county Gourts having been already fixed by special acts; and unless the repealing clause repealed these special acts, then it repealed nothing. We entertain no doubt but that the Legislature intended by this general act to provide a uniform system for the terms of county court in the several counties of this state, and by it to repeal and supersede the provisions of the various special acts theretofore passed. It follows, therefore, that the petitioner’s alleged trial was had at a time when no term of the county court was authorized to be held at Coweta, and the proceeding was void. It is therefore ordered that the petitioner be discharged from custody under the alleged judgment pronounced against him, and that he be held to bail for his appearance for trial upon this charge in due course.

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


source: Caselaw Access Project

author: PEE CUBIAM.

license: Public Domain

text:
      In re P. W. WILLIAMS.
    No. A-891.
    Opinion Filed November 21, 1910.

      Original Proceedings by Writ of Habeas Corpus.

    Application of P. W. Williams for writ of habeas Corpus.

    Writ granted.

      Eistler & Haslcell, for petitioner.

      Fred S. Caldwell, for the State.
   PEE CUBIAM.

On September 9, 1909, during a purported term of the County Court of Wagoner County sitting at Coweta, the petitioner was convicted of a misdemeanor. Being imprisoned in the county jail of that county under a commitment issued upon said judgment, he has applied for a writ of habeas corpus, seeking thereby to be discharged from such imprisonment. He contends that his trial was had at a time when no lawful term of the County Court of Wagoner County could be held at Coweta, and that the trial and judgment were therefore void. This case is identical in all respects with the case entitled, “In re Walter James, No. A-881”, infra, decided at this term ofthis court, wherein it was held that the August term of the County Court of Wagoner County should have convened at Coweta on August 2, 1909, and could have continued in session only three weeks. It therefore follows that this petitioner was tried at a time when no lawful session of the County Court of Wagoner county could be held at Coweta, and the petitioner’s trial and the judgment rendered against him were null and void.

It is therefore ordered that the petitioner be discharged from custody under the alleged judgment rendered against him, and that he be held, to bail for his appearance for trial upon this charge in due course.


author: PER CURIAM.

text:
      In re C. M. NICHOLS.
    No. A-892.
    Opinion Filed November 21, 1910.

      Original Proceeding by Writ of Habeas Corpus.

    Application of C. M. Nichols for writ of habeas corpus.

    Writ granted.

      Kistler & Hashell, for petitioner.

      Fred 8. Caldwell, for the State.
   PER CURIAM.

On September 9, 1909, during a purported term of the County Court of Wagoner County sitting at Coweta, the petitioner was convicted of a misdemeanor. Being imprisoned in the county jail of that county under a dommitment issued upon said judgment, he has applied for a writ of habeas corpus, seeking thereby to be discharged from such imprisonment. He contends that his trial was had at a time when no lawful term of the County Court of Wagoner County could be held at Coweta, and that the trial and judgment were therefore void. This case is identical in all respects with the case entitled, "In re Walter James, No. A-881”, infra, decided at this term of this court, wherein it was held that under the act of the Legislature approved March 23, 1909, the August term of the County Court of Wagoner County should have convened at Coweta on August 2, 1909, and could have continued in session only three weeks. It therefore follows that this petitioner was tried at a time when no lawful session of the County Court of Wagoner County could be held at Coweta, and the petitioner’s trial and the judgment rendered against him were null and void.

It is therefore ordered that the petitioner be discharged from custody under the alleged judgment rendered against him, and that he be held to bail for his appearance for trial upon this charge in due course.


author: PEE CURIAM.

text:
    DIXON JAMES v. STATE.
    No. A-61.
    Opinion Filed November 21, 1910.

      Appeal From McCurtain County.

   PEE CURIAM.

The death of the defendant having been suggested and proven to tbe satisfaction of this court, the prosecution is hereby abated.


author: RICHARDSON, Judge.

text:
    J. W. CULPEPPER v. STATE.
    No. A-204.
    Opinion Filed November 21, 1910.
    1. HOMICIDE — Instructions — Presumption of Innocence — Shifting Burden of Proof. Tfpon a trial for murder Where the defendant’s plea was self-defense, the court gave the jury the following instruction: “You are instructed that che defendant in this case is presumed to be innocent of the crime charged in the indictment, and this is a presumption of law that remains with him and is thrown around him for his protection up to the moment when the killing is proved, or admitted. When the killing is proved or admitted by defendant and the plea of self-defense is interposed, as in this case, it then devolves upon defendant to show any circumstances of mitigation to excuse or justify it by some proof strong enough to create in the'minds of the jury a reasonable doubt of his guilt of the offense charged, unless the proof on the part of the state shows that the defendant was justified in doing the act.” Held, that under sections 6828 and 6854 of Snyder’s Comp. L. Okla., the instruction was not erroneous.
    2. TRIAL — “Presumption of Innocence.’’ The presumption of innocence fixes the burden of proof in the first instance, and designates the party whose duty it is to produce evidence and effect persuasion. It is not evidence and does not partake of the nature of evidence.
    3. SAME. The presumption of innocence remains with the defendant only until it is overcome, and does not necessarily remain with him throughout the whole of the trial.

      4. INSTRUCTIONS — Credibility of Defendant. It is error to single out the defendant in a criminal case, and instruct the jury specially upon his credibility as a witness.
    5. EVIDENCE — Prior Contradictory Statements of Witness*. A witness’ prior contradictory statement cannot be used as substantive testimony tending to show the truth of. the facts then stated; it may be shown only for the purpose of affecting the credibility of the witness.
    6. SAME — Impeachment of Own Witness. A party cannot impeach his own witness by proof of a prior contradictory statement, where such party has not been misled by the witness, and where the witness has testified to no fact injurious to such party but has only failed to testify to matters beneficial to him.
    (Syllabus by the Court.)

      Appeal from the District Court of Tulsa County; L. M. Poe, Judge.

    J. W. Culpepper .was1 indicted for murder and convicted of manslaughter in the first degree; and he appeals.
    Reversed and remanded.

      Martin, Rice & Tjyons, for plaintiff in error.
    On “presumption of innocence”; Greenleaf, Evidence (16th Ed.) vol. 1, p. 127; Horn v. Territory, 8 Okla. 52; Coffin v. U. 8., 156 U. S. 432; Com. v. York (Mass.) 43 Am.. Dec. 373; People v. Mougiis, (Cal.) 86 Pac. 191; State v. Hanlon (Mont.) 100 Pac. 1037. On instructions singling out defendant and charging as to his credibility ; Fletcher v. State, 2 Okla. Or. 300; Banks v. State, 2 Okla. Cr. 339.

      Chas. West, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
    No brief reached the reporter.
   RICHARDSON, Judge.

The first contention in this case is that the verdict was contrary to the evidence. An examination of the evidence discloses that the commission of the homicide by plaintiff in error was proved on the one hand and admitted on the other. His plea was self-defense; and upon this issue the evi-deuce, though conflicting, was amply sufficient to sustain the verdict.

The next assignment of error is predicated upon the action of the court in giving the jury the following instruction:

“You are instructed that the defendant in this case is presumed to be innocent of the crime charged in the indictment, and this is a presumption of law that remains with him and is thrown around him for his protection up to the moment when the killing is proved, or admitted. When the killing is proved or admitted by defendant and the plea of self-defense is interposed, as in this case, it then devolves upon defendant to show any circumstances of mitigation to excuse or justify it by some proof strong enough to create in the minds of the jury a reasonable doubt of his guilt of the offense charged, unless the proof on the part of the state shows that the defendant was justified in doing the act.”

It is contended that this instruction was erroneous because it deprived plaintiff in error of the application of the presumption of innocence to his plea of self-defense. It is also contended that the presumption of innocence is evidence in behalf of the accused, and that it remains with him throughout the whole of the trial under any and all circumstances until the jury have reached a verdict of conviction; and plaintiff in error requested the court to so instruct the jury, and assigns his refusal to do so as error. The two assignments are treated together in plaintiff in error’s brief and we shall so consider them here.

Our statutes provide that “a defendant in a criminal action is presumed to be innocent until the contrary is proved.” Sec. 6828, Snyder’s Comp. L. Okla. It is also provided that, “Upon a trial for murder, the commission of the homicide by the defendant being proven, the burden of proving circumstances of mitigation, or that justify or excuse it, devolves upon him, unless the proof on the part of the prosecution tends to show that the crime committed only amounts to manslaughter, or that.the defendant was justifiable or excusable.” See. 6854, Snyder’s Comp. L. Okla. Under the section first quoted the defendant goes into the trial presumed to be innocent, and this presumption remains with him until the contrary is proved. This fixes the burden of proof in the first instance, and designates the party whose duty it is to produce evidence and effect persuasion, the party upon whom lies at first the risk of non-persuasion. It is but another way of stating the maxims, presumitur pro reo, and actore non probante reus aibsolvitur. The presumption is not evidence of any kind, nor does it partake of the nature of evidence. It is rather a rule in regard to the production of evidence. What is presumed, so long as the presumption remains, need not be proved; and as to the matter presumed, the burden is on him against whom the presumption exists. Upon this subject Mr. Wigmore has this to say:

. “The ‘presumption of innocence’ is a term which has been the subject of two special fallacies, namely, (1) that it is a genuine addition to the number of presumptions, and (2) that it is per se evidence. As to the first of these fallacies, it is to be noted that the ‘presumption of innocence’ is in truth merely another form of expression for a part of the accepted rule for the burden of proof in criminal cases, i. e., the rule that it is for the prosecution to adduce evidence, and to produce persuasion beyond a reasonable doubt. As to this latter part, the measure of persuasion, the ‘presumption’ says nothing. As to the former part, the ‘presumption’ implies what the other rule says, namely, that the accused (like every other person on whom the burden of proof does not lie) may remain inactive and secure, until the prosecution has taken up its burden and produced evidence and effected persuasion ; i. e., to say in this ease, as in any other, that the opponent of a claim or charge is presumed not to be guilty is to say in another form that the proponent of the claim or charge must evidence it * * *
“As to the second fallacy, it seems to have been mainly propagated by the passage of Professor G-reenleaf, declaring that ‘this legal presumption of innocence is to be regarded by the jury, in every case, as matter of evidence, to the benefit of which the party is entitled.’ But it cannot be regarded as ‘matter of evidence.’ No presumption can be evidence; it is a rule about the duty of producing evidence. This is, in itself, only a matter of the theory of presumptions, and to that extent may be regarded as a mere question of words, — of the way of phrasing a rule upon the substance of which there is no dispute. But when this erroneous theory is made the ground for ordering new trials because of the mere wording of a judge’s instruction to a jury, the erroneous theory is capable of causing serious harm to the administration of justice”. (Wigmore on Evidence, vol. IV, sec. 2511.)

And Professor Thayer in his famous lecture on the Presumption of Innocence in Criminal Cases, which is generally recognized as the best treatment of the subject extant, and in which the rule announced in Coffin v. United States, 156 U. S. 432, is analyzed and utterly refuted, says:

“Now, what does the presumption of innocence mean? Does it mean anything more than a particular application of that general rule of sense and convenience, running through all the law, that men in general are taken, prima facie — i. e., in the absence of evidence to the contrary, to be good, honest, free from blame, presumed to do their duty in every situation in life; so that no one need go forward, whether in pleading or proof, to show as regards himself or another, that the fact is so, but every one shall have it presumed in his favor ? If it does, what is its meaning ?”

And after tracing the history of the presumption, he continues :

“It is important to observe this, because, by a loose habit of speech, the presumption is occasionally said to be, itself, evidence; and juries are told to put it in the scale and weigh it. Greenleaf, in a single phrase, in the first volume of his treatise on Evidence, section thirty-four, a phrase copied occasionally into cases and text-books, has said: “This legal .presumption of innocence is to be regarded by the jury in every case as matter of evidence, to the benefit of which the party is entitled.’ This statement is condemned by the editor of the last edition of Greenleaf’s book; and in Taylor on Evidence, the great English handbook, which followed Greenleaf’s text closely, this passage is omitted, and always has been omitted. In the latter part of Greenleaf’s Evidence, volume III., which deals specifically with criminal cases, it does not appear. It is denied also by Chamberlayne, the careful editor of the works on Evidence of Best and Taylor.
“What can such a statement as this mean — that the presumption is to be regarded as evidence? Is it meant that on grounds of natural presumption or inference, innocence is ordinarily found in criminal cases? As to that, if one would see the true operation of natural inference, and natural presumption in criminal cases, and would appreciate how entirely artificial, how purely a matter of policy the whole rule is which bids a jury on the trial to assume innocence, let him turn his attention to the action of courts at other stages than the trial.”

And after proceeding to show that after indictment found the law presumes the defendant guilty for the purpose of determining whether bail shall be granted and in fixing the amount thereof, and for all other purposes except that of having a fair and ■impartial trial before a petit jury, he proceeds:

“The effect of the presumption of innocence, so far from being that of furnishing to the jury evidence — i. e., probative matter, the basis of an inference — is rather the contrary. It takes possession of this fact, innocence, as not now needing evidence, as already established prima facie, and says: ‘Take that for granted. Let him who denies it, go forward with his evidence.’ ”

And he concludes as follows:

“A presumption itself contributes no evidence, and has no probative quality. It is sometimes said that the presumption will tip the scale when the evidence is balanced. But, in truth, nothing tips the scale but evidence, and a presumption — being a legal rule or a legal conclusion — is not evidence. It may represent and spring from certain evidential facts; and these facts may be put in the scale. But that is not putting in the presumption itself. A presumption may be called ‘an instrument of proof,’ in the sense that it determines from whom evidence shall come, and it may be called something ‘in the nature of evidence,’ for the same reason; or it may be called a substitute for evidence, and even ‘evidence’ — in the sense that it counts at the outset, for evidence enough to make a prima facie case. But the moment these conceptions give way to the perfectly distinct notion of evidence proper — i. e., probative matter, which may be a basis of inference, something capable of being weighed in the scales of reason and compared and estimated with other matter of the probative sort— so that we get to treating the presumption of innocence or any other presumption, as being evidence in this its true sense, then we have wandered into the region of shadows and phantoms”. (Thayer’s Preliminary Treatise on Evidence, 1908, Appendix B, p. 551.)

And Elliott on Evidence, vol. I, section 91, 92 and 93, says:

“The office or effect of a true presumption is to cast upon the party against whom it wbrks the duty of going forward with evidence. It has the force and effect of a prima facie case, and, temporarily at least, relieves the party in whose favor it arises from going forward with the evidence. This would seem to be its sole office and effect, considered merely in its character as a presumption. If nothing further is adduced, it mav settle the case in fav- or of the party for whom it works; and, on the other hand, when the other party has gone forward with his evidence and the prima fade ease is overcome, the force of the presumption is spent. * * *
“It is sometimes said that presumptions are evidence or instruments of proof having probative force, and to be put into' the scale and weighed along with the other evidence in a case. This doctrine has the support Of the Supreme Court of the United States in a comparatively recent case; but the opinion in that case has been severely criticised, and, in a lecture delivered about a year after the decision was rendered, it and the authorities upon which it is based were carefully reviewed by a learned professor, who had given the subject thorough study, and it was very clearly demonstrated that the authorities cited in the opinion give very little support to the. doctrine. The court might have cited other authorities that seem to give at least equal countenance to the doctrine; but the true view would seem to be that presumptions are not evidence or instruments of evidence to be given probative force and weighed as evidence. The evidential facts 'upon which the presumption is based or from which it springs may take their place with the rest, and operate with their own natural force as a part of the entire mass of evidence or probative matter, and thus be put into the scale and weighed with the rest, but the presumption itself cannot be. To permit a presumption to be added to the scale when the facts upon which it is based are shown would be, in many cases at least, to give double weight to the same facts. To give them their own natural force as evidence, and then to add to that the presumption based on such facts, or, if the presumption is based upon presupposed facts, when the actual facts are shown, to add both together, or to weigh one against the other, would be equally erroneous. The two things are so different that they cannot be weighed in the same scales, and, to change the simile, the process would be much like the logical fallacy of begging the question. ‘A presumption -which the jury is authorized to make is not a circumstance in proof/
“A thorough consideration of the subject seems to lead to the following conclusions :
“A presumption operates to relieve the party in whose favor it operates from going forward in argument or evidence, and serves the purpose of a prima facie case until the other party has gone forward with his evidence, but, in itself, it is not evidence, and involves no rule as to the weight of evidence necessary to meet it. How much evidence shall be required from the other party to meet, overcome or destroy the presumption is determined by no fixed rule. • When a presumption is called a strong one, like the presumption of legitimacy, it is meant that it is accompanied by another rule relating to the weight of evidence to be brought in by him against whom it operates. It is sometimes said that the presumption will tip the scale when the evidence is balanced. But, in truth, nothing tips the scale but evidence, and a presumption, being a legal rule or a legal conclusion, is not evidence. It may represent and spring from certain evidential facts, and these facts may be put in the scale; but that is not putting in the presumption itself. It may in a sense, be called ‘an instrument of proof’ or something ‘in the nature of evidence’, in that it determines from whom evidence shall come; or it may be called a substitute for evidence, in the sense that it counts at the outset for evidence enough to make a prima facie case; but it is not evidence in the true sense. It is not probative matter, which may be a basis of inference and weighed and compared with other matter of a probative nature.”

And in the case of Agnew v. United States, 165 U. S. 36, 41 L. Ed. 624, the defendant requested the trial court to give the following instruction: “Every man is presumed to be innocent until he is proved guilty, and this legal presumption of innocence is to be regarded by the jury in this case as a matter of evidence to the benefit of which the party is-entitled. This presumption is to be treated by you as evidence giving rise to resulting proof to the full extent of its legal efficacy.” This requested instruction embodied exactly what the Supreme Court had previously held in the Coffin case, and a portion of it was in Justice White’s exact language, .wherein he said, “The fact that the presumption of innocence is recognized as a presumption of law, and is characterized by the civilians as presumptio juris, demonstrates that it is evidence in favor of the accused; for in' all systems of law legal presumptions are treated as evidence giving rise to resulting proof to the full extent of their legal efficacy.” But notwithstanding this, the Supreme Court held that the trial court properly refused the requested instruction, “on the ground of the tendency of its closing sentence to mislead;” and it expressly approved the following instruction which the trial court did give:

“The defendant is presumed to be innocent of all the charges against him until he is proven guilty by the evidence submitted to you. This presumption remains with the defendant until such time in the progress of the case that you are satisfied of the guilt beyond a reasonable doubt.”

And in that case the Supreme Court further said:

“Undoubtedly, in criminal cases, the burden of establishing guilt rests on the prosecution from the beginning to the end of the trial. But when a prima facie case has been made out, as conviction follows unless it be rebutted, the necessity of adducing• evidence then devolves on the accused.”

Now, under an express provision of our statutes (sec. 6854, Snyder’s Comp. L. Okla.), where the charge is murder, if the prosecution proves the death of the deceased and the fact that he was killed by the defendant without proving circumstances tending to show either justification or excuse for the defendant, then there devolves upon the latter, if he contends that he was justifiable or excusable, the duty of producing evidence tending to show that fact. The quantum of evidence necessary for that purpose is fixed by law, and is nominated such as is sufficient to raise a reasonable doubt upon that issue. The state is not required in the first place to prove the absence of justification or excuse. Unless the evidence on the part of the state tends to show the presence of one or the other, the defendant must produce such evidence or a conviction will result. Therefore, when such stage of the proceeding has been reached and such condition, has arisen that the burden of proving circumstances that justify or excuse the homicide, to use the statutory expression, devolves upon the defendant, can it be said that he is then presumed to be innocent ? If so, in what does tho presumption consist? What is innocence? Innocence consists either in not having committed the homicide at all, or in the existence of facts or circumstances which justify or excuse it. And to be presumed innocent, the defendant must be presumed either not to have done the killing, or to have done it under circumstances constituting the act legally justifiable or excusable. Now when it has been proved beyond a reasonable doubt on the one hand, and admitted on the other, that the defendant committed the homicide, there can no longer be a presumption that he did not do so. Of this the contrary has been proved, has not been denied, but is explicitly admitted. So, if there exists now a presumption of innoc.ence in the defendant’s behalf, it consists solely in the presumption that-the act was either justifiable or excusable. But here the statute intervenes and says that the burden of proving circumstances that justify or excuse the homicide devolves upon the accused. And by what process of reasoning can the statement that he is presumed to have been excusable or justifiable be reconciled with the statutory provision that the duty devolves upon him in such case to produce evidence tending to 'show his justify cation or excuse, failing in which a conviction follows? How can that be presumed which the law says must be proved? And of what value would the presumption be in such case?

Our code of criminal procedure was copied very largely from that of California, and sections 6828 and 6854 of ’Snyder’s Comp. L.' Okla. are identical with'sections 1096 and 1105 respectively of California’s Penal Code. And in People v. Milner, 122 Cal. 171, 54 Pac. 833, the Supreme Court of California, in construing those sections, said:

“Upon a trial for murder, the commission of the homicide by the defendant being proved, the burden of proving circumstances of mitigation, or that justify or excuse it, devolves upon him, unless the proof on the part of the prosecution tends to show that the crime committed only amounts to manslaughter, or-that the defendant was justifiable or excusable. Penal Code, sec. 1105. In this case the killing by the defendant was clearly established by the people’s proof. No circumstances of mitigation or justification to bring the case within the exception contemplated by the section were shown in the prosecution’s evidence. The burden of proof, then, of justifying and excusing the act, or of proving circumstances which would lessen the gravity of the offense to manslaughter, devolved upon the defendant.- At the close of the prosecution’s case the presumption against the defendant was that he had committed an unlawful homicide. It may not he said that the presumption of innocence countervailed against this, since hy the express provision of the law the presumption of innocence was overcome, and a presumption of guilt toolc its place when the required facts were proven.”

And again in People v. Matthai, 135 Cal. 442, 67 Pac. 694, the same court said:

“Complaint is made that the court failed to instruct the jury, as provided by section 1096 of the Penal Code, that a defendant in a criminal action is presumed to be innocent until the contrary is proved. Section 1127 of the Penal Code provides that in charging the jury the court must state to them all matters of law necessary for their information, and assuredly the instruction as to presumption of innoecnce is one which should be given in every case of the court’s own motion. But in this case the defendant made no request that such instruction should be given, and, as held in People v. McNutt, 93 Cal. 658, in the absence of a request, the failure of the court to charge upon any specific principle of law will not be held error.
“The court charged: 'Up to the moment when the killing is proved, the prosecution must make out its case beyond any reasonable doubt.’ Appellant detaches from its context this single sentence of the charge, and complains of it, but the instruction continued as follows: 'When the killing is proved, it devolves upon the defendant to show any circumstances in mitigation to excuse or justify the homicide, by evidence on his part, — that is, the killing being proved, the defendant must make out his case in mitigation, or to excuse or justify it by some proof strong enough to create in the minds of the jury a reasonable doubt of his guilt of the offense charged, unless, as before stated, the proof on the part of the prosecution tends to show the crime committed only amounts to manslaughter, or that the defendant was justified or excused'in doing the act.’ The whole instruction certainly presents a fair exposition of the law. As was said in People v. Milner, 122 Cal. 179: ‘At the close of the prosecution’s case the presumption against the defendant was, .that he had committed an unlawful homicide. It may not be said that the presumption of innocence countervailed against this, since by the express provision of the law the presumption of innocence was overcome, and a presumption of guilt took its place, when the required facts were proven.’ ” -

The situation of a defendant charged with murder who has been proved to have committed the killing, and who seeks to justify or excuse it, is analagous to that of a defendant in a civil action, whose plea is a confession and avoidance. There is no presumption in favor of the existence of matter in avoidance for either; for the duty of producing evidence is upon each of them. The quantum of proof, to be sure,, is different, the defendant in the civil action being required to “prove the matter alleged in avoidance by a preponderance of the evidence, while the defendant in the criminal action prevails if upon the whole case he succeeds merely in generating a reasonable doubt of his justification or excuse. But the quantum of proof required has nothing to do with the presumption. The fact that any degree of proof is required of the defendant shows that the presumption is not with him; for it is foolish to say that what is already presumed must be proved, and that what must be proved is presumed. For instance, the law says that all men are presumed sane and responsible for their acts, and that if a defendant charged with crime contends that he was excusable on account of insanity, the duty rests upon him of producing evidence at least sufficient to raise a reasonable doubt as to his sanity, unless the evidence on the part of the prosecution engenders such doubt. Now, suppose that A is charged with the murder of B, and his defense is insanity. The killing is proved beyond a reasonable doubt, and no facts indicating either justification or excuse for A appear from' any portion of the evidence on the part of the prosecution. The prosecution then rests. Is A presumed to be innocent at this stage of the proceeding ? If so, it is because he is presumed insane; he is no longer presumed not to have killed B. And if he is still presumed innocent, he too may rest here, and an acquittal must follow; for it is absurd to say that a man can be returned guilty while he is presumed innocent. The same is true if A’s plea is self-defense or that the killing was an accident. The statute expressly declares that -the burden of proving circumstances that justify or excuse the homicide is on him. The presumption is no longer with him. The law says to him at this stage of the proceeding: “You have been stripped of your presumption of innocence., Produce evidence of your insanity, your self-defense, or your accident, or suffer the consequences.”

It is true that the burden of proof properly so called is on the prosecution from the beginning to the end of the trial. That is to say, to obtain a verdict of guilty, the prosecution must by evidence exclude every reasonable doubt of the defendant’s innocence, and see to it that it stands excluded when the trial ends. If, when the prosecution has concluded its evidence in chief, its character is such that, if unrebutted, a jury under their oaths should and would return a verdict of guilty, then the prosecution has borne its burden to this stage. If the defendant produces no evidence, the trial closes, the prosecution has borne its burden throughout the trial, and a conviction is therefore the result. On the other hand, if the defendant does not rest, but produces evidence sufficient to engender a reasonable doubt, either upon the direct case, or as to the truth of matter set up in avoidance, and the prosecution allows that doubt to remain when the taking of evidence is closed, then the prosecution fails. It has not maintained its burden, for it has not caused a reasonable doubt of innocence to stand excluded when the trial ends. But, if when the state concludes its evidence in chief, it is such that if unrebutted a verdict of guilty should result, the presumption of innocence is then overcome; the defendant cannot then rest and demand an acquittal because he is presumed to be innocent. That which the presumption of innocence relieved him of so long as it existed, namely, the necessity of adducing evidence, now devolves upon him. The burden of proof which the law created, that of having a reasonable doubt of innocence excluded when the trial ends, is still on the prosecution. The hazard of losing, which the proof on the part of the prosecution created, is on the defendant. The presumption of innocence having been overcome, it is no longer “his sufficient shield”, “an aegis of protection” for him. He must now go forward with his evidence, or suffer the consequences.

But it is said that the presumption must be evidence, and must always abide with the defendant throughout the whole trial, for if the evidence upon any essential issue be equally balanced or the matter be doubtful, the presumption of innocence turns the scale for the defendant. We do not so understand the law. The quantum of proof necessary to effect persuasion and establish guilt has nothing to do with the presumption of innocence. The law might provide that a mere preponderance of evidence should be sufficient to establish guilt, and still prescribe for the defendant this same presumption of innocence. The law does provide that the defendant’s guilt must be proved beyond a reasonable doubt; and if upon the whole case the evidence be equally balanced, or the matter be left doubtful, or even if the evidence preponderates in behalf of guilt, but does not exclude a reasonable doubt of innocence, an acquittal must result. Not, however, because the presumption is thrown into and tips the scales; even if the presumption be evidence, that would be determining the question of guilt by a mere preponderance of the evidence; but án acquittal follows because the prosecution has not complied with that other provision of the law requiring proof of guilt to the exclusion of a reasonable doubt.

It is also said that the presumption must under all circumstances abide with the defendant throughout the trial, because the jury are not to form any opinion as to guilt or innocence until they have heard all the evidence and until the matter has been finally submitted to them. It is true that the jury are to keep open minds at all times, ready for the reception and proper weighing of all evidence given before them, the application thereto of the court’s instructions, and a consideration of the attorneys’ argument; but we do not understand that this duty grows out of the presumption of innocence, that it is in any manner dependent upon the presumption for its existence, or that the duty disappears when the presumption has been overcome. On the contrary, we opine that it springs from that provision of the law expressed by the maxim, audi alterem partem, and that this same duty would appertain to a juror if the law presumed guilt instead of innocence, or if it indulged no presumption at all. This duty exists in all cases, both civil and criminal, throughout the whole trial, though successive presumptions may arise in behalf of each party and be overcome, and though the burden of proof, i. e., the duty of producing evidence, may shift time after time. The jury are not to form any opinion as to guilt or innocence until the case has been finally submitted to them for their verdict; but that does not mean that in fact the evidence at a certain stage of the proceeding was not sufficient to establish guilt, so that if the parties had rested there a conviction would have resulted; that the presumption of innocence had not in fact been overcome, and the necessity of adducing evidence had not shifted to the defendant, so that the risk of non-persuasion was on him. Such may have been the case without the jury at that time having so determined. Such is often the case. The present knowledge or ascertainment of that fact is not necessary to its present existence. The court and the parties take cognizance of these matters as the trial progresses in regulating the production of evidence. If, when the state rests, the defendant is still presumed to be innocent, then he too may safely rest, for, as already stated, a jury cannot return a verdict of guilty so long as they presume him innocent; but before he does so, let him be sure, and determine at his peril, that the presumption is still with him.

Also, it is said that the presumption of innocence must abide throughout the whole of the trial and relate to every element of the crime charged, for if the circumstances attending any material act proved at any stage of the proceeding are subject to two different interpretations, one such as to make the act criminal, and the cither, innocent, the presumption of innocence impels the adoption ‘of that interpretation which favors innocence. We do not agree with this statement. We think the true statement is that if the state of the evidence is such that a reasonable doubt of the criminality of the act or acts remain after a consideration of all the evidence in the case, the prosecution has failed. If the minds of the jurors are left hesitating or vacillating between guilt or innocence, then the rule respecting a reasonable doubt upon the whole case impels an acquittal. The presumption does not, and to say that it does is again to say that the matter is determined by a preponderance of the proof, that the presumption is proof and creates a preponderance for the defendant.

The presumption of innocence is the same presumption which obtained in behalf of the accused at common law. In not a single instance has it been amplified by statute. And the statements that it is evidence in behalf of the accused, and that it always abides with him until the verdict is reached, are both judicial innovations, never heard of anywhere, and not found in any text book or report, until after the beginning of the nineteenth century. Such statements wholly ignore the history of the presumption; they are at variance with the reason and philosophy of it, and they involve the subject in such mysticism and inexplicable confusion that it becomes impossible of application or even comprehension.

We think the rules contended for are contrary to the whole rationale of a trial; that when the trial of any criminal case is observed throughout its various stages, it becomes apparent that no such rules exist. And when they are given as an instruction, they are mere empty words, a verbal formality, devoid of meaning and impossible of application. When the jury go to deliberate upon their verdict, they weigh no presumption; they look to the proof and only to the proof. They weigh the evidence and the evidence only. The presumption of innocence fulfilled its purpose when it required the state first to go forward' with its evidence and establish a prima facie case. Thenceforth it is solely a question of proof and the quantum thereof. This whole subject is exhaustively discussed in Thayer’s Preliminary Treatise on Evidence (1898), Appendix B, p. 551. See also Wigmore on Evidence, vol. IV, sec. 2511; Greenleaf on Evidence, (16th Ed.) chap. 6, sec. 14 w.; Berry et al. v. State, decided by this court at this term, infra; Elliott on Evidence, sections 91, 92, and 93; Thayer’s Preliminary Treatise on Evidence, chapters VIII and IX; State v. Kennedy, 154 Mo. 268, 55 S. W. 293; People v. Ostrander, 110 Mich. 60, 67 N. W. 1079; State v. Quigley, 26 R. I. 263, 58 Atl. 905; Waters v. State, 117 Ala. 108, 22 So. 490; State v. Maupin, 196 Mo. 164, 93 S. W. 379; Williams v. State, 144 Ala. 14, 40 So. 405; Morehead v. State, 34 Ohio St. 217; Stevens v. Com., 20 Ky. L. 48, 45 S. W. 76; State v. Young, 105 Mo. 634; State v. Harper, 149 Mo. 514; State v. Heinze, 66 Mo. App. 135; Strickland v. State, 151 Ala. 31, 44 So. 90. We decline to follow in this respect the eases of Horn v. Territory, 8 Okla. 52, 56 Pac. 846, and Coffin v. United States, 156 U. S. 432; and we hold that there was no error in the instruction given.

The next assignment is that the court erred in giving the jury the following instruction:

“You are instructed that the defendant is a competent witness iu his own behalf, and when he testified as a witness in this case he became as an}^ other witness, and his credibility is to be tested by and is subject to the same tests as are legally applied to any other witnesses; and in determining the degree of credibility that should be accorded to the testimony of the defendant the jury have a right to take into consideration the fact that he is interested in the result of the prosecution, as well as his demeanor and conduct on the witness stand.”

This singling out the defendant and instructing specially upon his credibility as a witness/ was properly excepted to; under the uniform holding of this court it was erroneous, and the state of the case was such as to make the error reversible. Fletcher v. State, 2 Okla. Cr. 300, 101 Pac. 599; Banks v. State, 2 Okla. Cr. 339, 101 Pac. 610; Crow v. State, 3 Okla. Cr. 428, 106 Pac. 556.

Objections are urged to the court’s instructions relative to plaintiff in error’s right of self-defense, but we do not find them tenable; and the law upon this subject has been so often stated and discussed by this court, that we deem a discussion of the questions here raised unnecessary.

Plaintiff in error introduced as a witness in his behalf Robert Webb, a cousin of the deceased. This witness was not present during the fatal difficulty, and there was no evidence in the case tending to show that he was concerned in the least in the trouble which resulted in the killing. He testified that a short time before the killing, the deceased, one Reps West and himself were together in deceased’s yard, and that he (the witness) was at that time considerably intoxicated; that there was no conversation between the three in regard to plaintiff in error, and that he had no recollection of even hearing the latter’s name mentioned. He was then asked if, immediately after hearing of the homicide, he did not go to a certain place and say to certain women: “Dave (the deceased), and Reps and I had been drinking around this afternoon, and we talked about going down and doing old man Culpepper up, and we left the house and started down toward Culpepper’s store to do him up, and on the way down there I told the boys they were too drunk, and tried to get them not to go, but to wait until tomorrow when they were sober, and we would do him up right; and Reps West said to Dave Webb, ‘Come on Dave, and be a man, I will stand by you’; and they went on, and I knew the trouble was going to happen.” 'This question the witness answered in the negative. Plaintiff in error then offered to prove by the women that at the time and place specified the witness made to them the statement just quoted. The court sustained an objection to the offered testimony, and its action in so doing is assigned as error.

The testimony offered was incompetent as substantive evidence tending to prove as a fact the formation and existence of a design to injure plaintiff in error and that the deceased acted in accordance therewith. For such purpose the offered evidence was wholly hearsay and inadmissible. Had the evidence been admitted, it could have been received for no other purpose than to show that Eobert Webb made the statement which he denied making; it would not have been evidence that the statement made by him was true. So, if the evidence tendered was competent at all, it was so only for the purpose of impeaching the witness. But this wit-' ness was introduced by plaintiff in error. There was no contention that he had ever made a different statement to plaintiff in error or his attorney, or that he had ever led either to believe that his testimony would be other than what it was. And the witness gave no testimony against plaintiff in error; he merely failed to testify to exculpatory matter. Apparently he was placed on the stand merely to be impeached. And what would have been accomplished by impeaching him? The impeaching evidence offered could neither have proved nor disproved any substantive matter in the case. It could only have affected the credibility of the witness. And what could have been gained by affecting the credibility of a witness who had testified to nothing? Why set up a man of straw and immediately proceed to knock it down? A witness cannot be brought on merely to be impeached. The right of a party to thus impeach his own witness who gives testimony injurious to him is not involved here, and upon that we express no opinion; but in the present case the evident purpose was to prove a substantive fact by a purely hearsay statement under the guise of impeaching a witness. This the court properly refused to permit. See Wigmore on Evidence, vol. II, sec. 904, subd. 8; Sturgis v. State, 2 Okla. Cr. 362, 386, 102 Pac. 57; Langford v. Jones, 18 Or. 307, 22 Pac. 1064; People v. Jacobs, 49 Cal. 384; Mercer v. State, 41 Fla. 279, 26 So. 317; Hull v. State, 93 Ind. 128; Champ v. Com. 2 Metcalf (Ky.) 17.

For tlie error pointed out the canse is reversed and remanded with directions to set aside the judgment and grant plaintiff in error a new trial.

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


text:
    RAND COWART v. STATE.
    No. A-93.
    Opinion Filed November 21, 1910.
    1. GRAND JURY — Qualifications—Challenge. During the impaneling of the grand jury the defendant interposed a challenge to one 'of the persons drawn and summoned as a grand juror on the ground that he had been a witness against t'he defendant in the latter’s preliminary trial and had been subpoenaed by the state as a witness against the defendant on the same charge before the grand jury; and the county attorney admitted the truth of the facts stated. Held, that the juror was disqualified and the defendant’s challenge should have been sustained.
    2. APPEAL — Record—Challenge to Grand Juror — Exceptions. Before the action of the court in erroneously overruling a challenge to a person drawn and summoned as a grand juror can be availed of on appeal, the case-made or bill of exceptions must affirmatively show that the objectionable person was finally accepted and impaneled as a grand juror, that he was a member of the grand jury which returned the indictment, that the defendant before entering his plea tiled a motion to set aside the indictment on that specific ground, and that the motion was overruled and the defendant excepted.
    3. JUDGES — Judges Pro Tempore — Constitutional Law. That portion of sec. 9, art. 10, of the Constitution providing for the election of district judges pro tempore is not self-executing.
    4. SAME — Selection by Chief Justice. Prior to the passage of the act approved March 22, 1909, (art. 6, chap. 24, Snj'der’s Comp. Laws) where the district judge was disqualified to try a criminal case, and the state and the defendant did not agree upon a judge pro tempore, for the trial of the case, a judge could be supplied only by the Chief Justice assigning some other district judge to trv the case.
    5. SAME — Election by Bar — Validity. Prior to the passage of the act approved March 22, 1909, (art. 6,' chap. 24, Snyder’s Comp. Laws) no provision having been made by law whereby a judge pro tempore could be elected in the event of the disqualification of The regular judge, a special judge elected by the members of the bar over the defendant’s objection was not a judge either dejure or de facto, and a trial had before him was a nullity.
    (Syllabus by the Court.)

      Appeal from the District Court of Pottawatomie County; J. H. Woods, Special Judge.

    Rand Cowart was indicted for murder, and was convicted of manslaughter in the second degree.
    Reversed and remanded.

      B. B. Blakeney, and J. Ei. Maxey, for plaintiff in error.
    On question whether sec. 9, art. 10, Const, is self-executing: Cooley, Const. Lim. (7th Ed.) p. 127; Railroad Co. v. Lawrence County, 27 111. 50; Long v. Billings, 7 Wash. 267; French v. Teschemaker, 24 Cal. 518; Railroad Co. v. Fire Ass’n Phila., 60 Ark. 325.

      Chas. West. Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
    On same question: Davis v. Burke, 179 II. S. 403; State v. Holmes (Wash.) 40 Pac. 736; Parker Co. v. Jackson, 5 Tex. Civ. App. 37; Trigg v. State, 49 Tex. 645; Railroad Co. v. State Bom-d of Equalization, 64 Mo. 304.
   RICHARDSON, Judge.

During the impaneling of the grand jury which returned the indictment in this case, plaintiff in error interposed a challenge to one E. E. Romberg, who was drawn and summoned as a grand juror, on the statutory ground that Romberg had testified as a witness for the state in plaintiff in error’s examining trial and was under subpoena by the state as a witness against plaintiff in error before the grand jury. The county attorney admitted the truth of the facts alleged, but the court for some reason overruled the challenge; and this is assigned as error.

The ease-made does not contain the record of the impaneling of the grand jury, nor does it show the names of the grand jurors who were finally accepted, impaneled and sworn. While it shows that the court erroneously overruled the challenge to this juror, still it does not show, and we do not know, that this juror was finally called and impaneled, and that he served as a juror in the investigation of this charge. The record shows that thirty jurors were drawn and summoned from which to impanel the grand jury; and notwithstanding the court overruled plaintiff in error’s challenge, still it may be that the objectionable juror was not one of the number, then consisting of not less than twelve nor more than sixteen jurors, who were finally called from the thirty and impaneled and sworn. And from the state of the record and the very guarded manner in which the matter is stated in plaintiff in error’s brief, we are constrained to believe that this juror did not in fact serve on this jury. The mere showing of a challenge to a juror, though well taken and overruled, is not a sufficient showing of prejudice. On the contrary, the record must affirmatively show that the juror was impaneled and that he in fact served in that particular case; and in addition to that, it must also show that the defendant, before entering his plea, filed a motion to set aside the indictment on that ground, that the motion was overruled, and that the defendant excepted; none of which matters are shown in this case.

Section 6658 of Snyder’s Comp. Laws provides that a challenge to an individual grand juror may be interposed by either party on the ground that he is a witness for the prosecution and has been served with process as such. Under this provision the challenge to the juror Romberg was good, and should have been sustained. And an indictment returned by a grand jury having as one of its members a disqualified person who was thus duly and seasonably challenged cannot be said to have been “found * * * as prescribed by the statutes of the state”; and this, by section 6738 of Snyder’s Comp. Laws, is declared a ground for setting aside the indictment. Section 6739 provides, however, that if the motion to set aside the indictment be not made, the defendant is precluded from afterwards taking the objection. Therefore, plaintiff in error having failed to file such motion, the error of the court in overruling the challenge to the objectionable juror, even if he in fact served, was waived. That this is so must be apparent from the fact that should this court sustain plaintiff in error’s contention, the error complained of would be' as available on another appeal as on this one if the cause were again tried on this indictment, and it could be cured only by setting aside the indictment, and resubmitting the matter to a competent grand jury; and that being true, then a motion to set aside the indictment on that ground was necessary. Certainly it was proper for plaintiff in error to challenge the juror; for that laid the predicate for a subsequent motion to set aside the indictment, without which such a motion must have been overruled. Fooshee v. State, 3 Okla. Cr. 666, 108 Pac. 554. And having duly and seasonably interposed the challenge, had the disqualified juror served, and had plaintiff in error subsequently filed a motion to set aside the indictment on that ground, and had the motion been overruled, then the action of the court in overruling such motion would have constituted reversible error. As it is, however, if the juror in fact served on this grand jury, which the record does not show, the plaintiff in error must be held to have waived his objection to him.

When the cause came on for trial plaintiff in error filed an affidavit averring that the presiding judge of that judicial district was prejudiced against him, and by reason thereof would not give him a fair and impartial trial, and praying a change of judge. This was granted, and the presiding judge thereupon ordered that a special judge for the trial of this case be elected by the members of the bar present, under section 9 of article 7 of the Constitution. Accordingly an election was then and there held, resulting in the selection of Honorable J. H. Woods as judge pro tempore for the trial of this case. Plaintiff in error objected to the election of a special judge, and his attorneys refused to participate therein; and when Judge Woods assumed the bench and called the case, plaintiff in error entered an objection to the trial being had before him, but the objection was overruled. This was before the passage of the act approved March 22, 1909, (art. 6, chap. 24, Snyder’s Comp. Laws), prescribing the procedure governing the conduct of such elections; and it was urged both here and below that the constitutional provision authorizing an election in such cases is not self-executing, and that unless the parties should agree upon a judge pro tempore, then it devolved upon the Chief Justice of the Supreme Court to designate some other district judge to try the case.- We think the contention sound, and that plaintiff in error’s objection should have been sustained. The constitutional provision is as follows:

“In the event any judge shall be disqualified for any reason from trying any case in his district, the parties to such case may agree upon a judge pro tempore to try the same, and if such parties cannot agree, at the request of either party a judge pro tempore may be elected by the members of the bar of the district, present at such term. If no election for judge pro tempore shall be had, the Chief Justice of the state shall designate some other district judge to try such ease.”

In our opinion the holding of such an election necessitates the provision of some method of voting, of canvassing and tabulating the votes cast, and of declaring and recording the result; and the votes 'must be canvassed and the result determined and declared by some person or persons designated by law. Provision must be made for the time and place of holding the election, and the notice to be given thereof; and some one must be vested with authority to determine who is entitled to vote in such election. But the Constitution makes provision for none of these matters. It merely declares that at the request of either party a judge pro tempore may be elected. It does not provide the machinery or procedure for holding the election. It contains no provision for notice to the bar or any other person of the time and place of holding it; no provision insuring its fairness, regularity and legality; no provision insuring the correct declaration of the result. No record is required to be made or kept, and no person is authorized or empowered to determine and declare the result. Without a requirement of notice that such an election is to be held and the time thereof, with no method of voting provided for, with no person designated to conduct the election and to pass upon and determine the right of any person to vote therein, no one authorized to declare the result, no record required to be made, no minimum limit as to the number whose participation may constitute an election, no provision as to whether a mere plurality or a majority vote is required to elect, and no restrictions upon the right of the interested attorneys to participate therein, all sorts of fraud and wrongdoing could easily be perpetrated in an attempted election, and the appellate court could have no means of telling and no rule for determining .whether the election was fairly, honestly and legally conducted, and whether the person who presided as special judge in the trial was in fact elected. An unseemly scramble for advantage in the election might easily ensue; and one side or the other, by employing three or four attorneys, might by their votes control the election and place on the bench as special judge an unfit, incompetent or partisan person. In our opinion, by every declared test, this provision is not self-executing. It grants the power and creates the right to elect a special judge, but it provides no means or procedure by which the power may be exercised or the right enforced or protected; and the provision of such means and procedure is necessary to give it effect. Ex parte Wagner, 1 Okla. Cr. 148, 21 Okla. 33, 95 Pac. 435. It is probable that had the defendant and the state each consented or agreed to such an election, or participated therein without entering an objection, that might be held to be an agreeing upon a judge pro tempore within the meaning of the Constitution; that is, it might be- -held to be an agreement that such person .as might be thus' designated should be the judge pro tempore. But no such question arises in this case, for plaintiff in error specifically objected to holding the election and refused to participate therein; and the judge pro tempore then and there elected was without right or power to try the case. As we view the matter, there being no agreement upon a judge pro tempore to try the case as provided by the Constitution, and no provision made by law whereby an election could be held, Judge Woods was not a judge either de jure or de facto, and the trial was a nullity and the judgment void.

There are other assignments of error, but inasmuch as the proceedings were wholly void, we shall not review them. Let the void judgment be set aside, and the plaintiff in error placed upon trial coram judice.

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


author: FURMAN, Presiding Judge.

text:
    WILL STARR v. STATE.
    No. A-94.
    Opinion Filed November 21, 1910.
    A'PPEAL AND ERROR — 'Failure to File Briefs — Scope of Review. When no brief is filed pointing out the specific errors relied upon, the record will only be examined for fundamental errors.
    (Syllabus by the Court.)

      Appeal from District Oourt, Latimer County; M. E. Rosser, Judge.

    Will Starr was convicted for grand larceny, and appeals.
    Affirmed.

      Smith G. Matson, Assistant Attorney General, for the State.
   FURMAN, Presiding Judge.

What purports to be the record in this case does not contain the testimony of the witnesses or the instructions of the court to the jury. The information in the record charged the defendant with the larceny of a certain brown mare. No objection was made to the information in the court below and none is presented here. The information is sufficient.

The record contains the following entry:

“A jury was empaneled and proof on behalf of the state was introduced but no proof was introduced on behalf of the defendant. Before the state had concluded its testimony the defendant withdrew his plea of not guilty and entered a plea of guilty and thereupon the court instructed the jury that they might from the plea of guilty find a verdict of guilty as charged in the information, but if they desired to deliberate on the case to retire for that purpose, and thereupon the jury, without leaving the court room and without leaving their seats, rendered the following verdict: ‘We thé jury duly empaneled and sworn in the above styled cause do upon our oaths find the defendant Will Starr guilty as charged in the information in said cause. J. R. Nation, Foreman.’ ”

The judgment is in regular form and assesses the punishment of the defendant at confinement in the state penitentiary at Lansing, Kansas, for a period of two years.

No briefs have been filed in this court on behalf of the defendant. There is nothing in the record except the information, the plea of guilty and the judgment. No error appearing, the judgment of the lower court is in all things affirmed, and the judgment is amended so as to provide for the confinement of the defendant in the state penitentiary at McAlester.

DOYLE and RICHARDSON, Judges, concur.


text:
    JAKE LEWIS v. S. H. RUSSELL, Judge of the District Court of Carter County.

    No. A-890.
    Opinion Filed November 21, 1910.
    1. JUDGES — Prejudice—Constitutional Right to Change. The defendant has a right to a change of judge where the presiding judge is in fact prejudiced against him; and under sec. 6, art. 2 of the state Constitution this light cannot be abrogated.
    2. SAME — Legislative Control. Under sec. 6, art. 2 of the state Constitution, it is the fact of prejudice, and not the mere allegation thereof, which disqualifies a judge; and the time, manner and means of raising the question an.d of showing and .determining the facts with respect thereto, are subject to legislative control.
    3. SAME — Application for Change — Requisites. Under sec. 2016, Snyder’s Oomp. L. Olda. 1909, it is necessary that an application for a change of judge on the ground of prejudice set forth the facts upon which the claim of prejudice is made.
    4. SAME — Procedure—Refusal of Change — Mandamus. Under sec. 2016, Snyder’s Comp. L. Olda. 1909, if a seasonable application for a change of judge be filed'in proper form, 'and the judge ' does not admit his disqualification and refuses to certify same a petition may be filed for a writ of mandamus to require him to do so; and the question of his disqualification will then be tried cut and determined in the appellate court upon the petition, the response, and such proof as may there be offered.
    5. SAME — Application for Change — Necessity. The filing of seasonable application for a change of judge with the clerk of the court below, in full compliance with the statute, is a prerequisite to the procuring of a writ of mandamus requiring a judge to certify his disqualification.
    ('Syllabus by the Court.)
    Petition for writ of mandamus.
    Writ denied on September 17, 1910.

      B. F. Turner, for petitioner.

      James II. Mathers, County Attorney of Carter County, and IF. B. Blealcmore, for respondent.
   RICHARDSON, Judge.

The petitioner, Jake Lewis, being charged in the District Court of Carter County with the crime of murder, on September 7, 1910, and within proper time, filed with the clerk of that court an application for a change of judge, in which it was stated in general terms that the respondent, S. H. Russell, judge of said court, because of his bias and prejudice against petitioner, was disqualified to sit in said cause, and requesting that .he certify his disqualification as provided by law. The application set forth no grounds or facts upon which the claim was made that respondent was prejudiced, and the latter refused to make the certificate requested. Thereupon petitioner filed in this court a petition for a writ of mandamus requiring respondent to execute the certificate desired, in which petition there was set out for the first time the facts upon which the claim of prejudice was' made.

Prior to the passage of the act approved March 22, 1909 (art. 6, chap. 24, Snyder’s Comp. L. Okla.), the uncorroborated affidavit of the accused filed in a criminal case,' stating in general terms that because of the bias and prejudice of the presiding judge the Accused could not have á fair and impartial trial before him, of itself operated to disqualify such judge. The truth of the averment and the good faith of the defendant in making it were immaterial, and were not issuable anywhere at any time. A change of judge imperatively resulted from the filing of the affidavit. Sec. 5427, Wilson’s Bev. and’ Ann. Stat. Okla. 1903; Lincoln v. Territory, 8 Okla. 546, 58 Pac. 730; Buchanan v. State, 2 Okla. Cr. 126, 101 Pac. 295. However moderately and justly this power of disqualifying judges may have been exercised before statehood, after the admission of Oklahoma into the Union it was greatly abused. Judges were constantly disqualified by defendants not over scrupulous in the use of their oaths, where no cause either real or apparent for a change of judge existed, and where it was sought for the palpable purpose only of delaying, obstructing, and ultimately defeating justice. The affidavit was generally filed after the case was called for trial, and after a motion for a continuance and often an additional motion for a change of venue had been filed and overruled. The fact that no notice of the filing of such affidavit had been given, and that the state had gone to all the trouble and expense of preparing for trial, and had. its witnesses present at the cost of the county, was immaterial. Often the trial calendar was deranged and the business of the court thrown into confusion. Either a continuance resulted, or else an. exchange of districts by the disqualified judge with some other district judge was necessitated, usually involving a loss of time aggregating about two days for each judge, and always the expenditure by the state of the traveling and boarding expenses of each judge thus assigned to a district other than his own.

These were some of the evils resulting from section 542? of Wilson’s Kev.’ & Ann. Stat., 1903, as said section was construed, to remedy which art. 6, chap. 24 of Snyder’s Comp. Laws was enacted. The right to a change of judge on account of actual prejudice on the part of the presiding judge has not been abrogated, and it has been held that under sec. 6, art. 2 of our Constitution it cannot be. But under the Constitution it is the fact of prejudice and not the mere allegation thereof which disqualifies; and the time, manner and means of raising the question and of showing and determining the facts with respect' thereto are subject to legislative control. The act -approved March 22, 1909, was intended to regulate these matters, and- the portion thereof pertinent to the present case (see. 2016, Snyder’s Comp. L. Okla.) reads as follows:

“Any party to any cause pending in a court of 'record may in term time or in vacation file a written application with the clerk of the court, setting forth the grounds or facts upon which the claim is made that the judge is disqualified, and request him to so certify after reasonable notice to the other side, same to be presented to such judge, and upon his failure so to do within three days before said cause is set for trial, application may be made to the proper tribunal for mandamus requiring him so to do.”

Under this section it is necessary-that the application for a change of judge be filed with the clerk of the court below; that it set forth the grounds, that is to say, the facts upon which the claim is made that the judge is prejudiced; and that the same be presented to such judge, reasonable notice thereof -being first given to the prosecution. If the application is in compliance with the statute, and- the judge concedes that he is prejudiced, he certifies his disqualification as requested. On the other hand, if the application be in proper form, but the judge does not admit his disqualification and therefore refuses to make the certificate, a petition may be filed for a writ of mandamus to require him to do so; and the question of his disqualification will then be tried out and determined in the appellate court upon the petition, the response, and such proof as may be there offered. - But the filing of an application with the clerk below in full compliance with the section above quoted is a prerequisite to the procuring of the writ. The facts upon which the claim of prejudice is made must be set out in the application so that the judge and the other side may know what is claimed and upon what the claim is based; and it is not sufficient to set th’ose facts out for the first time in the petition for the writ. Myers v. Bailey, 26 Okla. 133, 109 Pac. 820; Mayes v. Pitchford, 26 Okla. 132, 109 Pac. 821; Ex parte Hudson, 3 Okla. Cr. 393, 106 Pac. 540; Id., 107 Pac. 735. In the present case no pretense was made of complying with the statute in this respect, and therefore there was nothing upon which to base the petition for the writ of mandamus. The writ is therefore denied.

FIIBMAN, Presiding Judge, and DOYLE, Judge, concur.


text:
      In Re WILLIAM COYLE.
    No. A-917.
    Opinion Filed November 21, 1910.
    HABEAS CORPUS — Court Records — Impeachment. The orders and judgments of a court of record which appear to be properly entered can not be impeached or contradicted in a habeas corpus proceeding.
    ('Syllabus by the Court.)
    Application for writ of habeas corpus.

    Writ denied.

      Roseman & Buchner, for petitioner.

      H. G. McKeever, County Attorney of Garfield County, for the State.
   PER CURIAM.

This is an application for a writ of habeas corpus. The applicant represents that he is unlawfully detained' in imprisonment in the county jail of Garfield county by the sheriff of said county upon a commitment issued out of the county court of said county upon a judgment and sentence of said court against petitioner, alleging that said‘imprisonment is illegal and unauthorized by law upon the ground that said county court had no jurisdiction to try, convict or sentence petitioner for any offense against the laws of the state of Oklahoma. The judgment in this case was pronounced by said court on the 12th day of September, 1910, at what should have been the July term of said court, the petitioner saying:

“That the said July term of the said court was not opened by the said judge on the first day of the term of court as fixed by law and said judge of said court did not attend and open said court until the second judicial day of said term of said court, and on said day, after said term was attempted to be opened, the judge of said court adjourned said court until the morning of the succeeding day, and thereupon the said judge left said county and did not return to said county and court for several days thereafter; that during the absence of the said judge the cleric of said court attempted to open and adjourn said court from day to day without authority of law, and said clerk entered of record orders adjourning said court from day to day until said judge of said court returned to said county, all of which acts and orders of the said clerk are illegal, fraudulent and void.” -

• Upon the hearing of this matter a certified copy of the record containing the orders and judgments of the July, 1909, term of the Garfield county court was introduced in evidence. It appears that the court was opened on the 5th day of July, 1910, and that said court was properly kept open until the day of the trial of this cause. The petitioner attempted to impeach Ihis record of the court by oral testimony. It appears from the certified copy of the record that the orders therein contained were properly entered. So long as this record stands in any proceedings in which it may be brought into question, other than one to vacate and correct it instituted in the court in which it was made, it imports absolute verity, and can not be attacked or impeached in an application for habeas corpus. See In re Ben Tucker, infra, decided at the present session of the court.

The application for the writ of habeas corpus is therefore denied and the petitioner is remanded to the custody of the sheriff of Garfield county, with directions to enforce the judgment of the court below.