author: DOYLE, Judge

text:
    JEAN HAVILL v. UNITED STATES.
    No. A-65.
    Opinion Filed April 10, 1911.
    (115 Pac. 119.)
    1. APPEAL — Review—Discretion of Court — Suspension of Trial. During- the progress of a trial for murder, the court over the objection of the defendant suspended the trial for several hours in order to enable the state to procure the attendance of absent witnesses. Held, that this proceeding was within the sound discretion of the court, and such order of the court will not be reviewed unless an abuse of discretion appears. .
    2. FORMER JEOPARDY — Suspension of Trial. Upon resuming the trial the defendant interposed a plea of former jeopardy. Held, that said plea was without merit, and was properly overruled.
    3. APPEAL — Harmless Error — Failure to Furnish List of Witnesses. The right of a defendant indicted for a capital offense alleged to have been committed in the Indian Territory prior to statehood to have delivered to him under section 1033, Sts. Ann. vol. 2, p. 344 (U. S. Comp. 'St. 1901, p. 722), at least two days before the trial a list of the witnesses to be produced, is not violated to the extent of constituting reversible error where the testimony of the witness was cumulative, and offered for the sole purpose of fixing the time and place of the victim’s death.
    4. MURDER — Manslaughter—Venue—Death Outside of State. Murder or manslaughter is committed within the Central district of the Indian Territory if the felonious act is committed there, although the death occurs in the state of Texas.
    (Syllabus by the Court.)

      Appeal from District Court, McOurtain County; D. A. Bichard-son, Judge.

      Jean Havill was convicted of manslaughter, and he appeals.
    Affirmed.
    Plaintiff in error, Jean Havill, was indicted in the Hnited States court for the Central district of the Indian Territory at the September term, 1907. The indictment charged that the defendant on the 28th day of August, 1907, within said district, shot and killed one Joe Christopher. Hpon a trial in the district court of MeCurtain county, to which court the case was transferred after statehood, the jury by their verdict found the defendant guilty of manslaughter, and assessed his punishment at imprisonment for a period of one year and a fine of $50. The judgment and sentence was rendered and entered on October 3, 1908, from which judgment an appeal was perfected by filing in this court on January 7, 1909, a petition in error with case-made attached. The appeal was dismissed for failure to file proof of service of notices of appeal. 113 Pac. 991. This dismissal is set aside for the reason that the records of the clerk of this court show that proof of service was filed within the time in which the appeal could be perfected.
    The evidence on the part of the state is in substance as follows:
    Dr. L. M. Ellis testified that he was a physician and surgeon practicing at Millerton; that he was called to see Joe Christopher on the evening of the 28th day of August, 1907, and found him suffering from a gunshot wound, the ball having entered on the side at the juncture of the seventh and eighth ribs, and passing through the body; that he saw Mr. Christopher the last time two days later; that he was in a very serious condition; that the wound was necessarily fatal. He further testified as follows:
    “Q. Do you know what the result of that wound was? A. Yes; it'produced septic peritonitis. Q. What was the final result of that wound? A. Death."
    Recalled, he testified as follows:
    “Q. State to the jury what that conversation ivas ? A. He came in and wanted to borrow a gun from me. I asked him what he wanted with it, and he told me to shoot Joe Christopher. Q. State as near as you can how long that was before the shooting took place. A. It was about half or three quarters of an hour. Q. lie stated to you that he wanted the gun to kill Joe Christopher, with? A. He said to ‘shoot’ him.”
    D. Holden testified that he was a general merchant, his place of business joining that of Joe Christopher. He further testified as follows:
    "A. I was standing in my front door, and Mr. Christopher had placed some fishing poles nearly in front of my door. He was preparing to go fishing, and his little boy, eight, nine, or ten years old, was standing near his father’s door, playing, when little Sally Havill, about eight or nine years old came along. She was playing, and in some way struck at Mr. Christopher’s little boy, and he grabbed her and said that he was going to kiss her, and it made her mad, and she went off crying. Mr. Christopher made the little boy quit. In g short time after, 20, 30, or 40 minutes after, Jean Havill came down. I was standing in my front door, and he told Mr. Christopher that he had come down to whip his boy. He said that Joe Christopher would have to whip his boy, or he himself would do it. 'Christopher asked him why, and he said the way the boy had treated his little sister, and Mr. Christopher told him that he had made the boy stop and let her alone, and so on. Jean persisted in Christopher whipping the boy, and was swearing. Finally Joe told him to leave his place of business, and Jean said he did not have to go, still swearing. It seems to me that Joe went up to him as if to lead him off, that was what I thought, but I do not know what he meant to do, and my recollection is that Jean struck at him. When he did this, Joe grabbed him by the shoulders, or some way, and shoved him down against the sidewalk. He shook him that way, and then let him up. When he got up, he said, ‘Christopher, you are a man, and too much for me, but I’ll do you, I’ll kill you. for that.’ ”
    He further testified that the deceased was about 35 years old and would weigh about 150 or 160 pounds.
    Ben Miller, Jr., testified that about 6:30 he was walking' home on the street that defendant lived on; that as he was passing a shot was fired. He further testified as follows:

      “Q. Who fired the first shot? A. I could not say. Q. Fll ask you if Mr. Christopher fired that shot? A. No; he did not fire that shot. Q. You may proceed. A. When the first shot was fired, I think 1 walked down the street and remarked to Mr. Havill, the boy's father, to try and stop the trouble or some one would get hurt. Of course, at that time I was in the center of the street, and about that time some more shots were fired, and that is about all I could say about it. Q. Ho you know who fired those shots after that? A. Well, I saw one shot fired after that. Q. Who fired that shot? A. Jean Havill. Q. Where was he at the time he fired that shot? A. At the corner of the house, as near as I can remember.”
    W. B. Jones testified :
    “Q. I will ask you if you saw Jean Havill prior to the time the first shot was fired? A. Yes, sir. Q. What was he doing? A. He was in his yard. Q. State to the jury where Jean went, if anywhere, before the first shot was fired. A. Well, I was standing in my home, and Christopher was sitting on his front steps, with his hand up here like this, in his breast, and his little boy came up the street, and Mr. Havill or Mrs. Havill said something to him. I did not understand what it was. Christopher jumped up and said, 'If you have anything to say to him, say it to me/ and went up to the fence, and talked, but I could not hear what was said. Jean was over in his yard and he came running to the gate with a pistol in his hand behind him, in his right hand, and stood there a little bit and listened to them, and the first thing I knew he had drawn and shot. Q. Fll ask you if Jean made any effort to borrow a pistol from you that evening. A. Yes. Q. Did he state what he wanted it for? A. No; he did not. He came over to my house late in the evening, and told me of the rucus he had had on the street, and asked me if I had a pistol. I told him I did, and he asked me to loan it to him, and I said no.”
    Cooper Watkins testified that he lived right across the street from the defendant and the deceased; that he came out of his house and started down town and walked 10- or 15 steps, turned around, and looked back; that “just, as I looked back, Jean stepped to the fence, threw up his gun, and shot twice.” He further testified as follows:
    “Q. Had any other pistol been fired prior to that? A. No. Q. Did you see Mir. Christopher at that time? A. Tes. Q. State what you saw Mr. Christopher doing, if anything. A. When Jean fired, he jumped back and jerked his gun from his bosom, and Jean ran inside his yard. ITe was about half way from the gate to the house', and Christopher shot twice. He ran around the house, and Christopher started outside the gate, and just as he got outside the gate Jean shot him again. Q. Was that all the shots that were fired by Christopher? A. Yes. Q. He fired two shots after Jean Havill had fired two shots at him? A. Yes. Q. Did he have his gun in his hand at the time Jean Havill fired the first two shots? A. No; I do not think that he did. He jumped back and jerked his gun from his bosom. Q. You saw him jerk his gun from his bosom after the first two shots were fired. A. Yes, sir. Q. You are positive that Jean Havill fired two shots before Christopher fired any ? A. Yes, sir.”
    Phillip Johnson testified that he was associated with Joe Christopher in business at 'the time of his death; and further testified as follows:
    “Q. State to the jury what part of the shooting you saw? A. I saw one shot fired by Havill. Q. Where was Havill at the time this shot was fired? A. Behind the comer of the house he lived in. Q. Can you state where Christopher was? A. He had either come out of the gate or was going out. Q. In doing so, was he going towards Havill or going away from him? A. Going away from him. Q. After that difficulty did you have a conversation with Jean H'avill? A. I did. Q. Was that conversation between you and Jean Havill prior to the shooting? A. Yes. Q. What was that conversation? A. He wanted to borrow a gun from me. _ Q. Did he state why he wanted the gun? A. Yes. Q. What did he say he wanted the gun for? A. He said he wanted it to shoot Joe Christopher with.”
    His cross-examination showed that he owned the gun that Christopher had at the time the shooting took place.
    Mrs. Lucy El. Foreman testified, in part, as follows':
    Did you. livfe nidghbor to Mr. Christopher and Mir. Havill? A. Yes, sir. I lived just across the street from them. Q. Dll ask you if 3ou saw any part of the shooting scrape between them on the 28th day of August? A. I did. Q. In your own way please state just what you saw, and not- what has been told you. A. I went to the door that evening to see where the children were and heard a racket— Q. What kind of a racket? A. Talking and it looked like my children were down among them. In a few minutes I saw Jean go in the house. He came out in a minute or two, and then directly fired the shot. Q. Did you see Jean’s pistol before he fired? A. Tes. Q. Can you state how close he was to Mr. Christopher when he fired? A. I cannot say exactly. Q. Can you estimate it? A. I cannot say how close it was, probably about ten feet. Q.'I will ask you if your attention was directed to both Mr. Havill and Mr. Christopher at this particular time? A. Yes; I think it was. Q. I will ask you if you noticed the position of Mr. Christopher’s hands at that time? A. Mr. Christopher was standing at the fence, with one hand on the fence, and the other hand by his side. Q. What time did you see his hands in that position? A. That was before the shooting. Q. At the time the first shot was fired did you see the position his hands were in? A. Yes; that was like I said. Q. Can you state of your own knowledge who fired the first and second shots? A. I guess Jean,fired the first and second shots. Q. Do you know who fired the two next shots? A. Yes; Mir. Christopher.”
    Here the record shows the-following proceedings were had:
    “The State: It will be impossible fox the state to proceed further in the trial of this ease until the arrival of the train from Hugo this afternoon. The train gets here at 4:53, and we cannot proceed further until the arrival of the witness on that train.
    “The Defendant: The defendant being in court, we move the court that the trial of this case proceed.
    “The Court: I’ll overrule the objection.
    “The Defendant: We except.
    “The Defendant: We now move the court that the defendant be discharged, there not having been offered any evidence sufficient to convict him, or to hold him further on this charge.
    “The Court: The motion will be overruled.
    “The Defendant: We except.
    “The Defendant: We now move the court to instruct the jury to return a verdict of not guilty against this defendant on account of insufficient evidence to convict him,
    “The Court: The court holds that it has power to suspend further proceedings in the trial for a reasonable time to enable absent witnesses, whether subpoenaed or not, to attend the trial and give their evidence, and the court overrules the motion and the request of the defendant, and will defer further proceedings in the trial for a reasonable time to await tbe arrival of the witnesses.
    "The Defendant: We except.
    "The Court: Let the record show that the jury during this time were not allowed to separate, but were kept in charge of their sworn bailiff, and were duly admonished not to talk about the case among themselves, or to allow others to do so in their presence-.”
    Before the taking of testimony was resumed on the same day the defendant filed a plea of former jeopardy, which plea was overruled by the court, and B. F. Christopher, a witness for the prosecution, being duly sworn, testified as follows:
    “Q. Please state your name? A. B. F. Christopher. Q. What is your age? A. 43 years. Q. Where do you live? A. At Cuthand, Texas, in Red River county.
    “Defendant: The defendant objects to any question that may be asked the witness on the ground that this case was suspended without the consent of the defendant, and, being resumed again, is a violation of his rights, and is placing him'on trial twice before a jury for the same offense. Defendant objects on the further ground that 'he was not two entire days before the trial of this cause furnished with a list of the witnesses to be used by the prosecution in chief, showing the name and residence of the witness B-. F. Christopher.
    "The Court: Let the record so show. I’ll overrule your objection. “Defendant: We except.
    “Q. Are you acquainted with Jean Havill? A. I know him when I see him. I have seen him a few times. Q. You were acquainted with Joe Christopher? A. Yes; he was my brother, younger than me. Q. Where is Joe now? A. He is dead. Q-Do you know that of your own personal knowledge? A. Yes; I seen him after he was dead. I seen him in the undertaker’s office, and I looked at him at the grave where he was buried. Q. Do you know the cause of his death? A. Only that I saw he was shot. Q. How long did he live after he was shot? A. I was not there when he was shot. From the time I learned that he was shot he lived about 7 days, about 6yz days. Q. Do you know where he died? A. I know it was in a hospital, but I have forgotten the name of it. It was in Paris, Tex. He was under the care of Dr. Hook. Q. In Paris, Tex., or Paris, Olda. ? A. Paris, Tex.”

      Jbe evidence on the part of the defendant is in substance as follows:'
    J. W. Gnest testified that he was present when the fist fight occurred; did not hear the defendant make any threats that he would kill the deceased; that this was at least an hour before the shooting took place.
    Doc. Guest testified that he saw the fist fight about 5 o’clock as he was driving by with a load of logs; that about 15 minutes later he met Mr. Christopher, and heard him say that, “I am going to get a Havill or two before supper; that he went from there to the post office, and 20 minutes later met the defendant, and told him what Mr. Christopher had said; that just before the shooting he saw the parents of the defendant standing in their yard, and the deceased was coming from his door towards the fence that divides their dooryards and that his hand was in his bosom; that defendant came out of the door of his home where Mr. Christopher and his father was talking, and that the deceased pulled a gun from his bosom and they both shot; that he did not know who fired the first shot; that Mr. Christopher fired the first shot at the elder Havill and the second shot at the defendant, and then walked out in the middle of the street and fell down.
    Mrs. Ollie Eobb testified that she witnessed the shooting, but could not say who fired the first shot; that the defendant was at her house a few minutes before with a pistol in his hand; and that she did not see a pistol in Mr. Christopher’s hand before the first shot was fired.
    H. E. Eobb testified that the first two shots were fired by the defendant and the deceased, but he could not say who fired the first shot.
    John Havill, father of the defendant, testified that the first shots were fired by the deceased and the defendant almost together; that he and Mr. Christopher had no former trouble.
    Mrs. Havill, the mother of the defendant, testified that the first two shots were together.

      The defendant testified: That he went down to Mr. Christopher’s place, and said to him, “ ‘You ought to make yonr boy behave himself, and make him stop annoying my sister. If you cannot tend to him, I will have to do so.’ He ordered me away, ordered me to get off his sidewalk. I told him I would not go; that it was a public place; that I had a right to be there. Christopher hit me, and we mixed up and Christopher threw me down and bumped my head on the sidewalk, and he let me up and wanted me to go away. I repeated that I would not go, and I hit him again, and he hit me, then he wanted me to go away, and I would not.” That he then went home and met Doc. Guest. That Doc. Guest said that Mr. Christopher had made some threats about killing a couple of Havills. That he then went to Foreman’s, and asked Mr. and Mrs. Foreman for a gun. They said “No.” Then went to W. J. Jones, and then to Dr. Ellis, and tried to get a gun. Then went to the sleeping shack and got Jule Hall’s gun, a 38 caliber. That he came out of the house and saw Mr. Christopher with his hand in his breast, talking to his father. That he did not understand what he was saying. That Mr. Christopher pulled his gun out in the direction of his father and shot. He was then asked: “Q. Who shot first, you or •he ? A. I cannot tell you. We both shot at the same time. When I saw him draw his gun-I fired.” He also testified that he shot two times at Joe Christopher in defense of his father and in self-defense, and that the third shot was accidental.

      Foster & Stephenson, for plaintiff in error.

      Ghas. West, Atty. Gen., and Smith 0. Matson, Asst. Atty. Gen., for the State.
   DOYLE, Judge

(after stating the facts as above). Counsel for plaintiff in error in their brief state:

“We have elected to reserve only two propositions for the consideration of this court. They may be thus stated: The defendant having been placed upon his trial in a court of competent jurisdiction, before a jury regularly drawn, impaneled, and sworn, and the trial of his case begun, he was entitled to have the trial proceed, and that upon the failure of the state to prove a case against him he then and there became entitled to his discharge, and, this right having been once acquired, he was entitled to the benefits of the provisions of the Constitution of the United States and the Constitution of the state of Oklahoma against being twice put in jeopardy for the same offense; and (2), the name and address of the witness, B. F. Christopher not appearing upon the. list of witnesses served upon the defendant prior to the trial, the resumption of the trial by the examination of said witness was erroneous.”

In support of the first contention counsel cite the following authorities: State v. Nelson, 19 R. I. 467, 34 Atl. 990, 33 L. R. A. 559, 61 Am. St. Rep. 780; State v. Richardson, 47 S. C. 166, 25 S. E. 220, 35 L. R. A. 238; McCauley v. State, 26 Ala. 135. In these cases the jury was discharged during the trial over the objection of the defendant and a new trial ordered. Therefore the doctrine of these cases has no application to the case at bar. It is within the sound discretion of the trial court to postpone the further taking of testimony on account of the absence of witnesses who are expected to arrive that day on a certain train, and this discretion will not be controlled by this court unless abused. In the case of Johnson v. State, 32 Ark. 309, it was said:

“After the state had examined several witnesses, the court against the objection "of the defendant suspended the trial, and allowed the jury to separate from Tuesday until Friday, that the state might procure the attendance of a witness. The suspension of the proceedings in a trial is within the sound discretion of a court, and we are not prepared to say there was any abuse of its discretion in this case.”

See, also, Griffin v. State, 90 Ala. 596, 8 South. 670.

The contention that defendant was twice put in jeopardy for the same offense is without merit. As we view the record, there was not the semblance of error in the rulings of the trial court.

In support of their second proposition, counsel cite the case of Logan v. United States, 144 U. S. 263, 12 Sup. Ct. 617, 36 L. Ed. 433. In the case of Hickory v. U. S., 151 U. S. 303, 14 Sup. Ct. 334, 28 L. Ed. 170, Mr. Chief Justice Fuller said:

“Under section 1033 of Rev. Stat. (section 1033., vol 2, Fed. Sts. Ann. p. 344 [U. S. Comp. St. 1901, p. 722]), any person indicted of a capital offense has the right to have delivered to him, at least two days before the trial, a list of the witnesses to be produced, and it would be error to put Mm on trial and allow witnesses to testify against him whose names have not been furnished, if he seasonably asserted his right. Logan v. United States, 144 U. S. 263 [12 Sup. Ct. 617, 36 L. Ed. 433]. But we think he did not do that here, and that the defect was waived. It was suggested by counsel for the defendant that the objection was made as soon as it was discovered that notice had not been given in respect to this witness; but we are of opinion that the discretion of the trial court was properly exercised upon the question.”

In the case of Thiede v. Utah Territory, 159 U. S. 510, 16 Sup. Ct. 62, 40 L. Ed. 237, Mr. Justice Brewer said:

“But this section applies to the Circuit and District Courts of the United States, and does not control the practice and procedure of the courts of Utah, which are regulated by the statutes of that territory. This question was fully considered in Hornbuckle v. Toombs, 18 Wall. 648 [21 L. Ed. 966], and it was held, overruling prior decisions, that the pleadings and procedure of territorial courts, as well as their respective jurisdictions, were intended by Congress to be left to the legislative action of the territorial assemblies and to the regulations which might be adopted by the courts themselves. See, also, Clinton v. Englebrecht, 13 Wall. 434 [20 L. Ed. 659], in which it was held that the selection of jurors in territorial courts was to be made in conformity to the territorial statutes; Good v. Martin, 95 U. S. 90 [24 L. Ed. 341], in which a like ruling was made as to the competency of witnesses; Reynolds v. United States, 98 U. S. 145 [25 L. Ed. 244], where the same rule was applied to the impaneling of grand jurors and the number of jurors; also Miles v. United States, 103 U. S. 304 [26 L. Ed. 481], a case coming from the territory of Utah, in which the same doctrine was announced with regard to the mode of' challenging petit jurors. Page v. Burnstine, 102 U. S. 664, 668 [26 L. Ed. 268]. Referring, therefore, to the territorial statutes, there is none which directs that a list of the witnesses be furnished to the defendant. Section 4925, -Comp. Laws Utah, requires that the names of. witnesses examined before the grand jury be indorsed on the indictment before it is presented. There is no pretense that this direction was not complied with. In the absence of some statutory provision, there is no irregularity in calling a witness whose name does not appear on the back of the indictment, or has not been furnished to the defendant before the trial. The action of counsel for defendant in asking that as a favor the names be furnished them indicates their understanding of the extent'of defendant’s right, and, so far as appears, the district attorney fully complied with this request, and furnished the names as fast as he was advised that they would be called. There is no suggestion that the defendant was surprised by the calling of any witness or the testimony that he gave. This allegation of error, therefore, is without foundation.”

‘‘While the Bevised Statutes of the United States, and not the Arkansas law, were in force in the Indian Territory in so far as the definition of the crimes of murder and manslaughter and the punishment prescribed therefor were concerned, yet the Arkansas law respecting the procedure governing the trial even of those offenses was in force in the Indian Territory to the exclusion of all other laws. Binyon v. U. S., 4 Ind. Ter. 542; Simon et al. v. U. S., 4 Ind. Ter. 688; Driggers v. U. S., 7 Ind. Ter. 752, 104 S. W. 1166; Taylor v. U. S., 6 Ind. Ter. 350, 98 S. W. 123; Leftridge v. U. S., 6 Ind. Ter. 305, 97 S. W. 1018.” (Prince v. U. S., 3 Okla. Cr. 700, 109 Pac. 241.)

We believe that the admission of the testimony of the witness Christopher was not error. The plaintiff in error could not be prejudiced by the testimony of this witness. His defense was justifiable homicide in self-defense, and the proof of the corjnis delicti was sufficient without the evidence of this witness. The proposition advanced by counsel that, if error is shown by the record, the conviction must be reversed, whether such error operated to the prejudice of the plaintiff in error or not, is not the law. In numerous cases determined by this court, the contrary doctrine is announced. The criminal laws of this state must be enforced; and, if it is not already understood, it is high time it should be, that where a case is clearly made out against the accused, and the jury have so found, this court will not reverse a conviction for a mere technical error which it can see could not have affected the result.

Absolute correctness of proceeding cannot be attained, even in our very best courts; and the establishment of any other rale would render the enforcement of the criminal laws practically inoperative.

As we view the record, there is nothing of merit in either of the propositions relied upon to reverse the judgment. What has been said fully disposes of the assignments of error argued. However, it appears that plaintiff in error shot the deceased on August 28, 1907, at Millerton, in the Central district of the Indian Territory, and the deceased six or seven days later died in Paris, Tex., of the mortal wound caused by that shooting. It is for his acts that plaintiff in error is responsible. They constitute his offense. The place where they are committed must be the place where his offense is committed. In contemplation of.law, the crime was committed in the Central district of the Indian Territory where he was indicted. The anarchist Guiteau shot President Garfield in the District of Columbia. The president was conveyed outside of that jurisdiction, and died in New Jersey. His assassin was tried, convicted, and executed in the District of Columbia. United States v. Guiteau, 1 Mackey (D. C.) 498, 47 Am. Rep. 247. We are of opinion that plaintiff in error has had an eminently fair and impartial trial. The verdict returned by the jury confirms this conclusion. Manifestly the jury was very lenient. Any one accustomed to weighing evidence cannot read the record without being fully impressed with the conviction that this is not a case of justifiable homicide. On the facts which are either admitted, or so clearly established as to be beyond controversy, the plaintiff in error is at least guilty of manslaughter.

For the reasons stated, the judgment of the district court of McCurtain county is affirmed, and the district court is directed and ordered to enforce its judgment herein.

FURMAN, PRESIDING Judge, and ARMSTRONG, Judge, concur.


source: Caselaw Access Project

author: DOYLE, Judge.

license: Public Domain

text:
    FRANK ADAMS v. STATE.
    No. A-136.
    Opinion Filed March 21, 1911.
    Rehearing Denied April 18, 1911.
    (114 Pac. 347.)
    1. RAPE — Indictment—Sufficiency. Section 2353, Snyder’s 'St., provides that: “Rape is an act of sexual intercourse accomplished with a female, not -the) wife of the perpetrator, under either of the . following circumstances: * * * (3) Where she is incapable through lunacy or any other unsoundness of mind, whether 'temporary or permanent, of giving legal consent. (4) Where she resists but her resistance is overcome by force and violence.” An indictment charging that defendant, “by means of force and violence overcoming the resistance of her * * * she then and there resisting said act and being then and there incapable through lunacy and other unsoundness of mind, of giving legal consent,” held to charge sufficiently the crime so defined in the third subdivision; the allegation, of force and violence) and want of consent being immaterial and mere surplusage.
    2. RAPE — Elements of Offense — Consent—Incapacity. The incapacity of the female as prescribed in the third subdivision of section 2353 extends to the act and all its incidents. The law implies incapacity to give consent, and this implication is conclusive. In such a case the female is to be regarded as resisting, no matter what the actual state of her mind may be at the time. The law resists for her.
    3. APPEAL — Witnesses — Competency — Determination — Review. When a witness is objected to on the ground that he or she is incompetent by reason of want of intelligence, it is the province of the trial court to determine the witness’ competency, and its decision will not .be reviewed unless there is a clear abuse of discretion, or the court admits or rejects the witness upon an erroneous view of a legal principle.
    4. RAPE — Evidence—Elements of Offense — Consent of Female. Upon a prosecution for rape, where it is alleged that the female did not have mental capacity to consent, evidence is properly admitted to show that she had been feeble-minded since childhood. Legal consent in this class of cases presupposes an intelligence capable of understanding the act, its nature, and possible consequences. This degree of intelligence may exist with an impaired or feeble intellect, or it may not.
    5. RAPE — Question for Jury — Consent of Female. Whether a woman possesses mental capacity sufficient to give consent must, save in exceptional cases, be a question of fact for the jury. (Syllabus by the Court.)

      Appeal from District Court, Pawnee County; J. T. Johnson, Judge.

    Frank Adams was convicted of rape, and appeals.
    Affirmed.

      B. M. Clark, for plaintiff in error.

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

The plaintiff in error was indicted, tried, convicted, and sentenced to serve a term of -12 years in the penitentiary for the crime of rape.

The indictment, omitting the formal parts, is as follows:

“The jurors of the grand jury of said county and state, good and lawful men, having been first duly chosen, selected, drawn, summoned, returned, tried, impaneled, sworn, and charged, according to law, to diligently inquire into and true presentment make, within and for the body of said county, of all public offenses against said state and territory of Oklahoma committed or triable within said county, upon their oaths aforesaid, in the name and by the authority of said state of Oklahoma, do present and find that in said county of Pawnee, in the territory of Oklahoma, on the 3d day of August, in the year of our Lord one thousand nine hundred and seven, one Frank Adams, a person then and there being a male person, did, then and there, knowingly, wilfully, unlawfully, feloniously accomplish an act of sexual intercourse with one Ida Deshazer, a .female person, and not the wife of the Said Frank Adams, by means of force and violence of him, the said Frank Adams, overcoming the resistance of her, the said Ida Deshazer, she, the said Ida Deshazer, then and there resisting said act, and being then and there incapable through lunacy and other unsoundness of mind of giving legal consent, contrary to the form of the statute and the Constitution of the state of Oklahoma in such case made and provided, and against the peace and dignity of the state of Oklahoma.”

The defendant filed a motion to set aside the indictment upon the grounds as follows, to wit:

“First. That the said indictment shows upon its face duplicity, in this: That an act done on the 3d day of August, .1907, could not have been done against the state of Oklahoma, of which this court will take judicial notice was not in existence at that time.

“Second. That the said indictment is not entitled in a court having authority to prosecute an offense against a different jurisdiction.

“Third. That the act charged as the offense is not clearly and distinctly set forth in ordinary and concise language without repetition.

“Fourth. That the act attempted to be charged as the offense is not clearly and distinctly set forth in such a manner as to enable a person of common understanding to know what is intended.

“Fifth. That the act attempted to be charged as the offense is not stated with such a degree of certainty as to enable the court to pronounce judgment upon a conviction according to the right of the case.

“Sixth. That said indictment charges two separate and distinct affirmative offenses and has allegations which are inconsistent with each other, and by reason of such duplicity the defendant is not clearly and distinctly charged in a manner required by law.

"Wherefore this defendant prays that he be not required to answer to a charge under said indictment, and that the same be set aside.”

This motion was overruled and exception allowed, and counsel for defendant asked the court to consider the same filed as a demurrer, which was by the court granted. The demurrer was overruled and exception allowed. 'When the jury was impaneled, the defendant entered an objection to any testimony under the indictment upon the grounds as stated in the motion and demurrer. The objection was overruled and exception allowed.

These rulings of the trial court are complained of as erroneous, and it is argued that:

“The crime, if committed, was a violation of the decree of the sovereign power of the United States, proclaimed through its subordinate, the territory of Oklahoma. This defendant is prosecuted, not for violating a law of the territory of Oklahoma, but for violating the laws of the state of Oklahoma, which were not in existence at the time of the alleged act.”

This question has been passed upon by this court in the case of Faggard v. State, 3 Okla. Cr. 159, 104 Pac. 930, wherein Mr. Judge Owen, delivering the opinion of the court, said:

“It is next urged that the court was without jurisdiction for the reason that the indictment was in the name of the state of Oklahoma, and concluded with the words 'against the peace and dignity of the state/ The Constitution of the state (section 192, Bunn’s Ed.) is as follows: 'The style of all writs and processes shall be ''The State of Oklahoma.” All prosecutions shall he carried on in the name and by the authority of the state of Oklahoma. All indictments, informations, and complaints shall conclude, ''Against the peace and dignity of the state.” ’ Under this section the form of the indictment is proper. The indictment contains an allegation that'the acts complained of were contrary to the form of the statute in such cases made and provided. This means against the statute in force at the time the offense was committed. The defendant was certainly not deprived of any substantial protection by reason of the form of the pleading, and the district court of Pittsburg county had jurisdiction of the case, and we deem it unnecessary to do more than cite the authorities in which the same question has been disposed of. Ex parte Lyda Howland, 3 Okla. Cr. 142, 104 Pac. 927; Ex parte Curlee, 20 Okla. 192, 95 Pac. 414; Higgins v. Brown, 20 Okla. 355, 94 Pac. 703; Id., 1 Okla. Cr. 33 [94 Pac. 703]; Packer v. People, 8 Colo. 362, 8 Pac. 564, and authorities there cited.”

It is also argued that:

“The indictment charges resistance and incapability of resistance. This is duplicity, and is prejudicial because it enables the state to deny and affirm an element of the act charged.”

Rape is defined in our Criminal Code as follows (section 2353, Snyder’s St.) :

“Rape is an act of sexual intercourse, accomplished with a female, not the wife of the perpetrator, under either of the following circumstances: 1st. Where the female is under the age of sixteen years. 2nd. Where the female is'over the age of sixteen years and under the age of eighteen, and of previous chaste and virtuous character. 3rd. Where she is incapable through lunacy or any other unsoundness of mind, whether temporary or permanent, of giving legal consent. 4th. Where she resists but her resistance is overcome by force and violence. 5th. Where she is prevented from resistance by threats of immediate and great bodily harm, accompanied by apparent power of execution. 6th. Where she is prevented from resisting by any intoxicating, narcotic, or anesthetic agent, administered by or with the privity of the accused. 7th. Where she is at the time unconscious of the nature of the act and this is known to the accused. 8th. Where she submits under a belief that the person committing the act is her husband, and this belief is induced by artifice, pretence or concealment practiced by the accused, or by the accused in collusion with her husband with intent to induce such belief. And in all cases of collusion between the accused and the husband of the female, to accomplish such act, both the husband and the accused shall be deemed guilty of rape.”

The indictment charges the crime under the third subdivision of the statute, and the allegation that the act of sexual intercourse was accomplished by means of force and violence may be treated as surplusage. However, we believe that this allegation would be fully sustained by proof of carnal intercourse, where the female is incapable through lunacy or any other unsoundness of mind of giving legal consent. Upon such proof the law conclusively presumes that the carnal intercourse was by force and violence. The statute having declared that a female is incapable through lunacy or any other unsoundness of mind of giving legal consent, any carnal connection with such a female is necessarily against her consent and forcible. Rape is defined in the Penal Code of California in section 261, vol. 4, Kerr’s Code, and the subdivisions of said section ana almost identical with our statute. In the case of People v. O'Brien, 130 Cal. 1, 62 Pac. 297, the court said:

“The offense charged, as alleged in the information, and as defined in the instructions, consisted in the defendant’s having sexual intercourse with the prosecutrix, ‘who (it is alleged) was * * * prevented from resisting said act * * * by certain intoxicating, narcotic, and anaesthetic substance administered to her by and with the privity of’ defendant. The information was demurred to on the ground of uncertainty — the point of the objection being that the substance administered to the prosecu-trix was alleged to be ‘at once intoxicating, narcotic, and ansees-thetic/ and that the particular kind of substance is not named. But the objection, I think, is untenable. It is well settled that 'where the statute enumerates several acts disjunctively, which separately or together shall constitute the offense, the indictment, if it charges more than one of them, which it may do, and that, too, in the same count, should do so in the conjunctive' (People v. Tomlison, 35 Cal. 603; People v. Thompson, 111 Cal. 242 [43 Pac. 748]; People v. Layshon, 108 Cal. 440 [41 Pac. 480], and cases cited; Wharton's Criminal Pleading and Practice, §§ 162, 251); and this rule has been applied to cases where' several intents are enumerated in the statute as elements of the offense (People v. Ah Woo, 28 Cal. 206; Angel v. Commonwealth, 2 Va. Cas. 231); and also to cases like the present, where different means of perpetrating the offense are enumerated (Wingard v. State, 13 Ga. 396), though in the last case, and in certain other exceptional cases, it may be that a disjunctive allegation is permissible (Pen. C'ode, § 954; Wharton's Criminal Pleading and Practice, § 161, ad fin.).”

In the case of People v. Jailes, 146 Cal. 301, 79 Pac. 965, the court in construing this section said:

“All these allegations might undoubtedly have been joined in one count, for there is nothing inconsistent in them, or 'ithe second count might have been entirely omitted, for testimony showing the existence of the facts alleged therein would have been sufficient to sustain a conviction under the allegations of the first count. People v. Snyder, 75 Cal. 323, 17 Pac. 208; People v. Vann, 129 Cal. 118, 61 Pac. 776.”

Rape committed upon a female incapable through lunacy or any other unsoundness of mind of giving legal consent, or accomplished by means of force overcoming her resistance, is rape in the first degree. Section 2356, Snyder’s St. There being no difference in degree and the punishment being the same, the defendant could not be prejudiced by reason of the allegation of force and violence. We are clearly of the opinion that the rulings of the trial court upon the sufficiency of the indictment should be sustained.

By-the evidence on the part of the state, it appeared that the victim was a feeble-minded girl about 20 years of age. At the age of nine years she could not talk, but at that age she entered a deaf and dumb institute, attending eight terms of ‘nine months each. She was partly deaf and partly dumb, but had learned to interpret a'question partly by sound and partly by lip reading. The record shows that, when she was sworn the first time as a witness, she apparently did not fully understand what was said to her, but when she was sworn the second time, she heard and understood fairly well the questions asked. She and other members of the family on the day charged were in Pawnee, attending a picnic. In the evening the defendant met her, invited her to take a buggy ride, and drove with her to a lonesome place in the timber, and there, by force overcoming her resistance, accomplished the act. 'The defendant was arrested at Pueblo, Colorado, two days later.

Dr. Walers testified in substance that she did not appear to have a developed mind; that the condition of her mind was more like that of a little girl 10 or 11 years old than that of an adult woman. Dr. Phillips testified that he had known her about 12 years, and from his knowledge of her and from his examination her mind appeared to be that of a child about 10 years of age. Her father and married sister testified that she had been feeble-minded since early childhood.

The defendant, testifying on his own behalf, denied the act, but admits that he hugged and kissed her and solicited the consent; that she refused, and he drove back to Pawnee.

It is assigned as error “that the court erred in permitting the witness Ida Deshazer to testify over the objection by defendant; exception being taken thereto by defendant as to her competency.-” When a witness is objected to on the ground that he or she is incompetent by reason of want of intelligence, it is the province of the trial court to determine the witness’ competency, and its decision will not be reviewed unless there is a clear abuse of discretion, or the court admits or rejects the witness upon an erroneous view of a legal principle. Upon the question of this witness understanding the obligation of an oath, the trial court after a full examination held that she was competent. We are of the opinion that the court properly permitted the witness to testify.

It is also assigned as error that the court erred in admitting evidence over the objection and exception of the defendant of non-expert witnesses as to the mental condition of prosecutrix. The record shows that the father and a married sister of prose-cutrix were permitted to testify to facts, circumstances, and conduct on the part of the prosecutrix tending to show mental weakness from the time of her childhood. We are of opinion that this evidence was properly admitted to show that she had been feeble-minded from her childhood, and to show by reason of her unsoundness of mind she was incapable of giving legal consent. Legal consent presupposes aap. intelligence capable of understanding the act, its nature, and possible consequences. This degree of intelligence may exist with an impaired and feeble intellect, or it may not. Whether the victim possesses mental capacity sufficient to give legal consent must, save in exceptional cases, remain a question of fact for the jury. After a careful examination of the record, our conclusion is that the evidence abundantly supports the verdict, and that the defendant has had a fair and impartial trial in the manner prescribed by law.

i The judgment of the district court of Pawnee county is therefore affirmed.

FURMAN, PeesidiNG Judge, and ARMSTRONG, Judge, concur.


author: DO'YLE, Judge

text:
    WILLIAM MARTIN v. STATE.
    No. A-406.
    Opinion Filed April 18, 1911.
    (114 Pac. 1112.)
    1. INDICTMENT AND INFORMATION — Sufficiency of Verification. An information charging murder, verified by the co unty attorney, he having no personal knowledge of the facts therein stated, is not in derogation of the defendant’s constitutional guaranty that no warrant shall issue but upon probable cause supported by oath or affirmation, where the prosecution was in fact predicated upon the evidence taken upon the preliminary examination, and the action of the examining magistrate in holding the defendant for trial in the district court.
    2. SAME. In the absence of a statute requiring verification, the county attorney, acting on his official oath, may present an information charging murder, where the defendant, having had a preliminary examination before an examining magistrate, was held to the district court for trial for the felony charged.
    3. TRIAL — Instructions—Requests. Where the instructions given by the court on a trial for murder contain a correct and comprehensive statement of the law of self-defense applicable to the facts in the case, it is not error to refuse requested instructions substantially the same, differing only in form.
    (Syllabus by the Court.)

      Appeal from District Court, Haslcell County; Malcolm E. Rosser, Judge.

    William Martin was convicted of manslaughter, and he appeals.
    Affirmed.
    Plaintiff in error was charged by information filed in the district court of Haskell county with the crime of manslaughter. Said information, in substance, charged that on the 27th day of ^December, 1908, he feloniously and with the premeditated design to effect the death of one Pete Folsom, did stab, thrust, cut at, upon, and into the neck of him, the said Pete Folsom, with a certain knife, then and there and thereby inflicting one mortal wound from which he then, and there did die.
    Upon the trial the jury returned their verdict, finding Mm guilty of manslaughter in the first degree, and assessing his punishment at imprisonment for a term of four years. Judgment and sentence in accordance with the verdict was entered on June 18, 1909. An. appeal was taken by filing, November 4, 1909, with the clerk of this court a petition in error with case-made attached.
    The facts briefly stated are in substance as follows: The defendant, together with Davis Cooper, Davis Perry, and Pete Folsom, the deceased, all Choctaw Indians, were at the home of the defendant’s mother. Soon after dark they started to Stigler, distant about one mile. They rode horseback; Davis Perry and Davis Cooper on one horse, and the defendant and the deceased on the defendant’s horse. On the way to town they all stopped and drank from a bottle of alcohol. When about halfway, the first two were ahead of the defendant and the deceased. Hearing them quarreling, they rode back and found the defendant on top of the deceased; they took him off and struck a match, and saw that deceased was hurt. Davis Perry said, “We must go for a doctor,” and the defendant said, “I’ll go for a doctor myself/’ and took his horse and rode to Stigler, and there met the sheriff and the city marshal, and stated to- them That he had found a man lying on the road with his throat cut, and that he wanted to get a doctor.” The officers asked him who the man was, and he said he did not know; they asked him whether he was a white man or an Indian, and he said that he did not know; he said “that lie was riding along and struck a match to light a cigar, and saw some one lying in the road; saw a man lying there with his throat cut and the blood running.” ffhe sheriff then asked him, “How eome blood on your hat?” He did not answer, and he ordered him put in jail. A doctor was called and with the officers immediately went to the place indicated, and found Pete Folsom with a wound in his neck, bleeding to death. He recognized the sheriff and spoke to him, stating: “Billey killed me; out my throat. I am going to die.” The sheriff searched him and did not find any weapons. Ha also searched Cooper and Perry, and found a pocket knife, with the point of the blade broken off, in Cooper’s pocket. Folsom was removed; to the doctor’s office for treatment and there died a few hours later.
    The defendant claimed that he did the catting in his necessary self-defense. As a witness on his own behalf, his testimony as to the circumstances immediately attendant upon the killing was in substance the same as that of Davis Cooper and Davis Perry,' witnesses for the state. He testified that all four left Mrs. Martin’s together, where they had been drinking, but that he was not drunk. He further testified as follows:
    “Q. Begin there and tell the jury how the trouble came up between you and Pete, from where you stopped. A. After we taken the first drink and come on, Pete wanted to go back to the old lady’s, and I told him, 'Old lady would not like for us to come back,’ and he says, 'Let’s go on and catch' up with the boys,’ and I says, 'Let’s don’t run the horse; the road is pretty bad; the horse might fall down and hurt us,’ and he batted me on the shoulder and says, 'Willie, what do you think of my sparking your sister?’ and I says, 'See the old folks; she is of age; I have nothing to do with it.’ When I said that, he gritted his teeth, and I says, 'Pete, you have got a family; if you want to go to see any of the rest of the girls, it would be right for you to get a divorce.’ That was the last I said until we come to the branch. He got hold of me and got the quart of booze in my bosom. He got hold of my vest and said, 'Billey, God damn you, you don’t like me; I will cut hell out of you, you son of a bitch,’ and he throwed me off the horse. The horse was on the right of the ditch; road was running close to the ditch, and he throwed me off. I got on top of him — I believe like this; and I got on top of him. I was stepping off him, and he make the remark, 'that he was going to cut me.’ That was why I struck him with a knife. Í don’t know where I cut him. Q. You don’t know where on his person you hit him? A. No, sir; just struck him with that knife. Q. Go ahead. A. Then, after I struck him with the knife, we were both in the ditch, and I kicked him over, and I got on the side of him. He was trying to get up, and I got hold of his arm and the boys run up. Cooper got hold of me and pulled me over on the back. Perry grabbed him and held him back, and he said, 'Folsom was hurt,’ and some one said, 'Go for the doctor,’ and I said, T will go and get the doctor myself.’ I got on and went to Stigler and stopped in front of the Stocker Drug Store. I inquired for Counterman; some one phoned, and he was not there. Q. yon heard the statement of some of the officers as'to what yon said abont the matter when yon came to town; why did yon make those statements? A. Why, the reason I made those statements I didn’t have time to be talking abont this thing, 'because I was in a hurry to get the doctor and help Folsom.”
    Several witnesses testified that the deceased had the reputation of being quarrelsome when he was drinking.

      Brown & Lawrence, for plaintiff in error.

      Chas. West, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   DO'YLE, Judge

(after stating the facts as above). Various errors are assigned in the petition for a reversal of the judgment, but only three are argued in the brief. The first is that: “The court erred in refusing to permit defendant to introduce evidence to show that the county attorney who verified the information had no personal knowledge of the alleged crime.” Upon his arraignment the defendant filed a motion to set aside and quash the information: “For the reason that neither of the informa-tions are sworn to by a person who knows the facts therein stated to be true, or by a person who has any personal knowledge of any of the facts of this cause.” The defendant thereupon called Joseph W. Foster, the county attorney who verified the informa-tions, as a witness, proposing to prove by him that he had no personal knowledge of the alleged crime. The court of its own motion refused to permit the witness to answer any question pertaining to his knowledge of the crime, and the defendant excepted. There is no merit whatever in this assignment. The case-made not only contains the proceedings had upon the trial, but also the testimony taken in support of the complaint filed before the county judge upon the preliminary examination. The constitutional requirement of probable cause, supported by oath or affirmation, to authorize the detention of the accused was fully met by the evidence taken upon the preliminary examination without objection on the part of the defendant, and by his having been held to the district court for trial by the examining magistrate.

In the case of Henson v. State, 5 Okla. Cr. —, 114 Pac. 630, this court said:

“The verification is no part of an information charging a felony, and is therefore not an indispensable requisite. The object of such verification is not, as in misdemeanors, for a showing of probable cause supported by oath or affirmation, to authorize the arrest of the accused, and it is not for the purpose of evidence which is to be weighed and passed upon, but only, as we believe, to secure good faith and as a matter of good form in pleading.”

See, also, In re Talley, 4 Okla. Cr. 398, 112 Pac. 36.

The remaining assignments relate to instructions requested and refused, and to instructions given. We have examined with care the instructions given and refused. Those given embrace a full and correct exposition of the law bearing upon the facts of the case, and we find no legal objection to the instructions excepted to. The instructions requested and refused relate to the law of self-defense. No. useful purpose could be served by a repetition of the same thing in different language, and it was clearly not error for the court to refuse requested instructions which were substantially similar to those given. The record shows that the evidence in the ease was received without objection. The facts admitted or conclusively established seem to us to exclude every reasonable doubt as to the justice of the judgment.

In conclusion we simply add that a careful examination of the record discloses that the defendant had a fair and impartial trial in the manner prescribed by law.

Wherefore the judgment of the district court of Haskell county is affirmed.

FUBMAN, PRESIDING Judge, and ABMSTBONG, Judge, concur.


author: FUKMAN, PRESIDING Judge.

text:
    W. E. AULT v. STATE.
    No. A-350.
    Opinion Filed April 18, 1911.
    (115 Pac. 128.)
    1. APPEAL — Time for Perfecting. Under section 6948 of Snyder’s Comp. Laws 1909, where an appeal in a misdemeanor -case is not perfected within 60 days after the rendition of judgment therein, the record must show a proper order of the trial court or judge, made before the expiration of said 60 days, extending the time within which the appeal may be taken, else the appeal must be dismissed.
    2. CONSTITUTIONAL LAW — Retroactive Law — Appellate Procedure. The act requiring appeals in misdemeanor cases to be taken within 60 days after rendition of judgment is applicable to offenses committed prior to ■ its passage, where the defendant is not tried until after the act became effective.
    (Syllabus by the Court.)

      Appeal from Rogers County Cowrt; Archibald Bonds, Judge.

    W. E. Ault was convicted of violating the prohibitory law, g,nd he appeals.
    Dismissed, with directions.

      8'mith C. Matson, Asst. A tty. Gen., for the State.
   FUKMAN, PRESIDING Judge.

This is an attempted appeal by a transcript of the record. Section 6948 of Snyder’s Comp. Laws Okla. 1909, is as follows:

“In misdemeanor cases the appeal must be taken within sixty days after the judgment is rendered: Provided, that the trial court or judge máy, for good cause shown, extend the time in which such appeal may be taken not exceeding sixty days. In felony eases the appeal must be taken within six months after the judgment is rendered, and a transcript in both felony and misdemeanor cases must be filed as hereinafter directed.”

This statute took effect on the 11th day of June, 1909. The information in this ease charged the' commission of the offense on the 11th day of March, 1909, but the defendant was not tried until the 16th day of July, 1909, which was more than a month after the above statute went into effect. The statute requiring appeals relates only to procedure, and is not therefore ex post facto, and is applicable to and controls appeals in all cases where the trial occurred after the law went into effect. Ensley v. State, 4 Okla. Cr. 49, 109 Pac. 250; Hughes v. State, 4 Okla. Cr. 333, 111 Pac. 964.

In the case at bar judgment was rendered against the appellant on the 17th day of July, 1909, and the record fails to show that any order was made by the county court extending the 60 days within which the statute required that an appeal be taken. The appeal was not filed in this court, and therefore perfected, until the 9th day of October, 1909, which was long after the time allowed by the statute for perfecting the appeal had expired. We are therefore without jurisdiction to consider this appeal, and it must be dismissed. See Simmons v. State, 4 Okla. Cr. 10, 109 Pac. 79; Freely v. State, 4 Okla. Cr. 21, 109 Pac. 239; Scott v. State, 4 Okla. Cr. 657, 112 Pac. 763; James Farmer v. State, ante, 114 Pac. 753, decided at the last term of this court. We must therefore sustain the motion of the Assistant Attorney General.

'This appeal is dismissed, with directions to the county court of Eogers county to proceed with the execution of its judgment.

AEMSTBONG and DOYLE, Judges, concur.


author: FURMAN, PRESIDING Judge.

text:
    TODD CHEEVES v. STATE.
    No. A-343.
    Opinion Filed April 18, 1911.
    (114 Pac. 1125.)
    1. STATUTES — Construction of Penal Statutes. The penal laws of Oklahoma are liberally construed to reach and destroy the evils at which they are aimed.
    2. INDICTMENT AND INFORMATION — Allegation and Proof of Facts. The facts necessary to constitute an offense must .be charged in an information or indictment and proven upon the trial. A failure to do either of these things will be fatal to a conviction.
    3. GAMING — Definition. Gaming includes all contests of strength, skill, or chance, between men or beasts, upon the result of which a wager is laid.
    4. INDICTMENT AND INFORMATION — Public Sport — Information — Conclusion of Law. To charge in an information or indictment that a defendant has committed an offense by assisting in a public sport on the 'Sabbath, without alleging such facts as are necessary to show that the acts in which the defendant assisted did constitute a public sport, does not do more than charge a conclusion of law, and a demurrer to an information containing such charge should be sustained.
    5. SUNDAY — Public Sports — Base Ball. A game of baseball played on the Sabbath where an admittance, fee is charged to witness such game fixes the character of such game as a public sport, and all who engage or take part in it are liable to prosecution and conviction under the law.
    (Syllabus by the Court.)

      Appeal from Stephens County Court; W. H. Admire, Judge.

    Todd Cheeves was convicted of assisting in a public sport on the Sabbath day, and appeals.
    Reversed.

      Gilbert & Bond, for appellant.

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

The charging part of the information in this case is as follows:

“Did then and there, on the Sabbath, or Lord’s day, engage in a game of baseball, which was played by and between the Duncan Baseball Team, and the Rush Springs Baseball Team, the said Todd Cheeves then and there acting in the capacity of umpire for the respective teams, so engaged in said game of baseball, the same being then and there a public sport.”

Defendant filed a demurrer to this information upon the ground that it did not state facts sufficient to constitute a violation of the laws of the state of Oklahoma. Section 2060 of Snyder’s Comp. Laws Okla. 1909 is as follows:

“The following are the acts forbidden to be done on the first day of the week, the doing of any of which is Sabbath-breaking. 1st. Servile labor. 2nd. Public sports. 3rd. Trades, manufactures and mechanical employments. 4th. Public traffic. 5th. Serving process, unless authorized by law so to do.”

Section 2063 of Snyder’s Comp. Laws Okla. 1909 is as follows:

“All shooting, sporting, horse racing, gaming or other public sports, upon the first day of the week, are prohibited.”

Section 2067 of Snyder’s Comp. Laws Okla. 1909 is as follows :

“Every person guilty of Sabbath-breaking is punishable by a fine of one dollar for each offense.”

As these different statutes cover the same ground and include the same acts, they must all be construed together and in harmony with each other. It is contended in the brief of counsel for appellant that, as these are penal statutes, they must be strictly construed. We cannot agree with this contention. In fact, we are forbidden to construe penal statutes strictly by an express provision of our own statutes. Section 2027 of Snyder’s Comp. Laws Okla. 1909 is as follows:

“The rule of common law that penal statutes are to be strictly construed, has no application to this code. All of its provisions are to be construed according to the fair import of their terms, with a view to effect its objects and to promote justice.”

Under this statute, we are required to construe the penal statutes of this state liberally, according to the fair import of their terms, and with a view to effect their objects and to promote justice, and whenever we can reasonably do so we will give each statute such a construction as will enable it to reach and destroy the evil at which it is aimed.

The offense attempted to be charged in the information cannot come under the term of gaming used in section 2063 of Snyder’s Comp. Laws Okla. 1909, because gaming has a clearly defined legal meaning. It means all contests of chance, strength or skill, between men or beasts, upon the result of which a wager is laid. The information does not contain allegations of these facts. As far as the question now before us is concerned, it is evident that any public sport participated in on the first day of the week is Sabbath breaking within the meaning of the statutes above quoted. It is also equally clear that it was not the intention of the Legislature to prohibit all kinds of sports on the Sabbath, but that the provisions of the law are aimed only at all public sports participated in on the Sabbath, and that it was not the intention of the lawmaking power to include private sports therein. It makes no difference what may be the individual views of the members of this court upon this subject, we would violate our official oaths and be recreant to our duty if. we included private sports within the inhibition of the law, when the Legislature has clearly manifested the intention to exclude them therefrom. We have no lawmaking power. Our entire duty is done when we see that the intention of the Legislature is carried into effect. The line of demarcation between private sports and public sports is clear. Private sports are those which are engaged in for the entertainment and pleasure of those who participate therein. Public sports are those which are engaged in for the entertainment and pleasure of the public. Because. other persons than those engaged in a private sport may be entertained thereby would not .bring such private sport within the meaning of the law. As the law does not make private sports an offense against thé statutes, but confines its penalties to those who engage in public sports, a line'of demarcation must exist which will distinguish public sports from private sports. In order to constitute a public sport, it must have been given for the entertainment of the public, which is evidenced by the fact that it is paid for by the public. We therefore hold that, when a game of baseball is played on the first day of the week and an admittance fee is charged for witnessing the game, this fixes the character of such game as a public sport, and all who engage or take part in it are liable to prosecution and conviction under the law.

The information in this case failing to allege that the game alleged to have been played was a contest of strength, skill, or chance between men upon the result of which a wager was laid, or that an admission fee was charged the public to witness such game, it fails to state facts which are necessary to constitute a violation of the law. The facts necessary to constitute an offense must be charged in an indictment or information’ and proven upon the trial. A failure to do either of these things is fatal to a 'conviction. The demurrer to the information should have been sustained.

.The attention of the Legislature is ^respectfully called to the statutes upon the subject of Sabbath desecration. They are loosely drawn, and the punishment is inadequate to secure their enforcement. They should either be amended or repealed. We do not like to speak disrespectfully of any legislative act, but our present laws upon the subject of Sabbath breaking are a miserable farce.

The judgment of the lower court is reversed, and the cause is remanded, with directions to the trial court to sustain the demurrer to the information.

ARMSTRONG and DOYLE, Judges, concur.


author: ARMSTRONG, Judqe.

text:
    CHARLIE REED v. STATE.
    No. A-349.
    Opinion Filed April 18, 1911.
    (114 Pac. 1114.)
    1. APPEAL — Conduct of Judge — Reversal. When a conviction is had upon a record showing that the trial court in the presence of the jury orders a material witness for defendant, or the defendant, held upon s> charge of perjury, alleged to have bee», committed in giving his testimony in the trial, such judgment will be reversed, and a new tridi awarded.
    2. TRIAL — Conduct of Judge. — Comment on Witness. It is the duty' of trial courts to refrain from allowing their actions or words to indicate to the jury their opinion of the credibility of any witness who testifies in a case upon trial before them, or of the merits of any such case.
    (Syllabus by the Court.)

      Appeal from Crnter County Court; A. H. Latimer, Judge.

      Charlie Reed was convicted of selling intoxicating liquors, and appeals.
    Reversed and remanded.

      Holcomb & Bulow, for plaintiff in error.

      Fred S. Caldwell, for the State.
   ARMSTRONG, Judqe.

The plaintiff in error, Charlie Reed, was convicted in the county court of Custer county on the 10th day of October, 1908, for selling intoxicating liquor, and has perfected his appeal in this court.

The only question necessary to consider in determining this appeal is the allegation of misconduct on the part of the trial court and county attorney. It appears that the trial court ordered the plaintiff in error, upon the request of the county attorney, in open court and in the presence of the jury, to be held on a charge of perjury alleged to have been committed in giving his testimony in the trial, at the close of the defendant’s testimony and before he left the stand. The record discloses the following proceeding:

"The county attorney asks that the sheriff hold this boy in his custody — that he believes that he has wilfully perjured himself. Whereupon, in the presence of the jury, the court had the defendant placed in the custody of the sheriff for perjury. To which the defendant excepts.”

Such conduct as this on the part'"of trial courts and prosecuting attorneys cannot be overlooked by this court, and a judgment of conviction, had upon a record showing such procedure, will be set aside on appeal, and a new trial awarded.

Prosecuting attorneys and the trial courts cannot be excused for making such blunders. The most liberal advocate of the doctrine of harmless error could not insist that a conviction secured under such circumstances should be allowed to stand. Every person brought to the bar of justice is entitled to a fair and impartial trial under the law. The action of the court in this case, in ordering the .defendant into the custody of the sheriff on a charge of perjury upon the request of the county attorney, was in effect saying to the jury that the court was of the same opinion as that expressed by the county attorney. Trial courts should carefully refrain from allowing their actions or words to indicate to the jury any opinion whatever as to the merits of any case upon trial before them, or their idea of the credibility of any witness who testifies, before a verdict is rendered, and especially so in the trial of criminal cases.

There are other errors in this record; but for that indicated the judgment is reversed, and this cause remanded to the county court of Custer county, with directions to grant the plaintiff in error a new trial.

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


author: ARMSTRONG, Judge.

text:
    J. R. WILSON v. STATE.
    No. A-341.
    Opinion Filed April 18, 1911.
    (114 Pac. 1126.)
    1. TRANSFER OF CAUSES — Transfer of Misdemeanors to County Court. When an indictment for a misdemeanor is returned hy a grand jury to the district court, it is necessary for an order to be made by that court transferring the cause, together with all orders and papers in the case to the county court; and the district court has no authority to make any other order in such cases.
    2. SAME — Jurisdiction. When no order is made by the district court transferring indictments for misdemeanors to the county court as provided by law, the county court does not acquire jurisdiction to try such cause; and when the record on appeal fails to disclose such an order, the cause will be reversed, and a new trial awarded by this court.
    (Syllabus by the Court.)
    Appeal from Stephens County Court; W. H. Admire, Judge.

    J. R. Wilson was convicted of an illegal sale of liquor, and appeals.
    Reversed and remanded.

      Gilbert & Bond and E. E. Morris, for plaintiff in error.

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

The record in this case shows that an indictment was filed by the grand jury against the plaintiff in error in the district court of Stephens county on the 29th day of October, 1908, charging him with selling intoxicating liquors, and on the same date a warrant for the apprehension of plaintiff in error was issued out of said court, and his bond fixed at $500, and, further, that on the 2d day of November, 1908, the indictment was filed in the county court of Stephens coupty but by whom and on what authority is not shown. On the 21st day of November, 1909, the warrant theretofore issued out of the district court was filed in the county court.

The record nowhere discloses an order from the district court transferring the cause as the law provides, and no explanation of how this cause got into the countv court appears. On the authority of the case of Hendrix v. State, ante, 113 Pac. 544, decided by this court at the January term, wherein these questions are fully discussed, the opinion having been filed on February 6, 1911, this cause is reversed, and remanded to the county court of Stephens county, with instructions to proceed with it as the law in such cases demands.

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


author: ABMSTBONG, Judge.

text:
    ELI NELSON v. STATE.
    No. A-374.
    Opinion Filed April 18, 1911.
    (114 Pac. 1124.)
    1. TRIAL — Indorsement of Witnesses — Rights of Accused, (a) It is an abuse of -discretion for the trial court to permit the county attorney to withhold the names of important prosecuting witnesses until the case is called for trial, and then allow them to be indorsed upon an indictment or information, and force the defendant to proceed to trial without a fair opportunity to meet the testimony of such witnesses, and especially so when the county attorney has had such witnesses subpoenaed but failed to serve any notice on defendant or his counsel that sfcch witnesses were to be used in chief.

      (b) When, in the exercise of discretion, the trial court permits names of witnesses to be indorsed on an indictment or information, to be called in chief by the state, upon a reasonable showing the defendant should be given an opportunity to meet the testimony of such witnesses.
    2. TRIAL — Instructions—Reasonable Doubt, (a) An instruction defining reasonable doubt should not be given by the trial courts of this state, except upon proper request by defendant.
    (b) An instruction on reasonable' doubt containing advice to the jury which in effect tells them they are at liberty to ignore their oath in determining what testimony convinces beyond a reasonable doubt is erroneous, and sufficient to entitle the defendant to a new trial.
    (Syllabus by the Court.)

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

    Eli Nelson was convicted of assault with intent to kill, and appeals.
    Beversed and remanded.

      J. G. Balls, D. II. Linebaugh, and J. H. Gemert, for appellant.

      Charles West, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   ABMSTBONG, Judge.

The plaintiff in error, Eli Nelson, was prosecuted in the district court of Atoka- county on au indictment charging him with shooting one Mike Leflore with intent to kill. He was convicted and sentenced to serve a year in the penitentiary. From the judgment he appeals, and his appeal has been properly perfected. There are only two assignments of error that we deem it necessary to discuss.

First, is the error complained of in the court permitting the county attorney to indorse the names of certain witnesses to be called in chief immediately before the calling of the case for trial, and in overruling defendant’s motion for a continuance on the ground of surprise. The record discloses the fact that the two witnesses whose names were endorsed on the indictment were eye-witnesses to the transaction, that they had been subpoenaed several days before, and no notice had been given either to the defendant or his counsel that the state would call them in chief. Immediately upon the court permitting the endorsement of the names' of these witnesses on the indictment, counsel for the defendant filed a lengthy motion for continuance. The motion is very general in its nature, and we are not able to determine from reading it just how the defendant expected to meet or could have met the testimony of these witnesses. If the motion had been explicit and contained facts showing that the defendant could have introduced witnesses, giving facts they would testify to, to meet the testimony of these two witnesses, this case would certainly have to be reversed upon this ground. These matters are addressed to the sound discretion of the trial court, but we think it would be a clear abuse of discretion such as would entitle the defendant to a new trial for the trial court to permit the county attorney to withhold the names of important witnesses until the case is called for trial, and then refuse a continuance in order to permit the person on trial to be able to meet the testimony of the-witnesses so indorsed, if a reasonable showing is made that he could be able to have such testimony or such witnesses. Common fairness would not permit a practice of this kind.' The only witness that the .defendant names in his application for a continuance was a witness who had been before the examining magistrate, and for whom a subpoena had been issued by the state. The record shows that the defendant had not endeavored to procure the attendance of this witness by securing process, and the only showing whatever indicating that he really wanted the witness is his statement in his affidavit that he had tried to find him. We do not thick that the affidavit shows sufficient diligence so far as this particular witness is concerned. No other witness having been named, .and no facts sufficient to show that the defendant could meet the testimony of these witnesses having been set up, we think the •court properly overruled the motion for continuance.

The next assignment we shall consider is that involving the •eighth instruction of the court, attempting to (define reasonable doubt. The court, after telling the jury what a reasonable doubt is not, correctly defines the same, and then closes the instruction with the following very unusual comment:

“You are not at liberty to disbelieve- as jurors, if from the evidence you believe as a man. Your oath imposes upon you no obligation to doubt, where no doubt would exist if no oath had been taken.”

Such instructions as this have been repeatedly criticised and condemned by this court. A great many of the instructions condemned have not been as vicious' as this. The effect of this instruction is to advise the jury to disregard their oaths as jurors. If a juror is to be no more careful in determining what evidence convinces beyond a reasonable doubt under his oath than he would be if not under oath, then there is no use swearing the jury at all.

For the error in giving this instruction, this cause is reversed, and a new trial awarded.

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


author: PER CURIAM.

text:
    NICHOLA GUIACCIMO v. STATE.
    No. A-203.
    Opinion Filed April 18, 1911.
    (115 Pac. 129.)
    1. TRIAL — Dismissal—Failure of Evidence. While the jury is the tribunal for determining' facts questioned, where there is no evidence tending to prove the offense charged, the prosecution must be dismissed.
    2. TRIAL — Instructions—Credibility of Accused. A charge that accused is a competent witness for himself, but the jury may consider his interest in the event in determining his credibility, is erroneous.
    3. INTOXICATING LIQUORS — Illegal Possession — Sufficiency of Evidence. Evidence held not to sustain a conviction for having intoxicants with intent to violate the prohibition law.
    (Syllabus by the Court.)

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

    Nichola Guiaccimo was convicted of violating the prohibition law, and he appeals.
    Reversed and remanded.

      J. B. Miller and Grace & Haynes, for plaintiff in error.

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

The plaintiff in error was convicted in the county court of Pittsburg county on an information which charged that, on or about the 5th day of April, 1909, he did then and there, in the town of Haileyville, unlawfully have in his possession and under his control certain spirituous liquor, with the. intent then and there to violate the provision of the prohibition law. May 8, 1909, he was sentenced to serve a term of 30 days in the county jail, and pay a fine of $200, from which judgment an appeal was taken by filing in this court, on June 4, 1909, a petition in error with case-made attached.

Of the various assignments of error, after a careful examination of the record, we believe it is only necessary to consider the assignment “that said verdict and judgment was contrary to the evidence.” Outside of a few suspicious circumstances, no evidence was adduced showing that the defendant has committed the offense charged. The undisputed facts are that a constable, serving a search warrant, entered the home of plaintiff in error in his absence, and secured a part of a case of whisky, several bottles of beer, and a full barrel of beer in an outhouse. There is no substantive proof showing an unlawful purpose or intent to violate the prohibition law. Plaintiff in error, an Italian, testifying on his own behalf, said the liquors were for his personal use, and the use of his family; that he was using the whisky as prescribed by a physician for a sick child, and the beer was for his own use, and that he had never violated the prohibition law, and did not have a revenue license from the United States.

It is a cardinal principle in our jurisprudence that a jury is the ultimate tribunal for the investigation and determination of questions of fact. Where, however, the prosecution fails tq offer any testimony tending to prove the offense charged, or whether the evidence offered tends to prove anything pertinent to the issue is a question of law for the court, and where there is an entire absence of evidence to support the charge, the court should dismiss the prosecution.

The instructions given in the case are commendably correct, with the exception of the fifth, which reads:

“The jury are instructed that the defendant is a competent witness in his own behalf. The jury are entitled to take into consideration his interest, in the event of the prosecution, in determining his credibility.”

By numerous decisions of this court similar instructions have been condemned. See Hughes v. State, 3 Okla. Cr. 387, 106 Pac. 546. Under the proof in this cause, this instruction clearly constitutes error.

It is important that the criminal laws should be enforced, but it is no less important that no person be punished for crime who is innocent, and no person should be punished or deprived of his liberty, except on evidence sufficient to establish his guilt of the crime charged.

For the reasons herein expressed, the judgment of conviction is reversed, and the cause remanded to the county court of Pitts-burg county.


text:
      Ex parte JESSE ADAIR.
    No. A-1058.
    Opinion Filed April 25, 1911.
    (115 Pac. 277.)
    1. HABEAS CORPUS — Right to Relief — Jurisdiction. If the petitioner be imprisoned under a judgment of a court which had no authority to render the judgment complained of, then relief may be accorded by habeas corpus.
    2. COURTS — “Competent Jurisdiction.” A court of competent jurisdiction is one having power and authority of law at the time of action to do the particular act.
    3. INDICTMENT AND INFORMATION — Felonies in Indian Territory — Necessity of Indictment. Article 5 of the amendments to the Constitution of the United 'States, providing that “no person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury,” guarantees to a defendant, charged with the commission of a felony in the Indian Territory prior to statehood, an unalterable right to bo accused by indictment only.
    4. SAME. In such cases, the indictment is a necessary prerequisite to give the court jurisdiction.
    (Syllabus by the Court.)
    Application of Jesse Adair for writ of habeas corpus.

    Writ allowed.

      Geo. K. Powell, for petitioner.

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

The petitioner, Jesse Adair, was tried and convicted in the district court of the Third judicial district, sitting in and for Muskogee county, of the crime of forgery, and was sentenced to be imprisoned in the state penitentiary at McAlester for the term of seven years. Judgment and sentence was pronounced and entered on March 9, 1909, and was executed by delivering the petitioner to the warden of the penitentiary at Mc-Alester, where he has been and is now confined.

Petitioner avers that all the proceedings under which he was tried and convicted were coram non judice and void, and that he is deprived of his liberty without due process of law.

The petition and the answer and return to the writ show that an information was filed and presented in said district court on the 12th day of October, 1908, by the county attorney of Muskogee county, wherein said petitioner, Jesse Adair, and one Charley Thompson were jointly charged with the crime of forgery, alleged to have been committed on the 16th day of August, 1907, in that portion of the state which, prior to statehood, constituted the Indian Territory.

TJpon conviction the defendant Charley Thompson appealed to this court. The Attorney General filed a confession of error, and his conviction was reversed (Charley Thompson v. State, 4 Okla. Cr. 236, 111 Pac. 662) it there being held that:

“A defendant charged with the commission of a felony prior to statehood in that portion of Oklahoma which then constituted Indian Territory, can be prosecuted only by indictment.”

In the case of Bonaparte v. State, 4 Okla. Cr. 603, 112 Pac. 947, it was held:

“Article 5 of the amendments to the Constitution of the "United States, providing that ‘no person shall be held to answer' for a capital or otherwise infamous crime, unless on a presentment or indictment of a grand jury/ guarantees to a defendant charged with the commission of a felony in the Indian Territory prior to statehood, an unalterable right to be accused by indictment only.”

And that:

“In such cases the indictment is a necessary prerequisite to give the court jurisdiction.”

In section 20 of the Enabling Act (Act June 16, 1906, c. 3335, 34 Stat. 277), as amended by act approved March 4, 1907 (Act March 4, 1907, c. 2911, § 3, 34 Stat. 1287), it is provided that:

“All criminal cases pending in the "United States courts in the Indian Territory, not transferred to the "United States Circuit or District Court in the state of Oklahoma, shall be prose-exited to a final determination in the state courts of Oklahoma under the laws now in force in that territory.”

In Garnsey v. State, 4 Okla. Cr. 547, 112 Pac. 24, the court said:

“These provisions of the Enabling Act and the Schedule preserve the rights of persons who are charged with the commission of offenses prior to the admission of the state, and render them liable to punishment under the law. For this reason we are clearly of opinion that the constitutional provision providing for the prosecution of felonies by information was not intended to be retrospective or retroactive in its operation, and has reference only to prosecutions for crimes committed after statehood. However, it is immaterial whether the Enabling Act permitted, or the framers of our Constitution intended to provide, a new method for the prosecution of crimes committed before statehood, because in respect to such crimes the Constitution of the United States gave to the accused an unalterable right to be accused by indictment only.”

And continuing, said:

“The courts of this state, in exercising the jurisdiction conferred upon them by the Enabling Act and the state Constitution over crimes committed in Oklahoma Territory, cannot deprive the accused of substantial rights secured to him by the Constitution of the United States, such as depriving him of the right to be accused by indictment for an infamous crime, or the right to be tried by a common-law jury.”

Under the decision of this court in the case of Charles Thompson v. State, supra, and the uniform holding of this court in numerous other cases, the district court of Muskogee county did not, upon the information filed by the county attorney, acquire jurisdiction to try, convict, and sentence the petitioner for a felony alleged to have been committed in the Indian Territory before statehood. It follows that petitioner is unlawfully imprisoned under said judgment of conviction and commitment.

Wherefore the writ of habeas corpus is allowed, and it is ordered that petitioner be discharged from said judgment and commitment and that respondent, the warden of the penitentiary, deliver him to the custody of the sheriff of Muskogee county. It is further ordered that the clerk of this court forward the mandate in this case to the clerk of the district court of Muskogee count]', and that said clerk issue to the sheriff of Muskogee county said mandate, directing said sheriff to present the same without delay to the warden, and transport said petitioner to the county jail of Muskogee county, pending the further action of said district, court.

FURMAN, PRESIDING Judge, and ARMSTRONG, Judge, concur.