text:
    J. L. ELLINGTON v. STATE.
    No. A-1194.
    Opinion Filed April 27, 1912.
    (123 Pac. 186.)
    1. JUDGES — Special Judges — Authority. Where a special judge is elected or agreed upon to sit in a particular case, which is not finally determined at the term at which he is elected or agreed upon, and he presides at a subsequent term or terms at which his authority is recognized by the parties, they thereby waive any objection that he was not re-elected or reagreed upon at such subsequent term or terms.
    2. EMBEZZLEMENT — Elements . of Offense — Fiduciary Eelation. Where a guardian is charged with embezzlement of the trust funds of his ward, he cannot be heard to say that such funds were unlawfully acquired by him as such guardian. If he was agent enough to collect the money, he was agent enough to be punished for its embezzlement. As against the guardian, the ward is the rightful owner of such property, it matters not what the rights of others may be.
    S. SAME — Sufficiency of Evidence. For facts which sustain the conviction of a guardian for embezzlement of money that came into his possession as the property of his ward, see opinion.

      4. SAME — Enormity of Crime of Embezzlement. For a discussion of the enormity of the crime of embezzlement, see opinion.
    (Syllabus by the Court.)

      Appeal from District Court, Bryan County; C. H. Biting, Special Judge.

    J.- R. Ellington was convicted of embezzling $1,160, which came into his possession as the property of Clara May Burney, a minor and ward of defendant, and appeals.
    Affirmed.

      W. D. Gibbs and J. Q. A. Harrod, for appellant.

      Smith C. Matson, Asst. Atty. Gen., for the State.
   FURMAN, P. J.

The brief of counsel for appellant states the record and the facts in this case as follows:

“This cause was begun in the district court of Bryan county, Okla., by the grand jury returning into open court an indictment against the plaintiff in error'on the 4th day of May, 1910, charging him with the crime of embezzlement, claiming that this plaintiff in error, while guardian of Clara May Burney, a minor, had embezzled the sum of $1,160 of the said-minor’s money. The plaintiff in error pleaded not guilty to said crime or indictment. Pie was tried and convicted on January 15, 1911. On the 30th day of May, 1910, the plaintiff in error filed a motion to disqualify the presiding judge. (See case-made, page 1.) On May 30, 1910, C. PI. Elting was agreed upon as special judge to try the said cause. The cause was tried at the December, 1910. term of the said court. Judge Elting was agreed upon at the May term of the said court, and the cause was continued until the December term, at which time he tried the case without any agreement.

Assignment ou Errors.- '

“The plaintiff in error only desires to argue two points in this case, to wit: .

“First. This record fails to disclose at any point that C. H. Elting had any authority to preside as special judge in the said cause; that he ever at any time acquired jurisdiction as special judge. If such jurisdiction was acquired, it ceased when the cause was continued from the May, 1910, until the December, 1910, term of the said court. Therefore any and all orders made by the said C. H. Elting in the said cause was then and is now an absolute nullity.

“Second. That all of the money which this plaintiff in error is charged of embezzling came to him as curator of Clara May Burney by the sale of her supposed interest in two allotments of land, which originally belonged to Deloa Estelle Burney, deceased, and Le Roy Burney, deceased. The said deceased children were the brothers and sisters of this minor. They died prior to statehood, and left a father and mother. They were not married, and left no children of their own. Therefore, as a matter of law, we contend that she had no interest in the land, and therefore could not have any interest in the money.”

The record in this case further shows that at the December, 1910, term of the district court of Bryan county, when this cause was reached for trial, the regular presiding judge of the court vacated his bench, and that “Pión. C. PI. Elting, special judge in the case of State of Oklahoma v. J. L. Ellington, took the bench.” The record then proceeds as follows:

“The state appears by J. T. McIntosh, county attorney in and for Bryan comity, Oklahoma, C. B. Cochran, assistant county attorney, its attorneys, and the defendant, J. L. Ellington, appears ■in person and with him his attorney, J. Q. A. Harrod. Both the state and the said defendant announce ready for trial, and a jury of twelve good and lawful men of the body of Bryan county, Oklahoma, is duly impaneled and sworn to try the said cause; said jury being composed of the following named persons. * * *”

The record does not bring this case within the rule announced in the case of Dodd v. State, 5 Okla. Cr. 513, 115 Pac. 632. In that case, the defendant challenged the right of the special judge to preside when the order was made, changing the venue of the case from Beaver county to Texas county; and there was nothing in the record which could be construed as an agreement on the part of the defendant that said special judge should preside or make any order in the case after the expiration of the term at which he was agreed upon. In the case at bar, the record shows ■that the special judge presided at this trial, not only without objection on the part of appellant, but with his knowledge and consent, because it affirmatively appears in the record that both the defendant and his attorneys were in court, and without protest or objection announced ready for trial before said special judge. This could not be construed other than an agreement upon the part of appellant that said special judge should preside at the trial. In the Dodd case, every question was contested, objections were made, and proper exceptions were reserved during every stage of the trial. In the case at bar, the appellant, with full knowledge of the facts in the case, not only announced ready for trial, but did not attempt to raise the question now presented until the case reached this court. The Constitution and statutes do not prescribe any method by which an agreement for a special judge shall be made. The record conclusively shows that, by his conduct, appellant did agree that Hon. C. H. Elting should act as special judge in the trial of his case. This court has repeatedly held that there are certain jurisdictional matters that may be and are waived by the defendant failing to object at the proper time. See Muldrow v. State. 4 Okla. Cr. 325. 111 Pac. 656: In re Talley, 4 Okla. Cr. 398, 112 Pac. 36, 31 L. R. A. (N. S.) 805. It is too late to attempt to raise this question on appeal, when no objection or exception was taken to the special judge’s jurisdiction at the first opportunity. The record in this case discloses that the special judge took the proper oath of office long prior to the trial, and that thereafter no objection whatever was made to his jurisdiction.

In Schlungger v. State, 113 Ind. 295, 15 N. E. 269, the Supreme Court of Indiana, speaking on the question of waiver of authority, said:

“Where the record does not disclose, any want of authority on the part of the trial judge pro tempore, who assumes to act under color of authority, and a party goes to trial before him without objection, he cannot, after conviction, question such authority.”

See, also, Kentucky Cent. R. Co. v. Kenney, 82 Ky. 154.

In Davis v. Bingham (Tex.) 46 S. W. 840, it was held that “a party who tries a case before a judge without objection is estopped to assert that he was not agreed on by the parties for the trial.” See, also, State v. Sachs, 3 Wash. 691, 29 Pac. 446; Mattingly v. Paul, 88 Ind. 95; State v. Murdock, 86 Ind. 124.

In Small v. Reeves (Ky.) 37 S. W. 682, it was held:

“Where a special judge is elected to sit in a particular cause, which is not finally determined at the term at which he is elected, and he presides at subsequent terms, at which his authority is recognized by the parties, they thereby waive any objection that he was not re-elected at the subsequent term or terms.”

Second. The charging part of the indictment in this.case is as follows:

“That in said county of Bryan, in said state of Oklahoma, on the 16th day of September in the year of our Lord one thousand nine hundred and nine, one J. L. Ellington, late of Bryan county, state of Oklahoma, who was then and there the legal guardian of one Clara May Burney, a trust relation of guardian and ward then and there existed, and who as such guardian of said Clara May Burney was then and there intrusted with and had in his possession and control the sum of eleven hundred and sixty dollars in good and lawful money of the United States of America and of the value of eleven hundred and sixty dollars, which said sum of money was then and there the property of and belonged to the said Clara May Burney, and which said sum of money came into and was then and there in the possession and control of the said J. L. Ellington under and by virtue of his said trust as such guardian of the said Clara May Burney, did then and there willfully, unlawfully, feloniously, fraudulently, and not in the due and lawful execution of his said trust, embezzle, convert, and appropriate the said sum of money to the use of him, the said J. L. Ellington.”

That appellant was the duly appointed guardian of Clara May Burney, as charged in the information, and that as such guardian of his said ward he did receive and was intrusted with and had in his possession and control the sum of $1,160 in money as the property of and as belonging to his said ward, and that appellant did willfully, unlawfully, feloniously, and fraudulently, and not in the due and lawful execution of his said trust, embezzle, convert, and appropriate to his own use said sum of money, is fully proven by the.evidence, and is not denied by the appellant. But the novel defense is made that said money was received by appellant as the proceeds of a sale of her supposed interest in two allotments of land, and that, as a matter of fact, the said ward of appellant did not have any interest in such land, but that it was the property of her father and mother. To admit the sufficiency of this defense would be to allow appellant to play hide and seek with the law and juggle with justice, and permit him to take advantage of his own wrong. The effect of this is the same as if appellant had said: “I received this money as the property of my ward, but, as a matter of fact, she had no right to it. Therefore it was no offense for me to steal it, because I only took that to which she had no right.” It is immaterial as to who was the owner of the proceeds of the sale of these allotments, because section 6701, Comp. Laws 1909, provides:

“When an offense involves the commission of, or an attempt to commit, a private injury, and is described with sufficient certainty in other respects to identify the act, an erroneous allegation as to the person injured, or intended to be injured, is not material.”

By the wording of this indictment, appellant had sufficient notice and must have had knowledge of the act of embezzlement for which he was to be tried thereunder. His contention presents the anomalous position of a person appearing in one court and taking out letters of guardianship and procuring possession of money and property under the contention that the same belongs to his ward, and then, after squandering such property, this person appears in another court, contending that he cannot be guilty of embezzling that property, because his said ward was not entitled to it.

The ownership was sufficiently alleged as against the embezzler, and we think properly alleged, because he obtained possession of it as property of Clara May Burney. If he was agent enough to collect this money, he was agent enough to be punished for its embezzlement. As against him, whatever the rights of others might be, his ward was the owner of this money. He will therefore not be permitted to say in his defense that it was not her property. Even in civil suits, a tenant cannot dispute the title of his landlord. It is no defense in embezzlement to contend that the property was unlawfully acquired by or for the principal.

In the case of State v. O’Brien, 94 Tenn. 79, 28 S. W. 311, 26 L. R. A. 252, the Supreme Court of Tennessee said the following :

“The indictment in this case rests on section 5475, Mill & V. Code Tenn. It is unnecessary for us to analyze this section. It is enough to say that its terms are broad enough to include the employees of a foreign corporation; and the facts alleged in the indictment, being proven, would warrant a conviction, unless it be that the plea in hand offers a sufficient defense. The question then presented here is, Is it a good plea? We have no hesitation in saying it is not. Conceding that this corporation (organized, as is avowed in the indictment, for benevolent purposes) is within the act of 1891 ([Laws 1891, c. 122] and this we do not now determine), yet, if it should turn out in proof that the defendant, while acting as agent and employee of it, received money paid to him for his principal in the course of his employment, and then feloniously and fraudulently appropriated it to his own usé, when indicted for the offense, he cannot be permitted to defend himself from the criminal consequences of such wrongdoing upon the ground that his principal was carrying on its business in this state in violation of the terms of that act. Upon the plainest principles, having assumed to receive this money for his nonresident principal, he is concluded, both civilly and criminally, by this assumption. Whatever others might say about the right of this foreign corporation to come into this state to carry on its business and acquire property interests, without having first complied with the requirements of the act of 1891, at any rate the defendant’s mouth is closed, when, as agent, he received the money of and for this corporation, and feloniously appropriated it to his own use. The wrongful act of the principal cannot be invoked as a protection against the still more wrongful act of the guilty agent. To him, under such circumstances, the rule of estoppel applies. On this subject, the case of State v. Spaulding, 24 Kan. 1, is very instructive. In that case, Spaulding was city clerk, and the money which he was charged with embezzling came from license'fees collected by him. Under the ordinances of the city, the license fee was payable to the city treasurer, who issued a receipt therefor, upon the production of which the sole duty of the city clerk was to make out and'attest the license, which was then signed by the mayor. The duty of this clerk was purely clerical, and he had nothing to do with the money. The fact was, however, he collected from numerous licensees the money due, on the delivery of their licenses. Having fraudulently appropriated the money, and being indicted for embezzlement, he undertook to defend upon the ground that, as his receipt of these moneys was unauthorized and outside the line of his duty, they were not the moneys of the city, but of various licensees, and that therefore the indictment for embezzlement of the city’s funds could not be maintained. To this contention, however, the state replied: ‘A man may not say, “I have the right to receive money,” and receive it, and then, when challenged for its receipt for embezzlement, avoid liability by saying, “I had no right to receive it.” He has voluntarily assumed a position, the responsibilities of which he may not avoid. The defendant may not say he holds this money simply for the licensees, because he himself has issued, the licenses, which he might rightfully issue only when the city had received the money; that by issuing he conclusively,• so far as he was concerned, affirmed that the money he received and was holding was city money. The law of estoppel binds him, whether it binds any one else or not, and is equally potent in a criminal as well as a civil action/ The court adopted this view, and said, through Judge Brown, delivering the opinion: ‘We hold that when one assumes to 'act as agent for another he may not, when challenged for these acts, deny his agency; that he is estopped, not merely as against his assumed principal, but also as against the state; that one who is agent enough to receive money is agent enough to be punished for embezzling it/ Mr. Wharton, in his work on Criminal Law (9th Ed.) vol. 2, sec. 1328, recognizes this rule of estoppel in its spirit, if not in form. He says, upon the authority of cited cases: ‘It is no defense that the principals have no right, as against third parties, to the money which the servant embezzles, or that the'ir title was wrongful. If he fraudulently takes it on their account, and then embezzles it, the offense is Complete. Nolis it any defense that the money embezzled was the proceeds of the sale of liquor kept in violation of law/ Bishop, in his work on Criminal Law (3d Ed.) sec. 367, distinctly suggests the rule of estoppel as one proper for adoption in criminal jurisprudence. He says: ‘In reason,, whenever a man claims to be a servant while getting into his possession, by force of his claim, the property to be embezzled, he should be held to be such on his trial for the embezzlement. Why should not the rule of estoppel, known throughout the entire civil department of our jurisprudence, apply in the criminal?’ Without further discussion, we are content to adopt this rule of estoppel, so long recognized in the civil courts, as a proper one for the enforcement in the criminal courts of this state, believing as we do, that it rests on sound reason, and is supported by the weight of authority of eminent respectability.”

We fully concur in the reasoning of the foregoing case, and regard it as being absolutely just; and we deem it unnecessary to cite further authorities on this question. It is true that cases can be found supporting the contention of counsel for appellant. It is a reproach to the courts that many of them seem to regard justice as being of secondary importance, and appear to seek for' finespun theories and absurd technicalities upon which to turn guilty men loose. This court has no sympathy with and will not follow any such decisions. Such authorities only constitute so much ancient rubbish, learned nonsense, petrified ignorance, senile imbecility, and rank injustice, and as such they have no rightful place in the jurisprudence of an intelligent, honest, and progressive people. Counsel for a defendant waste their time and use their talents to no purpose in citing and discussing authorities to this court, not based upon justice and supported by reason.

We find no error in the record in this case, and we believe that in the conviction of appellant justice has simply overtaken, claimed, and marked its own. We desire to repeat what we have heretofore suggested, and that is that in cases of this kind severe punishment should be inflicted. The embezzler of trust funds is at heart a greater criminal and a much worse man than the burglar or the highwayman. The one poses as a good citizen, and often “steals the livery of heaven to serve the devil in.” The others come out in their true colors as thugs and criminals. The one is not only a thief, but he is also a traitor to friends, and violates confidence reposed in him. The others steal; but in so doing they do not betray confidence and trust. The one incurs no risk of personal injury; it takes no physical courage to betray and rob widows and orphans. The burglar and the highwayman are in constant danger of serious personal injury, if not of death. The one is generally a despicable coward; the others are generally physically brave men. They should both be punished; but of the three the embezzler should be more severely dealt with. We urge county attorneys to press these views upon juries, and to do all in their power to Secure the highest possible punishments in these cases. The rich and the strong can largely protect themselves; but the weakness and helplessness of widows and children should appeal most strongly to the courts for protection. If the courts and juries will carry these views into execution, Oklahoma will soon become too hot to contain an embezzler. We may not be able to make such men love the law; but if an honest effort is made to bring them to justice they can be made to respect and fear it.

The judgment of the lower court is therefore, in all things, affirmed.

DOYLE, J., concurs. ARMSTRONG, J., being disqualified, did not participate in the consideration and decision of this case.


source: Caselaw Access Project

author: DOYLE, J.

license: Public Domain

text:
    SHERMAN SHOWN v. STATE.
    No. A-797.
    Opinion Filed April 27, 1912.
    (123 Pac. 437.)
    1. LARCENY — Evidence—Sufficiency. In a prosecution for horse stealing, the evidence is held to support the verdict, and that no ■reversible error was committed on the trial.

      2. NEW TRIAL — Insufficiency of Evidence. A new trial will not be granted for insufficiency of the evidence, or where the evidence is conflicting. These questions being within the discretion of the trial court, its decision will not be disturbed on appeal, unless it appears that the trial court abused its discretion touching these matters.
    (Syllabus by the Court.)

      Appeal from District Court, Garfield County; M. C. Garber, Judge.

    Sherman Shown was convicted of horse stealing, and appeals.
    Affirmed.
    Plaintiff in error, Sherman Shown, a resident of Oklahoma City, was prosecuted by information filed October 25, 1909, in the district court of Garfield county for the crime of stealing a bay gelding, the property of A. Plumley. The information jointly •charged Lee Terry with the crime. The case was dismissed as to Terry, and he was used as a witness for the state. The larceny was alleged to have occurred on the Tth day of July, 1909. Trial was had December, 1909, and the jury found Sherman Shown guilty, but failed to assess the punishment. December 21, 1909, the court pronounced judgment on the verdict and sentenced defendant to imprisonment for a term of five years in the state penitentiary.
    The proof on the part of the prosecution, briefly stated, is as follows:
    A. Plumley testified that he was a resident of Enid, and was the owner of a large bay gelding, weighing about 1,400 pounds, worth about $200; that on the night of July t, 1909, the horse was stolen from his barn lot; that the next time he saw his horse was October 22, 1909, at the home of a man named Hubatke, who lived about fifteen miles southwest of Oklahoma City; that he met the defendant Sherman Shown the first time near the courthouse in Oklahoma City the day he was arrested by Sam Campbell, sheriff of Garfield county; that the defendant then said that he had owned this horse, but that he had traded him off, did not know just exactly where the horse was, but that he believed that he could get the horse; that Sheriff Campbell asked him how long it would take, and the defendant said he thought it would probably take two hours or probably two days, or probably he never could get him, but that if the sheriff would let him go he would make an effort to get the horse. The sheriff let him go for two days. He failed to find the horse, and the sheriff brought him on to Enid. The defendant stated that he had traded the horse off to a man by the name of Eum Deaton.
    E. B. Owens testified that he lived in Enid about two blocks from A. Plumley; that on the night of July 7, 1909, a black gelding was stolen out of his barn in Enid, and two or three weeks later he found his horse in the possession of Mr. W. T. Hales in Oklahoma City.
    Lee Terry testified that he lived at Oklahoma City'- and was the same Lee Terry who was jointly informed against with Sherman Shown; that on the 4th day of July he was at Sherman Shown’s barn on West California street in Oklahoma City; that there was present at the time Sherman Shown, John Lee, and witness; that at that time the defendant Shown made a proposition to John Lee and witness to go to Kingfisher or Enid and steal some horses and bring them back to Oklahoma City to his barn, and that he would help dispose of the same and they would divide the money; that Sherman Shown gave them $10 to pay their railroad fare to Enid for this purpose; that they took the money and started to go to the depot and buy tickets to Enid, but missed the train that evening and went back to Shown’s barn and stayed all night; that Shown was very much offended because they missed the train; that he said that he was not going to furnish them any money if they did not do anything; that they left Oklahoma City early the next morning and went to Enid and stayed there on the 5th and 6th of July, and the next night this witness and John Lee entered the premises of A. Plumley and Mr. Owens in Enid and stole one bay gelding and one black gelding; that they took these horses out some ten or fifteen miles from Enid, where they stole a buggy and harness, from another man, hitched the horses to the buggy, and drove them on to Oklahoma City, arriving there on the evening of July 8th; that when they were near Belle Isle, north oí Oklahoma City, John. Lee got out of the buggy and went into Oklahoma City and then returned and met this witness; that when Lee returned he was riding a pony that belonged to Sherman Shown; that the Plumley horse had given out, and they hitched the pony to the buggy and drove to Shown’s wagon yard in the west part of Oklahoma City and put the horses in his wagon yard; that the stolen horses were kept there for several days, and Shown was there and .saw them; that some days afterwards they sold the black horse that had been stolen from Mr. Owens to a Mr. Ploover, who worked for Mr. W. T. Piales, a horse buyer in Oklahoma City; that Sherman Shown was present when this horse was sold and helped to sell the same; that Mr. Hales gave his check in payment for this horse, for $100 payable to this witness; that the witness and Shown took the check and cashed it and afterwards took $75 of the money and deposited it in the American National Bank in Oklahoma City jointly so that each could draw it out if they wanted to; that after that Shown bought the bay horse that had been stolen from Mr. Plumley, paying this witness and John Lee $60 therefor, it being agreed that the horse was worth $90, and that the share of each of them, Shown, Terry, and Lee, would be $30 apiece. A short time after that this witness left Oklahoma City. Witness also testified that he did not tell about Shown’s connection with this larceny until sometime after his arrest; that the first time he told it, except to his brother, was to Mr. McKeever, the county attorney of .Garfield county; that he told it with the understanding that if he would tell the truth about this matter Mr. McKeever would intercede for him and recommend to the court that if he would plead guilty to stealing the buggy and harness, and take a two-year sentence in the penitentiary, that the other charges would be dismissed.
    The witness John Lee testified substantially to the same facts that the witness Lee Terry testified to.
    D. A. Hoover testified: That he worked with Mr. W. T. Hales; that July 12, 1909, he bought a bay gelding from Lee-Terry. That Sherman Shown came with Lee Terry to sell the horse which was a black gelding. Shown said that the boy was hard up, and needed to raise some money. They had the horse with them driving him to a single buggy. That a week after he had purchased the horse, Shown came there and asked him if we still had the horse.

      “I told him that we did, and he said that we had better try to get rid of him; that we had better get him out of the wayr because he understood that the officers were looking for him. I think the same evening, or the following morning, I had a conversation at the barn with him about the horse. He asked if we had got rid of him, and I told him he would have to see Mr. Hales; that I was simply buying for him. And after that I met him on the street, and he' asked me what Mr. Hales said about it,, and I told him that he said that he would not run oft any stolen stuff.”
    Witness identified a check for $100 that was given in payment for the black horse, and stated that this horse was after-wards turned over to Mr. Owens of Enid, who identified him as the horse that was stolen from him.
    Avery Harris testified that he lived at Oklahoma City and worked for W. T. Hales in the horse and mule business; that he knew Sherman Shown and saw him in July, 1909, and heard a conversation between him and Mr. Hales about a black horse that Mr. Hales had bought from Terry. Shown asked Hales if there was any way to’ switch him, or something like that.

      “I told him that the sheriff had been there and identified the horse. Before that time I had heard Shown say that he believed that Tom Terry, brother of Lee Terry, would fix it if he would hold the horse.”

      James Brown testified: That he lived in Oklahoma City; was acquainted with the defendant Sherman Shown. That in July, 1909, he had hauled some brick for Sherman Shown and had helped him with a horse accident. That he was working for Mr. Michael unloading brick, and Mr. Shown came to him and asked Mr. Michael if he could help him (Shown) the next day, do some work for him. .
    “Mr. Michael told him that he could get me. So the next morning I got up and went to the restaurant where I boarded to wait for Mr. Shown, and he came in and told me to go out to the barn; that he had moved from California out on West Main. I went up there, and in about half an hour or an hour he rode up and ordered one of the boys to hitch up a horse and buggy, and told me that the animal we were driving would ndt stand much talking behind; that he was balky. I got in, and we drove off. The animal went all right. We went down Main street and turned, driving around by the Santa Fe depot back up Reno and back on California, then we turned straight west on California, went out by the Delmar Garden, and stopped. He left me with the horse and was gone a small space of time. I heard him talking. Pretty soon he came back, and another man came with him, and they stood off a small distance and talked. I could not hear what was said. The other man was Rum Deaton. Pie came and got in the buggy with me, and we drove on again to the west side of Delmar Garden. We drove probably a quarter of a mile, and he shook his head and looked kind of worried, and I asked him what was the matter, and he said nothing, and finally he said: 'That horse has cost me $120 or $125. I am shaky about it.’ And he asked me in my judgment what I thought about it, and I laughed, and said for my part I would turn him loose and let them come and get him where he was at. We drove back to town, and he told me to go back after dinner to the restaurant. I went back, but he did not say anything to me, but that evening his brother-in-law came to me about 4 or 5 o’clock, and we went off together. We went back to the barn. He changed horses, and we went off in a buggy the second time. We made the same trip, but didn’t go in the same direction. We met Lum Deaton on the road, and they stepped aside and talked between themselves, and then we came back to town again. I went to the barn, and I do not know where he went. He went off somewhere, and when he came back he told me to curry up the dun horse and carry the saddle and bridle down there and then come on back. I did so, and when I got down there I could not find Lum Deaton. I took the saddle off and put it in the barn down there at the old Delmar Garden race track. Lum Deaton saw me as I was going back to town. I then went back to the barn and put the horse up, and shortly afterwards Shown came to the barn. I told him that Lum Deaton said he wanted me to go apiece of the way with him. Shown said, ‘I can’t see what that is for.’ I said, ‘Lum said, “It will save suspicion.” ’ He said: ‘Well, I will.see about it. You come back after supper.’ He says, ‘You ride the pony and go part of the way with him.’ I saddled up, left there, and went down to the Delmar Garden; went around; met Lum. He was saddling up the bay horse and had on his saddle when Mr. Shown came up. It was dark. He and Lum had a conversation, but I could not understand what was said. He told me to go as far as I thought was sufficient; that I would know when to turn back. He left me, and Lum and I started off. We went out south. I was riding Shown’s-pony, and Lum Deaton was riding the big bay horse weighing about 1,400 pounds. I have since seen the same horse on the streets here in Enid. We went south about a mile and a half, then turned east, and went over on Capitol Hill and turned south, and after we got on the hill we went about a quarter of a mile south, then we went two miles east, then a mile south, and two miles east, and a mile south. I went between seven and ten miles, then turned around, and went back to the city. Lum Deaton went on with the bay horse. I do not know where he went to.”
    Charles Hubatke testified: That he lived eight miles southeast of the town of Yukon in Canadian county, about twelve miles southwest of Oklahoma'City. He was a farmer, and that he knew the defendant. That he saw him on the 20th day of October at his home west of Oklahoma City. That afterwards he came there with Mr. Plumley and got a big bay horse weighing 1,300 or 1,400 pounds, that had been traded to him. Witness said that he got this horse from a mail who gave his name as L. C. Shood. He had never seen him before. It was along about the 20th or 25th of July that the witness traded two horses and $25 for the buggy and bay horse. That his two horses were brought back to him in October by the defendant Shown, the same horses that he had traded for the Plumley horse. That witness was sowing wheat when Shown came and told him he “had brought my team home. The team looked like they had the glanders. They laid down, and one of them could not get up any more, so I killed him. Shown never paid me back any money. It was the next- day that Shown came back with Mr. Plumley and I gave up the stolen horse.”
    A. Plumley, being recalled, testified that at Oklahoma City, after the defendant’s arrest, he had a conversation with him before he found his horse. Mr. Dan Phillips was present.
    “Mr. Shown said that he had not been able to get the horse, hut that he thought he could, and he wanted to know if I got my horse if I would stop the prosecution of the case, and I told him that I would have nothing to do with that; that he would have to see the county about that.”
    Shirley Dyer testified that he .was a deputy sheriff of Oklahoma county and knew the defendant, Sherman Shown; that he made a search for the two horses that had been stolen from Enid and recovered the black horse from W. T. Hales at his barn; that he had a conversation with Sherman Shown about the bay horse known as the Plumley horse; and that Shown at that time told him that he did not know anything about the horse.
    The defendant took the stand on his own behalf and testified: That he was 42 years old, lived in Oklahoma City, engaged in the wagon yard business there, that he had lived in Shawnee, Norman, Stillwater, Chickasha, and Elk City, and that his business most all the time had been buying, selling, and trading horses. He was acquainted with Lee Terry and John Lee. That he never made any agreement with them to steal horses. That he did not have any conversation with them at his barn on the 4th day of July to steal horses- either at Kingfisher or Enid or any other place, and that he would dispose of them and divide the profits. That on the day he had ordered them out of his barn for drinking. That John Lee had been working for him around the barn for about two weeks before that, and that Lee Terry had been working seven or eight days as stable boy and helper around the wagon yard. That they were not in his employ on the 4th of July, but had been discharged by him. That along about the 9th or 10th of July he met Terry and Lee on Grand avenue and Broadway in Oklahoma City. This was the first time he had seen them since he had ordered them out of his barn, and they wanted to know if he would buy a team.
    “I told them I was not able to buy one. They said they had a big heavy work team. I said, T am not able to buy a big heavy work team right now. And then I seen them again on Saturday on Robinson, and the team was tied up to a tree. Shorty Lee was standing there beside the buggy talking to a trader. He told me, ‘This is that team.’ I said, T am in a hurry and will be back pretty soon,’ and I rode off. I saw that horse again at the auction corner at Broadway and California. It was about half past six that same Saturday. Both Lee Terry and John Lee were with them. They had sold the buggy and were leading the horses. At that time Shorty tried to sell me the team. I said, ‘Shorty, I am not able to buy the team.’ He said, ‘Let me sell you this bay horse.’ And we talked there quite a while. I said, T could work him with this other big bay horse, I suppose,’ so I bought the bay horse from him and gave him $120 for it. He first asked me $150. I said: ‘Shorty, he is too sore for that. He has been drove pretty hard on the pavement, hasn’t he?’ He says, T got him up about Guthrie, near Mulhall.’ I paid him four $20 bills, and I think the others were $10’s. Tom Jones was present. I took the bay horse and put him in my barn, and on Monday morning I led him out to grass, where I' was herding my horses near Delmar Garden. Lum Deaton and Cal Boon had some horses down there. They were traders. The bay horse stayed in my barn Saturday night. The black horse came to my barn on Sunday. Lee Terry brought him there. Lee said: T can’t get no buggy anywhere. Can I hire yours?’ I said, ‘If you don’t tear it up, you can.’ He said, T want to drive out to my brother-in-law’s.’ And I hired him the buggy, and he drove out to his brother-in-law’s and was gone two or three hours. The Terry black horse was not left in my barn. I afterward traded the bay horse to Lum Deaton for a little bay mare and a mule, a buggy, and a set of single harness. I sold the mule to a man in the state of Arkansas for $80. I traded the little bay mare. I also traded Deaton a horse that I had bought from Mr. Doggett. The last time that I saw Lum Deaton was the next day after I had traded him the Doggett horse. Just before that I had met Charley Poles, a deputy sheriff, on the street, and he asked me if I knew Shorty Lee, and I told him, ‘Yes.’ He said ‘Lee and Terry are arrested at Enid for stealing two horses, a buggy, and harness.’ I said I thought Terry went out west and that Shorty Lee went to Tennessee. ‘No,’ he said, ‘they have got them in jail at Enid for stealing two horses, buggy, and harness up there, and two other fellows with them.’ He said, ‘Do you know anything about a big bay horse, 1,450 pounds, and a big black horse that they brought here?’ and I said: ‘No, sir; I do not know anything about that.’ He said the big bay horse had one white hind foot. I did not think it was the horse I had, because the horse I had had two white hind feet; but this created some impression on my mind that I might have the stolen horse, so as soon as I heard it, I went over to Mr. Hales’ barn and met Mr. Hoover on the street, and I says, ‘Have you still got that horse you bought from Lum D.eaton?’ He says, ‘Yes.’ I says: ‘They’ve got those boys in jail at Enid. I bought one of them, and you bought the other one. I have traded my horse.’ Hoover says, ‘You will have to talk to Mr. Hales.’ So I drove on down to the barn and met Mr. Hales. What I s.aid about switching was this: I said, ‘We will have to switch this horse around until Tom came in, that is, the brother of Lee Terry, and let him rñake the horse good.’ That evening I went to see Lum Deaton at the Delmar Garden, and I said to him: ‘Lum, I understand the boys I got those horses from is in jail at Enid. Don’t trade this horse off. He may be a stolen horse, I don’t know.’ He said, ‘Very well.’ I turned around and went off. I never thought any more about it until a few days after that Mr. Campbell, the sheriff from Enid, came down to Oklahoma City. He asked me if I knew those two boys, and I told him that I did. He said they were arrested for stealing two horses, and he gave a description of the horses as follows: A black horse and a bay horse with one white hind foot. I says, T did not buy that horse.’ He says, ‘Yes, you did.’ I says: T beg your pardon; I bought a horse with two white hind feet and a star in his forehead.’ I told him that I thought I could find the horse, told him that I did not know, but I would see, so the next morning I went to find Lum Deaton, and he was gone, That was the first knowledge that I had that he was gone. I told him that I had traded the horse to Lum Deaton. I did not tell them where Lum Deaton was. I agreed to report to them again. They arrested me, and at the depot they turned me loose, and I told them that I would do what I could to find the horse, and I told them that I would meet them the next morning. I was turned loose in the afternoon at 3 :45, and was to meet them at the Rock Island depot and come to Enid the next morning, if I did not find the horse. The next morning I went to the Rock Island depot and met Mr. Plumley and come on to Enid. I stayed in jail there four or five nights and gave bond. After I gave bond I went back to Oklahoma City and tried to locate Lum Deaton and find the horse. I found that Lum Deaton went to Shawnee. I got on a trade with Cal Boon, the Indian that owned the camping grounds out at Delmar Garden. I traded him a bay horse for a black mare and a black horse. This was three or four days after I had got back from Enid. At that time I did not 'learn anything about these horses. I hitched them up and worked them for some time on street work, and found that one of them was a little short winded, so I went to Cal Boon and asked him about it. He said the man that traded this team to him, Lum Deaton, said the horses were all sound. I said, ‘How’s that?’ He said, ‘This is the team Lum Deaton traded that bay horse for.’ I said, ‘The hell it is.’ I understood that the horses were traded for down southeast somewhere, and I asked Jim Brown which way he went off with Lum Deaton that night, and he told me in the Black-jacks, so I took this team that I had gotten from Cal Boon and started out in that country, trying to see if I could find the owner. I finally met an old cowboy, and he said, ‘Where have you been?’ And I said, T have been out trying to locate this team to get a horse -that I bought that was stolen and traded for this team,’ and he said, ‘Haven’t you got sense enough to let a team like that find their home?’ And I says: T haven’t done it yet; I have looked in the neighborhood of 60 days.’ He says, ‘If you will turn that team loose and get in behind them, that old mare and horse will go straight home.’ I says, T never had sense, enough to do that yet.’ He says, ‘You hitch up your wagon and come and go with me and we will find that horse.’ We hitched up the wagon. I started out. Got to Tuttle, eighteen or twenty miles. It was the first Monday, and the farmers were over trading with others — having an auction sale. I stopped and asked the farmers if they knew that team, and they said they did not know it. We drove on that way, and a bridge was out about half a mile this side of Mr. Hubatke’s. The mare and the horse started that way. I said, ‘That bridge is out, and I can’t go that way, but'I will follow that team.’ We went north from there. We came to Mr. Hubatke’s place, and Mr. Hubatke was coming up from the field working this horse. He had another horse and a pair of mules, and my team turned in to Mr. Hubatke’s place. I got off and spoke to him. I says, ‘What is that horse worth?’ He said, ‘$175.’ I said, ‘Mr. Hubatke, I am sony to tell you he is a stolen horse from what I understand'.’ ‘Well,’, he said, T have been looking for that quite a while.’ I came to Oklahoma City then, and phoned to Mr. .Plumley to come at once. The next day I took Mr. Plumley out to the place, and Mr. Hubatke turned the horse over to him.”
    In explanation of the money that was deposited in the American National Bank in Oklahoma.City, the witness admitted that, he was there when the money was deposited in the bank, but said that it was put in their names jointly, so that he could give the money to his brother Tom, after Lee Terry went out west.
    On cross-examination the defendant admitted that he did not draw the $50 balance of this money and pay it to Tom Terry until after he had -been arrested and charged with this larceny, and after he knew that Lee Terry and John Lee had been arrested for the larceny.
    The record is very voluminous, about 600 pages. The foregoing, however, is a substantial synopsis of the .material testimony in the case.

      Rush & Steen and /. W. Johnson, for plaintiff in error.

      Chas. West, Atty. Gen., and Smith C. Matson, Asst. A tty. Gen., for the State.
   DOYLE, J.

(after stating the facts as above). The only contention made by counsel for plaintiff in error in their brief now before us is directed to the insufficiency of the evidence to support the verdict and judgment of conviction. There is no indication or even a suggestion that the other assignments of error are well founded, and a careful inspection and examination of the record fails to disclose that any error was committed by the court during the progress of the trial.

Counsel in their brief say:

“The crime of stealing a bay horse was complete as soon as Lee took him into his possession and started for Oklahoma City, and there is absolutely no testimony connecting the defendant with the commission of this crime. The only thing that could be claimed under the testimony is that it might tend to prove that Shown was guilty of the crime of receiving stolen property, but under the circumstances the mere possession of the horse is not such a corroboration as ought to sustain a conviction because that possession might have been innocent.”

We think this contention is wholly without merit. There was ample proof of the actions, conduct, and incriminating admissions of the defendant corroborative of the testimony of his accomplices, Lee and Terry. There can be no reasonable doubt, in the light of the evidence, of the defendant’s guilt in this case. It has been uniformly held by this court that, when the record discloses substantial evidence to support the verdict of the jury, this court will not undertake to retry the questions of fact.

On the whole case, we are clearly of the opinion that the appeal in this case is destitute of merit. The judgment of the district court of Garfield county is.therefore in all things affirmed, and the cause remanded thereto, forthwith, with direction to enforce its judgment therein.

FURMAN, P. J„ and ARMSTRONG, J. concur.


author: FURMAN, P. J.

text:
    PRICE PATTERSON v. UNITED STATES.
    No. A-743.
    Opinion Filed October 18, 1911.
    Rehearing Denied April 27, 1912.
    118 Pac. 150.)
    1. JUDGES — Criminal Law — Qualification—Special Judge — Jurisdiction — Appeal—Review, (a) Where the regularly elected judge is disqualified and a special judge is selected by the parties to preside at the trial of a cause, the authority of such special judge ceases at the end of the term of court at which he was selected; and if the case is continued to another term of the court the special judge has no right or authority to preside at the trial of the case at the second term of the court, unless he is again lawfully selected so to do.
    (b) The action of the Chief Justice of the Supreme Court of the state in assigning a district judge to preside over a special term of district court of some other district than his own cannot be inquired into on appeal.
    2. APPEAL — Record—Plea. Under the law in force in the Indian Territory prior to statehood, where the record affirmatively shows that a defendant has entered a plea of not guilty, it is not necessary for the record to go further and also show an arraignment.
    8 SAME — Assignments of Error — Waiver. Assignments of error, not presented in the brief of appellant or presented to the court in oral argument, will be treated as having been abandoned, and will not be considered by the court.
    (Syllabus by the Court.)

      Appeal from District Court, Garvin County; Frank M. Bailey,, Judge pro tern.

    Price Patterson, on the 25th day of October, 1906, in the United States Court in and for the Southern District of the Indian Territory, at Pauls Valley, was indicted for murder. Upon the admission of Oklahoma into the Union, the case was transferred to the district court of Garvin county, and was tried during the October, 1909, term of said court, resulting in the conviction of defendant of the offense of manslaughter, and a judgment rendered, imposing upon him a term of imprisonment in the penitentiary for the period of six years. Pie filed a motion for a new trial, which was overruled, and he appealed. ■
    Affirmed.

      W. I. Gilbert and J. B. Thompson, for appellant.

      Smith C. Matson, Asst. Atty. Gen., for the State.
   FURMAN, P. J.

First. Judge R. McMillan, the presiding judge of the district court of Garvin county, being disqualified to preside at the trial of this case, on the 22d day of February, A. D. 1909, the Honorable Marion Plenderson, a practicing attorney of the bar at Pauls Valley, Garvin county, was duly agreed upon by the county attorney and the defendant to sit as judge in the trial of this case, and on said date said Honorable Marion Henderson was legally sworn in and qualified to act as special judge in this case. Thereupon a jury was called, impaneled, and sworn, and thé trial of the cause was entered upon, but the jury were unable to agree upon'a verdict, and wete discharged by the court, and the case was continued to a succeeding term. • At the next term of the court the following proceedings were entered of record:

“Be it further remembered that on the 19th day of October, A. D. 1909, the following, among other proceedings, were had, to wit, court was thereupon opened in due form, the Plonorable Frank M. Bailey especially assigned by the Chief Justice of the Supreme Court of the state of Oklahoma, pursuant to the order of said court, which is in words and figures as follows, to wit: ‘It having been made to appear that the public business requires it: Now, therefore, I, M. J. Kane, Chief Justice of the Supreme Court of the ‘state of Oklahoma, do hereby appoint, designate, and assign the Honorable Frank M. Bailey, the duly elected judge of the Fifteenth district court judicial district of the state of Oklahoma, to hold court at Pauls Valley, in the county of Garvin, in the Fourteenth district court judicial district of the state of Oklahoma, commencing on October 18, 1909, and continuing for a period of one week thereafter, provided, that it is the intention of this order that one or more district judges may sit separately at the same time with the regularly elected judge of the said district. ' Done at my chambers, in the city of Guthrie, county of Logan, state of Oklahoma, this the 9th day of October, 1909. M. J. Kane, Chief Justice of the Supreme Court of the State of Oklahoma.’ ”

In pursuance of this order the Honorable Frank M. Bailey, as judge pro tempore, presided at the trial of this cause.

In the brief of counsel, it is contended that, as the Honorable Marion Plenderson had previously been agreed upon and qualified as special judge to try this case, the Honorable Frank M. Bailey was without jurisdiction to preside at this trial, and they rely upon this as one of their grounds for a reversal. This question has already been determined adversely to the contention of counsel for appellant. In the case of Dodd v. State, 5 Okla. Cr. 518, 115 Pac. 632, Judge Armstrong, speaking for this court, said:

“Does the authority of a judge pro tempore cease with the lapsing of the term of the court during which he is selected to preside over the trial of a case, or does it continue until the case is finally tried and disposed of? The Supreme Court of Wis-> cousin, in the case of Fordyce v. State, and State v. Fordyce, reported in 115 Wis. 608, 92 N. W. 430, in discussing this identical question as to when the authority of a judge pro tempore ceases, held that this authority ceases with the lapsing of the term of court at which he is called to preside over the trial of a certain cause. The statute in that state provides that the trial judge, when he is disqualified to preside over the trial of any cause, may call another judge to preside over the trial. Our statute provides that the parties may agree on a special judge to preside in his stead. The principle is the- same. The rule announced in the Wisconsin case, supra, is that contemplated by our law. The authority of a special judge selected by the parties to preside, instead of the regularly elected judge, who is disT qualified by reason of any of the provisions of our statute, ceases with the lapsing of the term during which he is selected, unless the case is finally disposed of at. such term, and in that case ceases with the final disposition of the cause.”

Counsel -further insist that no proper request was ever made to the Honorable M. J. Kane, Chief Justice of the Supreme Court of the state of Oklahoma, to assign Judge Bailey to preside as special judge over the district court of Garvin county. Neither the statute nor the Constitution prescribes any special form- in which this request must be presented to the Chief Justice of the Supreme Court, or that such request, when presented, shall be made a matter of record. This is left to the discretion of the Chief Justice of the Supreme Court. We have no right to inquire into or review these matters; and the action of the Chief Justice in assigning Judge Bailey to preside, as therein directed, is conclusive as far as this court is concerned. We therefore hold that Judge Bailey, by virtue of this order, was vested with full power and authority to. preside over the district court of Garvin county during the time mentioned therein, and that as said special judge he had full power and authority to preside at the trial of this case, and that the power of the Honorable Marion Henderson to preside as special judge in this case ended with the term of court at which he was selected.

Second. Counsel contend that a new trial should be granted appellant, because he was not arraigned as provided by law. In support of this contention, they rely upon the case of Harris v. U. S., 4 Okla. Cr. 317, 111 Pac. 982, 31 L. R. A. (N. S.) 820. Harris had been indicted in the United States Court for the Southern District of the Indian Territory, for the crime of larceny, prior to statehood. Upon the admission of Oklahoma into the Union, the case was transferred to the district court of Johnston county, and he was tried during the fall of 1909. The record in that case failed to show that the' defendant had ever been arraigned, or had ..waived arraignment, or that he had even-entered á plea to the indictment. We there held under the law in force in the Indian Territory prior to statehood, by which the defendant was entitled to be tried, that without a plea there could be no valid trial, and upon this ground, among others, the judgment of the lower court was reversed. This case, however, does not in any manner support the contention of appellant. The record in this case affirmatively shows that the indictment was read to the jury in the presence of the defendant, and that thereupon the defendant entered his plea of not guilty.. Bishop’s Criminal Procedure, vol. 1, sec. 1354, states the law upon this subject as follows: “Arraignment, being simply a step for obtaining the plea, need not be shown if the plea is shown.” We therefore hold that, as the record affirmatively shows in this case that a plea of not guilty was entered, this amounts to a waiver of arraignment on the part of the defendant. The position of counsel for appellant is not well taken.

Third. These being the only questions discussed in the,brief of appellant, the other assignments of error have been abandoned, and therefore will not be considered.

Finding no error in the record, the judgment of the lower court is in all things affirmed.

ARMSTRONG and DOYLE, JJ., concur.


author: DOYDE, J.

text:
    CORNELIUS DAY v. STATE.
    No. A-1175.
    Opinion Filed May 7, 1912.
    (123 Pac. 436.)
    1. APPEAL — Record. Section 6919 (Comp. Laws 1909) of Procedure Criminal specifically provides that tbe record stall consist as follows: "When judgment upon a conviction is rendered, the clerk must enter the same upon the minutes, stating briefly the offense for which the conviction has been had, and must immediately annex together and file the following papers, whieh constitute a record of the action: 1st. The indictment and a copy of the minutes of the plea or demurrer. 2nd. A copy of the minutes of the trial. 3rd. The charges given or refused, and the indorsements, if any, thereon; and 4th. A copy of the judgment.”

      2. SAME. An application for change of venue and affidavits in support thereof and proceedings had thereon are not properly a part of the record, and can only be presented for review on appeal by incorporating the same into a bill of exceptions, or by ease-made.
    3. SAME — Change of Venue. A transcript of the record of the trial court does not present for review the proceedings and orders made on a motion for change of venue.
    (Syllabus by the Court.)

      Appeal from District Court, Wagoner County; John H. King, Judge.

    Cornelius Day was convicted of murder, and brings error.
    Affirmed.

      W. G. Roberts'on, for plaintiff in error.

      Smith C. Matson, Asst. Atty. Gen., for the State.'
   DOYDE, J.

The plaintiff in error, Cornelius Day, was, by information filed May 9, 1910, in the district court of Muskogee county by Hon. Thos. H. Owen, the duly qualified and acting county attorney in and for Muskogee county, charged with the murder of Ben Cobb, in said county, on April 29, 1910.

The record shows that the following proceedings were had May 23, 1910:

“Now on this day comes the state by its attorney, and comes also the defendant in person, and it appearing to the court that the defendant is without an attorney in this case, and that he is unable to employ counsel, whereupon it is by the court ordered that W. G. Robertson, an attorney at this bar, be and is hereby appointed attorney for the defendant in this case. And now said defendant for his plea herein says he is not guilty.”

And afterwards, to wit, November 21, 1910, the following further proceeding was had:

“Now on this day comes the state by its attorney, and comes also the defendant, in person and by W. G. Robertson, Esq., his attorney, heretofore appointed by this court, and now said defendant moves the court to change the venue of this case to the district court of Wagoner county, Oklahoma, for trial. Whereupon, the court being fully and sufficiently advised in the premises, it is by the court ordered that this cause be, and the ■'same is hereby, transferred from this court to the district court bf Wagoner county, Oklahoma; and it is further ordered by the court that the clerk of this court prepare a full, true, and complete copy of the record in this case and certify the same, together with all the original papers in this case, to the district court of Wagoner county, Oklahoma.”

Upon a trial had in the district court of Wagoner county, the jury by their verdict found the defendant guilty of murder, as charged in the information, and assessed his punishment at imprisonment at hard labor in the state penitentiary for life.

Motions for new trial and in arrest of judgment were filed • and overruled, and sentence was pronounced in accordance with the verdict. The judgment and sentence was entered December 16, 1910. From this judgment, the defendant appealed by filing in this court, on June 30, 1911, a petition in error with a transcript of the record, duly certified by the clerk of the district .court of Wagoner county, attached thereto.

It is contended by counsel for plaintiff in error that the order of the district court of Muskogee county, transferring said cause to the district court of Wagoner county, wholly fails to vest the district court of Wagoner county with jurisdiction of said case; ¡that therefore the district court of Wagoner county was without jurisdiction to try the case. The question argued is not pre•sented by the record before us on the transcript.

: Section 6919 (Comp. Daws 1909), Procedure Criminal, provides :

“When judgment upon a conviction is rendered, the clerk must enter the same upon the minutes, stating briefly the offense 'for which the conviction has been had, and must immediately annex together and file the following papers, which constitute á record of the action: 1st. The indictment and a copy of the minutes of the plea or demurrer. 2nd. A copy of the minutes of the trial. 3rd. The charges given or refused, and the indorsements, if any, thereon; and 4th. A copy of the judgment.”

This provision of the statute specifically defines what constitutes, in a criminal case, the record proper; and a transcript of such record proper is the only record that can be authenticated b.y the certificate of the clerk of the trial court. All other matters included in a transcript constitute no part of the record, though the clerk has incumbered the transcript with them.

. An application for a change of venue and affidavits in support thereof and proceedings had thereon are not properly a part of the record, and can only be presented for review on appeal by incorporating the same into a bill of exceptions, as provided by article 13 of Procedure Criminal (Comp. Laws 1909, secs 6885-6894), or by a case-made.

Only the record proper can be reviewed by this court on. appeal by transcript under the certificate of the clerk of the trial court. For this reason, the question argued by the defendant’s counsel cannot be reviewed upon the record before us.

A copy of the minutes of the trial, contained in the transcript; shows that the change of venue to Wagoner county was granted on the application of the defendant. Every presumption must be entertained in favor' of the regularity of the proceedings had upon such application,,and in support of the judgment of the trial court. The general rule, often announced by this- court, is that the plaintiff in error must affirmatively show prejudicial error; otherwise the judgment of the lower court will be affirmed. We -discover no prejudicial error in the record proper as shown by the transcript.

The judgment of the district court of Wagoner county will therefore be affirmed.

FURMAN, P. J-, and ARMSTRONG, J., concur.


author: ARMSTRONG, J.

text:
    JNO. S. WRIGHT v. STATE.
    No. A-930.
    Opinion Filed May 7, 1912.
    (123 Pac. 434.)
    1. TRIAL — Presence of Judge. The law requires the presiding judge of a trial court to sit during each and every stage of the proceedings before him. His presence cannot be dispensed with; and, when the record affirmatively discloses that he lost control of the proceedings by reason of his absence from the bench during the progress of the trial, a judgment of conviction in a criminal case will be reversed.
    2. SAME — Argument of Counsel. The argument of counsel is as much a part of the trial as the taking of testimony. It is the duty of the trial judge to be present and see that counsel do not travel outside the record, or transcend the limits of legitimate argument, and that there is no misconduct on the part of the jurors.
    3. SAME — Duty of Prosecuting Attorney. It is just as important to the public for the prosecuting attorney, be he a special prosecutor or the official regularly elected, to see that a person on trial for a crime has a fair and impartial trial as it is to perform any other duty incumbent upon him by reason of his position.
    (Syllabus by the Court.)

      Appeal from District Court, Kiowa County; fas. R. Tolbert, fudge.

    John S. Wright was convicted of the crime of statutory rape, and appeals.
    Reversed.

      f. Wythe Walker and B. G. McAdams, for plaintiff in error.

      Smith C. Matson and B. G. Spihnan, Asst. Attys. Gen., for the State.
   ARMSTRONG, J.

The plaintiff in error was tried and convicted at the May, 1911, term of the district court of Kiowa county on a charge of statutory rape, and his punishment fixed at imprisonment in the state penitentiary for a period of five years.

A statement of the facts proved is not necessary for the determination of the principal issues raised in this court.

During the progress of the trial, the record affirmatively dis-. closes the fact that the presiding judge vacated the bench and walked to the rear of the courtroom, so far away that he could not hear and observe the proceedings taking place. During this absence, it is alleged that when the special counsel for the prosecution was making an argument to the jury one of the jurors arose from his seat, extended his hand, and expressed approval of counsel’s position. On account of the fact that the court did not hear what took place, he permitted counsel for the accused to show the transaction by proof; the facts upon the point raised being undisputed.

It is error for the presiding judge of a court to vacate the bench and retire from the courtroom, or from the presence and hearing of the proceedings of the trial. A judgment of conviction cannot be sustained when the record affirmatively discloses such a condition. The presence of the judge as the presiding genius of the trial is as necessary during the argument as it is' during the taking of the testimony, or at any other time during the progress of such trial. See Tubeville v. State, 56 Miss. 793; Capital Traction Co. v. Hof, 174 U. S. 1, 19 Sup. Ct. 580, 43 L. Ed. 873; State v. Beuerman, 59 Kan. 586, 53 Pac. 874.

In Thompson v. State, 144 Ill. 378, 33 N. E. 968, the Supreme Court of Illinois, in discussing this proposition, says:

“The law requires the presiding judge to sit during each and every stage of the proceeding before him, whether it be a jury trial or some other proceeding in court, and his presence cannot be dispensed with; and the judgment rendered by him will be reversed where, during the argument of a case before a jury, he left the courtroom and remained out during the entire closing argument of the state’s attorney, though he was in a private room adjoining the courtroom, preparing instructions to be given to the jury.”

In O’Brian v. People, 17 Colo. 561, 31 Pac. 330, the Supreme Court of Colorado says:

“The arguments of counsel, as well as the taking of the evidence, are a part of a trial; and the judge cannot properly absent himself when such proceedings are being carried on. It is his duty to be present and see to it that counsel do not travel outside the record, or transcend the limits of legitimate discussion.” ■

In the case of Stokes v. State, 71 Ark. 112, 71 S. W. 248, the Supreme Court of Arkansas says:

“The facts-shown by the above recitals are made one of the grounds of a motion for a new trial. While it appears that the judge-had lost control of the proceedings for, only a short time, fét that destroyed the integrity of the trial; for, without the presence of a presiding judge, át all times, to uphold the majesty of- the law and enforce its mandates, there can be no trial, such as is contemplated by the statute. The Constitution centers the power to preside over the proceedings constituting trials in felony cases in the person of a judge. The proceedings ‘will not run’ \Wthout his superintending and controlling power, even for a moment.”

■ And again:

■ ' .'“The judge is such a necessary part of the court that his absence destroys the existence of the tribunal; and public policy demands that the tribunal authorized to pass upon the life, liberty, and property of the citizen shall be constituted during the entire trial in the manner prescribed by law.”

]'In Horne v. Rogers, 110 Ga. 362, 35 S. E. 715, 49 L. R. A. 176,' the Supreme Court of Georgia says:

“The courts are instituted for the protection of the people, in the exercise and enjoyment of their rights and redress of their wrongs, and litigants are entitled to have their causes heard by the court as constituted, and in the manner prescribed by law; gnd this is not possible in the absence of the judge whose duty it ■ is to be present and in control throughout the trial. If it becomes necessary for a judge to absent himself during the trial, a^ it must and will, then he should suspend proceedings until such time as he can résumé the bench and proceed under the forms of -law. His absence does suspend the trial, under the law, and yitiates the whole proceedings, without regard, to its length, or whether objection was made thereto, or injury resulted to any one because of it; and this court so holds, in conformity with its former correct ruling.”

It is just as serious an error for the court to retire to a remote place in the courtroom, out of hearing and control of the proceedings in progress, as it would be to absent himself from the courtroom entirely. It is his duty to preside over and control the trial. If he loses this, control by being out of the hearing and presence of the jury, it is just as prejudicial to the rights of the party on trial as it would be for him to leave town. It is the supervision and control of the trial in person by the trial judge that the law requires. It clearly appears from the record in this case that the court lost that control, and did not know what the proceedings and the conduct of the jurors and attorneys were, and for that reason permitted testimony to be taken, in order to show just what did occur. The conduct of the Juror complained of was itself prejudicial, and should not have been permitted, and in all probability would not have been permitted, had the trial judge been on the bench and present, observing the proceedings.

Counsel urge that the conduct of the special prosecutor during the progress of the trial, in repeatedly asking prejudicial questions and endeavoring to get incompetent testimony before the jury, as well as indulging in inflammatory and incompetent remarks in his argument of the case, was prejudicial.

We shall not quote the record or enter into an extended discussion of this proposition. It is sufficient to say that the conduct of special counsel justifies the criticism. It is just as much the duty of the prosecuting attorney, be he a special prosecutor or the official regularly elected for that purpose, to see that a person on trial for crime has a fair and impartial trial as it is to perform any other duty.

For the errors indicated, the judgment is reversed and the cause remanded, with direction to the lower court to grant á new trial.

FURMAN, P. J„ and DOYLE, J., concur.


text:
    J. W. LILLY v. STATE.
    No. A-882.
    Opinion Filed May 7, 1912.
    (123 Pac. 575.)
    1. JUDGES — Disabilities—-Acting as Attorney. An attorney at law, when elevated to the bench of any of the courts of record in this state, is prohibited from practicing law as an attorney, counselor, or advocate in any of the state courts, so long as he occupies such official position.
    2. -TRIAL — Counsel for Prosecution. When a judge of a court of record vacates the bench and prosecutes a person charged with crime in the court over which he presides and before a jury drawn and impaneled by him, a judgment of conviction had under such circumstances will be reversed.
    3. JUDGES — Admission to Practice — Disqualification. Under the statutes in this state, a judge of a court of record cannot practice law in any of the courts of this state, and is only permitted to finish such business as he may have had on hand in the various United States courts at the time- of his elevation to the bench.
    4. PUNISHMENT — Constitutional and Statutory Provisions. The Constitution provides that “the repeal of a statute shall not revive a statute previously repealed by such statute; nor shall such repeal affect any accrued right or penalty incurred of proceedings begun by virtue of such repealed statute.” (William’s Const, sec. 144; article 5, sec. 54.)
    Section 2815, Wilson’s Rev. & Ann. St. 1903, provides: “The repeal of any statute by the Legislative Assembly shall not have the effect to release or extinguish any penalty, forfeiture, or liability incurred under such statute, unless the repealing act shall so expressly provide; and such statute shall be treated as still remaining in force for the purpose of sustaining any proper action or prosecution for the enforcement of such penalty, forfeiture, or liability.”
    Under these provisions of the written law, it is held that the district court of Lincoln county, upon a retrial of this case, should submit the punishment for conjoint robbery under the statute as it existed at the time the offense is alleged to have been committed, which punishment is life imprisonment.
    (Syllabus by the Court.)

      Appeal from District Court, Lincoln County; John J.-Carney, Judge pro tern.

    J. W. Rilly was convicted of robbery, and appeals.
    Reversed and remanded.

      Rittcnhouse & Rittenhonse, for plaintiff in error.

      Smith C. Matson and U. G. Spilman, Asst. Attys. Gen., for the State.
   ARMSTRONG, J.

The plaintiff in error was indicted in the district court of Lincoln county on a charge of conjoint robbery, alleged to have been perpetrated in said county on the 19th day of January, 1908. He was tried at the April, 1910, term of said court before Hon. John J. Carney, trial judge by- special assignment.

There are many assignments of error brought, only one of which we shall discuss, to wit, the seventh assignment, as set out in the petition in error. This assignment is as follows:

“The said court erred in allowing Judge Roy V. Hoffman, judge of the Tenth judicial district, sitting in and for the county of Lincoln and state of Oklahoma, to prosecute said action against this plaintiff in error, over the objections of said plaintiff in error.”

At the beginning of the trial, the plaintiff in error interposed the following objection to Judge Hoffman appearing and prosecuting the case, to wit:

“Now comes the defendant, J. W. Lilly, and objects to Roy V. Hoffman acting as an attorney for the prosecution in this case, for the reason that he is now presiding judge of the district court of the Tenth judicial district, and was the judge who impaneled the jury which will try this case.”

The objection was overruled and exceptions properly saved.

Section 254, Comp. Laws 1909, provides:

“No person shall practice as an attorney and counselor-at-law in any court of this state who is not a citizen of the United States, or who holds a commission as judge of any court of record, or who is a sheriff, coroner, or deputy sheriff; nor shall the clerk of the Supreme Court, or the clerk of the district court or county court or the deputy of either practice in the particular court of which he is clerk or deputy clerk; but nothing herein contained shall prevent attorneys and counselors-at-law who reside without this state practicing in this state, and nothing herein contained shall prevent any judge of any of the courts of this state from finishing any business by him undertaken in the District, Circuit, or Supreme Court of the United States, prior to his election or appointment as judge; and an alien who has declared his intention to become a citizen of the United States, may practice as if he were a citizen.”

This statute expressly prohibits judges of the courts of record in this state from practicing in any of the .courts of this state during the term for which they hold such offices, and only permits such judges to finish any business undertaken by them in the various United States courts. ...

Similar statutes are in force in many other states. In the case of Bashford, v. People, 24 Mich. 244, the Supreme Court of Michigan, in an opinion by Mn Justice Cooley, discussing a simir lar statute, says;

“The law aims, as- far as possible, to give every man a trial that shall not onfy be fair, but as free as may be from any suspicion of partiality or undue, influence. It is quite true that official position could not have any tendency to render the opinions or argument of the counsel intrinsically any more sound or plausible; but when they were to be addressed to a jury, whose members were accustomed to receive and obey the instructions of the counsel as judge, it is not unreasonable to suppose that the circumstance may insensibly, in their minds, have given them additional force and influence. Such an influence even the best of jurors would have found it difficult sufficiently to be on guard ¿gainst; quite as difficult, perhaps, as they would to throw off or lay aside such preconceived opinions of the merits of the case, as would have disqualified them as jurors. It cannot be said, therefore, that this is a matter of indifference to the person on trial.”

This doctrine was again announced in the case of People v. Evans, 72 Mick 367, 40 N. W. 473.

The Michigan statute (How. Ann. St. sec. 724-7), upon which these opinions appear to be based, appears to be in the following language r

“No judge can act as solicitor or attorney in the court of which he is judge, except in those suits in .which he shall be a party or in the subject-matter of which he shall be interested.”

In 1889 (Pub. Acts 1889, No. 180), it appears that the Legislature of Michigan amended this statute to permit a judge of the circuit court to practice in any other court, except the court over which he presided. And the Supreme Court of that state, in the case of Morton v. Railroad Company, 81 Mich. 423, 46 N. W. 111, upheld the statute.

The Supreme Court of Iowa, in the case of Wright v. Boon, 2 G. Greene, 458, lays down the rule equally as strong as the Supreme Court of Michigan in Bashford v. People, supra, and; 'among other things, says:

“* * * The impropriety of the judge leaving the bench and appearing as counsel in a cause on trial in his own court is perfectly apparent — a judicial indiscretion which inexperience may palliate, but an error sufficient to reverse any judgment thus obtained.”

The Supreme Court of Florida, in the case of Perry et al., v. Bush, 46 Fla. 244, 35 South. 226, in an opinion by Mr. Chief Justice Taylor, discusses this question on point of principle in the absence of a statute, and, among other things, says:

"* * * When an attorney at law is elevated to the bench o'f any of our circuit courts as the judge thereover presiding, his right to practice law as an attorney, counselor, or advocate in any of the courts of this state becomes suspended, -and continues to be suspended, so long as he occupies the official position of such .circuit judge, except, perhaps, in those cases alone wherein he is in propria persona a party in the cause; and in such excepted cases his appearance therein in the courts, if at all, should be to represent and protect his own individual rights exclusively. It is true that'we have no statute upon our books in express terms forbidding circuit judges from practicing law; but the rights, duties, privileges, and functions of the office of an attorney-at-' law, counselor, or advocate are so inherently incompatible with the high official functions, duties, powers,. discretions, and privileges of a judge of one of our circuit courts, with their vast' range of jurisdiction, both original and appellate, the express inhibitory legislation on the subject would seem to be superfluous, and a work of supererogation. Our state is divided into eight judicial circuits, presided over by one circuit judge to each of said circuits; the territory comprising each of them being circumscribed by well-defined metes and bounds. This careful defining of the territory to be presided over by each was not alone for the convenient dispatch of business before the courts, nor alone for the prevention of conflicts in jurisdiction, but as well to subserve the convenience of the people that inhabit the several counties comprised in said respective circuits. Another statute gives to such citizens the right and privilege to have their causes tried in the county where the cause of action arose, or in which the thing in controversy is located, or in which one or more of several defendants reside. This right and privilege is one common to both parties to every controversy before such courts. The plaintiff has the privilege arid right to have the venue of his action in such county, and equally so has the defendant.

“For a circuit judge officially presiding over such county to disqualify himself from adjudging such case by acting as attorney for either of the parties thereto is not only to repudiate his official duty to hear and determine such case as judge, but is an invasion of the right of both parties thereto to have such cause tried and determined in such county. It is the official duty of circuit judges to hear and determine all legal and equitable controversies arising within their respective circuits in which they are not disqualified for reasons beyond their control, and over which they have jurisdiction, either original or appellate; and it is not the policy of the law to permit them to evade or repudiate the discharge of such duty by voluntarily disqualifying themselves to hear and determine any such cause by acting for either of the parties thereto as attorne)'’ or counsel. If one of them can disqualify himself by acting as counsel for one of the parties to a cause, all eight of them can do the same thing; and a designing party, with a bad but important case in the courts, could effectually stop the wheels of justice, in so far as his case was concerned, by employing an array of eight judges to represent him as counsel. The jurisdictions of this, the court of last resort, and the circuit courts, are so inseparably related to each other that it is equally as obnoxious to the ethics governing the judiciary to permit a circuit judge to practice here as an attorney as it is for him to appear as attorney in the lower courts. A cause comes here for appellate review from a circuit court. It is reversed here, and remanded for further proceedings as directed. To represent either of the parties thereto before this court as attorney will disqualify a circuit judge to further hear or determine such cause as judge, upon its remand from this court, as effectually as though he had originally represented such party therein as attorney in the court of first instance. If such circuit judge is permitted to appear here as counsel in one cause, why should he not be permitted to act here as such in all causes? The line of demarcation between cases where such appearance might be proper or improper would often be so nebulous that the only safe course to pursue to insure the occupancy of the judiciary of a position above suspicion or reproach is to forbid such appearance in toto."

In the case of Evans v. Funk, 151 Ill. 650, 38 N. E. 230, the Supreme Court of Illinois, construing a statute similar to the statute of Michigan, supra, held that a probate judge could not act as counsel in a suit in the circuit court. See, also, Hobby v. Smith, 1 Cow. (N. Y.) 588; Wood v. Keith, 60 Ark. 425, 30 S. W. 756; Seymour v. Ellison et al., 2 Cow. (N. Y.) 13.

The doctrine announced by the Supreme Court of Florida, in the case of Perry et al. v. Bush, supra, appeals to us as being a sound exposition of the law; and, even though we had no statute, prohibiting the judges of the courts of record in this state from practicing law during their term of office, this rule would be followed. But in the case under consideration the Legislature, by an explicit statute, which is quoted in full, supra, prohibits judges of the courts of record from practicing law In this state, whether in their own court or in other state courts. We do not feel that we can add anything to the authorities quoted and cited. It is sufficient to say that no conviction secured in the courts of this state, wherein the resident district judge has vacated the bench and become a special prosecuting attorney before a jury which was drawn and impaneled under his direction, and which has been accustomed to receive instructions and determine litigated questions before him, will be permitted to stand in this jurisdiction.

It appears from the record that the offense for which the plaintiff in error was on trial is alleged to have been committed in January, 1908. At that time, the punishment for conjoint robbery was life imprisonment. The Legislature, by the act of March 23, 1909 (Comp. Laws 1909, c. 12, art.-3), changed the punishment to a maximum of 50 and a minimum of five years in the penitentiary.

The Constitution provides that:

“The repeal of a statute shall not revive a statute previously repealed by such statute; nor shall such repeal affect any accrued right or penalty incurred or proceedings begun by virtue of such repealed statute.” (William’s Const, sec. 144; article 5, sec. 54.)

Section 2815, Wilson’s Rev. & Ann. St. 1903, provides:

“The repeal of any statute by the Legislative Assembly shall not have effect to release or extinguish any penalty, forfeiture, or liability incurred under such statute, unless the repealing act shall so expressly provide; and such statute shall be treated as still remaining in force for the purpose of sustaining any proper action or prosecution for the enforcement of such penalty, forfeiture, or liability.”

This section of the statute has not been repealed nor modified, and is not in conflict with the constitutional provision, supra.

There is no issue raised by counsel in the case under consideration on this point, and the proposition has not been briefed by either side. But, in view of the fact that the record affirmatively discloses that the court gave in charge to the jury the punishment for conjoint robbery, as provided in the act approved March 23, 1909, supra, and, further, that this case is to be retried, the interest of the public demands that the proposition be determined.

Because of the fact that no brief has been filed, we shall not undertake a. review of the authorities on the question, but hold that the district court of Lincoln county, upon a retrial of this case, should submit the punishment for conjoint robbery under the statute as it existed at the time the offense is alleged to have been committed. See Ensley v. State, 4 Okla. Cr. 49, 109 Pac. 250.

For the error committed by the trial court in permitting Judge Roy V. Hoffman, the regular judge of the district court of Lincoln county, to act as attorney on behalf of the state in the prosecution of the plaintiff in error in this case, the judgment is reversed, and the cause remanded, with direction to grant a new trial.

FURMAN, P. J., and DOYLE, J., concur.