author: RIOHAKDSON, Judge.

text:
    E. C. CHILDS v. STATE.
    No. A-333.
    Opinion Filed December 14, 1910.
    1. OFFICERS — County Attorneys — Legislative Control of Duties. The office of county attorney is not imbedded in the Constitution of this state; and it may therefore be abrogated, or the powers and duties -pertaining to it enlarged or diminished, or wholly or partially transferred to district or state officers, as the Legislature may see fit.
    2. OFFICERS — Creation of Offices — -Sufficiency of Enactment. It is not necessary to the creation of an office that the Legislature declare in express words that such office is created. The use of any language which shows the legislative intent to create the office is sufficient. And an act which empowers the Governor to appoint a person to an office, and which designates the qualifications which the incumbent of the office must possess and the duties which he is to perform, is sufficient to- create the office.

      3. SAME — Term of Appointive Office. The general rule is that when an office is created to be filled by appointment, if the Legislature does not designate the term of the office, the appointee will hold only during the pleasure of the appointing power.
    4. OFFICERS — Existence of Office Regardless of Incumbent. An office is a legal entity, and may exist in fact although it be without an incumbent.
    "5. OFFICERS — Compensation—Necessity. Compensation is not indispensable to an office; it is merely incident thereto, and is no part of the office.
    6. OFFICERS — Prohibition Enforcement — Counsel to Governor— Constitutionality. Sec. 24, art. Ill, Session Laws 1907-8, (Sec. 4204 Snyder’s Comp. Laws.) creating the office of Counsel to the Governor, and making it such officer’s duty to assist in the enforcement of the prohibitory laws, is not unconstitutional; and such officer has the same power to sign and file an information charging a violation of the prohibitory laws as has the county attorney.
    7. INFORMATION — Sufficiency—Method of Attack. The questions whether an information states facts sufficient to constitute an offense, is duplicitous, or is defective in the description of the offense, cannot be raised by motion to set aside, but only toy demurrer.
    8. INTOXICATING! LIQUORS — -Information—-Duplicity. An information which -charg-es a defendant with having in possession i intoxicating liquor with the intent to sell same, and with the ‘ intent to -convey same from one place within the state to another place therein, does not charge two offenses.
    9. INTOXICATING LIQUORS — -Evidence—Previous Legal Proceedings. In a prosecution for having in possession intoxicating liquor with intent to sell same and to convey same from one place within the -state to another place therein, evidence that previously a justice of the peace had caused t'he liquor to be seized under a search warrant, and on the defendant’s motion had subsequently quashed the warrant and ordered the liquor redelivered to the defendant, is not competent or admissible in the defendant’s behalf.
    10. SAME — Evidence—Intent to Sell. In á prosecution for -having in possession intoxicating liquor with intent to sell' same, proof that the defendant kept large quantities of liquor concealed on his premises is competent as a circumstance tending to show the intent to sell.
    (Syllabus by the Court.)

      Appeal from Seminole County Court; T. S. Cobb, Judge.

      E. C. Childs was convicted of violating the prohibition law, and he appeals.
    Affirmed.

      Davis & Dmis, for plaintiff: in error.

      Fred S. Caldwell, for the State.
   RIOHAKDSON, Judge.

The information in this case was signed by Ered S. Caldwell as Counsel to the Governor, and charged plaintiff in error with having in possession intoxicating liquor with intent to sell the same and to convey the same from one place within the state to another place therein. Plaintiff! in error orally moved the court to set aside the information because it was not signed by the county attorney. The court overruled the motion, and the ruling is assigned as error.

The Legislature of 1907-8 enacted a prohibition law, which was approved March 24, 1908 (Session Laws, 1907-8, page 594, Snyder’s Comp. L. Olda., chap. 61), section 24 of art. Ill of which (see. 4204 of Snyder’s Comp. Laws) provides for the appointment of an attorney to be known as Counsel to the Governor. The section reads'as follows:

“The Governor shall have power to appoint an attorney who shall have been a resident in this state for-at least two years, and shall have been a lawyer licensed by some court of record for at least five years, who shall be known as Counsel to the Governor. He shall, under the direction of the Governor, assist in enforcing the provisions of this act, and the other laws of the state, and shall perform such other duties as the Governor may from time to time require. He shall have ail the powers of county attorneys in their respective counties. He shall hold office during the pleasure of the Governor, and shall give bond, to be approved by him, conditioned for the faithful discharge of his duties, in the sum of three thousand dollars ($3,000) and shall receive a salary, to be fixed by the Governor of not more than twenty-five hundred dollars ($2,500) per annum, payable monthly; Provided, that in lieu of, or in addition to, appointing such attorney the Governor may call upon the Attorney General or his assistant to perform such service.”

Inasmuch as this section provides that such Counsel to the Governor shall have all the powers of county attorneys in their respective counties, it is plain that, if the section is not unconstitutional, the Counsel to the Governor may sign and file an information for a violation of the prohibition law, since a county attorney may lawfully do so.

In 1907 the Legislature of North Dakota passed an act somewhat like the one in question here, providing that the Governor should appoint an enforcement commissioner, who should be an attorney at law, and who was authorized to exercise in any part of the state all the common-law and statutory powers of state’s attorneys in their respective counties in the enforcement of the law against the manufacture and sale of intoxicating liquors. Section 173 of the Constitution of North Dakota reads as follows:

“At the first general election held after the adoption of this Constitution, and every two years thereafter, there shall be elected in each organized county in the state a county judge, clerk of court, regMer of deeds, 1 county auditor, treasurer, sheriff and state’s attorney, who shall be electors of the county in which they are elected, and who shall hold their office until their successors are elected and qualified. The legislative assembly shall provide by law for such other county, township and district officers as may be deemed necessary * * * ”

And the Supreme Court of North Dakota in Ex parte Corliss, 114 N. W. 962, held the act of the Legislature.void on the ground that the office of state’s attorney was a constitutional office in that state; that the section of the Constitution above quoted unquali-fiedly provided that the incumbent of that office should be elected by the people of each county; that by said section there was reserved to the people of each county the right to have the functions inherently pertaining to such office discharged only by the person of their own choosing, and that' such right could not be infringed by a legislative enactment transferring any of the inherent powers of the state’s attorney to a person appointed by central authority. There is a strong dissenting opinion in that case. We do not find it necessary, however, to express approval or disapproval of the reasoning used or the conclusion reached in either the prevailing or the dissenting opinion therein, for the reason that our constitutional provisions are wholly different from those of North Dakota with respect to the office of county attorney. Section 3 of article 17 of our Constitution is as follows:

“There are hereby created, subject to cJimge by the Legislature., in and for each organized county of this state, the offices of Judge of the County Court, County Attorney, Clerk of the District Court, County Clerk, Sheriff, County Treasurer, Register of Deeds, County Surveyor, Superintendent of Public Instruction, three County Commissioners, and such municipal township’ officers as are now provided for under the laws of the Territory of Oklahoma, except as in this Constitution otherwise provided.”

By section 18 of the Schedule to our Constitution .it is provided that, “Until otherwise provided by law the terms, duties; powersi, qualifications, and salary and the compensation of all county and township officers not otherwise provided by this Constitution shall be as now provided by the laws of the Territory of Oklahoma for like named officers * * *.” It will be seen

from an examination of these two constitutional provisions that neither the office of county attorney nor the duties and powers pertaining thereto are imbedded in the Constitution. The office may be entirely abrogated, or the powers and duties pertaining to it enlarged or diminished or wholly or partially transferred to district or state officers as* the Legislature may see fit. And for that reason it cannot be urged that this act is unconstitutional and void as depriving the office of county attorney of any of its constitutional powers and duties.

In the case of State v. Butler, 105 Me. 91, the Supreme Court Of Maine held unconstitutional an act somewhat similar to the one in question on the ground that the act did not create the office, but professed to empower the Governor to do so; and the court held that such power could not be delegated to the Governor. That act was in part as follows:

“The Governor may, after notice to and an opportunity for the attorney for the state for any county to show cause why the same should not be done, create to continue during his pleasure the office of special attorney for the state in such county and appoint an attorney to perform the duties thereof. Such appointee shall, under the direction of the Governor, have and exercise the same powers now vested in the attorney for the state for such county in all prosecutions relating to the law against the manufacture and sale of intoxicating liquors, and shall have full charge and control thereof * * * ”

And the commission issued by the Governor of Maine under that statute was in the following words:

“Know Te, that I, William T. Cobb, Governor of the State of Maine, do hereby create to continue during my pleasure the office of Special Attorney for the State of Maine in the County of Somerset, all as provided by chapter 92 of the Public Laws of the State of Maine, for the year A. D. 1905, entitled ‘An act to provide for the better enforcement of the laws against the manufacture and sale of intoxicating liquors/ and especially as provided for under section 8 of said chapter:
“And reposing special trust and' confidence in the integrit}’’, ability and discretion of Amos K. Butler, of Showhegan in the said County of Somerset, do hereby constitute and appoint the said Amos K. Butler Special Attorney for the State of Maine within and for said County of Somerset * . * * ”

It will be observed that the act of the Legislature of Maine did not purport to create the office of special attorney for the, state, but specifically empowered the Governor to create such office; and the commission which the Governor issued expressly professed to create the office. An examination of section 4204'of Snyder’s Comp. Laws, quoted above, will disclose no such condition here. The section in question authorizes the Governor to appoint an attorney who shall be known as Counsel to the Governor; the section fixes the qualifications of the person to be appointed, and prescribes his duties; and we think that was sufficient to create the office. Nine-tenths of the offices created by the Legislatures of the various states in the Union and by the Congress of the United States are created in just this way; that is, by a provision authorizing the appointment or election of some person, designating the qualifications which he must possess, to some office the powers and duties pertaining to which are prescribed by the act. It is not necessary to the creation of an office that the Legislature declare in express words that such office, is created. The use of any language which shows the legislative intent to create the office is sufficient. And an act which empowers the Governor to appoint a person to an office, and which designates the qualifications which the incumbent of the office must possess and the duties which he must perform, is sufficient to create the office.

It is true that the act in question does not fix the term of office, but provides that the appointee shall hold office during the pleasure of the Governor; but we do not regard .that as fatal. The general rule is that whenever an office is created to be filled by appointment, if the Legislature _ does not designate the term of the office, the appointee will hold only during the pleasure of the appointing power. Mechem on Public Officers, sec. 406 and sec. 445; Throop on Public Officers, sec. 304; 29 Cyc. pp. 1370, 1371, 1395, 1396. See also Patton v. Vaughn, 39 Ark. 211; People v. Hill, 7 Cal. 97; People v. Higgins, 15 Ill. 110; Peters v. Bell, 50 La. Ann. 1621, 26 So. 442; Paris v. St. Paul, 84 Minn. 426, 87 N. W. 1124; 87 Am. St. Rep. 374; Newson v. Coke, 44 Miss. 352, 7 Am. Rep. 686; People v. Brooklyn, 149 N. Y. 215, 43 N. E. 554; State v Archibald, 5 N. D. 359, 66 N W. 234; Williams v. Boughner, 6 Cold. 486; Keenan v. Perry, 24 Tex. 253; Ex parte Hennen, 13 Pet. 230, 10 L. Ed. 136; Smith v. Brown, 59 Cal. 672; People v. Commissioners, 73 N. Y. 437. Nor is the act bad because it does not require that the office- be filled, but provides that in lieu of appointing such officer the Governor may call upon the Attorney General or his assistant to perform such service. In legal contemplation an office is an entity, and may exist in fact although it be without an incumbent. People v. Stratton, 28 Cal. 382; State v. Rose, 74 Kan. 262, 86 Pac. 296, 6 L. R. A. (N. S.) 843; Heard v. Elliott, 116 Term. 150, 92 S. W. 764. In the last mentioned case the syllabus is as follows:

“Act 1875, p. 51, e. 55, abolished the office of county entry taker, and Acts 1879, p. 65, c. 46, entitled ‘An act to establish the entry taker’s office,’ provides that there should be elected by the justices of the county courts at the April term of .the court, or any quarterly term, every four years, an entry taker for any county in the state desiring to have an entry taker. Held, that such act of 1879 created the office of entry taker throughout the state, whether a county elected.to fill the same or not.”

Neither is the section void because it provides that the Counsel to the Governor shall receive a salary, to be fixed by the Governor, of not more than $3,500 per annum, payable monthly. Assuming that the power to fix the salary of an office cannot be delegated to the Governor, and that this provision is therefore void, yet it does not follow that the whole section is void or that the office was not in fact created. Salary is merely incident to an office, and constitutes no part of the office; the office may exist without provision for compensation of any kind or 'character. Compensation is not indispensable to an office. Throop on Public Officers, sec. 8; Mechem on Public Officers, sec. 7; State v. Stanley, 66 N. C. 59, 8 Am. Rep. 488; Howeston v. Tate, 68 N. C. 547; State v. Kennon, 7 Ohio St. 546; U. S. v. Hartwell, 6 Wall. (U. S.) 385.

Whether that portion of the section which provides that, in addition to enforcing the provisions of the prohibition law, the Counsel to the Governor shall assist in enforcing the other laws of the state and shall perform such other duties as the Governor may from time to time require, and shall have all the powers of county attorneys in.their respective counties, is void as not being within the title of the act, we shall not attempt to determine here; for it is certain that the creation of this office was primarily for the purpose of securing the better enforcement of the prohibition law, and the other powers granted to the incumbent of such office being merely additional, they may fall without affecting the main purpose of the section. (Sec, 57, art. V, Const.) In the instant case the Counsel to the Governor was acting solely in the enforcement of the prohibition law; and we hold that even though the act be not effective to confer any other powers upon such officer, that.does not render it bad, but it is effective at least in so far as it grants the power to enforce that law. In our opinion the Counsel to the Governor had full power to sign the information in this ease, and the motion to quash the information on this ground was properly overruled.

Another ground upon which plaintiff in error moved to quash or set aside the information was that it did not state facts sufficient to constitute a public offense. This defect, if it existed, was ground for demurrer by section 6747 of Snyder's Comp. Laws, and was not ground for setting the information aside. The demurrer, by section 6748, must be in writing, signed either by the defendant or his counsel, and filed. This question, therefore, was not properly raised in the court below. We have examined the information, however, and find that it properly charged an offense; and even if plaintiff in error had demurred on this ground, the demurrer could only have been overruled.

It is next urged that the information charged two offenses, in that it alleged that plaintiff in error wrongfully and unlawfully had in his possession three cases and five pints of whisky, with the intent on his part to sell said whisky to divers and sundry persons, and with the intent then and there to convey the same from one place in said county to another place therein. The contention Is that, inasmuch as the information, alleged that plaintiff in error had the whisky in his possession with the intent to violate two provisions of the law, the information was duplicitous. If this contention were well taken, the matter could have been raised only by demurrer under section 6747 of Snyder’s Comp. Laws; and, as previously stated, no demurrer was filed. In the next place, only one possession of liquor was charged and the fact that plaintiff in error may have intended to violate two provisions of the law with the liquor in his possession, and the fact that the information so alleged, would not make it duplicitous. It charged only one offense.

The information is further1 complained of for the reason that it does not allege that plaintiff in error’s intent to sell and to convey the liquor in possession was wrongful and unlawful. This is a question also that could be raised only by a demurrer. 'But, however raised, the information alleges that the possession of the liquor was wrongful and unlawful and with the intent to violate certain designated provisions of the laws of Oklahoma, and that was sufficient.

An instruction of the court is complained of wherein the jury were told that they should convict if they found from the evidence beyond a reasonable doubt, first, that the defendant was in the' possession of the liquor, and second, that he intended to sell the same in violation- of the law, or that he intended to convey the same from his residence to his pool hall. There was no error in the instruction given.

It is next urged that the court erred in not sustaining plaintiff in error’s demurrer to the state’s evidence. There was no error in this. Section 6848, Snyder’s Comp. Laws; Pierce Cox v. State (infra), decided at this term.

Plaintiff in error introduced a justice of the peace as a witness in his behalf, and undertook to prove by the justice and his records that theretofore he had issued a search warrant for certain liquor in plaintiff in error’s possession, and that afterwards, on the latter’s motion, had quashed the .warrant and ordered the liquor redelivered to him. This the court ruled out, and plaintiff in error contends that such action was erroneous for the reason that the evidence of the justice of the peace tended to establish an adjudication that the defendant’s possession of the liquor in question was lawful. The court properly ruled out the evidence. It was not competent under any phase of the case. The justice had no jurisdiction of this case, and his action in the proceeding before him could not bind the county court in the trial of this' cause. Also it was not shown that the liquor which the justice ordered returned to plaintiff in error was the same liquoir in controversy in this case; and if it was, we know of no rule of law that would forbid the state from proving that the defendant had subsequently formed an intent to violate the law with the liquor in possession, even if the state were precluded by the justice’s order from proving that the intent existed at the time the justice made the order in question.

It was proved by the sheriff that, on the day this offense was charged to have been committed, he was about to search the plaintiff in error for liquor under a search warrant, when the latter pulled from his pocket two bottles of whisky and broke them. And plaintiff in error contends that the admission of this evidence was erroneous, as also the admission of evidence tending to show that he kept a large quantity of liquor concealed-In his house in a side of the wall, and that he had numerous bottles and cartons around the premises. The latter evidence was competent as a circumstance tending to show plaintiff in error’s intent to sell the liquor in possession, and the evidence in regard to his breaking the bottles in the presence of the sheriff was competent as tending to show an attempt on his part to destroy evidence against him.

Complaint is made of the action of the court in refusing to give two instructions specially requested, but the court committed no error in this respect. . The instructions given were just ánd correct and fairly and properly stated the law. The evidence as a whole conclusively shows plaintiff in error to have been a wilful and confirmed violator of the prohibition law and indisputably establishes his guilt of the present offense. His conviction was-right and it is affirmed.

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


source: Caselaw Access Project

author: FURMAN, Presiding Judge.

license: Public Domain

text:
    KIRK KERN and N. STANDLEY v. STATE.
    No. A-167.
    Opinion Filed December 14, 1910.

    1. ANIMALS — Death by Disease — Failure to Burn Carcass. If the owner of a hog which had died of disease fails and refuses to ■burn the carcass of said -hog within twenty-four hours after he had notice or knowledge of the fact that said hog had died of disease, the failure to -burn said hog will be a violation of sec. 212, Snyder’s Comp. Laws of Oklahoma, 1909.
    2. SAME — Sale of Diseased Meat. If any person sells any part of the carcass of a hog or disposes of it in any manner whatsoever, except to burn the same, knowing that said hog had died of any disease, said person so selling said hog will be guilty of violating section 216 of iSnyder’s Comp. Haws of Oklahoma, 1909.
    ('Syllabus by the Court.)

      Appeal from Okmulgee County Courtj M. N. Alexander, Judge.

    Appellants were convicted for a violation of section 31 of Snyder’s Comp. Laws of Okla. 1909, and were found guilty and each find $100 and thirty days’ confinement in the county jail. This prosecution should have been based on secs. .312, and 216, Snyder’s Comp. Laws of Okla. 1909. Defendants appealed.
    Reversed.

      Barclay Morgan and Wm. B. Foster, for appellants.

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

The information in this case is as follows:

“In the name and by the authority of the State of Oklahoma. Now comes Joe S. Eaton, the duly qualified and acting county attorney, in and for Okmulgee County, State of Oklahoma, and gives the County Court of Okmulgee County, State of Oklahoma, to know and be informed that Kirk Kern and N. Standley did, in Okmulgee County, and in the State of Oklahoma, on or about the....................................day of December, in the year of our Lord One Thousand Nine Hundred and Eight, and anterior to the presentment hereof, commit the crime of offering unwholesome meat for sale, in the manner and form as follows, to wit: That your affiant was, in the month of December, 1908, called upon by Kirk Kern and N. Standley to inspect certain swine, which was then and there the property of the said Kirk Kern and N. Standley; that, acting in the capacity of a live stock inspector, and exercising the duties of his office as such inspector, he inspected certain swine belonging to the said Kirk Kern and N. Standley, and found that one swine, which he was called upon to inspect, had died from some unknown cause, and in the exercise of his duties as such inspector, your affiant says that he then and there ordered and directed the defendants not to expose, sell or offer for sale, the meat of said swine; that in violation, evasion and disregard of said directions and order, as aforesaid made to defendants, the said defendants did unlawfully, willfully and wrongfully expose, sell and offer for sale, parts of said swine, so as aforesaid inspected, contrary to the form of the statutes in such cases made and provided, and against the peace and dignity of the state. “J'oe S. Baton, '
“County Attorney.”

This information was based on section 31 of Snyder’s Comp. Laws of Olda. 1909. The testimony in the case showed that the hog in question had died of some disease. It would be useless consumption of time to discuss the law upon which this information is based, because clearly the facts in this case constitute entirely separate and distinct offenses from that provided by section 31, above referred to. Section 31 only applies to acts not otherwise provided for by the laws of the state. Section 212 of Snyder’s Comp. Laws of Olda. 1909 provides that when any hog dies of any disease, it shall be burned, and makes it a crime for the owner of said hog to fail to burn the carcass thereof within twenty-four hours after he has had notice or knowledge of the death of such hog by such disease. Section 216 makes it a crime for any person to barter, sell or dispose of the carcass of any swine or other domestic animal which had died of any infectious disease for any purpose whatsoever except to burn the same. Therefore section 31 has no application to the facts of this case. If the defendants in this case neglected or failed to burn the carcass of the hog in question within twenty-four hours after they had received notice or knowledge of the fact that said hog had died of disease, then they should be prosecuted under section 212; and if they went further and sold or disposed of any of the carcass of the hog in question, knowing that it had died of disease, to any person for any purpose whatsoever, they should be prosecuted under section 216.

The evidence in this case proves two separate and distinct offenses: first, a violation of section 212 in not burning said hog after they had received notice of the fact that it had died of disease, and, sec.ond, by selling any portion of the carcass of said hog, knowing that it had died of disease.

The conviction in this case is therefore set aside and the cause is reversed, with directions to the county court to dismiss this prosecution.

If the testimony introduced upon this trial is still accessible to the county attorney, he should institute two prosecutions against the defendants — one for a violation of section 212, and one for a violation of section 216, above referred to.

Eeversed and remanded.

DOYLE and EIOHAEDtíON, Judges, concur.


author: DOYLE, Judge.

text:
    BILL COLBERT v. STATE.
    No. A-135.
    Opinion Filed December 21, 1910.
    INSTRUCTIONS — On Punishment. Where an instruction given only states the, maximum term of imprisonment and omits to state the minimum or alternative punishment that may be imposed. Held, that the judgment and .conviction must be reversed.
    (Syllabus by the Court.)

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

    Bill Colbert was convicted of the crime of larceny and appeals.
    Eeversed.

      J. M. Wilkins, for plaintiff in error.
   DOYLE, Judge.

Plaintiff in error was indicted, tried and convicted of the crime of larceny. The jury assessed the punishment at two years5 imprisonment in the state penitentiary. The judgment and sentence was entered on December 7, 1908. An appeal was taken by filing in this court, on April 15, 1909, a petition in error with case-made attached.

The offense is alleged to have been committed before statehood, and the indictment is based upon the act of Congress approved February 2, 1903, which provided:

“That any person, whether an Indian or otherwise, who shall hereafter be convicted in the Indian Territory of stealing any horse, mare, gelding, filly, foal, mule, ass, or jenny, or of stealing, or marking, killing, or wounding with intent to steal, any kind of cattle, pigs, hogs, sheep, or goats, shall be punished by a fine of not more than one thousand dollars, or by imprisonment for not more than fifteen years, or by both such fine and imprisonment, at the discretion of the court.” (Statutes at Large, vol. 32, part one, p. 792, chap. 350).

It is only necessary to notice the assignment which alleges that -the court erred in instructing the jury that:

Hn\the event you find the defendant guilty, then you will assess his punishment, which is not over fifteen years in the state penitentiary.”

We are of the opinion that the judgment must be reversed because of error of the court in failing to instruct as to the minimum and the alternative punishment prescribed by said act of Congress.

It appears that the plaintiff in error in this case is the identical party who was convicted and sentenced to life imprisonment in the district court of Pittsburg county for the crime of conjoint robbery; which judgment and sentence was, on appeal, affirmed at this term.

Judgment reversed.

FURMAN, Presiding Judge, and RICHARDSON, Judge, concur.


author: PER CURIAM.

text:
    A. J. MERRILL v. STATE.
    No. A-760.
    Opinion Filed December 17, 1910.
   PER CURIAM.

Appellant was convicted of manslaughter in the first degree in the district court of Okmulgee county and his punishment was assessed at five years’ imprisonment in the penitentiary. Defendant appealed to this court. Since his appeal has been perfected, defendant’s counsel has filed a motion in this court praying that this appeal may be dismissed. This motion is sustained and the appeal is dismissed.


author: DOYLE, Judge. PER CURIAM.

text:
    KNOX SIMMONS v. STATE.
    No. A-228.
    Opinion Filed December 7, 1910.
    Motion for Rehearing Denied December 17, 1910.
    APPEAL — Abandonment—-Failure to File Briefs. Counsel have no right to appeal simply for the purpose of delay, nor unless they believe there is some ground for reversal, and if there is any reason for appealing, even though doubtful and inconclusive, it should be presented to the court fof consideration.
    (Syllabus by the" Court.!

      Appeal from, District Court, Carter County; S. il. Bussell, Judge.

    Knox Simmons was convicted of grand larceny and appeals.
    Affirmed.

      Charles West, Attorney General, and Smith C. Matson, Assistant Attorney General, for the State.
   DOYLE, Judge.

Knox Simmons, plaintiff in errar, was charged by indictment in the district court of Carter county with the crime of grand larceny. Upon a trial had in said court, the jury returned a verdict finding the defendant guilty as charged, and assessed his punishment at imprisonment in the penitentiary for a period of four years. The judgment and sentence was entered on December 28, 1908. From such judgment an appeal was properly perfected by filing in this court, on July 26, 1909, a petition' in error with case-made attached, and proof of service of notices of appeal.

The plaintiff in error has not been represented by counsel on his appeal, although he was ably represented and well defended upon the trial in the court below. No briefs have been filed, nor argument made in this court. On May 14, 1910, the Attorney General filed a motion to affirm the judgment for want of prosecution. It is apparent that this appeal was taken merely for the purpose of delay. Counsel -have no right to appeal simply for the purpose of delay, nor unless they believe there is some ground for reversal, and if there is any reason for appealing, even though doubtful and inconclusive, it should be presented to the court for consideration, or some sufficient reason given for the failure so to do.

1. TRIAL — Conduct of Counsel. Attorneys must treat each other and the trial courts with fairness and good faith, and not resort to sharp practice in the trial of criminal cases.

2. TRIAL — When Trial Begins. In a criminal case a trial begins when the jury are called into the box to be examined as to their qualifications.

(Syllabus by the Court.)

From a careful examination of the record it is clear that a fair and impartial trial was had. Wherefore the judgment of the district court of Carter county is in all things affirmed.

FURMAN, Presiding Judge, and RICHARDSON, Judge, concur.

ON MOTION FOR REHEARING.

PER CURIAM.

Counsel for the appellant has filed a motion for a rehearing in this case upon the ground that fundamental error appears in the record which was overlooked in the original opinion of this court, in this: that the defendant had presented an affidavit to the court alleging bias and prejudice on the part of the trial judge against the defendant, and that the filing of this affidavit disqualified the judge from trying this case. This would have been true, under the law then in force with reference to a change of judge, if it had been presented to the trial court before the trial began. In the case of Caples v. State, 3 Okla. Cr. 73, this court held that a trial begins when the jury is called into the box for examination as to their qualifications. We find in the case-made a statement by the trial judge to the effect that when this case was called for trial, the county attorney announced ready for trial, and that R. F. Turner, defendant’s counsel, answered “All right”; and that, after twelve jurors had taken their seats in the jury box and the state was called upon to test them upon their voir dire, Mr. E. F. Turner approached the desk of the court and asked permission of the court to withdraw defendants plea of not guilty, that he might enter. a demurrer to the indictment. The court said to him, “To the indictment?” and he replied “Yes”; and that the court granted his request, and that the said E. F. Turner then offered his motion and affidavit for a change of judge. The court overruled the motion. We agree with the trial court in holding that the motion for a change of judge came too late. It should have been presented before the parties had announced ready for trial and the jury were called into the box. • From the statement of the trial judge it is clear that counsel for the defendant attempted to take advantage of the confidence of the court in order that he might have an opportunity to present the motion for a change of judge. The permission to withdraw his plea and announcement was granted him by the court, and was for one purpose only. It is evident that counsel for the defendant knew that his motion for a change of judge was presented too late, or he would not have resorted to the subterfuge which he attempted to practice upon the court. If counsel for appellant had, through inadvertence, neglected to present the motion for a change of judge in proper time, and desired to act in good faith with the trial judge, why did he not frankly state this fact to the judge and request permission to withdraw his announcement of ready for trial in order that he might present the motion for a change of judge? Why resort to a misstatement of fact? This court has time and again held that attorneys should treat each other and the court with fairness and good faith, and should defend their cases upon their merits. When counsel do not do this, but attempt sharp practice and resort to unfair methods, they must not expect to receive favorable consideration at the hands of this court. If our admonitions are not heeded, we may be compelled to resort to more drastic measures, for we are determined to put a stop to unfairness in the trial of criminal cases.

The trial court did not err in overruling the motion for change of judge under the circumstances. The motion for rehearing upon this question is therefore denied.


author: RICHARDSON, Judge.

text:
    HARRY COHN v. STATE.
    No. A-300.
    Opinion Filed December 19, 1910.
    1. APPEAL — 'Review—Case-.Made—Service. No case-made will be considered on appeal unless it is affirmatively shown that it was served upon the county attorney within the time fixed by the trial court for that purpose.
    2. APPEAL — Transcript—Certification by Special Judge. .A special judge for the trial of a single case in the county court cannot, after the rendition of final judgment, certify a transcript of the record in such case, he not being the custodian of the records.
    (■Syllabus by the Court.)

      Appeal from Pittsburg County Court; T. D. Davis, Special Judge.

    Harry C'ohu was convicted of violating the prohibition law and sentenced to imprisonment for a term of six months and to pay a fine of $500. He filed a motion for a new trial, which was heard and overruled, and he appeals.
    Appeal dismissed.

      J. G. Harley and Stuart, Gordon £ Liedtlce, for plaintiff in error.

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

The only matter contained in the ease-made herein which jiurports to show that the same was ever served upon the county attorney is the following:

“I, the undersigned, county attorney for 'Pittsburg county, Oklahoma, attorney of record for the above named plaintiff, do hereby waive notice of the time and place of presenting the above and foregoing case-made to the judge of said county court, before whom said cause was tried, for settlement and signing, and hereby waive and agree that said case-made may be presented to said judge for settlement and signing, and be settled and signed and allowed by said judge at any time when it may be convenient for him to do so. (Signed) T. E. Dean, county attorney, by J. Eead Moore, assistant county attorney.”

This waiver and agreement does not accept service of the case-made or waive the suggestion of amendments. It does not show that the case-made was ever served. Moreover the waiver and agreement is not dated, and the time of its execution is left wholly to conjecture. No case-made will be considered by this court unless it is shown positively and affirmatively that it was served upon the county attorney, and that it was so served within the time fixed by the trial court for that purpose.

Nor can we treat any portion of the papers before us'as a transcript of the record. The cause was tried before a special judge, and the. special judge has certified the case-made. This he had the power to do by statute, but he had no authority to certify a transcript. A transcript of the record proper can be authenticated only by the custodian of the record, and this the special judge is not. The regular judge of the county court is the custodian of the records of the county court, just as the clerk of the district court is the custodian of the records of that court. Durant v. State, 3 Okla. Cr. 447, 106 Pac. 651; Lewis v. State, 3 Okla. Cr. 448, 106 Pac. 647. The special judge, thirty days after the rendition of judgment in this case, could no more certify a transcript of the judgment, orders and files in the case than he could today, by appending his certificate to a copy of any journal entry in the county court, make the same a legally certified copy. He has no more power in such case to certify a transcript of the record than the regular county judge or the clerk of the ■ district court would have after the expiration of their term of office.

The appeal in this case is therefore dismissed.

FUBMAN, Presiding Judge, and DOYLE, Judge, concur.


author: EICHAED'SON, Judge.

text:
    HARRY COHN v. STATE.
    No. A-175.
    Opinion Filed December 19, 1910.
    1. APPEAL — Review—Case-Made—Service, No' case-made in a criminal action will be considered on appeal unless it is affirmatively shown that it was served upon the county attorney within the time prescribed by the trial court for that purpose.
    2. APPEAL — 'Review—Defective Case-Made as Transcript. Where, 'because of some defect or omission, a purported case-made cannot be considered as such, tout contains a transcript of the record proper and is duty certified as a transcript, assignments of error predicated upon the record proper may be considered by the appellate court upon such transcript.
    3. APPEAL — Review—Record—Instructions. The instructions to the jury, when given in writing and filed, or if given orally, when transcribed and filed, become a part of the record proper in this jurisdiction.
    4. INSTRUCTIONS — Sufficiency. The court instructed the jury that if they believed from the evidence beyond a reasonable doubt, or if the circumstances were sufficiently strong as to lead them to believe beyond a reasonable doubt, that the defendant was guilty, then they should convict. Held, upon a consideration of the instructions as a whole, that the jury must have understood that the only circumstances Which thej could consider were those proved, and that they should convict only if the positive evidence in the case or the circumstances proved established the defendant’s guilt beyond a reasonable doubt.
    5. APPEAL — «Review of Instructions — Record of Evidence. Where an instruction given in the trial of a case may or may not have been correct, depending for its correctness upon the evidence in the case, and the evidence is not property preserved for review either by ease-made or bill of exceptions, the presumption that the court charged the jury correctly must prevail.
    (Syllabus by the Court.)

      Appeal from Pittsburg Gouniy Gowij B. TF. Higgins, Judge.

    Harry Cohn was convicted of selling malt liquor, and his punishment was assessed at imprisonment for a period of sixty days and a fine of $200. From an order overruling a motion for a new trial, he appeals.
    Affirmed.

      J. G. Harley and Stuart, Gordon & Liedtlce, for plaintiff in error.

      Fred S'. Caldwell, for the State.
   EICHAED'SON, Judge.

The court overruled plaintiff in error’s motion for a new trial and pronounced sentence on March 19, 1909, and on that day gave plaintiff in error thirty days within which to serve his case-made on the county attorney. On April 17, 1909, the court granted plaintiff in error, on the latter’s motion, five additional days for the service of the case-made. The time for serving the ease-made therefore expired on April 23, 1909. There is nothing in the record to show that it was ever served on the county attorney. The purported case-made contains a stipulation signed by the county attorney to the effect that he waives notice of the time and place of presenting same to the judge for settlement and signing, and agrees that the same may be settled and signed by the judge at the latter’s convenience. This is dated May 8, 1909, fifteen days after the time allowed for serving the case-made. That does not show that the case-made was served on the county attorney; and if it did, it would be no showing that it was served within the time allowed. No case-made will be considered by this court unless it is shown positively and affirmatively that it was served upon the county attorney within the time allowed by the trial court. Box v. State, ante, 111 Pac. 655; Wilson v. United States, ante, 111 Pac. 659; Abel v. Blair, 3 Okla. 399, 41 Pac. 342; Polson v. Purcell, 4 Okla. 93, 46 Pac. 578; Horner v. Christy, 4 Okla. 553, 46 Pac. 561; Gibson v. State, 3 Okla. Cr. 594, 107 Pac. 739.

The judge of the county court has certified, however, that the purported ease-made contains a true and correct transcript of the record in said cause, and, treating the same as a transcript, we may examine such assignments of error as are predicated upon the record proper.

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

“If you gentlemen believe from the evidence, beyond a reasonable doubt, or if the circumstances are sufficiently strong as to lead you to believe, beyond a reasonable doubt, that the defendant did commit the crime of selling malt liquor to M. L. Billings, in Pittsburg county, Oklahoma, and since March 17, 1908, and prior to the 17th day of November, 1908, the day of the filing of the information herein, then it is your duty to convict; otherwise acquit.”

The instructions, by statute, are made a part of the record proper in this jurisdiction (Humphrey v. State, 3 Okla. Cr. 504, 106 Pac. 978; Reed v. U. S., 2 Okla. Cr. 652, 103 Pac. 371), and the action of the court in giving this instruction may therefore be reviewed. The objection is to that portion of the instruction in which the court said, “Or, if the circumstances are sufficiently strong as to lead you to believe beyond a reasonable doubt that the defendant did commit the crime * * * then it is your duty to convict.” It is contended that the jury were not limited by this instruction to the circumstances in evidence, but were authorized to consider any circumstances of which they may have had private knowledge. We are far from approving the form of the instruction, but we think the jury could not but have understood that they might consider only such circumstances as were proven in determining the defendant’s guilt or innocence. In instruction No. 3 the court specifically instructed the jury that, if they entertained a reasonable doubt as to whether the defendant’s guilt had been proven, they should acquit; and the last instruction given was as follows:

“The court instructs the jury that a reasonable doubt is that state of the case which, after the entire comparison and consideration of all the evidence, leaves the minds of the jurors in that condition that they cannot say they feel an abiding conviction, to a moral certainty, of the truth of the charge. The burden of the proof is upon the prosecutor. All the presumptions of law, independent of evidence, are in favor of innocence, and every person is presumed to be innocent until he is proved guilty. If, upon such proof, there is a reasonable doubt remaining, the accused is entitled to the benefit of it by an acquittal, for it is not sufficient to establish a probability, though a strong one arising from the doctrine of chances, that the fact charged is more likely to be true than the contrary, but the evidence must establish the truth of the fact to a reasonable and moral certainty — a certainty that convinces and directs the understanding, and satisfies the reason and judgment of those who are bound to -act conscientiously upon it. This we take to be proof beyond a reasonable doubt.”

Considering the charge as a whole, we are satisfied that no person possessing the qualifications prescribed by law for jurors coitld have interpreted the instruction complained of as meaning anything else than that the only circumstances which they could consider against the defendant were those proved against him, and that the jury should convict him only if the positive evidence in the case or the circumstances proved established his guilt beyond a reasonable doubt.

The second instriiction given was merely a copy of that portion of the statute defining the offense charged, and it is urged that the court erred in not submitting to the jury, in said instruction, the exceptions contained in the statute. It is stated in the brief that there are ways in which a person may'sell, barter or give away liquor without violating the law, and that the jury were not informed as to what they were. There is no merit in the contention. If the defendant was within the exception or exceptions, which are enumerated in a different section, as we have repeatedly held, that was a matter of defense for him to raise by evidence; and as the evidence is not properly before us, there is no showing that he did so. The presumption is that the court ..charged the jury correctly; and we shall not presume that the defendant was a dispensary agent.

■ No other assignments have been. presented which may be considered upon the record proper, and the judgment of the county court is therefore affirmed.

FUKMAN, Presiding Judge, and DOYLE, Judge, concur.


text:
    HARRY COHN v. STATE.
    No. A-174.
    Opinion Filed December 19, 1910.
    1. APPEAL — Case-Made—Certification. A purported case-made not certified to by Uie trial judge cannot be considered by the appellate court. °
    ¡J. APPEAL — Transcript—Requisites. The record of a criminal trial in a county court, not certified to either 'by the judge or the clerk of the court, cannot be treated a.s a transcript.
    3. APPEAL — Cas,e-Made—Record of Service. No case-made will be considered on appeal which does not show affirmatively that it was served upon the county attorney within the time fixed for that purpose by the trial court.
    (■Syllabus by the Court.)

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

    Harry Colin was convicted of violating the prohibition law, and his punishment was assessed at a fine of $500 and imprisonment in the county jail for a term of six months. From an order overruling a motion for a new trial, he appeals.
    Appeal dismissed.

      J. G. Harley and Stuwi'i, Gordon & Liedtlce, for plaintiff in error.

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

The purported case-made herein contains no certificate of the trial judge, nor is the record certified, to, either by the judge of the county court of Pittsburg county, or by the clerk of such court. The papers before us, therefore, constitute neither a case-made nor a transcript, and for that reason cannot be considered by this court.

Also the purported case-made shows that the court overruled plaintiff in error’s motion for a new trial and pronounced sentence on March 19, 1909, and on that day gave plaintiff in erroi thirty days within which to serve his case-made on the count} attorney. On April 17, 1909, the court granted plaintiff in error, on the latter’s motion, five additional days for the service of his case-made. The time for serving the case-made, therefore, expired on April 23, 1909. There is nothing in the record to show that. it was ever served on the county attorney. The purported case-made contains a stipulation signed by the county attorney to the effect that he waives notice of the time and place of presenting same to the judge for settlement and signing, and agrees that the same may be settled and signed by the judge at the latter’s convenience. This is dated May 8, 1909, fifteen days after the time allowed for serving the case-made. That does not show that the case-made was served on the county attorney; and if it did, it would be no showing that it was served within the time allowed. No ■ case-made will be considered by this court which does not show positively and affirmatively that it' was served upon the county attorney within the time allowed by the trial court. Box v. State, ante, 111 Pac. 655; Wilson v. United States, ante, 111 Pac. 659; Abel v. Blair, 3 Okla. 399, 41 Pac. 342; Polson v. Purcell, 4 Okla. 93, 46 Pac. 578; Horner v. Christy, 4 Okla. 553, 46 Pac. 561; Gibson v. State, 3 Okla. Cr. 594, 107 Pac. 739.

The appeal herein is therefore dismissed, and a mandate will issue directing the county court of Pittsburg county to enforce its judgment herein.

FUBMAN, Presiding Judge, and DOYLE, Judge, concur.


author: DOYLE, Judge

text:
    BILL COLBERT v. STATE.
    No. A-117.
    Opinion Filed December 20, 1910.
    1. APPEAL — Jury—Challenges for Cause — Record—Showing of Injury. Where there is nothing in the record to show that an in-compertent, disqualified, or otherwise objectionable juror was forced upon the defendant, this court will not consider assignments of error based upon the rulings of the court upon a challenge for cause.
    2. EVIDENCE — Admissibility—Opinions. Whether the defendant, at the time the crime was committed, was from his drunken condition unable to walk or get out of bed is a conclusion to ■be drawn by the jury from all the evidence before them, and not a matter of individual opinion or belief of the witnesses.
    3. APPEAL — Indorsement of Witnesses During Trial — Necessity of Injury. Where the court or judge permits the prosecuting attorney to indorse the names of additional witnesses for the prosecution on the indictment or information at the trial of the cause, it will not be held to 'be reversible error by the Criminal Court of Appeals unless it clearly appears that it was prejudicial to the substantial rights of the defendant.
    4. WITNESSES — Indorsement of Names on Indictment — Necessity. An objection to the testimony of a witness because his name is not indorsed on the indictment comes too late after the witness has been sworn and examined at length.
    5. INSTRUCTIONS — Sufficiency—Slight Inaccuracies. Where a verdict is clearly sustained by the evidence, a new trial will not be granted for slight inaccuracies ip the instructions.
    (Syllabus by the court.)

      Appeal from District Court, Pittsburg Countyj Preslie B. Cole, Judge.

    Bill Colbert was convicted of conjoint robbery and sentenced to imprisonment for life, and he appeals.
    Affirmed.
    Plaintiff in error was, at the October, 1908, term of the district court of Pittsburg county, jointly indicted with John Jolly and Claude Colbert for the crime of conjoint robbery. Upon arraignment he entered a plea of not guilty and demanded a severance, which was granted.

      The facts, as disclosed by the evidence, are substantially as follows: John White was assaulted, bound and gagged, and then robbed, at his home in Alderson, about the hour of nine o’clock in the evening of January 12, 1908. White testified that he was sixty-five years of age, a widower, worked on the section, and lived alone in his house at Alderson. That, on the night of the robbery, he was at home in bed sick when some one knocked at the door; he asked, “Who is there?”.The answer was, “It is Bill Colbert”; that he arose and opened the door. That Bill Colbert and another man, both holding pistols in their hands, rushed in, and Colbert hit him on the head with a pistol, knocking him back on the floor; that they both then beat him with their pistols, took what money he had and then threw him on the bed and tied his hands and feet; that the man with Colbert then picked up a stick of wood and with a hatchet drove it into his mouth, knocking out several of his teeth. About, the time they left a neighbor called and found White unconscious. He cut him loose and took the gag from his mouth. The defendant and his co-defendant, Jolly, were' arrested the next morning. Jolly was taken to White’s house and. there identified by White as the man who, with Bill Colbert, robbed him. A part of White’s money was then and there found concealed in Jolly’s shirt and identified by White. He testified that he had never seen Jolly before, but that he had kndwn Bill Colbert for three or four months; that Colbert called at his place nearly every day; that, on the morning before the robbery, Colbert called and asked for and received change for a ten dollar bill from him.
    The defense interposed was an alibi, in support of which was offered the testimony of Colbert’s wife, daughter and two sons-in-law. These witnesses, in substance, testified that Bill Colbert and John Jolly were at Colbert’s house in Alderson on the evening of the robbery; that Jolly left about seven o’clock; that Bill Colbert was drunk, and went to bed and remained there until morning.
    The judgment and sentence was entered on the 21st day of December, 1908, from which judgment an appeal was perfected by filing in this court, on March 15, 1909, petition in error with case-made attached, and proof of service of notices of appeal.

      J. Q. Earley and Mathews & Rosemvinlde, for plaintiff in error.

      Charles West, Attorney General, and Smith C. Matson, Assistant Attorney General, for the State.
   DOYLE, Judge

(after stating the facts as above). The petition sets forth thirty-seven assignments of error, less than one-half of which are argued in the brief.

The first assignment is:

“That the court erred in overruling the defendant’s challenge for cause to the juror, Grace.”

The voir dire examination of the juror, John Grace, is the only part of the proceedings had in connection with the selection of the jury to try the case that is contained in the case-made. It is not shown that the defendant exercised or exhausted his peremptory challenges. The record proper shows that said Grace was not a member of the trial jury. There is nothing in the record to show that an incompetent, disqualified or otherwise objectionable juror was forced upon the defendant.

“The law nowhere says that he can not and shall not use his peremptory challenges on a disqualified or incompetent juror; on the contrary, he may do so, or not, just as he sees fit. If he does so, he has excluded the juror, and his objection is of no avail. If he does not, then he waives his objection and can not complain, unless he has shown the exercise of all his peremptory challenges, and that he has had an objectionable juror put upon him, whom lie could not get rid of.” (Turner v. State, ante, 111 Pac. 98.)

The second is based on an alleged improper statement of counsel for the state in his opening statement. No argument is made, and no authorities are cited in the brief in support of this assignment. Hence, under the rules of this court, it will be deemed waived and abandoned.

The assignments of error from the third to the eighteenth, inclusive, are based upon rulings of the court on the admission and rejection of testimony. We have carefully examined the ree-ord, and it is our conclusion that these assignments, with one possible exception, are without merit. To illustrate, it is alleged:

“That the court erred in refusing to permit witness, Carry Brown, to testify as to whether, judging from the drunken condition of defendant on the night he is charged with robbing prosecuting witness, this witness believed he was able to walk or get out of bed at the time she went to bed, which was about the time the robbery is alleged to have been committed.”

The witness, testifying, stated that she was the daughter of the defendant, and was at his home on the night in question with her husband; that defendant came home that evening about#sundown; that John Jolly was with him; that defendant was drunk and soon went to bed, and that witness went to bed about nine o'clock. Witness was then asked: “Q. At the time you went to bed, judging from the condition of your father — you have already testified he was drunk — but, from his drunken condition, do you believe that he was able to walk or get out of bed at the time you went to bed?” The question called for an opinion, which was clearly inadmissible. It is a well known general rule that witnesses are not to give their individual opinions, or state their conclusions, when the jury are equally competent as to such matter to form the opinion or deduce the conclusion sought from the facts. The question asked went to the merits of the whole case. There is no appreciable difference between the opinion asked for and a request for the witness's opinion as to whether the alibi was proved. The court properly sustained the objection.

The only serious proposition is presented by the assignment:

“That the court erred in overruling the objection of the defendant to allowing witness, Chaney Haynes, to testify for the state, for the reason that said witness's' name was not indorsed on the indictment at any time prior to the commencement of the trial, and had not yet been indorsed on the indictment, or notice given to defendant that said witness would be used until said witness was called upon the witness stand to testify, and because no list of witnesses containing the name of this witness was served upon defendant To which the defendant in open court excepted, together with a statement of the court in the presence of the jury.”

One Chaney Haynes was called as a witness for the prosecution, and after answering several questions, counsel for the defendant objected to the witness further testifying “because his name was not included in the list of witnesses served on us.” The prosecuting attorney stated that: “This morning, and since this trial began, I learned that this party is a witness in this case/* Whereupon the court overruled the objection. The examination of the witness was resumed. Whereupon the following objection was made:

“The defendant objects to that question or any other questions being asked this witness, for the reason that the name of this witness is not indorsed at this time, and has not been, up to this time, indorsed on the indictment as a witness' in this case, and for the further reason that the name of this witness, together with others; has never been served upon the defendant, as is by law required.”
The Court: “No list of witnesses served on the defendant, Mr. Dean?”
Mr Dean: “That is only in capital cases.”
The Court: “Objection overruled. Exceptions allowed.**

The record discloses that the court later made the following order: “Make a nunc fro tunc order allowing the indorsement of Chaney Haynes* 'name on the back of the indictment.**

Section 20 of the Bill of Eights provides:

“Sec. 20. In all criminal prosecutions the accused shall have the right to a speedy and public trial by an impartial jury of the county in which the crime shall have been committed: Provided, That the venue may be changed to some other county of the state, on the application of the accused, in such manner as may be prescribed by law. He shall be informed of the nature and cause of the accusation against him and have a copy thereof, and be confronted with the witnesses against him, and have compulsory process for obtaining witnesses in his behalf. He shall have the right to be heal’d by himself and counsel; and in capital cases, at least two days before the case is called for trial, he shall be furnished with a list of the witnesses that will be called in chief, to prove the allegations of the. indictment or information, together with their postoffice addresses.**

Under the constitutional provision the requirement is that, in capital cases only, a list of the'witnesses to be called in chief, together with their postoffice addresses, shall be served at least two days before trial on the defendant. In all other cases the only notice required is that given by the list of names indorsed upon the defendant’s copy of the indictment, except that, should the court or judge direct the names of additional witnesses to be indorsed on the indictment, a further order shall be made requiring such names to be furnished to the defendant or his counsel, as required by statute. Section 6591, Snyder’s Statutes, provides:

“When an indictment is found, the names of the witnesses examined. before the grand jury must be indorsed thereon before the same is presented to the court, but a failure to so indorse the said names shall not be sufficient reason for setting aside the indictment if the county attorney or prosecuting officer will, within a reasonable time, to be fixed by the court, indorse the names of the witnesses for the prosecution on the indictment. The court or judge may, at any time, direct the names of additional witnesses for the prosecution to be indorsed on the indictment, and shall order that such names be furnished to the defendant or his counsel.”

The manifest object of these requirements is to inform the defendant upon whose testimony the indictment has been found and upon whose testimony the state in chief relies to secure a conviction, so that he may know what evidence he may reasonably expect to be offered against him; this in order that ho may prepare to make his defense. Permitting the prosecution to indorse the names of additional witnesses upon the indictment “is a matter resting entirely within the sound discretion of the trial court, and, unless it clearly appears that it was an abuse "of discretion, and that it was prejudicial to the substantial rights of the defendant, we cannot say that it is reversible error.” Hyde v. Territory of Oklahoma, 8 Okla. 69. When the names of additional witnesses are to be indorsed the proper practice is to serve a written notice containing such names upon the defendant or his counsel. Vance v. State, 3 Okla. Cr. 208, 105 Pac. 307. It appears from the record in this case that the objection to the testimony of the witness Haynes was not seasonably made. When the objection was interposed the prosecuting attorney stated that he had only learned since the trial began that Iiaynes was a material witness. The testimony of this witness was merely cumulative, and there was no claim either in support of the objection or on the motion, for a new trial that the defendant was misled or surprised by reason of this testimony. As we view the record, it shows a substantia] compliance with the requirements of the statute. Our conclusion is that the ruling of the court was not prejudicial to the substantial rights of the defendant.

The remaining assignments relate to instructions requested and refused and the instructions given. The court fully -instructed the jury and we deem it unnecessary to encumber this opinion with the instructions. There were five instructions requested by counsel for defendant, and the only one not covered by the instructions given was:

“That if this defendant, Colbert, is convicted, the punishment will be life imprisonment.”

The court instructed that:

“The question of the time that the defendant is to be imprisoned in the event of his conviction should not influence or affect the jury one way or the other in arriving at a verdict, as that is a matter that does not concern a jury under the law and the evidence in this case.”

Section 2217, Wilson’s St., provided:

“Whenever two or more persons conjointly commit a robbery, or where the whole number of persons cojointly committing a robbery, and persons present and aiding such robbery, amount to two or more, each and either of such persons is punishable by imprisonment for life.”

Under this provision, in. force when this case was tried, the law fixed but the one punishment; there was nothing for the jury to determine except the guilt or innocence oE the accused, and the court properly refused the instruction requested.

Counsel for defendant insist that the court erred in the instruction given in reference to the defense made of an alibi. While we are not prepared to approve the form of the instruction, yet we believe that it fairly stated the law. The court said:

. “If, in view of all tlie evidence, the jury has a reasonable doubt as to whether the defendant was at some other place when the offense was committed, they should give the defendant the benefit of the doubt; and if it leaves in the minds of the jury such a doubt or uncertainty that, if taken by itself, they cannot find for or against the alibi, they are bound to carry such a doubt into the case of the prosecution and to array it there as an element of reasonable doubt beyond which the prosecution must establish guilt.”

The jury was, by this instruction, directed that, if the evidence of an alibi raised a reasonable doubt in their minds as to the defendant’s guilt, they should acquit him. Neither does it appear that the jury wtere instructed upon, the weight of the evidence.

In view of the clear and convincing character of the evidence offered on the part of the prosecution, there can be no doubt as to the guilt of the defendant in this.case. From a consideration of all the assignments of error, and from a careful examination of •the record, we are convinced that the defendant has had a fair and impartial trial, and that no error prejudicial to his substantial rights is shown by the record.

The judgment of the district court of Pittsburg county is therefore affirmed.

FURMAN, Presiding Judge, and RICHARDSON, Judge, concur.


author: FTJKMAN, Presiding Judge.

text:
    A. H. DAVIS v. STATE.
    No. A-192.
    Opinion Filed December 20, 1910.
    1. INFORMATION — Amendment—Allegation of Preliminary Trial— Verification, (a) It is not error to permit a county attorney to amend an information in matter of form or substance where the .same can be done without material injury to' the defendant, even though the trial may have begun.
    (b) In an information for a felony it is not necessary that it should be alleged that a defendant has had a preliminary hearing before an examining mag'stisate, or had ■ waived such hearing or that the magistrate had bound the defendant over upon the accusation charged in the information.
    (c) If an information does allege that a defendant has had a preliminary trial before an examining magistrate, or that he had waived such trial, and the magistrate had bound the defendant over to answer the charge against him, such allegations are wholly foreign and irrelevant to the information and will be treated as surplusage/
    (d) It is not necessary that an information in a felony case should be verified by the county attorney or any other person.
    2. INSTRUCTIONS — Presumption of Innocence — Reasonable Doubt. (a)It is error for the court to instruct the jury that it must appear to their reasonable satisfaction that the defendant was justified before they can acquit him.
    (b) A verdict of not guilty is not a verdict of innocence, but is only a verdict of not proven; and it may often happen that, under the law and the evidence, a jury is required to find' a defendant not guilty when each member of the jury may not be satisfied of his innocence.
    (c) Our statute is mandatory that a defendant must be acquitted by the jury when they are not satisfied of his guilt from competent evidence beyond a reasonable doubt.
    ('Syllabus by the Court.)
    Appeal from District Court. Greer County; J. B. Tolbert, Judge.

    The defendant was convicted of an assault with intent to do bodily harm, and his punishment was assessed by the court at confinement in the county jail at hard labor for a period of six months. Defendant appealed.
    Reversed.

      J. L. Carpenter, for appellant.

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

1. The information in this case is as follows:

“In the District Court of Greer County. State of Oklahoma v. A. H. Davis. 1597 Information. In the name and by the authority of the State of Oklahoma, comes now II. D. Henry, County Attorney of Greer County, State of Oklahoma, and in behalf of said state presents in and to the district court of said county at the May, nineteen hundired and eight term of said court, that heretofore, to wit, on or about the fourteenth day of March, nineteen hundred and eight, in the County of Greer, State of Oklahoma, one A. H. Davis did, then and there, intentionally, wilfully, wrongfully, unlawfully and feloniously, with intent to kill William Dinley, with a kind of fire arm, to wit: a loaded, double-barrel shotgun, which he, the said A. II. Davis, then and there, had and held in his hands, did, then and there unlawfully and feloniously, make an assault upon the said William Dinlejf, by shooting at and toward the said William Dinley, thereby discharging from said loaded shotgun with powder and leaden shots one load of powder and leaden shots, at and toward the said William Dinley, and striking him in the face and head of the body and person of the said William Dinley, and the said A. II. Davis, in manner and form aforesaid, did then and there, wilfully, intentionally, wrongfully, unlawfully and feloniously attempt to and did shoot the said William Dinley, contrary to the form of the statute in such cases made and provided and against the peace and dignity of the State of Oklahoma. And thereafter on the 20th day of April 1908, the said A. II. Davis, having been duly charged with said offense before T. A. Putnam, an examining magistrate of said county, with jurisdiction in this regard, was duly tried on a preliminary examination upon said charge and was by said magistrate held to this court upon said charge. II. D. Henry, County Attorney of Greer County, Oklahoma.”

After the jury had been empaneled and the county attorney had made his opening statement, counsel for appellant objected to the introduction of any testimony in Ihis case because the information did not conclude “against the peace and dignity of the state,” as required by sec. 19, art. 7 of the Constitution. The county attorney requested permission to amend the information by striking out the last six lines, which request was by the coiirt granted. The defendant objected to the action of the court in permitting the information to be amended, and excepted to the ruling of the court thereon. It is not error to permit a county attorney to amend an information in matter of form or substance where the same can be done without material injury to the defendant, even though the trial may have begun. Howard v. State, 2 Okla. Cr. 200. The amendment complained of consisted in permitting. the county attorney to strike out that portion of the information alleging that the defendant had had an examining trial prior to the filing of the information. In the prosecution of a defendant by information for a felony it is not necessary that the information should allege that there was a preliminary hearing before a committing magistrate, or a waiver of the same, and that the defendant had been committed by the magistrate to answer the accusation contained in the information, although such facts must exist in order to authorize the filing of such information. Whether or not an examination has or has not been had is not a question of pleading, but is a question of fact to be raised by the defendant or not, at his option, by a motion to set aside the information. Canard v. State, 2 Okla. Cr. 505. If an information does allege that the defendant has had a preliminary trial before an examining magistrate, such allegation is wholly foreign and irrelevant to the information, and will be treated as surplusage. Ran Wood v. State, 3 Okla. Cr. 553.

The requirement of our statute that an information must be verified applies only to misdemeanor cases. There is no requirement in this state, either by constitutional provision or statute law, that an information charging a felony must be verified by the ■county'- attorney or any other person. The verified complaint filed with the examining magistrate as provided by section 6577, Snyder’s Comp. Laws of Okla. 1909, and the evidence taken under oath in the preliminary examination of the accused as required by section 30, art. 2 of the state Constitution, and the defendant being held to answer by the magistrate, or the fact that the accused waived such preliminary examination and thereby admitted the existence of probable cause to believe him guilty, are sufficient to authorize the county attorney to file an information against him without verifying said information. See In re Talley ante, decided at the present term.

We therefore hold that it was not necessary for the information to be verified either before or after the amendment had been permitted, and that the court did not err in permitting the county attorney to so amend the-information, and in not requiring the information to be verified after it was amended.

2. The 13th instruction of the court to the jury is as follows:

“You are instructed that if you believe from the evidence that the defendant with a shotgun intentionally shot the prosecuting witness as charged in the information, then before such shooting-can be justified on the grounds of self-defense, it must appear to the reasonable satisfaction of the jury from the whole of the evidence that the defendant at the time of the shooting had reasonable ground to believe and did believe that the prosecuting witness and his companion, Norris, or one of them, was then about to kill him or do him some great bodily harm; and tnat the defendant had reasonable cause, to believe and did believe that there was imminent danger of such .design on the part of the prosecuting witnqss and said Norris, or either of them, being acomplished; and that the defendant did shoot and wound the prosecuting witness to prevent such harm to himself and not to gratify a grudge.”

This instruction was duly excepted to by the defendant at the time it was given, and is assigned as error in the brief of counsel for the defendant. We believe that this instruction is erroneous because it did not require the jury to believe from the evidence beyond a reasonable doubt that the defendant intentionally shot the prosecuting witness, and for the further reason that it required the jury to believe to their reasonable satisfaction, from the whole evidence, that the defendant at the time of.the shooting-had reasonable ground to believe and did believe that the prosecuting witness and his companion, Norris, or one of them, was about to kill him or do him some great bodily harm. It is not necessary that a jury should be reasonably satisfied that a defendant is not guilty before they can acquit him. It is their duty to acquit the defendant when the testimony fails to satisfy them beyond a reasonable doubt that he is guilty. If they entertain a reasonable doubt as to the guilt of the defendant, they must acquit him, although each member of the jury may not be reasonably satisfied of his innocence. A verdict of not guilty is not a verdict, of innocence, but is a verdict of not proven; and it may often happen that a jury, under the law and under the evidence, are required to find the defendant not guiltjq when each member of such jury may not be satisfied of his innocence. Our statute is mandatory that á defendant is entitled to an acquittal where his guilt is not proven by competent evidence beyond a reasonable doubt. It is true that in another part of the instructions the court did correctly define the doctrine of reasonable doubt, and the court also instructed the jury that they must consider the entire charge as a whole, but the trouble is that the court erred in its instruction upon the pivotal point in this case; and no one can tell as to whether or not the jury acted upon this erroneous instruction or upon the correct instruction given elsewhere. An erroneous instruction upon a material issue can not be cured by a correct instruction upon the same issue in another part of the charge of the court. Instructions which are contradictory and which can not be harmonized, when they relate to a material issue in a case, can not be said to be sufficient, and do not constitute harmless error. ' If the court does not harmonize its own instructions, how can it be expected that the jury would or could do so ? Contradictory instructions which are material to the issues in the case cannot be' otherwise than injurious, because they tend to confuse and mislead the jury. See Price v. State, 1 Okla. Cr. 359.

The other errors complained of by counsel for the defendant are not material and could not have influenced the jury adversely to the defendant.

We must presume that the jury were at least men of ordinary intelligence, and that they were capable of understanding the instructions of the court, unless such instructions were contradictory upon some material point. •

For error of the court in giving instruction No. 13, this case is remanded, with directions to the trial court to ¡set aside the ver^ diet and grant the defendant a new trial.

DOYLE and EIC'HABDSON, Judges, concur.


text:
    C. F. SHUFORD v. STATE.
    No. A-191.
    Opinion Filed December 20, 1910.
    1. INFORMATION — Duplicity—Intoxicating Liquors — Distinct Offenses. (a) An information or indictment should charge but one offense, and where it is attempted to charge two separate offenses in an information ,or indictment, although they may be set out in separate counts, such information or indictment is bad for duplicity.
    (b) If a defendant sells intoxicating liquors to two persons at the same time, such sales constitute but one transaction, and the indictment or information may allege the sale of such intoxicating liquors to both of said parties in the .same count; and proof of a sale to both or either of them will authorize a verdict of guilty.
    (c) If a defendant sells intoxicating liquors to two separate persons on different occasions, each sale will constitute .-a separate offense, and such sales can not be included in the same information or indictment, although they may be charged in separate counts.
    (d) Selling intoxicating liquor and having possession of in-' toxicating liquors with intent to sell the same are separate and d'stinct offenses and can not Ibe joined in the same, information or indictment.
    2. JURY — Setting Aside Panel — Grounds. Where a motion to set aside the panel of the jury on account of the bias and prejudice of the officer who summoned said jurors, and also upon the further ground that the officer who- summoned said jurors did not select said jurors from the- body of the county, it is error to allow another officer at the suggestion of the officer who had first summoned the panel to call the same jurors back into the jury box.
    ('Syllabus by the Court.)

      Appeal from Love County Court; G. H. Montgomery, Judge.

    Appellant was convicted of a violation of the prohibitory liquor law of the State, and his punishment was assessed at a fine of $50 and imprisonment in the county jail for a period of 30 daj^s. Defendant appealed.
    Reversed.

      Eddlermn & Graham, for appellant.
    On grounds 'for setting aside -panel of jury”: Hair jo v. United States, 1 Oída. Cr. 590; People v. Brasquez (Cal.) 99 Pac. 282.

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

1. The information in this ease contains three counts: the first charging the sale of intoxicating liquor to Pete Wallace; the second charging the sale of intoxicating liquor to Robert Thompson; the third charging the defendant with having in his possession intoxicating liquors with intent to sell the same. If the defendant did sell intoxicating liquors to Pete Wallace and Robert Thompson in one and the same transaction, then but one crime would have been committed, and the information should have alleged in one count the sale to Pete Wallace and Robert Thompson, and proof of such sale to either of such parties would have sustained the information; but if the defendant sold intoxicating liquors to Pete Wallace and Robert Thompson on different occasions, so as to- constitute sejia-■rate transactions, then such sales would constitute separate and distinct offenses, and they could not be joined in the same information, either in one count or two counts. The third count charges defendant with having in his possession certain intoxicating liquors, with intent to sell 'the same. This is an entirely distinct and separate offense from that of selling intoxicating liquors, and we have repeatedly held that these separate offenses can not be joined in one and the- same information. , The information in this case is therefore bad for duplicity.

2. Upon the trial of this case it appears that the defendant made a motion to set aside the panel of the jurors upon two grouhds: first, 'that said jujrors were not summoned from the body of the county; second, on account of the bias and prejudice of the officer who summoned said jurors. The motion to set aside the panel of the jury was sustained by the trial court. Another officer was directed to summon a new panel. Whereupon the officer who had first summoned the panel said to the officer who was directed to summon the second panel: “Get them before they leave the house.” Thereupon the officer who was directed to summon the second panel immediately began calling the same panel which had been set aside, and nine of the jurymen originally summoned on the first panel were placed back on the second panel. The defendant then renewed his motion to set aside the panel, based upon the facts above stated, which motion was by the court overruled, which was duly excepted to by the defendant. In this there was error. If the first panel had been improperly summoned, setting it aside and directing the officer who summoned the second panel to call the same persons back into the jury box, the same objections upon which the first panel had been set aside would apply with equal force to the second panel, and therefore the defendant's motion to quash the second panel should have been sustained.

We have decided all of the questions presented in this case'so often that we do not deem it necessary to cite authorities.

The judgment of the lower court is therefore set aside and the case remanded, with direction to the, county court to set aside the indictment upon the ground of duplicity.

Proceedings against the defendant, both for selling intoxicating liquor and for having intoxicating' liquor in his possession with intent to sell the same, should be instituted, but the information or informations should be drawn in conformity with the views herein expressed.

DOYLE and BICHABDSON, Judges, concur.


text:
    D. BUFFO v. STATE.
    No. A-171.
    Opinion Filed December 22, 1910.
    1. APPEAL — Case-Made—Time of Service. Unless the court or judge extends the time for making and serving a case preparatory to an appeal, the defendant in a criminal action has but 30 days in which to serve the same; and in such event, if the case be not served upon the county attorney within 30 days after the rendition of judgment, it will fail as a case-made.
    2. INTOXICATING LIQUORS — Unlawful Possession — Information— Sufficiency. An information which alleges that the accused, had in his possession intoxicating liquor, “with the intent to .sell, barter, give away and otherwise furnish, contrary to the form of the statutes,” etc., and which does not charge that the accused intended to sell, barter, give away or otherwise furnish the liquor in possession, is bad on demurrer.
    ('Syllabus by the Court.)

      Appeal from Pittsburg Qouniy Court; U. ~W. Higgins, Judge.

    D. Buffo was convicted of violating the prohibitory law, and he appeals.
    Reversed and remanded.

      W. J. Horton and B. A. Smith, for plaintiff in error.

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

The judgment appealed from herein was rendered on March 17, 1909, on which day plaintiff in error was granted 15 days to file his supersedeas bond and 60 days within which to file his potion in error and case-made in this court. No time for making and serving a case appears to have been requested, and none was allowed by the court. Section 6951 of Snyder’s Conrp. L. grants a defendant in a criminal action 30 days in which to malee and serve a case upon the county attorney, and provides that the court or judge, for good cause shown, may extend the time. The time not having been extended, however, plaintiff in error was required to serve his case upon the county attorney within 30 days from March 17, 1909. His time expired, therefore, on'April 16, 1909. The case was not served until May 8, 1909. It therefore fails as a case-macle, and cannot be considered by this court.

The purported case-made, however, contains a transcript of the record duly certified, and assignments of error predicated upon the record proper may be examined. There is but one such assignment, and that is that the court erred in overruling plaintiff in error’s demurrer to the information. The information charged that the accused had in his possession “certain spirituous liquor, to wit, whisky, with the intent then and there to sell, barter,' give away and otherwise furnish, contrary to the form of the statutes in such cases made and provided and against the peace and dignity of the state”; and the demurrer was upon the ground that the information did not charge an offense. The demurrer should have been sustained. It is necessary that an indictment, or information allege every essential element of the crime intended to- be charged. This information does not state what the accused intended to sell, barter, give away, and otherwise furnish; and without alleging in some direct and certain manner that he intended to so dispose of the liquor in his' possession, it charged no offense. Beversed and remanded, with directions to set aside the judgment and sustain the demurrer to the information.

FUBMAN, Presiding Judge, and DOYLE, Judge, concur.


text:
    JERRY WILSON v. STATE.
    No. A-76.
    Opinion Filed November 21, 1910.
    Rehearing Denied December 22, 1910.
    APPEAL — Case-Made—Service—Record Showing. The record must show that the case-made was prepared and served within the time fixed -by the court for serving- the same. A statement in the record that the case-made was served, tout which does not show affirmatively the date of service and that such date was within the time allowed by the trial court, such statement will be insufficient. -
    (Syllabus by the Court.)

      Appeal from, District Court, McCurtain County; D.- A. Richardson. Judge,.

      The defendant was convicted of the crime of rape and was sentenced to imprisonment in the penitentiary for life. He prosecuted an appeal.
    Affirmed.

      J. E. Whitehead, and C. M. Anderson; for appellant.
   FURMAN, Presiding Judge.

First. On the 3rd day of October, 1908, the defendant was sentenced to imprisonment for life for the crime of rape, and was granted 60 daj^s in which to prepare and file a case-made. The record contains an agreement signed by the county attorney, stipulating that the case-made tendered him by the attorneys for the defendant was correct, but there is nothing in the record to show when the case-made was served on the county attorney, or that the stipulation was made prior to the expiration of the time within which the trial court had directed that the case-made must be prepared and served. Counsel for appellant insist that as a matter of fact the case-made was duly and legally served upon the county attorney of MeCur-tain county within the time prescribed by the court, and request0 that he be permitted to make proof of this fact. Service of the case-made within the 'time prescribed by the court is an essential part of a case-made, and notice of such service must be incorporated in and made a part of such case-made and duly -certified to by the trial judge when the ease-made is approved by him. Service of the case-made cannot be proven in the manner now proposed by counsel for appellant. If lawyers will be more careful in the preparation of their ca-se-mades they will save this court and themselves a great deal of trouble. The case-made must affirmatively show that it was prepared and served within the time granted by the trial court for this jmrpose. Any service of a case-made after the expiration of this time, or any agreement made by the county attorney, cannot be made to take the place of the statute. We therefore can not consider the case-made in this case.

Second. The case-made not being properly before ns, the only thing which we can consider upon this appeal is the transcript of the record. The indictment is sufficient. The charge of the court is an admirable exposition of the law, and tbe judgment is in all respects regular. As no error appears in the record, the judgment of the lower court is affirmed.

DOYLE, Judge, concurs.

N. B. Judge Bichardson presided at the trial of this cause in the court helow, and therefore took no part in the consideration or determination of this cause here.