text:
    J. W. EAKIN v. STATE.
    No. A-418.
    Opinion Filed March 21, 1911.
    (114 Pac. 270.)
    INDICTMENT AND INFORMATION — Necessity for Imdictment — Felonies Antedating Statehood. The courts of record of this state do not acquire jurisdiction upon an information to try, convict, and sentence a person charged with the commission of a felony prior to statehood. Felonies committed prior to statehood should be prosecuted in the trial courts of this state upon indictment.
    (Syllabus by the Court.)

      Appeal from Dislrict Court, Haskell County; Malcolm B. Rosser, Judge.

      J. W. Eakin was convicted of embezzlement, and be appeals.
    Reversed and remanded.

      Brotan & Lawrence, Fred H. Fannin, and Clark & Crittenden, for plaintiff in error.

      Chas. West, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   ARMSTRONG, Judge.

The plaintiff in error was indicted in June, 1908, on a charge of embezzlement, and a demurrer was sustained to the indictment on June 19, 1908, and afterwards, on the same date, the county attorney filed an information against the plaintiff in error, defendant below. A motion to set aside the information was filed and overruled, and he excepted. On the 22d of December, 1908, the' plaintiff in error was put on trial and was by a jury convicted upon the charge. The proof shows that the plaintiff in error was cashier of the Farmers’ Sc Merchants’ Bank of Chant, Ind. T., from the 1st day of November 1906, the day on which the bank was opened for business, until the 29th day of July, 1907, having severed his connection with the bank prior to statehood. He was charged with embezzling $4,-323.74 of the funds of the said bank during the time he was cashier.

The Attorney General has died a confession of error in this .case as follows:

“Comes now Charles West, Attorney General, and confesses error in the above entitled and numbered case for the following-reasons : First, Because the information alleges that the plaintiff in error embezzled the funds of the Farmers’ & Merchants’ Bank of Chant, Oklahoma, a banking corporation organized since statehood under the laws of the state of Oklahoma, while the proof shows that the alleged embezzlement occurred before statehood and .was of the funds of the Farmers’ & Merchants’ Bank of Chant, Indian Territory, a banking corporation organized under and b/ virtue of the laws of the United States. This the Attorney General thinks was a fatal variance between the allegations and the proof. Second. Because this was a prosecution by information for an infamous crime committed in the Indian Territory prior to statehood. Under the laws in force in the Indian Territory prior to statehood prosecution for this crime must have been by indictment. Nabert Bonaparte v. State, 4 Okla. Cr. 603, 112 Pac. 947. It is true that on the face of the information the crime charged is alleged to have been committed since statehood, but there is no evidence whatever to support such an allegation, ah the evidence showing, however, that the crime was committed before statehood. For this reason the Attorney General belices the court had no jurisdiction to try the plaintiff in error upon an information of the county attorney. Respectfully submitted, Chas. West, Attorney General. Smith C. Matson, Assistant Attorney General.”

This question was settled in the case of Bonaparte v. State, 4 Okla. Cr. 603, 112 Pac. 947, in an opinion by Judge Doyle, wherein it is held that the courts of this state do not acquire jurisdiction upon information filed by the county attorney to trv, convict, and sentence a defendant for a felony charged to have been committed in Indian Territory prior to statehood. The information charges the offense as having been committed since statehood, but the proof shows that, if committed, it was committed prior to statehood. It will be seen, therefore, that the confession of error is well taken, and must be sustained. The plaintiff in .error should have been proceeded against by indictment. The .cause is reversed and remanded to the district court of Haskell county for such further proceedings as may be deemed proper by that court in harmony with the views expressed in this opinion.

FURMAN, PeesiptNG Judge, and DOYLE, Judge, concur.


source: Caselaw Access Project

author: ARMSTRONG, Judge.

license: Public Domain

text:
    PETER DEMOLAN v. STATE.
    No. A-483.
    Opinion Filed March 21, 1911.
    (114 Pac. 260.)
    1. APPEAL — Time—Misdemeanor Cases. Under the provisions of the statute, section 6948, Snyder’s Compiled Laws 1909; appeals to the Criminal Court of Appeals in misdemeanor cases must he taken within 60 days from the date of judgment, unless the court for good cause shown allows an additional time not to exceed 120 days from the date of judgmeht.
    2. APPEAL — Time—Dismissal for Delay. When appeals are not perfected within the time allowed by this statute, this court is without jurisdiction to review them, and they will’ be dismissed.
    (Syllabus by the Court.)

      Appeal from Hughes County Court; P. W. Gardner, Judge.

    Peter Demolan was convicted of having intoxicating liquors in possession for purpose of illegal sale, and he appeals.
    Dismissed.

      Crump, Rogers & Harris, for appellant.

      Smith C. Matson, Asst. Atty. Gen., for the State.
   ARMSTRONG, Judge.

Judgment and sentence was pronounced in this case on the 3d day of July, 1909. The appeal was filed on December 13, 1909. Under section 6948, Snyder’s Comp. Laws 1909, appeals in misdemeanor cases must be filed within 60 days after the pronouncement of judgment and sentence unless for good cause shown the time is extended by the trial court, not to exceed 120 days from the date of the judgment and sentence. The court gave 60 days for the preparation and service of case-made, from the day judgment was pronounced, -but made no order fixing the time for filing the appeal. The statutory time of 60 days would therefore apply. The record fails to show that any time was ever asked for or granted by the trial court court after the date the judgment was pronounced, and, even if there had been such an order, this appeal was filed after the expiration of the four months and such extension would not have availed.

This is an appeal that we would have been glad to review; but under the repeated holdings of the court we are without jurisdiction to review it, and it' will have to be dismissed. It is the duty of persons appealing cases to this court to appeal them in the manner provided by law, and it is not the fault of the court that this is not done. It is not a pleasant duty to have to dismiss a person’s appeal without reviewing it, and this is never done by this court, except upon jurisdictional grounds. It matters not how meritorious an appeal may be, it must be taken and perfected as the law provides.

FURMAN, PRESIDING Judge, and DOYLE, Judge, concur.


text:
    J. C. COLLINS v. STATE.
    No. A-575.
    Opinion Filed March 21, 1911.
    (114 Pac. 1127.)
    1. COURTS — Terms of Court — Failure to Convene. When a regular time is fixed for the terms of courts of record, and such court fails to convene upon the date fixed or within two days from such date, and no judge pro term is selected as provided by law, the term lapses.
    2. SAME — Validity of Judgments Out of Term Time. Where the regular term of the court is permitted to lapse, no proceedings ' can be had until the next regular term, or until a term is called in the manner provided by law. Any judgments rendered by a court out of term time and after the term has lapsed are void.
    (Syllabus by the Court.)

      Appeal from Superior Qoivrt, Music ogee County; Farrar L. McCain, Judge.

    J. C. Collins was convicted of violating the prohibitory law, and appeals.
    Reversed and remanded..

      De Boos Bailey and J. E. Wyand, for appellant.

      Smith G. Matson, Asst. Atty. Gen., for the State.
   ARMSTRONG, Judge.

There are a number of assignments of error made by appellant, but the only one we deem it necessary to pass upon here is the jurisdictional question first discussed in the original brief of counsel for the appellant, raising the proposition of the lapse of the September term of the court and nullity of the judgment of conviction by reason of such lapse. The 1909 Legislature created superior courts in counties of this state having a population of 30,000 or more, and having a city of 8,000 or more (chapter 14, art. 7, § 1, Session Laws of 1909). Muskogee county under this act was entitled to a superior court. Section 4 of the same article provides that the Governor shall appoint a judge for each of such courts, and provides further that the judge so appointed “shall -by order fix the terms of said court at not less than four terms each j^ear; provided, that the first term of said court shall begin as soon as practicable aft&r said court is organized under the provisions of this act.” The superior court of Muskogee was organized on the 2d day of August, 1909. Judge Farrar L. McCain, who had been previously appointed judge of said court by the Governor of Oklahoma, and who had qualified on the 21st day of July, 1909, was present and presiding. An order was by him made that there should be six terms of the superior court of Muskogee county held each year, to be begun and hoi den on the second Monday of September, November, January, March, May, and July, respectively. The first’ term of said superior court under this order was to be begun and holden on the second Monday of September, 1909. On the second Monday in September, which was the 13th day of said month and the day set by the court for the opening term, Judge MfeOain, the duly qualified judge of said court, was unable to appear and hold court, and he instructed the clerk by telegraph to excuse the jurors until the 4th day of October, 1909, with directions to return for service at that time unless notified to the contrary.

On the 4th day of October, 1909, the court attempted to convene in due form, and this appellant was tried and convicted on a charge of violating the prohibitory law, and he now complains that the court which tried him was not a court, and that the judgment against him is void. Propositions involving this question have been passed on by this court in a number of cases since the trial of this appellant in the superior court of Muskogee county. In the case of Wilson v. State, 3 Okla. Cr. 714, 109 Pac. 289, in the second division of the syllabus, the court says:

“The terms of courts of record begin on the day fixed by law; and if the judge be not present in his court, or a judge pro tempore selected within two days after the first day of the term, then the term lapses, and cannot thereafter be revived by the judge or any other officer of the court, and any attempted proceeding had in such court after the lapse of the term is coram non jucftice and void.”

The same question was. determined in harmony with the contention of the appellant in the case of Ex parte James, 4 Okla. Cr. 94, 111 Pac. 947; also Ex parte Williams, 4 Okla. Cr. 101, 111 Pac. 950. In the case of Andy Baker v. State, ante, 113 Pac. 991, decided at the last term of this court, this court held that it is necessary for the record, when the same is complete, to affirmatively show that the court convened on the regular date fixed by law and adjourned to some subsequent date in order to- validate its judgment had at such subsequent term. The record in the case we are now considering plainly shows that the court failed to convene on the date fixed as the law provides, and was not convened within two days thereafter by the regular judge, no judge pro tempore was selected, nor was the term adjourned to any subsequent date. The term lapsed at the end of two days from the date provided for convening it, and no instructions of the presiding judge to the clerk by telegram or otherwise to advise the jurors to return for service October 4th following could in any wise change the effect of the lapse.

TJnder the authorities cited the judgment against this appellant is clearly void. The cause is reversed and remanded to the superior court of Muskogee county, with directions to grant the appellant a new trial.

FURMAN, PRESIDING Judge, and DOYLE, Judge, concur.


text:
    GID HUNT v. STATE.
    No. A-492.
    Opinion Filed March 21, 1911.
    INTOXICATING LIQUORS — Conveyance Within State — Unlawful Purchase. Under the provisions of the prohibitory statute of this state, a person who procures whisky at an unlawful sale thereof is subject to the same penalty for transporting the same from the point of sale to any other point in this state as the person who makes the sale.
    (Syllabus by the Court.)

      Appeal from Pawnee County Court; H. T. Conley, Judge.

    Gid Hunt was convicted in the county court of Pawnee county for unlawfully transporting whiskey, and appeals.
    Affirmed.

      Wm. Blake and Fred 8. Liscum, for appellant.

      Smith C. Matson, Asst. Atty. Gen., for appellee.
   ARMSTRONG, Judge.

An information was filed against the appellant, defendant below, in the county court of Pawnee county on the 1st day of October, 1909, charging him with transporting intoxicating liquor, under the prohibitory statute. Motion to set aside the information was filed, and on the 14th day of October, 1909, the county attorney filed an amended information. A motion to set aside this information was filed and overruled, and defendant excepted; and a demurrer was afterwards filed and overruled, and defendant excepted. The caiise was tried to a jury and defendant convicted and sentenced to 90 days in jail and to pay a fine of $300 and costs.

All the testimony in the case was by one witness, C. I. Pum-roy, sheriff of Pawnee county. He testified that he arrested the defendant about the first of October, 1909, at 'the Fair Grounds in the city of Pawnee; that he took from the defendant at that time a pint or half-pint of whiskey; that the defendant told him he bought the whiskey in the city of Pawnee and said to the sheriff, “It’s not right to take this off me.” He said they “were going off a little ways to take a drink.” The county attorney asked the witness the following question: “At that time he said he got it in Pawnee and took it to the Fair Grounds ?” Answer: “He did, and afterwards told me he bought it from Keystone.” And the further question: “Did he state what he was going to do with the whiskey?” Answer: “He just said, fSome of-us are going down here to have a drink/ ”

In the petition in error the appellant, defendant below, complains of the court in not setting aside the amended information, and in overruling the demurrer. We think the court correctly overruled the motion to set aside the information and also the demurrer; as it sufficiently charges the offense of unlawfully transporting intoxicating liquor under our statute.

The . appellant complains of the court in overruling his demurrer to the evidence and in admitting certain evidence. Ou:-practice does not contemplate a demurrer in a criminal ease except upon a total failure of evidence.

The appellant, defendant below, objected and excepted to the giving of each instruction in the record. We have carefully read the record, including the testimony and instructions of the court, as well as all other orders made in this case. There is no brief filed on the part of the appellant and ordinarily the case would be affirmed without going into these matters as carefully as we have. This is a case, however, wherein the appellant was convicted for carrying whiskey from one point in the state to another point therein, which whiskey was bought from what is commonly termed a “boot-legger,” according to the admissions of the appellant to the sheriff at the time of and subsequent to his arrest. TJnder the provisions of the prohibitory law a p'erson who buys whiskey from a boot-legger and transports it from the point where he purchases it to another point in the state, be that distance whatever it may, is subject to the same penalty as the person who sells the whiskey. There have not been a great many prosecutions of this kind brought to our attention by appeals. We are not, in this opinion, to be understood as passing on the question of the liability of a person in transporting a lawful purchase from one point to another.

Finding no errors in the record prejudicial to the rights of the appellant, the judgment of the court below is affirmed.

FURMAN, PRESIDING Judge, and DOYLE, Judge, concur.


author: FURMAN, PRESIDING Judge.

text:
    JOE LIGHTLE v. STATE.
    No. A-493.
    Opinion Filed March 21, 1911.
    (114 Pac. 275.)
    1. INTOXICATING LIQUORS — Indictment and Information — Language of Statute. In a prosecution against a defendant for having in his possession any imitation or substitute for beer, it is not necessary for -the state either to alláge or prove that such imitation or substitute was intoxicating. To charge the offense in the language of the statute is sufficient.
    2. INTOXICATING LIQUORS — Offenses—Substitute for Beer-Good Faith — Intent. Where a defendant is being prosecuted for haying in his possession a substitute for or imitation of beer with intention of selling the same, it is no defense that the defendant honestly believed that said substitute contained less than one-half of 1 per cent of alcohol.
    3. SAME. Where a defendant sells or unlawfully handle's any prohibited liguors in Oklahoma, he does so at his peril, and he cannot escape punishment by proving that he was informed and believed tlffat the sale of such liquor was not prohibited by the laws of Oklahoma.
    (Syllabus by the Court.)

      Appeal from Wagoner County Court; W. T. Drake, Judge.

    Joe Lightle was convicted of having in his possession a substitute for beer with the intent of selling it, and he appeals.
    Affirmed.

      8. M. Rutherford, for appellant.

      Smith C. Matson, Asst. Atty. Gen., for the State.
   FURMAN, PRESIDING Judge.

In a prosecution against a defendant for having in his possession any imitation or substitute for spirituous, vinous, fermented, or malt liquors with the intention of selling the same, it is not necessary for the state either to allege or prove that such imitation or substitute was intoxicating. It is sufficient if the offense is charged in the language of the statute. This question has been heretofore repeatedly passed upon by this court. It was directly involved in the case of De Graff v. State, 2 Okla. Cr. 519, 556, 103 Pac. 538, 552. This court, in discussing this question, said:

“In support of the second ground upon which the court was requested to exclude the evidence introduced, counsel in their brief say: Tt' is not charged that “Adam’s Special” is intoxicating, that it contains any alcoholic properties; but the testimony establishes the fact that it was not beer. We believe and argue that the offense cannot be constituted without charging and proving the sale of an intoxicant. State v. May, 52 Kan. 53, 34 Pac. 407; State v. Moulton, 52 Kan. 69, 34 Pac. 412; Intoxicating Liquor Cases, 25 Kan. 751, 37 Am. Rep. 284.' In State v. May, 52 Kan. 53, 34 Pac. 407, the Kansas court said: Tf the article sold was beer, it was not incumbent on the state, in the first instance, to show that it was intoxicating; but the defendant had a right to show, if he could, that it was not intoxicating. If it was not beer, or any other liquor presumed to be intoxicating, it was incumbent on the state to show’ in the first instance the intoxicating qualities of the liquor sold/ The other cases cited are from the same court, and follow the May case, so it is seen that under the Kansas statute the sale of intoxicating liquors is alone prohibited. This is not the ease under the Oklahoma statute. Section 1 of article 3 of our enforcement act prohibits the sale of any imitation or substitute for malt liquors which contain as much as one-half of 1 per Centum of alcohol, measured by volume, and which is capable of being used as a beverage, so the court did not err in overruling the objection to this testimony upon the objection made. In the case of Markinson v. State, 2 Okla. Cr. 323, 101 Pac. 354, in an opinion by Judge Doyle, this court did hold that in prosecutions for the sale of substitutes for liquor, which sale occurred before the passage of the enforcement act, and which was based alone upon the enabling act, copied into our Constitution, it was necessary to prove that such substitutes were intoxicating. This decision was based alone upon the language of our Constitution and has no application to sales of such substitutes sold after the passage of the enforcement act.”

This question was again discussed at length by this court in the case of Moss v. State, 4 Okla. Cr. 260, 111 Pac. 955. Judge Richardson, speaking for the court, said:

"There is a vast difference between the constitutional provision and the statutory provision in regard to the sale of liquors, and both the constitutional provision and the statutory provision ('Acts 1907-08, p. 603) are in force. Under the former the liquor sold must be intoxicating; the Constitution creates the rebuttable presumption that all beer, ale, and wine are intoxicating, and the courts take judicial notice that alcohol and whisky are intoxicating. The proper allegation in an information drawn under the constitutional provision is that the defendant did barter, sell, give away, etc., intoxicating liquor, naming or describing it.’ The statutory provision (section 4180, Snyder’s Comp. Laws) provides that: ‘It shall be unlawful for any person, individual or corporate, to manufacture, sell, barter, give away or otherwise furnish except as in this act provided, any spirituous, vinous, fermented or malt liquors or any imitation or suistitute therefor! Under this provision it is necessary neither to allege nor prove that the liquor sold was intoxicating. All that it is necessary to- allege is that it was spirituous, vinous, fermented or malt, as the case may be, or that it was an imitation of or substitute for one or the other of those liquors; and proof of that fact will warrant a conviction, and it will be no defense to show that the liquor was not intoxicating. Immediately following that provision of the statute we find also the further provision: ‘Or manufacture, sell, barter, give away or otherwise furnish any liquors or compounds of any kind or description whatsoever, whether medicated or not, which contains as much as one-half of one per centum of alcohol, measured by volume, and which is capable of being used as a beverage, except preparations compounded by any licensed pharmicist, the sale of which would not subject him to the payment of the special tax required by the laws of the United States.’ This provision is intended to forbid the sale of patent medicines and medicated drinks and compounds which contain alcohol and are capable of being used as a beverage. It has no reference to the provisions immediately preceding it; and the requirement found in this provision that the liquor must contain as much -as one-half of 1 per centum of alcohol measured by volume to fall within the inhibition of the statute is not a requirement of the provision prohibiting the sale of spirituous, vinous, fermented, or malt liquors or any imitation thereof or substitute therefor.”

The question was again discussed in the case of Etter v. State, 4 Okla. Cr. 230, 111 Pac. 957. This court there said:

“The transcript of the record shows that a motion in arrest of judgment was filed, in which the sufficiency of the information was attacked upon the ground that it charged two offenses. The charging part of the information is as follows: (l) That the said John Etter on said date and in said county and state, then and there being, did then and there wilfully and unlawfully sell, barter, give away, and otherwise furnish to one John Lucky two bottles of “Rochester,” the same being a spirituous, fermented, and malt liquor capable of being used as a beverage, contrary to the form of the statutes in such cases made and provided ancl against the peace and dignity of the state. (2) That the said John Etter on said date and in said county and state, then and there being, and on the occasion and by the same acts above set forth, did then and there wilfully and unlawfully sell, barter, give away, and otherwise furnish to one John Lucky, a quantity of an imitation and substitute of a spirituous, vinous, fermented, and malt liquor, named “Rochester,” capable of being used as a beverage, contrary to.the form of the statutes in such cases made and provided, and against the peace and dignity of the state. Vein E. Thompson, County Attorney.’ It is .seen from this that, while the information did contain Wo counts, they both relate to the same transaction; the first count charging the sale of two bottles of ‘Rochester,’ same being a spirituous, fermented, and malt liquor capable of being used as a beverage, and tbe second count charging the sale of the same liquor, but alleging that it was an imitation and substitute for spirituous, vinous, fermented, and malt liquor, named ‘Rochester/ Both counts of the information are in the language of the statute. They refer to the same transaction, charged but one offense, and the information is therefore sufficient/’

It was proven on the trial of this case that the defendant did have in his possession, for the purpose of selling the same, “Amber Mead,” and that this /‘Amber Mead” was a liquor made from malt by the Kansas City Brewing Company, and contained between 2 and 3 per cent, of alcohol. The county attorney attempted to prove that this “Amber Mead” was a substitute for beer, and was being sold as such; but on objection of counsel for the defense he was not permitted to do so. We think that the court erred in excluding this testimony; but it was an error in favor of the defendant. The evidence in the case amply sustains the allegations contained in the, information, viz., that this “Amber Mead” yas a substitute for beer, and that it came clearly and fully within the provisions of the statute whether it was intoxicating or not, and that appellant had it in his possession with the intention of selling the same. The information in this case is in the language of the statute and is sufficient. Indeed, counsel for the appellant did not seriously contest that proposition in oral argument before the court, but claimed that the court erred in refusing to give the following instruction which was requested by the defendant:

“Gentlemen of the jury, you are, further instructed that if you find from the evidence beyond a reasonable doubt that the defendant was misled in the purchase' of the beverage he was selling, and that he honestly believed that the beverage contained less than one-half of 1 per cent, of alcohol, and that defendant did think in good faith, and believed, that it contained less than one-half of 1 per cent, then and in that event you should acquit.”

The contention of counsel for appellant was that,the intent with which an act is done is always material and that no act can constitute a crime unless it is performed with a criminal intent. The illustration was offered in argument that if A. takes possession of a horse honestly believing it to be his own property, and it .afterwards turns out that he was mistaken, and that the horse really belonged to B., that A.’s good faith in taking the horse on a mistaken claim of ownership would be a complete defense to a charge of larceny. This would be true. Why? Because the evil intention with which property is taken is a necessary constituent element of the crime of larceny; but this illustrationi would have po application to a case coming under what is known as police regulations, which makes it criminal to do a certain act irrespective of the intention with which such act is done. Joyce on Intoxicating Liquors, p. 722, § 680, states the law as follows:

“Wihere by statute an act is made an offense under the liquor laws without regard to the intent with which it is done, evidence of an intent is not material.”

Black on Intoxicating Liquors, p. 489, § 418, is as follows:

“Where a statute commands that an act be done or omitted which, in the absence of such statute, might have been done or omitted without culpability, ignorance of the fact or state of things contemplated by the statute will not excuse its violation. .There is nothing anomalous in this rule. In a great variety of cases of statutory offenses, more especially such as have to do with matters relating to police regulation, the laws impose criminal penalties, irrespective of any intent to violate them; the purpose being to require a degree of diligence for the protection of the public which shall render violation impossible.”

See, also, State v. Hartfiel, 24 Wis. 61; People v. Roby, 52 Mich. 577, 18 N. W. 365, 50 Am. Rep. 270; McCutcheon v. People, 69 Ill. 601; State v. Kinkead, 57 Conn. 173, 17 Atl. 855. In Halstead v. State, 41 N. J. Law, 552, 32 Am. Rep. 247, the court said:

“There is an undoubted competency in the lawmaker to declare an act criminal, irrespective of the knowledge or motive of the doer of such act.”

In Regina v. Tolson, 16 Cox’s Criminal Cases, 629, the English court said:

“Although prima facie and as a general rule there must be a mind at fault before there can be a crime, it is not an inflexible rule, and a statute may relate to such a subject-matter and may be so framed as to make an act criminal whether there has been any intention to break the law or otherwise to do wrong or not.”

Further citation of authorities is unnecessary. Our statute makes it a crime to sell, or to have possession for the purpose of Selling the same, any spirituous, vinous, fermented, or malt liquors, or any imitation or substitute therefor, without regard to the intention with which such sale is made. If we were to sustain the contention of appellant, we would not only be going contrary to all of the authorities on the subject of police regula-, tions, but we would place it in the power of any man who so desired to set the prohibitory liquor law of Oklahoma at defiance. He could simply say, “I did not know or I had been misinformed as to a matter of fact,” and this would grant him perfect immunity from punishment. Every man is bound to take knowledge of the law, and, if he undertakes to sell prohibited liquor in Oklahoma, he does so at his peril; and any guaranty given to him by any brewing company that the liquor which he sells is not prohibited by the laws of Oklahoma is not worth the paper it is written upon. The fact that appellant took a guaranty shows that he knew he was playing with fire. Now that he has been burned, -he has no one but himself to blame. His guaranty is worthless, for no guaranty which involves a violation of law is valid. It is time that bootleggers and jointkeepers in Oklahoma understood that subterfuges of this character-will not protect them.

We find no error in the record of this trial.

The judgment of the lower Court is therefore affirmed.

ARMSTRONG and DOYLE, Judges, concur.


author: FUEMAN PRESIDING Judge.

text:
    T. D. HARTGRAVES v. STATE.
    No. A-437.
    Opinion Filed March 21, 1911.
    (114 Pac. 343.)
    1. GRAND JURY — Irregularity of Proceedings — Presence of Unauthorized Persons. (a) Where counsel privately employed to prosecute a case appear before a grand jury and assume to represent the state upon the investigation of a case then pending before said grand jury, an indictment found by said grand jury as the result of such investigation should, upon motion of the defendant, be set aside.
    (b) If the county attorney is disqualified from representing the state in the prosecution of a party charged with crime, said county attorney is without authority to appoint a special attorney to represent him before the grand jury in the investigation of said cause, and an indictment found as the result of such investigation, upon motion of the defendant, should be set aside.
    (c) No person has a right to be in a grand jury room during any of their proceeding's while! investigating a criminal charge except the witness then being examined and the attorney authorized by law to represent the state in such examinations; and, if any othet person is in the grand jury room during any part of their investigations, an indictment found by them as the result of such investigation should, upon motion of the defendant, bé set aside.
    2. RECEIVING STOLEN GOODS — Indictment—Description of Person. An indictment for receiving stolen goods should allelge the name of the person from whom such goods were so received; and, if the name of such person is unknown, that fact should be alleged.
    3. TRIAL — Instructions—Former Acquittal. Where the plea of a former acquittal is interposed, but no evidence is introduced to support it, it is not improper for the court to decline to instruct the jury on that issue.
    (Syllabus by the Court.)

      Appeal from, District Court, Custer County; W. N. Maten, Judge.

    T. D. Hartgraves was convicted of receiving stolen goods, and bis punishment assessed at one year’s imprisonment, and he appeals.
    Reversed and remanded, with directions.

      B. J. Skive, for appellant.

      Smith C. Matson, Asst. Atty. Gen., for the State.
   FUEMAN PRESIDING Judge.

First. Defendant filed a motion in the lower court to set aside the indictment in this case upon the ground that F. A. Snodgrass was the duly elected and qualified county attorney of Custer county, and was in attendance upon the court and the grand jury when his presence was required during the term of the court at which this indictment was found, and_ there was no physical or mental disqualification which incapacitated said Snodgrass from performing his duty as such county attorney at said time, but that R. P. Phillips, a member of the bar, who was not the county attorney or deputy county attorney of Custer county, Okla., and was not the Attorney General or Deputy Attorney General of the state of Oklahoma, and was not authorized or empowered by law to appear before said grand jury when they were considering«this accusation against defendant, but was privately employed by the prosecuting witness in this cause to prosecute this defendant without warrant or authority of law was present and presented this case to the grand-jury. and conducted the examination of the witnesses before the grand jury when the grand jury was considering as to whether or not they should find an indictment against the defendant in this cause, and said R. P. Phillips insisted that said grand jury should indict this defendant. This motion was duly sworn to by the defendant. The court heard part of the evidence in support of this motion, to the effect that said F. A. Snodgrass was tire .county attorney of Custer county, and was disqualified from prosecuting the defendant because prior to the election of said Snod-grass to the office of county attorney of Custer county, Okla., he had represented the defendant in some cases connected with the transaction in which the defendant is now indicted. It also appeared that said F. A. Snodgrass had verbally requested said R. P. Phillips to represent the state before the grand jury upon the investigation of this case, but the said R. P. Phillips was not appointed as deputy county attorney, and did not have a commission from the district judge cf Custer county to act as county attorney'’ in this case. The district court thereupon declined to hear further testimony, and overruled the defendant’s motion to set aside the indictment. As there was no denial of the other allegations contained in appellant’s motion, they must be taken as confessed, and the only question before us is, Are the facts proven and the allegations in the motion which were not controverted sufficient to set aside the indictment ?

Section 6683, Snyder’s Comp. Laws Okla. 1909, is as follows :

“The grand jury may at all reasonable times ask the advice of the court or of the district attorney. The district attorney may at all times appear before the grand jury' for the purpose of giving information or advice relative to any matter' cognizable before them and may interrogate witnesses before them whenever he thinks it necessary, but no other person is permitted to be present during their sessions except the members and a witness actually under examination and no person whomsoever must be permitted to be present during the expression of their opinions or the giving of their votes upon any matter before them.”

This statute must be construed in connection with the other provisions of law with reference to county attorneys and their deputies and the Attorney General and his deputies. Wfe think the plain meaning and import of this statute is that no one should be permitted to be present during the sessions of the grand jury except the -witnesses and the officers duly authorized by law to so appear. Section 6738, Snyder’s Comp. Laws Okla. 1909, provides that the indictment must be set aside on motion of a defend a" t for certain specified reasons. But the special grounds for setting aside an indictment contained in this section are not exclusive of other grounds, for it is expressly provided that an indictment must be set aside whenever it appears that it was not found, indorsed, presented, or filed as provided by the statutes of the state. It is true that a substantial compliance with the provisions of the statutes relating to grand juries and the manner in which indictments are to be found and presented is all that the law requires, but, whenever there has been a departure from the provisions of the statutes which would deprive a defendant of a substantial right or would be dangerous to justice, tben an indictment so found must be set aside. Prior to statehood, no person could be- prosecuted for a felony unless by-indictment found by a grand jury. Put the grand juries had indicted so many persons where convictions could not be obtained that the people had in a great measure lost confidence in this institution. In fact, grand juries were by many regarded largely as repositories of malice, cowardice, and perjury, not on account of the men who composed the gra' d juries, but on account of their secret inquisitorial powers, which enabled cowardly, corrupt, and malicious men to go before a grand jury and prefer charges which they would not dare to make publicly. It gave such characters an opportunity from ambush to shoot' their enemies in the back. Although a man so indicted would be acquitted, yet it would place an indelible stain upon his good name, however innocent he might be. So the Constitutional Convention endeavored, as far as possible, to substitute in its place proceedings by information in felony cases, where the defendant would have a preliminary trial before an examining ¡magistrate, unless he saw fit to waive such preliminary trial. The purpose of this was to give a defendant, where he demanded it, as far as possible, an opportunity to face his accusers and present his defense in open court before he would even be placed upon final trial. Had it not been for the fact that cases sometimes arise in which it would be difficult if not impossible to institute criminal proceedings without a grand jury, the system doubtless would have been abolished entirely. Therefore section 18 was incorporated in our Bill of Bights, which is as follows:

“A grand jury shall be composed of twelve men, any nine of whom concurring may find an indictment or true bill. A grand jury shall be convened upon order of a judge of a court having the power to try and determine felonies, upon his own motion or such grand jury shall be ordered by such judge upon the filing of a petition therefor signed by one hundred resident taxpayers of the county; when so assembled such grand jury shall have power to investigate and return indictments for all character and grades of crime; and such other powers as the Legislature may prescribe: Provided, that the Legislature may make the calling of a grand jury compulsory.”

From this it is seen that no grand jury can be convened unless upon order of the judge of the district court,'cither upon his own motion or upon a petition therefor signed by at least 100 resident taxpayers of the county. While it is true that, when a grand jury has been so convened, it has power to find and return indictments for all character and grades of crime, yet it was intended that grand juries should only be convened in cases of emergency. We cannot ignore these provisions of our Constitution when we go to detennine the policy of the state with reference to prosecutions by indictment. Section 19 of article 7 of our Constitution, among other things, provides:

“All prosecution shall he carried on in the name and by the authority of the state of Oklahoma.”

We have heretofore had occasion to pass upon this clause of the Constitution in cases where this language was omitted from the indictments, and we have held that this constitutional provision does not relate to a matter of pleading, but that it secures to' each inhabitant of this state a substantial right. In the case of Caples v. State, 3 Okla. Cr. 80, 104 Pac. 497, 26 L. R. A. (N. S.) 1033, this court said:

“It is true that the Constitution requires that 'all prosecutions shall be carried on in the name and by the authority of the state of Oklahoma,' hut it is nowhere required that this allegation shall appear in the information or indictment. This question was before this court in the case of Arie v. State, 1 Okla. Cr. 666, 100 Pac. 33, and we there held that, if it appears from the record that the prosecution was actually conducted in the name and -by the authority of the state, the object and purpose of the Constitution is accomplished, even though no such allegation appeared • in the information or indictment. Suppose tbat this allegation was in the information, and the record discloses the fact that the prosecution was conducted by private parties without authority from the state, would the allegation of the information give the court jurisdiction? We do not profess to be infallible, lout to our minds it is clear that the 'purpose of this provision in the Constitution is to protect the people of this state from private prosecutions which might degenerate into persecutions, and from prosecutions for any other foreign power save that of the state.-”

The ease before us is directly in point. Here the record shows that, while the prosecution was nominally being conducted in the-name of the state, as a matter of fact it was in the hands of a private attorney employed by the prosecuting witness. We think that such conduct is a direct violation of the Constitution of this state. If a county attorney can turn a defendant over to the paid counsel of private parties, or if private parties can usurp the powers of a county attorney before a grand jury where the defendant cannot be heard and has no one to represent him, no man is safe from persecution in Oklahoma, and the abuses of the granjl jury system will be perpetuated among us. This is the evil that the people have tried to destroy. The law therefore prohibits all persons from being in the grand jury room except the officers authorized by law to examine witnesses and the witness to be examined, and the presence of any other person in the grand jury room at any stage of the proceedings when a witness is being examined, or when the grand jury are considering the advisability of finding an indictment vitiates the entire proceedings. There is no exception to this rule. The sessions of the grand jury being secret, it is impossible for a defendant to protect himself against danger from this source. Therefore the law protects him by rigidly excluding from 'the grand jury room all persons except those expressly authorized by law to be present. Fairness and justice are the essential elements of every step taken in the prosecution of criminal causes in Oklahoma. We heartily indorse the statement contained in the case of United States v. Edgerton (D. C.) 80 Fed. 375, which is as follows:

“It is beyond question that no persons other than a witness undergoing examination and the attorney for the government can be present during the sessions of the grand jury. The rule is inherent in the grand jury system with all the force of a statutory enactment. The eases where bailiffs and stenographers have on occasions been temporarily present in the grand jury rooms are only apparent exceptions. The rule in its spirit and purpose admits of no exception. In the present case it is suggested that the only testimony heard while the expert Flynn was present related to the production of certain boohs on account, touching which the expert interrogated the witness who was testifying as to his possession of such boobs or other documents, and that this could not hare prejudiced the defendant. The court cannot know that this suggestion represents the facts. The case as presented is one where an expert was not only present in the grand jury room while a witness was testifying, but took part in the investigation by interrogating the witness. The court cannot inquire as to the effect of this conduct. There must not only be no improper influence or suggestion in the grand jury room, but, as suggested in Lewis v. Commissioners, 74 N. C. 194, there must be no opportunity therefor. If the presence of an unauthorized person in the grand jury room may 'be excused, who will set bounds to the abuse to follow such a breach of the safeguards which- surround the grand jury? It is common knowledge that expert witnesses are more likely to testify from interest than anjr other class. The}'' usually testify to support or overthrow a theory, and frequently, if not usually, after an ex parle investigation, which strongly predisposed them in favor of the party or cause in whose services they are enlisted. In the ease of U. S. v. Kilpatrick [D. C.] 16 Fed. 765, the court quashed an indictment upon motion upon a case much like the present as to this point”

We know that' numerous and respectable authorities can -be found holding to the contrary, but an investigation will show that in those- cases the constitutional and -statutory provisions upon which they are based with reference to grand juries are very different from ours. But, even if they were not, we would not hesitate to say that it is unfair, unjust, and illegal to allow any person to be in a grand jury room when witnesses are’being examined, unless such person was before said grand jury as a witness or was there as a regular officer of the law in the discharge of his duties as such. In the case at bar the attorney who appeared before the grand jury was not the deputy county attorney and he had no appointment from the district judge to- act in place of the county attorney on account of the disqualification of that officer. He was merely requested by the -county attorney to go before the grand jury. While we are satisfied- that neither 'the county attorney nor the attorney who appeared for him before the grand jury were actuated by improper motives in this case, yet this cannot cause us to sanction a proceeding which is unauthorized by law, is contrary to public policy, and which, if allowed to stand, would establish a precedent repugnant to reason and pregnant with danger to justice and innocence. A county attorney has no right to turn a defendant over to his enemies, after having first armed them with the entire power of the state to be used as they see fit in his prosecution. If such prosecutions were permitted, they would soon become a great scandal and absolutely odious to a fair-minded and justice-loving people. Honest men against whom naught could be truthfully alleged have been greatly mortified and have had their good names called m question by just such proceedings as this, prompted alone by the malice and cowardice of their enemies, when if they had been faced by their accusers, and given the right of cross-examination, those who sought to destroy them through the secret inquisitorial proceedings of a grand jury would have been covered with defeat and infamy. In 1876, when the writer of this opinion was practicing law in Texas, a preacher who had some bitter enemies was indicted for stealing hogs. Upon the’ final trial it was conclusively shown that the parties who had caused his indictment were themselves the thieves. While the preacher was acquitted, yet he carried to his grave the stain upon his name of having-been indicted for hog stealing. We are pleased to be able to say that these remarks do not apply to the county attorney of Custer county or to the attorney who appeared for the private prosecution before the grand jury in this case. We call attention to these matters to illustrate the consequences which might grow out of this precedent if we allowed it to stand. The extreme illustration is always the test of a rule. Fairness and justice de-mand that a criminal prosecution should at all times be under the direction of a regularly constituted public officer, who is charged by law with the performance of this duty.

We desire to say in addition that the county attorney, being disqualified in this case, was without power or authority to appoint any one to represent him. The appointment in-such cases should come alone from the district judge, and should be of .some member of the 'bar free from personal or private interest in the matter, who could be depended upon to act with fairness and impartiality as between the state and all of its citizens whose' cases might come before the grand jury. Section 1598, Snyder’s Comp. Laws of Okla. 1909, provides the only manner of appointing a special county attorney when the regular county attorney or his duly appointed deputy is unable to act, which is as follows:

“Each of the district courts, whenever there snail .be no county attorney for the county, or when the county attorney shall be absent from the court, or unable to attend to his duties, may> if the court may deem it necessary, appoint toy an order to be entered in the minutes of the court some suitable person to perform for the time being the duties required by law to be performed by the county attorney, and the person so appointed shall thereupon be vested with all the powers of such county attorney for that purpose.”

■We believe that it is the plain meaning of the laws and Constitution of Oklahoma that regularly elected or appointed officers shall conduct all criminal prosecutions. It is true that it is entirely proper and legitimate for counsel to be employed to assist the county attorney in open court in the prosecution of a criminal case, but even then the county attorney should never lose control of the case, and such assistant counsel should discharge only suelr duties in the prosecution of the cause as are assigned him by the county attorney. But it is highly improper for counsel employed to prosecute a case to be permitted to go into the grand jury room where the defendant cannot be heard and has no one to represent him. This duty should be performed alone by the proper officer of the law. The case of Fooshee v. State, 3 Okla. Cr. 677, 108 Pac. 554, does not conflict with the views here expressed. In that case the attorney who appeared before the grand jury was the regularly appointed deputy county attorney of Carter county, and his appointment was a matter of record in the county attorney’s office of that county. We therefore hold that the trial court erred in not sustaining the motion made by the defendant to set aside the indictment.

Second. The indictment in this case is defective in not alleging the name of the person from whom the stolen property was received, or that the name of such person was unknown to- the grand jury. See Fletcher v. State, 2 Okla. Cr. 300, 101 Pac. 599, 23 L. R. A. (N. S.) 581. It is not necessary, however, for such an indictment to allege from 'whom or by whom such property was stolen.

Third. Upon the trial of this cause the appellant entered a plea of former acquittal, but did not offer in evidence any testimony reasonably tending to sustain said plea. Upon this issue the court charged the jury as follows:

“Gentlemen of the jury, you are further instructed that the defendant has introduced no evidence in support of his plea that he has already ¡been acquitted of the offense charged in this indictment by the judgment of this court rendered at Arapaho on the first day of July, 19Ó8. You are therefore instructed thal in your deliberations in this case you will not consider this defense in arriving at your verdict in this ease.”

Where there is evidence in the record reasonably tending to support an issue, the weight and effect of such evidence is exclusively for the jury, and it would be improper for the court to withdraw it from their consideration, but, where there is no evidence tending to support an issue presented, the court should not submit such issue to the jury. We therefore find that the court did not err in its instructions upon the subject of former acquittal.

For the errors hereinbefore pointed out, this cause is reversed and remanded, with directions to the lower court to sustain the motion to set aside the indictment.

AEMSTBONG and DOYLE, Judges, concur.


text:
    NELSON HAWKINS v. STATE.
    No. A-563.
    Opinion Filed March 21, 1911.
    (114 Pac. 356.)
    1. APPEAL — Record—Case-Made—Service, (a) Where a case-made is not served upon the county attorney within the time fixed by the trial judge for making and serving such case-made, the case-made will be stricken from the record.
    (b) Whefre the court has fixed the time within which a case-made may be prepared and served and such time has expired, after the expiration of such time the court has no power to make an order extending the time! within which such case-made may be served.
    2. APPEAL — Record—Correction. Where the instructions given to a jury have been lost, it is the duty of counsel for a defendant to substitute! such instructions by proper proceedings. The mere loss of such instructions will not constitute ground for reversing a conviction.
    (Syllabus by the Court.).
    Appeal from District Court, Pontotoc County; Robert M. Rainey, Judge.

    ¡Nelson Hawkins was convicted of manslaughter in the first degree, and his punishment was assessed at confinement in the penitentiary for 40 years, and he appeals.
    Affirmed.

      Crawford & Bolen, for appellant.

      Smith C. Matson, Asst. Atty. Gen., for the State.
   FURMAN, PRESIDING Judge.

The judgment against the defendant was pronounced in this case on the 21st day of June, 1909, at which time appellant was allowed 90 days in which to make and serve a case-made. Thereafter, on the 20th day of September, 1909, the court granted 60 days additional time within which to make and serve a case-made. The case-made was not served on the county attorney until the 19th day of November, 1909. July and August each have 31 days. The 90 days originally granted to make and serve a case-made expired on the 19th day of September, 1909. The court was without' power, on the 2'0th day 0f September, 1909, to grant an extension of time within which the case-made might be made and served, and such order was void. We have no power to consider a case-made unless it is served within the time prescribed by the order of the court, unless such time is extended by the court before it has expired under the original order. That which has expired cannot be extended. The court cannot give life to that which is dead. This is jurisdictional and has always 'been the law in Oklahoma.

In the case of Abel v. Blair, 3 Okla. 401, 41 Pac. 342, the Supreme Court of Oklahoma Territory, in discussing this question, said:

“This grant of additional time, made on July 3, 1894, for 60 days, expired on the 1st day of September, 1894, and the judge of the district court had no power, on September 5, 1894, to grant any additional time, and the service of the case-made, and the settlement of the case-made served after the time for making and serving the same had elapsed, were void. Aetna Life Insurance Co. v. Koons, 26 Kan. 215; Ingersoll v. Yates, 21 Kan. 90. ’To this case-made, which we have held void, is attached the pleadings, the special findings of fact and conclusions of law, and exceptions thereto in the court below, and plaintiff in error asks that the errors assigned be considered upon this record by treating it as a transcript, instead of a case-made. This might be done if the copies, or purported copies, of these pleadings, findings, and conclusions were certified to 'by the clerk of the district court as being true and correct copies of the originals. Lauer v. Livings, 24 Kan. 273. But there is nowhere in the record any certificate of the clerk of the district court that they are true and correct copies. There is attached to this record the certificate of the judge of the district court, who settled the case-made, That the same, as above set forth, and as corrected by me, is true and correct, and contains a true and correct statement of all the pleadings, motions, orders, evidence, findings, proceedings, and judgment had in said cause,’ and this is attested by the clerk. This attestation of the clerk, however, does not make these copies a transcript. The clerk has not certified that these are true and correct copies of the original pleadings, findings, and conclusions as shown by the record in the court below. All that the clerk has done in this case, and all that he is required to do under the law, is to attest the ease-made. This attestation is Hot a certificate that the things therein contained are true and correct, or that anything that may be contained in the case-made is true and correct. All that the clerk does is to attest the signature of the judge. It is not the business of the clerk to examinq the case-made to see whether it is correct or not, and even should he do so, and find that it was incorrect, what power would he have to so certify? The law gives him none. He would have no right to certify that the facts, which the judge had stated were true, were not correct as shown by the .record. His only duty is to attest — that is, to witness • — -the signature of the judge who settled and signed the case. When this is done, it authenticates the signature of the judge to the certificate to the case-made, but that does not make the judge’s certificate sufficient to treat the record, if void as a case-made, as a transcript of the record in the court below. In the case of Whitney v. Harris, 21 Kan. 96, the bill of exceptions was held to be insufficient as such because It did not contain all of the record and proceedings of the court below, and plaintiff in error then asked that the record be considered as a transcript, but the Supreme Court denied this request upon the ground that the certificate of the clerk to the bill of exceptions did not state that the copies contained in the record were true and correct copies of the original pleadings and proceedings of the court, and that the certificate of the judge to the bill of exceptions was not sufficient to entitle the record to be used as a transcript. The court in this case said: ‘Besides, the judge does not have authority to certify to the correctness of copies of the record, or copies of any other proceedings which are already of record. It is the duty of the judge only to see that the original record is made up properly and that it spe,aks the truth; and the clerk then certifies to the correctness of copies thereof, or to copies of portions thereof. But the clerk does not, and has not in this case, certified to the correctness of the copies of the pleadings copied into the bill of exceptions. That is, while the clerk certifies that the copy of the bill of exceptions brought to this court is a correct copy of the original bill of exceptions, yet he does not certify that the original pleadings or proceedings, or any of them, were copied into the original bill of exceptions, and he does not certify that the copies of pleadings and proceedings found in the copy of the bill of exceptions brought to this court are true copies of the original pleadings and proceedings.’ ”

In Polson v. Purcell, 4 Okla. 93, 46 Pac. 578, the Supreme Court of Oklahoma Territory said:

“The record shows that the judgment of the district court was rendered on the 24th day of November, 1893, and the plaintiff in error given 60 days to make and serve case-made. It further shows that on February 1, 1894, the plaintiff in error, by his attorney, made a motion to be granted a further extension of time of 40 days to make and serve his case-made, and to this motion is attached the affidavit of his attorney that he had been unable to prepare an appeal and serve case-made in the cause. The record shows an acceptance of service of casermade by the attorneys for the defendants in error, but does not show wnen it was served. The record should always affirmatively show that the case-made was served in time. 'This record not only does not do this, but it does show, by the affidavit of appellant’s own attorney, that it was not served in time, and that was his reason for getting a further extension of time. The extension of time was granted by the trial judge as asked for, 'but he had no power to then extend the time to make a case-made, and the extension was absolutely void.”

In Sigman v. Poole, 5 Okla. 682, 49 Pac. 945, the Supreme Court said :

“The case not having been served and settlement made within the time originally granted by the court for that purpose, we cannot review it. It is recommended that'the petition in error be dismissed, For the reasons stated, the motion to dismiss the petition in error is sustained, and the cause is dismissed at the cost of plaintiff in error.”

In Board of Commissioners of Day County v. Hubble, 8 Okla. 210, 211, 57 Pac. 163, the Supreme Court said:

“An order extending the time to serve a case-made must be made before the expiration of the statutory time for service in the first instance, or before the extension of time allowed 'by the court or judge has elapsed. The district court or judge has no power or authority to make an order extending the time for settling and serving a case-made after the extension of time originally allowed has elapsed, and any order of extension after the expiration of such original order is absolutely void.”

See, also, Bradford v. State, 3 Okla. Cr. 367, 106 Pac. 535; Komiski v. State, 3 Okla. Cr. 431, 106 Pac. 800; Durant v. State, 3 Okla. Cr. 447, 106 Pac. 651; Lewis v. State, 3 Okla. Cr. 448, 106 Pac. 647; Houck v. State, 3 Okla. Cr. 483, 106 Pac. 977; Ledgerwood v. State, 4 Okla. Cr. 18, 109 Pac. 735; Perkey v. State, 4 Okla. Cr. 239, 111 Pac. 663; Taylor v. State, 4 Okla. Cr. 468, 111 Pac. 1000; Cohn v. State, 4 Okla. Cr. 492, 111 Pac. 219; Wilson v. State, 4 Okla. Cr. 517, 111 Pac. 659.

Under these authorities we are without power or right to consider anything in the case-made now before us, but must strike such case-made from the record. We must therefore consider this appeal upon the transcript of the record;, which is properly certified to as such by the clerk of the district court. We do not find the instructions of the court in this transcript, but we find an affidavit from one of the attorneys for appellant, and also a certificate from.the clerk of the district court of Pontotoc county, to the effect that the instructions of the court to the jury have been lost and after a diligent search the same cannot be found. Counsel for appellant contend that as they are thereby deprived of having the instructions given by the court reviewed upon appeal, a new trial should be granted the appellant. In the case of Tegeler v. State, 3 Okla. Cr. 595, 107 Pac. 949, this court did hold that where a defendant, without fault on his part, was deprived of his constitutional right to present a complete appeal to this court, a new trial should be granted him. The judge who tried the Tegeler case died after the motion for a new trial was overruled and before the case-made was prepared. Under the law the case-made must be certified to by the judge who tried the case. Under these conditions it was impossible for Tegeler to secure a ease-made, and therefore a new trial was granted him. There could be no substitution of that which was never in existence. But this case presents a very different question. No excuse whatever is given why counsel for appellant did not substitute the lost instructions. It was clearly within their power 'by substitution of the lost instructions to obviate the difficulty which confronted them. If the fact that the instructions given by the court to the jury are lost constitutes a ground for granting a new trial, where no effort has been made to substitute such instructions, a most dangerous precedent would be established. It would place great temptation in the waj of the friends of a defendant to destroy the instructions, and would involve all parties who were interested in securing a new trial under grave suspicion, where such instructions were lost. Hie power to substitute lost papers of any character offers ample relief in an emergency of this kind. That a new trial should not be granted upon the ground that the instructions were lost has been previously decided in this state.

In the case of Devore v. Territory of Oklahoma, 2 Okla. 562, 37 Pac. 1092, the court said:

"The plaintiff in error complains that he has been deprived of his right of review of the instructions of the court by the fact that they are not to be found in the office of the clerk of the court below, and that he is therefore entitled to a reversal and a trial de novo. The court instructed the jury, and upon the evidence under the instructions the jury found the defendant guilty. The presumptions of law are, in the absence of error, which must be made to appear by the plaintiff in error, that the proceedings of the district court are regular, and that the instructions to the jury gave the law correctly. But it is the privilege of the defendant to bring the case here by appeal, and if it is made to appear to this court that error has been committed, the case will be reversed, if the error is material. The defendant is therefore interested in the preservation of the record. If it is not made to appear that error has been committed, the judgment of the district court will stand. If, after judgment against a defendant in a criminal case, exceptions reserved and appealed to this court, the defendant should be relieved and the judgment reversed, because the instructions given below were lost from the case, great difficulty might be experienced in preserving the instructions until the case could be brought here.-”

Counsel for appellant in their brief did not complain of any errors in the record, except the loss of the instructions.

For the reasons above given, we cannot grant appellant a new trial upon this ground. The judgment of the lower court is therefore affirmed.

ARMSTRONG and DOYLE, Judges, concur.


author: FUBMAN, PRESIDING Judge.

text:
    ED. SMITH v. STATE.
    No. A-310.
    Opinion Filed March 21, 1911.
    (114 Pac. 350.)
    1. JURY — Competency of Jurors — Conscientious Scruples Against Death Sentence. Persons with conscientious scruples against the infliction of death as a punishment for crime are incompetent jurors where such penalty may be inflicted, although the statute permits the jury to fix the punishment eithe'r at death or imprisonment for life.
    2. INDICTMENT AND INFORMATION — Trial—Indorsement of Witnesses on Indictment. Where the record shows in a capital case that a list of the witnesses to be used upon the trial of said cause by the state was duly served upon the defendant more than two days before the trial began, the defendant cannot be heard to complain if the court permits such names to be indorsed on the indictment at any time during the trial.
    3. HOMICIDE — Evidence—Dying Declarations — Admissibility. Where it is shown by the testimony that immediately after being shot the deceased' exclaimed, “Ed Smith has killed me,” and where the! deceased subsequently said to the physician who attended him, “I am all in,” and never at any time after receiving the fatal wound expressed any hope or expectation of recovery, this, in connection with the fatal character of the wound received, justified the trial court in receiving the statements made by the deceased as dicing declarations.
    4. WITNESSES — Cross-Examination.' Where the defendant offers a witness who testifies that he heard the deceased make threats against the defendant, and that he communicated these threats to the defendant before the difficulty occurred, it is proper for the state on cross-examination to ask such witness what the defendant said, if anything, when he was informed of such alleged threats by said witness.
    5. HOMICIDE — Instructions—Self-Defense, (a) Wheire the issue of self-defense is presented by the testimony, the jury should be instructed that they must view the evidence in the case upon the question of danger or apparent dang'er to the defendant at the time he fired the fatal shot from the standpoint of the defendant, and as it then reasonably appeared to him.
    (b) Although a requested instruction may correctly state a proposition of law applicable to the evidence in the case, yet it should not be given, where the same proposition has already been correctly stated in the general instruction to the jury.

      6. APPEAL — Reservation of Grounds of Review — Argument of Counsel. If a defendant desires to present to this court any objections which were made to the argument of counsel for the state in the lower court, and any' exceptions to the ruling of the lower court on said objections, the matters relied upon must be incorporated in the case-made in the form of a recital, stating fully what actually occurred at the time. This question cannot be raised alone upon the statements made in the motion for a new trial. The trial judge does not certify to the truth of the statements contained in the motion for a new trial, but simply certifies that such a motion was made.
    7. APPEAL — Discretion of Court — Motion for New Trial, (a) Where in a motion for a new trial, an attempt is made to show that one of the jurors who sat in the case was prejudiced against the defendant, and affidavits are attached to the motion for a new trial supporting this charge, and the state replies with the affidavit of the juror denying such prejudice and controverting the statements made in the affidavits filed against him, this presents a question of fact to be determined by the trial court, and in the absence of a -showing of abuse of discretion in this matter the judge’s determination -of this question of fact will not be disturbed by this court upon appeal.
    (b) In determining the question as to whether or not a given juror was disqualified to serve in a case upon the ground that he was prejudiced against the defendant, the decision ¡loes not necessarily depend upon the mere number of affidavits on one side or the other.
    8. HOMICIDE — Evidence—Admissibility. It was not error for the trial court to permit the introduction of evidence showing that a horse belonging to the deceased was hitched near the place where the fatal shooting occurred.
    (Syllabus by the Court.)

      Appeal from District Court, Coal County; A. T. West, Judge.

    Ed. Smith was convicted of manslaughter in the first degree, and he appeals.
    Affirmed.

      J. G. Balls and C. M. Threadgill, for appellant.

      Smith C. Matson, Asst. Atty. Gen., for the State.
   FUBMAN, PRESIDING Judge.

First. When C. M. King, a member of the panel, was being examined as to his qualifications as a juror, he was asked as to whether or not he entertained such conscientious scruples against the infliction of death as a penalty for crime as would prevent him from rendering a verdict for murder and assessing the death penalty in ease he was taken on the jury, to which he answered that he did entertain such conscientious scruples, but he further answered’ that, whenever the law gave him the right to inflict the death penalty or imprisonment for life, he did not have such conscientious scruples as would prevent him from rendering a verdict of guilty for the crime of murder. The juror was thereupon challenged by the state, and the challenge was sustained by the court and the juror was discharged, to which ruling of the court defendant then and there excepted. In support of this challenge the appellant contends that as the penalty for murder is exclusively with the jury, and as they may assess either the one penalty or the other as they see fit, the state had no right to insist that the jury should assess the death penalty. The eighth paragraph of section 6812, Snyder’s Comp. Laws of Okla. 1909, provides that a juror should not be compelled or permitted to serve in a cause when the offense is punishable with death, if such juror entertains conscientious scruples which would preclude him from finding the defendant guilty of such offense. We think that the court properly sustained the challenge for the state. The punishment for murder ¡being in , the alternative, the state had a right to have upon the jury only those who had no scruples against either form of punishment, but who would decide the matter entirely upon the issues as presented to them, without bias in favor of or against either manner of punishment.

In the case of Thompson v. State, 19 Tex. App. 593, that court said:

"Persons with conscientious scruples against the infliction of the death penalty are incompetent jurors, although the statute permits the jury to fix the punishment at imprisonment for life.”

In the case of Gonzales v. State, 31 Tex. Cr. R. 508, 21 S. W. 253, that court said:

“Where a juror in a murder case answered that he has conscientious scruples in regard to the infliction of death, it is the duty of the court of its own motion to stand him aside.”

But even if it was doubtful as to whether or not the court was correct in excusing the juror King, such ■ action on its part would not be ground for reversing the conviction. The defendant has no vested right to have any particular juror on the panel selected to serve in his case. His right is that of rejection rather than that of selection. If for any reason the trial court is of the opinion, or even suspects, that any given juror is not fair and impartial, or is otherwise disqualified, it is not only the right, but also the duty, of the court to excuse such juror, either upon challenge of one of the parties or upon motion of the court without such challenge. See Boutcher v. State, 4 Okla. Cr. 576, 111 Pac. 1006, 112 Pac. 762.

Second. Counsel for appellant complain that after the trial began the court, on motion of the county attorney, permitted the names of a number of witnesses to be indorsed on the indictment. The record on this subject is as follows:

“Be it remembered, that on this, the 13th day of March, 1909, the above numbered and styled cause came on for trial in open court 'before Hon. A. T. West, judge of the Seventh judicial district of Oklahoma; the defendants being present in person and represented by counsel, Ralls Bros, and C. M. Threadgill, and the state being represented by county attorney, J. R. Wood, W. L. Richards, and D. H. Linebaugh; whereupon a jury consisting of twelve good and lawful men was duly selected. The Court: Mr. Stenographer, let the record show that the court had requested the clerk to swear the jury; the jury had stood up and the oath was partially administered, whereupon the county attorney requested permission to indorse certain names on the back of the indictment, and the court instructed the jury to sit down. The defendant objected to the indorsement of the names on the indictment at this time. The court overruled the objection and granted permission to indorse the following names on the back of the indictment, to wit: Pat Perkins, Thos. Johnson, W. J. Conley, Ed Ryan, G. H. Letson, J. B. Maxey, D. McMillan, Dr. H. D. Fil-more, W. H. Stouse, Tom Courtney, Broadus Montague. To which action of the court the defendants then and there duly excepted. Whereupon, the jury is'duly sworn according to law to try the issues of this case.”

On the 3d day of September, 1910, permission of the court being granted, the Attorney General filed the following amendment to the case-made:

“The State of Oklahoma v. Ed Smith and Henry Thaxton.

“To Ed Smith and Henry Thaxton, the Above-Named Defendants: Following is a list of the names and addresses of witnesses who have been subpoenaed, and who will be called to testify in behalf of the state upon the trial of the above-styled cause, in the above-styled court, which has been set to be tried on the 11th day of March, 1909: Jack Droke, Coalgate, Oklahoma; Joe Summers, Coalgate, Oklahoma; S. L. Jeter, Olney, Oklahoma; George Taylor, Coalgate, Oklahoma; Pat Perkins, Coalgate, Oklahoma; Thomas Johnson, Cario or Wardville, Oklahoma; W. J. Conley, Olney, Oklahoma; Ed Ryan, Coalgate, Oklahoma; G. H. Letson, Coalgate, Oklahoma; J. B. Mlaxey, Pine, Oklahoma; D'. McMillan, Kittie-or Hunton, Oklahoma; Dr. Filniore, Coalgate,■ Oklahoma; W. H. Stouse, Coalgate, Oklahoma; Tom Courtney, Coalgate, Oklahoma; Broadus Montague, Coalgate, Oklahoma; One Hood, Redden’s Store or Aetna, Oklahoma. Yery respectfully, [Signed] Jas. R. Wood, County Attorney, Coal County, Oklahoma.”

“State of Oklahoma, County of Coal — ss.: I, J. F. Murphy, sheriff of Coal County, State of Oklahoma, do hereby certify that, on the 8th day of .March, 1909, at 8 o’clock a. m. of said day, I received the above and foregoing list of witnesses, and that on the 8th day of March, 1909, I served the same by delivering to each of the above-named defendants a true and correct copy thereof. Witness my hand this - day of March, 1909. [Signed] J. F. Murphy, Sheriff of Coal County, Oklahoma, By S. L. Jeter, Deputy.”

“Indorsements: No. 124, State of Oklahoma v. Ed Smith et al. List of Witnesses. Filed 3-9, 1909. H. A. Davis, Clerk. Jas. R. Wood, County Attorney, Coal County. Sheriff’s Fees: Serving notice on Ed Smith 50, on Henry Thaxton 25, 25 miles 2.50; J. F. Murphy, Sheriff, by S. L. Jeter, Dept.’”

From this it is seen that on the 8th day of March, 1909, more than two days before the trial began, the defendant had a copy of the names of the witnesses to be used against him on the trial with the post office address of each witness, duly served upon him by the sheriff of Coal county. The defendant having this notice, ihe court did not err in permitting the county attorney to indorse the names of said witnesses upon the back of the indictment, even after the selection of the jury.

Third. Appellant contends that the court erred in not sustaining the objections made to the testimony of Dr. W. J. C'onley as to statements made to him by the deceased, upon the ground that there was no evidence at the time of making said statements that the deceased contemplated death. The state’s witness Jack Droke testified that he was the first person who reached- the deceased after the fatal shooting. In answer to- the question as to what the deceased said to him, he replied, “He just said- that Ed Smith had killed him; said that he wquld and had done it.” Dr. W. J. C-qnley testified that he was a physician; that at the time of the homicide he was practicing - medicine in Coalgate, and that he was called upon to attend the deceased the night after he received the fatal wound. He testified that the deceased was shot about 1% inches to the right of the center of the breast, just high enough to cut the lower edge of the lung; that the ball ranged down and backward and came out just behind the point of the left hip; that another ball entered the right leg of the deceased and inflicted only a flesh wound; that the wound in the breast was necessarily fatal and caused the death of the deceased; that the deceased- was wounded on the evening of the 7th of October, 1908, and died on the night of the 9th of October, about 11 o’clock; that said witness waited upon the deceased continuously after he was wounded until his death; that at no time did the deceased express any hope of recovery, but, on the contrary, deceased said to him that he was “all in”; that the deceased made a -statement to the witness as to the circumstances attending the shooting; that he had started- from Mr. Levin’s store, and just as he went to step up on a little wood gallery that the first thing he saw was a pistol as it was pointed right in his face, and was fired, and that he turned and fell, and some one shot him again when he was down on his all fours; he said that Ed Smith ,the defendant, was the man who shot him. We think that the evidence clearly shows that the testimony offered was competent as a dying declaration. The deceased had previously declared that the defendant had killed him. At no time after receiving the fatal wound did any one hear the deceased express a hope of recovery. On the contrary, he stated that he was • “all in.” In connection with the fatal character of the wound which the deceased received, the evidence clearly shows that the deceased had no hope of recovery, and was in immediate expectation of death from the time that he received the wound. The court therefore did not err in overruling the objection to the testimony of Dr. Conley. See Nelson v. State, 3 Okla. Cr. 468, 106 Pac. 647.

Fourth. Appellant contends that the court erred in overruling the motion made to exclude the testimony of the state’s witness Dunk McMillan as to dying statements made by the deceased, because the evidence fails to show that the deceased apprehended death. The witness asked the deceased how it was that he was in difficulty with defendant Smith. Deceased replied, “No, I never saw him until about the time he shot me.”

“He said, T was on the sidewalk at a little barber shop; I had one foot on the sidewalk, and then started to get up with the other, and he shot me. It liked to have killed me then; it knocked me back off of the sidewalk, and I fell and scrambled and stumbled together, and fell off into the ditch, and somebody shot me from behind' in the leg. It pained my leg, -so I couldn’t stand on the leg.’ 1 choked up at that time and commenced crying, and he didn’t say any more; and directly he said, ‘Well, go on and phone Maggie and the children.’ That was all the talk we had that day. Q. Was there anything else said about his property? A. Now, yes; right after that he said, T want you all to come in here after a while; just my own little crowd.’ He said, T want to tell you something another about my business.’ There was no more about Smith. Q. He said, T want to tell you about my business,’ that was part of the same conversation? A. Yes; 1 went just a little too quick right there; then is when I went to crying. Q. Now, just before his death, while he was dying, did you have any talk with him? A. Just before his death? Q. Yes. A. Yes; a little bit. Q. Did he say anything about his condition before this' conversation you had with him. A. The night before he died? Q. Yes. A. Yes. Q. What did he say? A. I didn’t have much conversation with him myself that night; 1 had gone to bed that night, and somebody came in and woke "Val McMillan, my brother, up, and I woke up, and I heard Neal talking. His voice was getting weaker; I went in there and taken hold of his hand, and he said, ‘I am about gone/ And I do not know — somebody held me, I think it was Dr. Conley, back, and told me to tell Val to come on, he was dying. Val came in and asked him; he said, Neal, are you dying?’ He said, ‘Yes.’ He said, ‘Tell us who shot you.’ He said, ‘Ed Smith.’ That is all Val said, I think; if he said any more, I do not remember about it.”

When this evidence is considered in connection with the testimony of Dr. Conley and Jack Droke, we think that there can be no question but that the court did not err in admitting the testimony of the witness.

Fifth. Appellant insists that the court erred in overruling the objections to questions propounded on cross-examination to the witness E. B. Rateree. When this witness was on the stand, he testified in behalf of the defendant that the deceased had stated in his presence that the defendant had accused him of killing his hogs, and deceased said that the defendant should not stay in the country, and that he would kill the defendant, and said, “That he had tried to kill the peg-leg son of a bitch, but had failed to do so.” The witness further testified that prior to the killing, toward the last of July, he had informed the defendant of what the deceased had said, and warned the defendant to be careful or the deceased would kill him. On cross-examination the state asked the witness what the defendant said when the witness told him of what the deceased had said, to which counsel for appellant objected. The objection was by the court overruled, and the witness replied, “He said it would come out all right in the washing.” We think that the court did not err in allowing the state to prove what was said by the defendant at the time when he was informed of the alleged threats made by the deceased. 'The defendant having introduced a-part of the conversation, the state on cross-examination had the right to draw out all that was said at the time relating to the same subject.

Sixth. The defendant requested the court to charge the jury as follows:

“The court instincts the jury that you are to view the evidence in this case as to the question of the danger of the defendant at the time he ñred the fatal shot from the viewpoint of the defendant.”

—which instruction was by the court refused, and the defendant excepted thereto. It is the law that where the issue, of self-defense is presented by the evidence, the jury should be instructed that they must view the evidence in the case upon the question of danger or apparent danger to the defendant at the time he fired the fatal shot from the viewpoint of the defendant, and as •it then reasonably appeared to him. In this way only can the jury determine as to what was the intention of the defendant in firing such shot; but it was not error in this case for the court to refuse this requested instruction, because the court had already fully and correctly instructed the jury "the defendant had a right to defend himself from such danger or apparent danger as it appeared to him at the time, viewed from his standpoint.” Although a requested instruction may correctly state a proposition of law, yet it should not be given where the same proposition is already stated in the general charge to the jury.

Seventh. The appellant complains of alleged improper remarks made in the closing argument of counsel for the prosecution. This is complained of for the first time in the appellant's motion for a new trial. We have examined the case-made, and find that -it does not contain any statement certified to by the trial judge of any occurrence of this kind having taken place. A defendant can incorporate anything he wants to in his motion for a new trial, but this cannot be taken as evidence of the fact that the matter so incorporated really occurred. If a defendant desires to avail himself of objections made to the argument of counsel for the state which have been excepted to, such remarks of counsel and the action of the court in refusing to sustain such objections must be incorporated in the case-made in the form of a recital, and must contain a full statement of what actually occurred. This, when approved and certified to by the trial judge, will import absolute verity, and this court will be in a condition to determine as to whether or not the remarks made by counsel were improper and were injurious to the appellant. Matters that occur in open court in the presence of the judge can only be made a part of the record when properly incorporated in the ease-made and duly certified to by the trial judge. Such matters cannot be proven by statements contained in the motion for a new trial. The trial judge simply certifies that such a motion was made, but this is not a verification of any of the allegations contained therein. There has been a great deal of loose practice with reference to these matters in the past, and it is time that attorneys should-know that, if they wish to assign errors with reference to any matter that occurs in open court, and which is within the knowledge of the trial judge, such matter must be incorporated in the record as above indicated; otherwise it will not be considered. See Cochran v. State, 4 Okla. Cr. 379, 111 Pac. 974; Saunders v. State, 4 Okla. Cr. 264, 111 Pac. 965.

•Eighth. The tenth paragraph of the motion for a new trial filed in- behalf of the defendant is as follows:

“Since the trial of this case this defendant has discovered that one of the jurors, John Huddard, that composed the jury that returned the verdict against this defendant was biased and prejudiced against this defendant, and had formed and expressed an opinion that the defendant was guilty, and that the defendant ought to be hung, all of which was unknown to the defendant and their attorneys at the time the juror was accepted and sworn, and said- juror before having been accepted was interrogated as to whether he had any bias or prejudice against the defendants and stated that he did not, and said juror was also asked if he had formed or expressed an opinion as to the guilt or innocence of the defendant and stated that he had not, and this defendant supports this charge 'by affidavits and offers to produce further proof.”

This motion was duly sworn to by appellant and was supported by the affidavits of John Cabe and Green Jackson, which are as follows:

“State of Oklahoma, Coal County- — -ss.: Ed Smith being first duly sworn according to law states on his oath that he is the above-named defendant, that he has read the above and foregoing motion for a new trial, and that the statements contained therein are true. Ed Smith.

■ “Subscribed and sworn to before me, this the 9th day of March, 1909. [Seal.] H. A. Davis, 'Clerk.”

“In the District Court for Goal County, State of Oklahoma.

“State of Oklahoma, Plaintiff, v. Ed Smith, Defendant.

“J. M. Cabe, having been by me first duly sworn according to law, states upon his oath, that he is 58 years of age, that he is a white man and a resident of Coal countj', state of Oklahoma, that he is acquainted with John Huddard, one of the jurors that composed the jury that tried the case of State of Oklahoma against Ed Smith et al., at this March, 1909, term of district court. Af-fiant states that in the store of Addison & Ellard in the town of Coalgate, some time in the latter part of February, 1909, he heard the said John Huddard state in regard to Ed Smith and the case against him as follows: ‘That Ed Smith is guilty and he ought to be hung, and I wish they would get me on the jury. He ought to be hung a hundred feet high and a pile driver tied to his feet.’’ The affiant further states that he is not related to the defendant, and that he said nothing about this statement to any one until after the trial of the case against the said Ed Smith. Affiant further states that he has lived in what is now Coal county for the last 12' years. J. M. Cabe.”

“Green Jackson having been by me first duly sworn according to law, states upon his oath, that he is 46 years ol age, that he is one-eighth Indian by blood and a resident of Coal county, state of Oklahoma, that he is acquainted with John Huddard, one of the jurors that composed the jury that tried the case of state of Oklahoma against Ed Smith et al., at this March, 1909, term of district court. Affiant states that in the store of Addison & Ellard in the town of Coalgate, some time in the latter part of February, 1909, he heard the said John Huddard state in regard to Ed Smith and the case against him as follows: ‘That Ed Smith is guilty and ought to be hung, and I wish they would get me on the jury. He ought to be hung a hundred feet high and a pile driver tied to his feet.’ The affiant further states that he is not related to the defendant, and that he said nothing about this statement to any one until after the trial of the case against the said Ed Smith. Affiant further states that he has lived in what is now called Coal county for the last 15 years. Green Jackson.”

In reply to said motion for a new trial and tbe affidavits thereto attached, the state filed the affidavit of said Juror Hud-dard, which is as follows:

“John Huddard, after, being first duly sworn, according to law, deposes and states upon his oath that he is a resident of Coal county, state of Oklahoma, and that he is one of the jurors that tried the case of the state of Oklahoma against Ed Smith et al. at the March, 1909, term of the district court of Coal county, state of Oklahoma. Affiant states that he has read the affidavits made by J. M. Cabe and Green Jackson, and filed with and made a part of the defendant’s motion for a new trial, and that said affidavits are false in this: That affiant did not, in the store of Addison & Ellard, in the town of Coalgate, some time in the latter part of February, 1909, or any other time or place, make the statement: ‘Ed Smith is guilty and he ought to be hung, and I wish they, would get me on the jury. He ought to be hung a hundred feet high and a pile driver tied to his feet,’ as alleged in said affidavits. Affiant further deposes and says that he never at any time or place, made to any person or persons any statement like the above statement, or like any part of it, with reference to Ed Smith, or the case against him. [Signed] J. H. Huddard.”

These affidavits presented a question of fact which was sub--mitted for determination to the trial court. The judge, who tried this case for manv years had resided in Coal county and was in a much better condition to determine as to whether the juror or the parties whose affidavits were filed in behalf of the appellant were the most credible. The mere fact that two parties attempted to impeach a juror does not by any means settle the .question of credibility as between such parties and the juror. If it did, but few verdicts could be sustained, because in almost any case it would be possible to find two or more persons who would make affidavits impeaching a juror. In passing upon this very question, the Supreme Court of Texas, in the ease of Gilleland v. State, 44 Tex. 357, said:

“It is true that there are two affidavits in support of the motion and one in rebuttal, but we do not think that the decision of the question presented by the motion should necessarily depend upon the mere number of affidavits on one side over the other.”

The question of credibility was one to be determined by the trial court, and, in the absence of a showing that.this discretion was abused, it cannot be reviewed here. There is nothing in this record to indicate any abuse of discretion on the part of the trial judge. As was well said by the Assistant Attorney General for the state:

“We think that the best evidence of the fact that the juror never made such a statement is that after his desire, if he had any, was gratified and he sat upon the jury, he returned a verdict assessing the lowest punishment for manslaughter in the first degree.”

The state’s evidence in this case would have justified a verdict for murder, and we think that the verdict which was returned shows that the jury was not only fair and impartial, but that they treated the appellant with great leniency.

Ninth. The appellant objected to testimony showing that.a horse belonging to deceased was hitched near the place where the fatal shooting occurred. This fact constituted a part of the res gesiae and was just as admissible in evidence as any other fact indicating the circumstances and surroundings of the scene of the difficulty.

We find no error in the record, and the judgment of the lower court is therefore affirmed.

ARMSTRONG and DOYLE, Judges, concur.


author: PER CURIAM.

text:
    WALTER STEEN v. STATE.
    No. A-244.
    Opinion Filed March 21, 1911.
    (114 Pac. 343.)
    APPEAL — Case-Made—Preparation and Service — Time—Powers of Special Judge. A special county judge may fix the time within which a case-made may be prepared and served, but he cannot extend such time for preparing and serving such case-made. If an extension of such time is desired, it must be granted by the regular county judge.
    ("Syllabus by the Court.)

      Appeal from Tulsa County Court; Thos. D. Lyon, Special Judge.

    Walter Steen was convicted of unlawfully conveying intoxicating liquors, and he appeals.
    Dismissed.

      Davidson & Malloy, for appellant.

      Smith C. Matson, Asst. Atty. Gen., for the State.
   PER CURIAM.

Defendant was tried before Hon. Thomas D. Lyon, a special judge. Judgment was pronounced against him on the 27th day of February, 1909. Subsequently, on the 27th day of April, 1909, said Thomas D. Lyon, acting as special judge, granted an extension of 20 days in which the defendant might prepare and serve a case-made. A judge pro tempore is authorized by our statute to fix the time within which a case-made may be prepared and' served, but after he has fixed such time and has vacated the bench as such judge pro tempore he cannot extend the time for preparing and serving such ease-made. See Dasberry v. State, 4 Okla. Cr. 616, 103 Pac. 865, 112 Pac. 759. If the defendant had desired an extension of time within which to make and serve a case-made, he should have applied to the regular judge of the county court for such extension. The order granting the defendant an extension of time within-which he might make and serve a case-made was therefore void.

The record in this case fails to show that a case-made was ever prepared and served upon the county attorney, but does contain the following: “The foregoing case-made is true and correct. [Signed], M. A. Breckinridge, County Attorney of Tulsa County, Oklahoma.” If this statement had been filed within the time originally allowed by the judge pro tempore within which the case-made should be prepared and served, it might have been construed as a waiver of service on the part of the county attorney; but, as it was filed after the time originally granted by the special judge had expired, it is of no avail. We cannot do otherwise than strike the case-made in this case from the record. The transcript of the record is not properly certified to by the clerk of the county court of Tulsa county as a transcript of the record.

We therefore have no option to do' otherwise than dismiss this appeal.