author: ARMSTRONG, J.

text:
      Ex parte J. R. HARRIS.
    No. A-1426.
    Opinion Filed December 7, 1912.
    (128 Pac. 156.)
    1. INDICTMENT AND INFORMATION — Variance—Larceny—Receiving Stolen Goods — Former Jeopardy, (a) In this jurisdiction, an indictment for larceny does not include the crime of receiving stolen property, knowing the same to have been stolen.
    (b) • When a person is lawfully put on trial on a charge of larceny, and a jury returns a verdict under the instructions of the court finding such person guilty of receiving stolen property, knowing the same to have been stolen, such verdict is equivalent to an acquittal on the larceny charge, and another trial cannot -be had on the indictment.
    2. HABEAS CORPUS — Void Judgment — Release of Accused. A trial court cannot render judgment imposing a sentence in the penitentiary for larceny when the verdict of the jury convicts of receiving stolen property, knowing the same to have been stolen-. And when it clearly appears that a person was tried for larceny and eonvieted by the jury of receiving stolen property, knowing the same to have been stolen, and was sentenced to the penitentiary by tbe trial court upon the original charge of larceny, such judgment is void, and the person accused is entitled to be discharged on the writ of habeas corpus.

      3. TRIAL — Judgment—Verdict. The judgment of the court must in all eases be based upon the verdict of the jury, and the verdict of the jury must be responsive to the issue joined by the .indictment or information and the plea of the person on trial thereto, otherwise the court is without jurisdiction to render judgment thereon.
    (Syllabus by the Court.)
    Petition of J. R. Harris for writ of habeas corpus.

    Writ granted.

      Summers Hardy, Wm. M. Franklin, and Geo. S. March, for petitioner.

      Smith C. Mahon, Asst. Atty. Gen., opposed.
   ARMSTRONG, J.

This is an original application for a writ of habeas corpus by J. R. Plarris, who was tried in the district court of Murray county in September, 1909, on an indictment charging him with larceny of domestic animals. The charging part of the indictment is as follows:

“ * * * £)0 present and find that in said Murray county and state of Oklahoma, on the 24th day of September, in the year of our Lord one thousand nine hundred and eight, and prior to the finding of this indictment, J. R. Harris and Charles Lewis, then and there being, did then and there by stealth willfully, unlawfully, and feloniously steal and carry away personal property of another, to wit, two bay mules and one black mare then being the property of one N. A. Armos, with willful, unlawful, and felonious'intent to deprive another thereof and to appropriate the same to their own use and benefit. And so the grand jurors aforesaid, upon their oaths aforesaid, do say and find that J. R. Harris and Charles Lewis, in the manner and form and by the means aforesaid, did willfully, unlawfully, and feloniously steal and carry away said two mules and mare aforesaid, with the willful, unlawful, and felonious intent to deprive another thereof and to appropriate the same to their own use and benefit, contrary to the form of the statutes in such cases made and provided, and against the peace and dignity of the State.”

When the case was called for trial, a severance was asked by petition and granted by the court. The trial resulted in the jury returning the following'verdict, to wit:

“We, the jury, impaneled and sworn to try the issues in the above-entitled cause, do upon our oaths, find the defendant guilty of receiving stolen property knowingly, and fix his punishment at 2years in the state penitentiary.

“JOHN L. Meyers, Foreman.”

Thereafter the following judgment was pronounced by the court:

“ * * * The prisoner above named, J. R. Harris, defendant, being personally present in open court and having been legally indicted and arraigned, and having plead not guilty to the crime of grand larceny charged in said indictment, and having been then and there in said court, duly and legally tried and convicted of said crime, and upon being asked by the court whether he had any legal cause to show why judgment and sentence should not be pronounced against him, and giving no good reason in bar thereof, and none appearing to the court: It is therefore ordered, adjudged, and decreed by the court that the said J. R. Harris be confined in the state penitentiary at McAlester, in the state of Oklahoma, for the term of two and one-half years for said crime by him committed. Said term of imprisonment to begin at and from the 18th day of September, A. D. 1909, and that said defendant pay the costs of this prosecution, for which execution is awarded. It is further ordered, adjudged, and decreed by the court that the sheriff of Murray county, state of Oklahoma, transport said J. R. Harris to the said penitentiary at McAlester, in the state of Oklahoma, and that the warden of said penitentiary do confine and imprison said defendant in accordance with this' judgment, and that the clerk of this court do immediately certify, under the seal of the court, and deliver to the sheriff aforesaid, two copies of this judgment, one of said copies to accompany the body of said defendant to the said penitentiary and to be left therewith to be warrant and authority for the imprisonment of said defendant in said penitentiary, and the other copy to be warrant and authority of said sheriff for the transportation and imprisonment of said defendant, as hereinbefore provided. Said last-named copy to be returned to the clerk of said court with the proceedings of said sheriff thereunder indorsed thereon. Done in open court this 16th day of September, 1909.

“R. McMillan, Judge.”

In the case of Vickers v. United States, 1 Okla. Cr. 458, 98 Pac. 469, discussing the principle here involved, this court in an opinion by Doyle, J., said:

“To authorize a judgment, the verdict in a criminal case must respond to the issues submitted to the jury. Its sufficiency is determined by ascertaining whether it is responsive to and covers the offense charged in the indictment. 12 Cyc. p. 690. It must contain within its system, or by reference to the indictment, every material element of the crime. Where an indictment shows a crime, a general verdict of guilty, in manner and form as charged in the indictment, is a special finding of each element of the crime as charged, and is sufficient. Reference to the indictment is limited to the crime therein charged. In this case, while the indictment is labeled 'indictment for rape,’ the only offense charged is assault, and the verdict was a verdict merely of assault and not rape, and, as a general verdict, it was not sufficient to authorize the judgment and sentence. The court did not submit to the jury whether the defendant was guilty of assault with intent to commit rape. If the indictment had properly charged the offense of rape, this offense would have been included also, and whenever the evidence, as in this case, warrants it, the duty of the court is to instruct the jury upon the other offenses included in the crime charged. Pratt v. State, 51 Ark. 167, 10 S. W. 233.”

The indictment in this case charged the petitioner with the crime of larceny of domestic animals. The verdict 'of the jury found him guilty of receiving stolen property. The judgment of the court imposes a sentence upon him for larceny. The crime of larceny under our law does not embrace that of receiving stolen property. The elements of the offense are different, and there was nothing in this indictment to put the petitioner upon notice that he would be tried upon the charge of receiving stolen property. *,

It is contended that the court did not have jurisdiction to render judgment against the petitioner for the crime of larceny upon a verdict finding him guilty of receiving stolen property, and that the jury was without lawful power to render a verdict, of guilty of receiving stolen property under the indictment. This contention is sound and is conceded by the Assistant Attorney General. See State v. Rechnitz, 20 Mont. 488, 52 Pac. 264; Gray v. State, 24 Tex. App. 611, 7 S. W. 339.

Section 20, art. 2, of the Constitution, provides that the accused shall be informed of the nature and cause of the action against him. Section 6696, Comp. Laws 1909, provides that a statement of the acts constituting the offense in ordinary and concise language, and in such manner as to enable a person of common understanding to know what is intended, shall be contained in the indictment. Section 6697, Id., provides that the indictment must be certain and direct as to the party charged, the offense charged, and the particular circumstances of the offense when necessary. Section 6699, Id., provides that the indictment must charge but one offense unless the same act might constitute different offenses, or the proof be uncertain as to which of two or more offenses the accused might be guilty, and it is then provided that the different offenses may be set forth in separate counts in the same indictment, or that the same offense might be set forth in different terms or degrees under different counts, or might be alleged in the alternative in the same count. Under these provisions, the judgment of conviction in this case was not responsive to any issue embraced in the charge. The judgment of conviction is void, and the district court of Murray county was without jurisdiction to render the same. See Gaither v. State, 21 Tex. App. 527, 1 S. W. 456; Brown on Jurisdiction, section 110.

In the case of Ex parte Justus, 3 Okla. Cr. 111, 104 Pac. 933, 25 L. R. A. (N. S.) 483, discussing the principle at issue, this court in an opinion by Owen, J., says:

“This court on habeas corpus will not look beyond the judgment and sentence of any court of competent jurisdiction as to any mere irregularities of procedure or errors in law on questions over which the court had jurisdiction. A judgment in its nature concludes the subject on which it is rendered, and pronounces the law of thé case. The judgment of a court of record, whose jurisdiction is final, is as conclusive on all the world as the judgment of this court would be. It is as conclusive on this court as on other courts. It puts an end to inquiries concerning the fact by deciding it. But there is a very material difference between an irregularity in procedure that renders a judgment voidable and revisable on a writ of error or appeal, and acts which exceed the court’s jurisdiction, or which deny to the defendant a constitutional right, and thereby render the judgment void. While the writ of habeas corpus cannot be used to perform the office of a writ of error or appeal, and the remedy by habeas corpus should be limited to cases in which the judgment or sentence attacked is clearly void by reason of its having been rendered without jurisdiction, or by reason of the court having exceeded its jurisdiction in the premises, 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. This principle is announced by the great weight of authority, and has been repeatedly adhered to by the Supreme Court of the United States. In re Lane, 135 U. S. 443, 10 Sup. Ct. 760, 34 L. Ed. 219; In re Frederick, 149 U. S. 70, 13 Sup. Ct. 793, 37 L. Ed. 653; Ex parte Tyler, 149 U. S. 164, 13 Sup. Ct. 785, 37 L. Ed. 689; In re Swan, 150 U. S. 637, 14 Sup. Ct. 225, 37 L. Ed. 1207.”

In Ex parte Gudenoge, 2 Okla. Cr. 110, 100 Pac. 39, this court, in an opinion by Doyle, J., says:

“Every exercise of power to punish a violation of a judicial order is, however, subject to one important qualification, namely: It is absolutely essential that the court making the order should have acted directly within jurisdictional limits, otherwise the disobedience of such an order will be no contempt. In the absence of jurisdiction, the judgment is a nullity; and, if the punishment be by imprisonment, the contemner will be released on the hearing of a writ of habeas corpus. Ex parte Rowland, 104 U. S. 604, 26 L. Ed. 861; Ex parte Fisk, 113 U. S. 713, 5 Sup. Ct. 724, 28 L. Ed. 1117; Ex parte Crenshaw, 80 Mo. 447. The rule, now supported by high and abundant authority and excellent reason, is that the court must not only have jurisdiction over the person and the subject-matter, but authority to render the particular judgment. People v. Liscomb, 60 N. Y. 559, 19 Am. Rep. 211; Ex parte Degener, 30 Tex. App. 566, 15 S. W. 1111; Holman v. Austin, 34 Tex. 668. In a late work on Jurisdiction, the author, in discussing the three essential elements necessary to render a conviction valid, says: 'These are that the court must have jurisdiction over the subject-matter, the person of the defendant, and authority to render the particular judgment. If either of these elements are lacking, the judgment is fatally defective.’ Brown on Jurisdiction, par. 110. ‘Such want of jurisdiction to render the particular judgment may arise either from a constitutional prohibition against the infliction of such punishment in such cases, or from the infliction of a punishment in excess of that, or the commitment may be for an indefinite time, or it may arise from the punishment, as a contempt of an act of default, which in law is not contempt.’ A. & E. Encyc. (2d Ed.) vol. 7, p. 37.”

The petitioner having been placed on trial on a charge of larceny, and the jury having found him guilty of receiving stolen property, the court could not sentence him to the penitentiary for larceny. The judgment must be based upon the verdict of the jury; the verdict of the jury must be responsive to the issue joined. As the verdict in this case has not been set aside, and the petitioner having once been in jeopardy, he cannot be again tried on this indictment. See State v. Frank Frisbie, post, 127 Pac. 1091, decided at the present term.

Let the writ issue and the petitioner be discharged.

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


source: Caselaw Access Project

license: Public Domain

text:
    L. T. COULSON v. STATE.
    No. A-1060.
    Opinion Filed December 7, 1912.
    (127 Pac. 1090.)
    APPEAL — Review—Affirmance. When, upon appeal, it appears from the record that the offense charged against appellant was committed by him, and no error is disclosed depriving him of a substantial right during or prior to the trial, a judgment of conviction will not be reversed.
    (Syllabus by the Court.)

      Appeal from Superior Court, Custer County; J. W. Lazvter, Judge.

    L. T. Coulson was convicted of violating the medical practice act, and he appeals.
    Affirmed.

      Sol. L. Long and J-ones & Linville, for plaintiff in error.

      Smith C. Matson and W. C.- Reeves, Asst.'Attys. Gen., for the State.
   ARMSTRONG, J.

The plaintiff in error, L. T. Coulson, was. tried and convicted in the superior court of Custer county at the December, 1910, term on a charge of violating the medical practice' act, and his punishment fixed at a fine of $50.

We have carefully gone over the record, and find no error sufficient to justify this court in interfering with the judgment of the court below.

The appeal is without merit, and the judgment of the trial court is therefore affirmed.

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


text:
    SAM McKINZIE et al. v. STATE.
    No. A-1061.
    Opinion Filed December 7, 1912.
    (127 Pac. 1090.)
    1. APPEAL — Review—Circumstantial Evidence. When a conviction for a violation of the prohibitory law is based upon circumstantial evidence, and the proof in the record is sufficient to exclude every other reasonable hypothesis except that of guilt, a verdict of .conviction should be returned by the jury, and such conviction will not be, and never has been, reversed by this court.
    2. INTOXICATING- LIQUORS — Unlawful Possession — Evidence. Proof of the ownership of a place of business to which large quantities of intoxicating liquors have been delivered and received by the owners, that intoxicating drinks have been sold in the place, and that persons have been seen intoxicated and drinking spirituous liquors therein is sufficient, when coupled with proof of the possession of quantities of like intoxicatng liquors, to warrant a conviction.
    3.' SAME — Circumstantial Evidence Rule. The approved rule as to the sufficiency of circumstantial evidence to sustain a conviction for violating the prohibitory law is the same as for any other misdemeanor, and is the rule that has been .uniformly followed by this court since its creation.
    (Syllabus by the Court.)

      Appeal from Blaine County Court. George W. Ferguson, Judge.

    Sam McKinzie and Floyd McKinzie were convicted' of violating the prohibitory law, and they appeal.
    Affirmed.

      Wm. 0. Woolman, for plaintiffs in error.

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

The plaintiffs in error were convicted in the county court of Blaine county at the October, 1910, term on a charge of having unlawful possession of intoxicating liquor with intent to sell the same, and their punishment fixed at a fine of $200 and imprisonment in the county jail for a periol of 30 days.

The proof shows that the plaintiffs in error conducted a place of business in the town of Okeene; that they received considerable shipments in barrels, some of which were billed as containing 72 bottles of beer, and some 120 bottles; that persons were seen drinking in the place; that certain witnesses bought beverages that looked like beer and tasted like beer. Some of the bottles were branded Budweiser and Pabst. Some bought beverages which were intoxicating, and saw other persons drinking in the place.

We have carefully gone over the record, and find no error sufficiently prejudicial to the rights of the plaintiffs in error to justify a reversal of this judgment. The jury was warranted in concluding from the circumstances in evidence that the plaintiffs in error had possession of the liquors in question for the purpose of violating the prohibitory law. This court has never reversed a case of this character, when in good conscience a conviction could be upheld and we decline to set a precedent which would indicate the contrary now.

There are questions of law raised which are settled by other opinions of this1 court, and we shall not consume time here to discuss them-anew.

The judgment of the trial court is in all things affirmed.

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


author: FURMAN, P. J.

text:
    STATE v. FRANK FRISBEE.
    No. A-1188.
    Opinion Filed December 7, 1912.
    (127 Pac. 1091.)
    1. TRIAL — Rights of Parties — Jeopardy—Right of State to Appeal. The state has the right to prosecute an appeal to this court upon any question of law reserved by the state during the trial of a criminal case. The fact that the defendant may have been acquitted and could not again be tried for the same offense will not in any way interfere with the right of the state to appeal and have the question so reserved settled.
    2. SAME — Rights—Waiver, (a) A defendant in a criminal case may waive any right not inalienable, given him by the statute or by the Constitution, where it can be relinquished without affecting the rights of others and without detriment to the community .at large.
    (b) A defendant in a criminal case may waive any right not inalienable, given him by the statute or by the Constitution, either by express agreement or by conduct, or by such failure to insist upon it in seasonable time as will operate as an estoppel to his afterwards setting it up against the state.
    (e) A narrow, technical rule of construction should never be applied to any provision of the Constitution, but it should be construed in its reason and spirit.
    (d) Any person prosecuted in Oklahoma for a capital offense has the constitutional right to have furnished to him, at least two days before the trial begins, a list of the witnesses to be produced against him in chief by the state, and it would be error to force him into trial and allow such witnesses to testify against him whose names have not been so furnished, if he seasonably asserts his rights. But if he fails to object to going to trial on this ground, but announces ready for trial, he cannot afterwards avail himself of this objection, and the constitutional right given him by this provision will be waived.
    3. SAME — Jeopardy—Right to Plead Jeopardy, (a) Where a defendant has been put upon trial in a court of competent jurisdiction upon an indictment or information sufficient to sustain a conviction, and a jury has been impaneled and sworn to try the case, jeopardy attaches, and if the jury is discharged without sufficient cause, and without the defendant’s consent, such discharge of the jury, although improper, operates as an acquittal of the defendant.
    (b) If a defendant agrees to the discharge of a jury, although such discharge may be improper and unnecessary, or if on motion of the defendant a new trial is granted him, the defendant thereby waives his constitutional right, and he is es-topped upon a second trial from claiming that he has already been insjeopardy upon such offense.
    (Syllabus by the Court.)

      Appeal from District Court, Kiowa County; " Jas. R. Tolbert, Judge.,
    Frank Frisbee was indicted for homicide, and, having been acquitted, the State appeals.
    Rulings reversed.

      J. B. Terral, Co. Atty., Benjamin B. Williams, and Cline & Zink, for the State.
   FURMAN, P. J.

This is an appeal prosecuted by the state upon questions of law from a judgment rendered in the district court of Kiowa county, discharging a jury in a murder case pending in said court after the jury had been duly empaneled and sworn and jeopardy had attached, and in dismissing said cause from the docket of the court. To all of which the state at the time objected and excepted and reserved the questions of law involved to be made and presented for review on appeal to this court.

First. The first question to be considered is as to whether or not this appeal can be sustained. Section 6947, Comp. Laws 1909, is as follows:

“Appeals to the Supreme Court (Criminal Court of Appeals)” may be taken by the state in the following cases and no other: (1) Upon judgment for the defendant on quashing or setting aside an indictment or information. (2) Upon an order of the court arresting the judgment. (3) Upon a question reserved by by the state.”

In the case of State v. Brown, ante, 126 Pac. 245, 250, in passing upon this very question, this court said:

“The right of the state to take an appeal in a criminal case has been twice sustained by this court. See State v. Clifton, 2 Okla. Cr. 189, 100 Pac. 1124, and State v. Pollock, 5 Okla. Cr. 26, 113 Pac. 207. * * * The fact that the defendant may have been acquitted and could not be tried again for the same offense would not interfere with the right of the state to appeal and have the question so reserved settled. Any other construction would render the third paragraph of section 6947 meaningless and nugatory.” •

We thereforee hold that the state has the right to prosecute this appeal and that the case is properly before us for decision.

Second. It appears from the record that one Frank Frisbee was prosecuted by information in the district court of Kiowa county charged with .the offense of murder, and that the names of 33 witnesses were indorsed on the back of the information to be used by the state in chief in the trial of said cause. It was further proven that on the 2d day of May, 1911, when the defendant was arraigned upon the information and entered his plea of not guilty, and the case was set for trial, the county attorney instructed the deputy clerk of the district court 'to prepare a list of the witnesses indorsed on the information, with their post office addresses, and serve them upon the defendant; that this list was prepared by the deputy district clerk as directed by the county attorney and furnished to the district clerk for service upon the defendant, but for some reason, which the district clerk did not or could not explain, the defendant was never served with this list, and the county attorney did not know of this until after the trial had begun, when counsel for defendant objected to the admission of any testimony because there had been no service of such list of witnesses. It further appears from the record that this case was called for trial on the 16th day of May, 1911, and that the county attorney and the defendant and his attorneys appeared, and both sides announced ready for trial; that a jury was called, examined, and sworn to try the casé; that the county attorney thereupon read the information to the* jury and made his opening statement of the case to the jury, and that counsel for defendant also made his opening statement to the jury; that the rule was invoked and the witnesses were instructed accordingly; that thereupon R. H. Jones was called to testify in behalf of the state; that, after testifying as to some immaterial matters, the following occurred':

“Mr. Conner: Comes now the defendant and objects to any evidence being heard from- the witness now on the witness stand or from any other witnesses in this cause, for the reason that no list of witnesses has ever been served upon the defendant in this case as required by law under the Constitution of the state of Oklahoma.”

The record shows that, as a matter of fact, the list of witnesses to be used by the state in chief, although prepared, had not been served upon the defendant as directed by the county attorney. In reply to the objection made by counsel for defendant to receiving any testimony in this case, the record discloses that the following occurred:

“Mr. Williams: Comes9 now the state of Oklahoma, by J. E. Terral, the county attorney of Kiowa county, and moves the court for a postponement of the trial of the said cause for a period of two full days for the purpose of serving a true and correct list of the witnesses to be used in chief upon the defendant in the above cause, as provided by law and the Constitution of the state of Oklahoma, and hereby tenders defendant an opportunity to avail himself of his constitutional and legal right for a continuance or postponement in said cause, and hereby tenders to the defendant at this time in open court the list of all witnesses to be used in said cause and their post office addresses. Mr. Conner: Defendant at this time objects to any postponement of the trial of this cause and insists that there can be no> legal service of said list of witnesses upon the defendant at this time. The Court: Sustained. Mr. Williams: To which the state of Oklahoma excepts. Mr. Williams: The state of Oklahoma now requests the court to reassign this cause for trial. Mr. Conner: To which the defendant objects for the reason that both parties herein have announced ready for trial, and a jury has been impaneled, and the opening statements of counsel have been made, and one witness, as shown by the record, placed upon the witness stand. The Court: Sustained. Mr. Williams: State excepts. The Court: The objection to the introduction of evidence in the opinion of the court is well taken and will be sustained. Mr. Zink: To ' which ruling the state excepts. The Court: What is the further pleasure of the state ? Mr. Williams: The state now moves the court and requests ■the court to reassign this cause for trial. Mr. Conner: To which the defendant objects for the reasons heretofore stated. The Court: I think, gentlemen, the case will have to proceed under the law. Mr. Williams: To which action and ruling of the court the state excepts. The.state now announces to the court that the state cannot proceed to the trial of this case for the reasons heretofore stated, and again moves the court to reassign this case for -trial. The Court: I think, gentlemen, that the law is against your motion, and the case >vill have to proceed. Mr. Williams: •But the state announces that under the ruling of the court heretofore made, to wit, that no witnesses have been served in the above cause, the state cannot proceed further with the cause. Mr. Conner: Defendant at this time asks the court to instruct the jury to return a verdict of not guilty against the defendant. Mr. Williams: To which motion the state of Oklahoma objects. The Court: Gentlemen, the motion to instruct a verdict will be overruled. Mr. Conner: To which the defendant excepts. The Court: But, unless the state is ready to proceed further, the case will be dismissed, and the jury discharged, and the defendant released from the custody. Mr. Williams: As before stated,- the state cannot proceed to trial under the ruling of the court.”

These proceedings present a number of interesting and important questions of law.

Section 28, art. 2, Williams’ Const, of Okla., among other things provides that a defendant “shall have the right to be heard by himself and counsel; and in capital cases, at least two days before the case is called for trial, he shall be furnished with a list of the witnesses that will be called in chief to prove the allegations of the indictment or information, together with their post office addresses.” This provision clearly gives a constitutional right to every defendant in a capital case. The question of a waiver of a constitutional right was passed'upon by this court in the case of Blair v. State, 4 Okla. Cr. 359, 111 Pac. 1003. Judge Richardson, speaking for the court said:

“After the state and the defendant had each announced ready for trial, and after the jury had been empaneled and sworn for the trial of the case, the defendant objected to proceeding any further and to the introduction of any evidence by the state on the ground that no copy of the information had been served upon him. This objection the court overruled, and the ruling is assigned as error. There was no error. Under the Constitution, the defendant is entitled to a copy of the accusation; but if he be at large so that he can go to the clerk’s office, call for, and examine the original accusation and copy it for himself, if he desires, the state is under nd obligation to make and serve a copy thereof upon him. Stack v. State, infra (4 Okla. Cr. 1, 109 Pac. 126). In such case the defendant may ‘have a copy thereof’ whenever he wants it. But, if the defendant be in custody and demands a copy of the accusation, the state must furnish it; but unless the defendant demands it before announcing ready for trial, which he did not do in this case, his right to a copy is waived. Miller v. State, 45 Ala. 24; Driskill v. State, 45 Ala. 21; Dean v. State, 43 Ga. 218; Kelly v. People, 132 Ill. 363, 24 N. E. 56; Abrigo v. State, 29 Tex. App. 143, 15 S. W. 408; United States v. Shive, 27 Fed. Cas. No. 16,278, Baldw. 510; Howard v. State, 37 Ark. 265; State v. Winningham, 10 Rich. (S. C.) 257; People v. Warner, 1 Wheeler Cr. (N. Y.) 140; State v. Briggs, 27 S. C. 80, 2 S. E. 854. If the defendant be in custody, has not a copy of the information, and desires one, his demand therefor should be made in open court before announcing ready for trial; ánd the fact of the demand and the court’s ruling thereon should be made a matter of record, or shown by proper recitals in the case-made.”

This question came before us again in the case of Starr v. State, 5 Okla. Cr. 440, 115 Pac. 356. Judge Doyle there said:

“Where a constitutional right in a criminal case is largely for the benefit of the accused or in the nature of a personal privilege, the law is well settled that an accused may waive such right. In the case of State v. Adams, 20 Kan. 311, Mr. Justice Brewer said: ‘So far as the provision in the Bill of Rights is concerned, there are two questions: (1) Is it anything more than the grant of certain privileges, which an accused may waive? And, where the record shows an application for the benefit of such privilege, and no refusal of the court to grant them, and no objection to any action of the court thereon, is there any error? (2) Does the sending of a jury to view the place of the alleged crime, in the absence of the defendant, trespass on any of its guaranties? First. The language is permissive. “The accused shall be allowed”- — that is, he may have if he wishes. If he does not wish, he may forego. If he does not wish, then he cannot complain that - they were not forced upon him. Generally that which is mere personal privilege, which is not essential to jurisdiction, which is not absolutely and peremptorily required by statute or public policy, may be waived. In the case of State v. Polson, 29 Iowa, 133, the defendant consented that a copy of the testimony given in a former trial might be read as evidence instead of an oral examination of witnesses, and he was held concluded by such consent. His right to meet the witnesses face to face he had waived. So, while he is entitled to have counsel, he is not compelled to have them. Fie has a right to a subpcena for his witnesses, but he is not obliged to have one issued. And the record need not show that these privileges or rights were formerly tendered to him and formally declined, or that an express waiver was signed. It is enough if it does not appear that they were denied when he applied for them. So there are many other matters which his failure to object to at the time prevents his afterward complaining of. If a leading question be asked, he must object at the time, or the error is waived. If an instrument, not properly authenticated, or a deposition, be offered in evidence and he remains silent, he cannot thereafter complain. If to avoid a continuance he consents that an affidavit be read as the testimony of an absent witness, he is estopped to say that he did not meet the witness face to face. Documentary evidence brought from a distant state is competent testimony, notwithstanding said section 10. People v. Jones, 24 Mich. 215. Contrast the language of said section 10 with that in section 207, above quoted. He “shall be allowed.” “No person can be tried.” The one expresses a privilege to the defendant; the other a condition of valid trial. Further, the origin of these provisions in the Bill of Rights indicates the extent to which they should be carried. It is well known that, at the old common law, the defendant was allowed no counsel. The judge was supposed to look after his rights. He was not allowed any witnesses in his own behalf. It was considered derogatory to the crown to contradict or impeach its witnesses. To obviate this injustice and secure to the accused the right of a full defense was the purpose of these provisions. That purpose is accomplished when he has the undeniable right to employ counsel and summon witnesses. We are of the opinion, therefore, that the fact that the jury were sent in a body under charge of an officer to view, the place of the crime, unaccompanied by the defendant, and no application for permission to accompany them, and no error alleged on account thereof in the motion for a new trial, it is too late to insist in this court that the judgment must be reversed therefor. It is unnecessary, therefore, to consider the second branch of the question as to whether it would be error if challenged by the defendant at the time.’

“In the case of State v. Mortensen, 26 Utah, 312, 73 Pac. 562, 633, Bartch, J., delivering the opinion of the court, said: ‘Upon examination, it will be noticed that the right of the accused to be confronted by the witnesses against him, secured by the constitutional provision above referred to, falls within the class personal to the accused. It is a personal right — a personal privilege — of which every defendant in a criminal proceeding may avail himself. It is limited to criminal prosecutions, and in no way affects the jurisdiction of the court to try the cause or to pass a valid judgment. Nor is the provision which secures to the accused the right in the nature of an inhibition upon a proceeding not authorized by law. Nor is it in the nature of a limitation restraining the court from exercising its power in a place or manner prohibited by law, or without its jurisdictional limits. It is not very unlike the right which every one accused of, and being prosecuted for, a crime, has to plead guilty, and thereby waive the production of any evidence by the prosecution, and surely all agree that in such case, where a plea of guilty is entered, a court of competent jurisdiction has power to pass judgment and aur thorize the penalties of the law to be executed. Nor is it much unlike a case where the prosecution makes application for the continuance of a criminal cause on the ground of absent witnesses. Here the accused may admit that such witnesses, if present, would testify to the statements set out by the prosecution and consent to their use as evidence against him, and thereby secure a speedy trial. In such event, the accused consents to the use of the evi-* dence without being confronted by the witnesses, and yet we know of no case where such action had in good faith, and not forbidden by express provision of law, was held to be in excess of the power of the court to permit. Such are simply instances, similar to the one at bar, where the accused waives his personal privilege to be confronted with the witnesses against him, and from them it seems apparent that in proper cases, where no' harm can result to the accused, he may voluntarily waive his constitutional right of confrontation. The main reason for the confrontation of witnesses is to afford the accused an opportunity for cross-examination, and this is a privilege which he may waive. So when, at a trial, a prisoner sits by and permits inadmissible evidence to be received without objection, he cannot afterwards complain of the action of the court in receiving it.’

“In Williams v. State, 61 Wis. 281, 21 N. W. 56, it was said: ‘It is well settled that the accused may waive his right to be confronted with the witness on the trial.’

“In Perteet v. People, 70 Ill. 171, it was said: ‘A prisoner in a capital case is not to be presumed to waive any of his rights; but that he may, by express consent, admit them all away can be neither doubted nor denied. He may certainly plead guilty, and thus deprive himself of one of the most valuable rights secured to the citizen — that of a trial by jury. If he can expressly admit away the whole case, then it follows that he can 'admit away a part of it; but he will not be presumed to have done so. The consent must be expressly shown.’

“In the case of Shular v. State, 105 Ind. 289, 4 N. E. 870, 55 Am. Rep. 211, Elliott,. J., delivering the opinion of the court, said: ‘The court on the motion of the appellant sent the jury to inspect the premises where the homicide was committed, and did not direct that the defendant should be present when the inspection was made, but no request was made by the defendant that he should be allowed to be present; nor was there ever a suggestion to the court that he desired to accompany the jury; nor did he, although he was present when the jury left the courtroom, ask that he be permitted to go with them; nor did he obj ect in any manner to' their making the inspection. But the record shows more than this; for it shows that the court directed the attention of the defendant and his counsel to the statute, and stated that it required the consent of the parties, and inquired if they consented to the order, to which inquiry, as the record recites, the defendant’s counsel responded “by renewing their request, and defendant indicated his assent.” Many authorities are cited by counsel in support of 'the general principle that the defendant must be present when evidence is given .against him, and that this is the general rule we have no doubt; but the question here is whether the case is within the rule, not what the general rule is. • Whether the case is within this general rule must depend upon the provisions of our statute and the conduct of the appellant. Our statute (Rev. St. 1881, sec. 1827) provides that: “Whenever, in the opinion of the court, and with the consent of all parties, it is proper for the jury to have a view of the place in which any material facts occurred, it may order them to be conducted in a body, under the charge of an officer, to the place, which shall be shown to them by some person appointed by the court for that purpose. While the jury are thus absent, no person, other than the officer and the persons appointed to show them the place, shall speak to them on any subject connected with the trial.” This statute does not intend that the view of the premises where the crime was committed shall be deemed part of the evidence, but intends that the view may be had for the purpose of enabling the jury to understand and apply the evidence placed before them in the presence of the accused in open court. Deferring, for the present, the consideration of the authorities, and reasoning on principle, we shall have no difficulty in concluding that the statute does not intend that an inspection of a place where a crime was committed shall be taken as evidence. It cannot be seriously "doubted that evidence can only be delivered to a jury in the criminal case in open court, and, unless there is a judge or judges present, there can be no court. The statute does not intend that the judge shall accompany the jury on a tour of inspection. This is so obvious that discussion could not make it more plain. The jury are not, the statute commands, to be spoken to by any one save by the officer and the person appointed' by the court, and they are forbidden to talk upon the subj ect of the trial. It is the duty of the jurors to view the premises, not to receive evidence, and nothing could be done by the defendant or by his counsel if they were present, so that. their presence could not benefit him in any way, nor their absence prejudice him. The statute expressly provides who shall accompany the jury, and this express provision implies that all others shall be excluded from the right or privilege. It is quite clear from these considerations that the statute does not intend that the defendant or the judge shall accompany the jury; and it is equally clear that the view obtained by the jury is not to be deemed evidence.’ See, also, Wills v. State, 73 Ala. 362; State v. Wagner, 78 Mo. 644, 47 Am. Rep. 131; Hancock v. State, 14 Tex. App. 392; Bulliner v. People, 95 Ill. 394; State v. Arbuno, 105 La. 119, 30 South, 163; State v. Hancock, 148 Mo. 488, 50 S. W. 112; People v. Thorn, 156 N. Y. 286, 50 N. E. 947, 42 L. R. A. 368; Commonwealth v. Van Horn, 188 Pa. 143, 41 Atl. 469; Warner v. State, 56 N. J. Law, 686, 29 Atl. 505, 44 Am. St. Rep. 415; State v. Reed, 3 Idaho (Hasb.) 754, 35 Pac. 706; State v. Moran, 15 Ore. 262, 14 Pac. 419; Price v. United States, 14 App. D. C. 391.”

The principles announced in these cases meet our entire approval, and they are here reaffirmed. It is a well-settled principle of law, recognized by all appellate courts, that every one may waive a right intended for his own benefit if it can be relinquished without affecting the legal rights of others and without detriment to the community at large. See Reid v. Fields, 83 Va. 26, 1 S. E. 395. The right of waiver extends to and includes all descriptions of contractional, statutory, and constitutional, rights, except such as are inalienable. An examination of the following cases will show that they fully support the preceding statement: State v. Mitchell, 119 N. C. 784, 25 S. E. 783, 1020; Butler v. State, 97 Ind. 378; Williams v. State, 61 Wis. 281, 21 N. W. 56; Allen v. State, 16 Tex. App. 237; State v. Olds, 106 Iowa, 110, 76 N. W. 644; State v. Sackett, 39 Minn. 69, 38 N. W. 773; State v. Poison, 29 Iowa, 133; People v. Murray, 52 Mich. 288, 17 N. W. 843; Commonwealth v. Dailey et al., 12 Cush. (Mass.) 80; State v. Fooks, 65 Iowa, 196, 452, 21 N. W. 561, 773; Connelly v. State, 60 Ala. 89, 31 Am. Rep. 34.

The law on tliis subject is fully, clearly, and correctly stated in 40 Cyc. 265, as follows:

“1. By Agreement. Waiver may be made by an express agreement or promise declaring an intention not to claim the supposed benefit or advantage, and such agreement or declaration will not only waive those matters coming expressly within its terms, but will extend to other matters which by a natural and necessary implication would be affected.

“2. By Conduct. The more usual manner of waiving a right is by conduct or acts which indicate an intention to relinquish the right, or by such failure to insist upon it that the party is estopped to afterward set it up against his adversary.

“Authority and Capacity. Waiver is usually a matter' of personal privilege, and must be made by the person whose rights or remedies are to be affected, or by some one duly authorized to act for him in the matter. Any person of full age and acting sui juris can waive matters affecting simply his property or alienable rights, and not involving considerations of public policy. A waiver made by an infant, or by an incompetent or irresponsible person, will usually be considered void.

_“Evidence of Waiver. (1) In General. Waiver is a matter of fact to be shown by the evidence. It may be shown by express declarations, or by acts and declarations manifesting an intent and purpose not to claim the supposed advantage, or it may be shown by a course of acts and conduct, and in some cases will be implied therefrom. It may also be shown by so neglecting and failing to act as to induce a belief that there is an intention or purpose to waive. Proof of express words is not necessary, but the waiver may be shown by circumstances, or by a course of acts and conduct which amounts to an estoppel.”

In support of this text, in addition to the authorities which we have cited, Cyc. cites hundreds of authorities to the same effect. A case directly in point as to how the right which the defendant in this case relied upon may be waived by conduct, which we do not find in the citations made by Cyc., is the case of Hickory v. United States, 151 U. S. 303, 14 Sup. Ct. 334, 38 L. Ed. 170. The opinion is by Chief Justice Fuller and on this question is as follows:

“Under section 1033 [U. S. Comp. St. 1901, p. 722] of the Revised Statutes, 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 him on trial and allow witnesses to testify against him whose names have not been furnished, if he seasonably asserted his rights (Logan v. United States, 144 U. S. 263, 12 Sup. Ct. 617, 36 L. Ed. 429), but we think he did not do that here, and that the defect was waived.”

So much for the authorities on this question. Let us now consider it for a moment from the standpoint of reason and justice.

That the provision of the Constitution requiring that in capital cases a defendant shall have the right to have at least two days’ notice of the list of witnesses to be used in chief against him, together with their post office addresses, confers a valuable right upon a defendant in a capital case cannot be denied. It gives him an additional opportunity to make inquiry as to the character, bias, and antecedents of the witnesses against him, and to learn something of their testimony and thereby better enable him to prepare for trial. He is not required by law to announce ready for trial in a capital case, and it would be error to force him into trial if he makes seasonable objection, unless he has had this notice and this opportunity to make these investigations, and even after the two days have expired, if he can show that as the result of such notice, and as a result of such investigations, he has made discoveries as to matters not previously known to him, which will require him to make additional preparation for trial, upon such a showing under oath the court, in its discretion, may grant him a further postponement or continuance in order that such preparation may be made. It is the duty of the courts to protect a defendant in a capital case in the full enjoyment of this right. This is the substance and essence of the right conferred by the constitutional provision under discussion. This court has heretofore clearly laid down the rules by which it will be governed in construing constitutional provisions involving the rights of a defendant in a criminal case.

In the case of Caples v. State, 3 Okla. Cr. 78, 104 Pac. 496, 26 L. R. A. (N. S.) 1033, this court said:

“The first contention of counsel for the defendant is that 'it will be noted from this information that the word “the” is left out before the word “state” in the style of the case,’ and that this constitutes a fatal defect in the information. We cannot agree with this position for two reasons, viz.: First. The caption of the cause is placed on the information for convenience, and for the purpose of ready identification, and constitutes no part of the information itself. It is surplusage, pure and simple, and neither adds to nor takes from the charge. Second. If it were a necessary part of the information, we could not agree with counsel for the defendant. Write two sentences — one ‘the state of Oklahoma,’ and the other ‘state of Oklahoma’ — and submit them to the educated and uneducated alike, and the answer would be the same from both sources: That they each have substantially the same meaning. We are required by our statute to construe the laws of Oklahoma liberally, to promote the purposes for which they were enacted, and in furtherance of justice. We heartily indorse this wise provision of law, and propose to carry it out in spirit and in letter. This is in harmony with the divine law, which declares: ‘For the letter killeth, but the spirit giveth life.’ 2 Cor. iii, 6. Even without this statute, we would hesitate long before we would apply any narrow technical rule of construction to the Constitution. Constitutional provisions should always receive a broader and more liberal construction than statutes. The rule of construction of a statute is the intention of 'the Legislature. In construing constitutional provisions, the supreme question is, What did the people, whose votes adopted and placed the Constitution in force, intend? Therefore a common-sense rather than a technical construction should be placed upon the language used in a Constitution. Mr. Cooley, in his work on Constitutional Limitations (pages 89, 101), says: ‘The object of construction, as applied to a written Constitution, is to give effect to the intent of the people in adopting it. When the inquiry is directed to ascertain the mischief designed to be remedied, or the purpose sought to be accomplished by a particular provision, it may be proper to examine the proceedings of the convention which framed the instrument. Where the proceedings clearly point out the purpose of the provision, the aid will be valuable and satisfactory; but, where the question is one of abstract meaning, it will be difficult to derive from this source much reliable assistance in interpretation. Every member of such a convention acts upon such motives and reasons as influence him personally, and the motions and debates do not necessarily indicate the purpose of a majority of a convention in adopting a particular clause. It is quite possible for a clause to appear so clear and unambiguous to the members of a convention as to require neither discussion nor illustration, and the few remarks made concerning it in the convention might have a plain tendency to lead directly away from the meaning in the minds of the majority. It is equally possible for a part of the members to accept a clause in one sense and a part in another. And, even if we were certain we had attained to the meaning of the convention, it is by no means to be allowed a controlling force, especially if that meaning appears not to be the one which the words would most naturally and obviously convey. For as the Constitution does not derive its force from the convention which framed, but from the people who ratified it, the intent to be arrived at is that of the people, and it is not to be supposed that they have looked for any dark or abstruse meaning in the words employed, but rather that they have accepted them in the sense most obvious to the common understanding, ,and ratified the instrument in the belief that that was the sense designed to be conveyed. These proceedings, therefore, are less conclusive of the proper construction of the instrument than are legislative proceedings of the proper construction of a statute, since in the latter case it is the intent of the Legislature we seek, while in the former we are endeavoring to arrive at the intent of the people through the discussions and deliberations of their representatives. The history of the calling of the convention, the causes which led to it, and the discussions and issues before the people at the time of the election of the delegates, will sometimes be quite as instructive and satisfactory as anything to be gathered from the proceedings of the convention.’ ”

The public policy of this state as evinced by the Constitution of the state, the legislative enactments, and the repeated decisions of this court is to the effect that the spirit and reason of the law should control rather than that the cold, technical letter of the law should be enforced. We cannot bring outselves to believe that a provision of our Constitution which was intended solely for the purpose of assisting a defendant to prepare for trial in order that justice might be done should be so construed as to make it a means for the defeat of justice'and a refuge for criminals and a protection for crime. A little reflection will show that the construction placed upon this provision of the Constitution by the trial judge would have directly the opposite effect from that intended. A defendant and his attorneys must of necessity know, when they announce ready for trial, as to whether or not a copy of the list of witnesses with their post office addresses, intended to be used by the state in chief, has been furnished to the defendant or his counsel. If they were permitted, when no such list had been furnished them, not only to remain silent on this question, but announce ready for trial, and permit a jury to be empaneled and sworn and jeopardy to attach, and then object to the reception of any testimony because they had not been served with a copy of the list.of such witnesses, it would enable them to take advantage of their own wrong, and it would work the rankest kind of injustice to the state. When a defendant voluntarily announces ready for trial, this operates as a waiver of all preliminary steps prescribed for preparation for trial. Evidently the learned trial judge, in the haste of the trial, did not give this question that due consideration which its importance demands, and which usually characterizes his rulings. This shows that sometimes the wisest, best, and most careful men make mistakes.

We therefore hold that, when.the appellant announced ready for trial, he waived the service of the list of witnesses provided for in the Constitution and that the trial court erred in refusing to permit the state’s witnesses to' testify.

Third. When the court had sustained the defendant’s objection to the reception of any testimony in this cause the defendant then moved the court to instruct the jury to return a verdict of not guilty, which motion the court refused to grant, and to which action of the court the defendant excepted. The court then of its own motion discharged the jury, dismissed the case, and ordered the defendant released from custody. Where a defendant has been put upon trial in a court of competent jurisdiction upon an indictment or information sufficient to sustain a conviction, and a jury has been impaneled and sworn to try the case, jeopardy attaches, and if the jury is discharged without sufficient cause, and without the defendant’s consent, such discharge of the jury, although improper, operates as an acquittal of the defendant. Section 29, art. 2, of Williams’ Const. of Okla., is as follows:

“No person shall be compelled to give evidence which will tend to incriminate him, except as in this Constitution provided; nor shall any person, after having been once acquitted by a jury, be again put in jeopardy of life or liberty for that of which he has been acquitted. Nor shall any person be twice put in jeopardy of life and liberty for the same offense.”

It is seen that this provision expressly declares that no person who has been once acquitted by a jury shall be again put in j eopardy of life or liberty for that of which he has been acquitted, and the Constitution goes further and in express terms provides: “Nor shall any person be twice put in jeopardy of life and liberty for the same offense.” All authorities agree that when a jury is sworn jeopardy attaches. Under the latter clause of our Constitution, if jeopardy has once attached, a defendant cannot be placed again in jeopardy for the same offense, unless the jury were necessarily discharged, or unless the defendant agreed to their discharge, or unless a new trial is granted him upon his request. In either of these events, the defendant cannot claim that he has been put a second time in jeopardy for such offense. For a full discussion and citation of authorities on this question, see Lloyd v. State, 6 Okla. Cr. 76, 116 Pac. 959. If the defendant had not demanded a verdict in this cause, and had not excepted to the action of the court, and had agreed to a discharge of the jury without a verdict, we would reverse the ruling of the lower court and remand the cause, with directions to the trial court to reinstate the indictment upon the docket of the court and have the defendant again arrested and placed upon trial;, but, as the jury were discharged without the consent of the defendant and over his objection, he cannot be estopped from claiming he had once been in jeopardy for this offense. We must therefore content ourselves with reversing the ruling made by the trial court upon the questions of law reserved by the state.

The rulings of the trial court are reversed, and the cause is remanded, with directions that this order be entered upon the minutes of the district court of Kiowa county.

ARMSTRONG and DOYLE, JJ., concur.


author: DOY'LE, J.

text:
    R. M. HERMAN v. STATE.
    No. A-1276.
    Opinion Filed December 7, 1912.
    (128 Pac. 179.)
    1. INTOXICATING LIQUORS — Intent Unlawfully to Sell — Evidence. Where the defendant is charged with having in his possession intoxicating liquors with intent unlawfully to sell, barter, give away, and otherwise furnish the same, the unlawful intent may be proven by circumstantial evidence.
    2. SAME — Sufficiency of Evidence. For circumstantial evidence sufficient to sustain conviction, see opinion.
    (Syllabus by the Court.)

      Appeal from Kay County Court; Claude Duval, Judge.

    R. M. Herman was convicted of violation of the prohibitory-law, and brings error.
    Affirmed.

      Herman S. Gurley, for plaintiff in error.

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

The plaintiff in error was convicted in the county court of Kay count)'- on an information which charged the unlawful possession of intoxicating liquors with intent unlawfully to sell, barter, give away, and otherwise furnish the same. May 19,1911, he was sentenced to serve a term of 90 days in the county jail, and to pay a fine of $400. To reverse this judgment an appeal was taken by filing in this court, July 12, 1911, a petition in error with case-made.

It is contended that the verdict is contrary to law and to the evidence.

The evidence shows that on the day named in the information the plaintiff in error was the keeper of a hotel and pool hall at Kaw City; that John Hight, a deputy sheriff, and B. H. Kinner, marshal of Kaw City, in serving a search warrant, found a barrel of beer and about three dozen bottles of liquor in a room back of the pool hall. Part of the liquor was concealed in a washing machine, one bottle was in an ice box, and one bottle was found under the floor. They also found four or five barrels of empty bottles in a sample room, and five empty ten-gallon kegs stamped “whisky.”

There was no evidence offered on the part of the defendant.

The possession of intoxicating liquor, even of various kinds, is not, of itself, and if that were the only .fact proved, sufficient to justify a verdict of guilty of unlawful intent. But the evidence in this case goes beyond that. The business conducted by the defendant, a place of public resort; the manner in which the liquors were concealed in such place — furnished an indication of an intent to violate the prohibition law, rather than to apply to the personal use of the defendant. As it was said in Vanderburg v. State, 6 Okla. Cr. 485, 120 Pac. 301, and Welsh v. State, 7 Okla. Cr. 358, 123 Pac. 705, these predisposing facts and circumstances are clearly sufficient to prove the unlawful intent.

The gravest crimes, entailing the severest punishment, may be proved by circumstantial evidence; and certainly crimes of lesser degree may be so established.

When the jury finds a verdict of guilty, which is approved by the trial court in overruling a motion for a new trial, and there is evidence in the record which sustains the verdict, it will not be set aside, in the absence of prejudicial error. There is no error in the record. The judgment of the county court of Kay county is therefore affirmed, and the cause remanded thereto, with direction to enforce its judgment and sentence therein.

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


author: DOYLE, J.

text:
    BUCK NELSON v. STATE.
    No. A-980.
    Opinion Filed December 9, 1912.
    (128 Pac. 179.)
    APPEAL — Failure to File Briefs — Affirmance. On appeal, where no brief has been filed, or oral argument made, this court will examine the record proper, and, if no error is apparent, will affirm the conviction.
    (Syllabus by the Court.)

      Appeal from District Court, Mayes County; T. L. Brown, Judge.

    Buck Nelson was convicted of robbery, and brings error.
    Affirmed.

      Preston S. Davis and O. F. Mason, for plaintiff in error.

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

The plaintiff in error, Buck Nelson, was convicted at the June, 1910, term of the district court of Mayes county of the crime of conjoint robbery, and was sentenced in accordance with the verdict of the jury to imprisonment in the penitentiary for a term of five years.

No brief has been filed, and we are not advised what the plaintiff in error relies upon for a reversal of the judgment.- However, we have examined the record proper, and we have discovered no error which will warrant a reversal of the judgment. The judgment of the district court of Mayes county is therefore affirmed, and the cause remanded, with directions to cause its judgment and sentence to be enforced.

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


text:
    H. STEIL v. STATE.
    No. A-1089.
    Opinion Filed December 14, 1912.
    (128 Pac. 177.)
    1. APPEAL — Record—Index. It is the duty of counsel, when they, take an appeal, to incorporate in the transcript of the record an accurate index of its contents, so that this court can readily find that portion of the record which it is claimed presents an error.
    2. INTOXICATING- LIQUORS — Unlawful Possession — Sufficiency of Evidence. Por circumstances sustaining the verdict of a jury in finding the defendant guilty of having in his possession intoxicating liquors with intent to violate the prohibitory -liquor law, see opnion. •

    (Syllabus by the Court.)

      Appeal from Blaine Coimty Court; George W. Ferguson, Judge.

    H. Steil was convicted of violating the prohibitory liquor law, and appeals.
    Affirmed.

      I. H. Lookabaugh, for appellant.

      Smith C. Matson, Asst. Atty. Gen., and A. L. Emery, Co. Atty., for the State.
   FURMAN, P. J.

First. The record in this case covers 110 pages. But it is not accompanied by an index. It is the duty of counsel when they take an appeal, not only to prepare the case-made or transcript of the record correctly, but to place in it an accurate index, so that the court can readily find that portion of the record which presents an error complained of. It is the duty -of counsel to assist the court in the investigation of cases before it. It unnecessarily consumes a great deal of time to examine a record which has no index. Sometimes we have to read the entire record over- several times to refresh our minds as to errors complained of. This is true in the present case, when, if there had been a proper index, we could have turned to the points in controversy without delay. We want to be fair to every appellant and to every attorney, and to give to every case and every question a full and impartial consideration; but when counsel fail and neglect to attach an index to a record the fault is theirs if we fail to find in the record some point upon which they rely.

Second. Upon the trial of this cause it was proven that within less than 50-days prior to the finding of the indictment 20 barrels of beer were received at the railroad depot in Wa-tonga, in Blaine county, Okla., consigned to appellant, and were delivered by the railroad agent, on the written order of appellant, to one E. B. Kieth. The railroad agent was placed upon the witness stand on behalf of the state and identified an expense bill No. 115, and also a bill of lading. The bill of lading was for one barrel of fermented beverage; but the railroad agent testified positively that this was a barrel of beer. The record then contains the following stipulation:

“It is hereby agreed by the counsel for the plaintiff and the counsel for the defendant that the exhibits from 15 to 35, inclusive, will be identified by the witness on the stand, and that they shall be admitted in evidence on the same testimony as given by the witness on the stand, except that the defendant may be allowed to make objections to any single exhibit that he may wish to.”

E. B. Kieth, the party to whom these 20 barrels were delivered on the written order of appellant, testified for the state that he delivered all this stuff on appellant’s order at a hotel kept by appellant in the town of Watonga. The state here rested. The appellant offered no testimony.

The circumstances that a person residing in the western portion of Oklahoma may have received as an interstate shipment a quantity of intoxicating liquors will not alone sustain .a conviction, because, under the commerce clause of the Constitution of the United States, any person residing in the western portion of the state of Oklahoma may lawfully receive such liquors, and the federal law places no limit upon the amount that may be received; any by this we are bound. But we have always held that the quantity of liquor received, in connection with other circumstances, may be considered by a jury in determining as to whether or not such liquor was received for the personal use of the consignee, or as to whether or not is was received and kept for an illegal purpose. In this case it was proven that this beer was received and kept by the appellant at a hotel where the public generally congregated. This circumstance, in connection with the quantity received, was sufficient to make out a prima facie case against appellant; and the burden of proof was upon him to prove, if he could, that such liquors were for his own use, or for the use of his family alone. As the defendant refused to introduce any testimony, the jury were fully warranted, considering the place at which it was kept, in believing that he had in his possession this beer for the purpose of violating the prohibitory liquor law.

Counsel for appellant insists that the verdict is not sustained by the evidence; but he cites no authorities in support of this contention. This court has never held that a conviction could not be had in any classes of cases upon circumstantial evidence, when the circumstances were sufficient to exclude every other reasonable hypothesis save that of appellant’s guilt. To say that one man and his family could consume 20 barrels of beer within the time covered by the testimony in this case .would be an absurdity. If appellant was in possession of this beer for his own personal use, or the use of his family, he should have proven this fact and sustained it with such testimony as would raise a reasonable doubt upon this question in the minds of the jury.

There are a number of alleged errors complained of by counsel for appellant; but they are not of sufficient importance to require consideration. The judgment of the lower court is therefore affirmed.

ARMSTRONG and DOYRE, JJ., concur.


text:
    WILLIE TUCKER v. STATE.
    No. A-1380.
    Opinion Filed December 14, 1912.
    (128 Pac. 313.)
    1. INDICTMENT AND INFORMATION — Plea—Preliminary Examination — Variance. When it appears that the charge in the preliminary complaint is substantially the same as that set forth in the information filed by the county attorney in the district court, a plea of a want of a preliminary examination, or a variance between the preliminary complaint and the information, is unavailing.
    2. INDICTMENT AND INFORMATION — Duplicity. Section 6697, Comp. Laws 1909 (Procedure Criminal), provides the indictment must be direct and certain as it regards: (1) The party charged. .(2) The offense charged. And section 6699 provides: “The indictment must charge but one offense. * * *” An information charging that the defendant on a certain day did steal, take, and' carry away by stealth five head 'of hogs, the personal property of Walter Sampson, and nine head of hogs, the personal property of Lena Nelson, is bad for duplicity in that it alleges two separate and distinct ownerships of the property alleged to have been taken, without alleging that the property of the two owners was stolen at the same time, and by the same act or transaction.
    (Syllabus by the Court.)

      Appeal from District Court, Okmulgee County; Wade S. Stanfield, Judge.

    Willie Tucker was convicted of larceny, and appeals.
    Reversed.

      Mark L. Bosarth and George James, for plaintiff in error.

      Chas. West, Atty. Gen., and S. A. King, Asst. Atty Gen., for the State.
   DOYLE, J.

The plaintiff in error, Willie Tucker, was convicted in the district court of Okmulgee county of stealing hogs, and was sentenced in accordance with the verdict of the jury to be imprisoned in the penitentiary for one year. The judgment and sentence was entered on March 21, 1911. An appeal was taken by filing in this court on September 14, 1911, a petition in error with transcript of the record attached. It appears from the record that upon the preliminary examination the following order was made by the committing magistrate:

“It appears to me that the offense in the within information, to wit, larceny of domestic animals, has been committed, and there is sufficient cause to believe the within-named Willie Tucker guilty of the same, I order that he be held to answer the same, and that hé be delivered and committed to the custody of the sheriff of Okmulgee county, and his bail fixed at the sum of $1,000.”

The charging part of the information is as follows:

“That the said Willie Tucker and Field Fountain, in Ok-mulgee county, state of Oklahoma, on the 11th day of January, 1911, did, unlawfully, willfully, and feloniously, steal, take, and carry away by stealth five head of hogs the personal property of Walter Sampson, and nine head of hogs the personal property of Lena Nelson, with the unlawful and felonious intent of them, the said Willie Tucker and Field Fountain, to appropriate the same to their own use and deprive the owner thereof, contrary to,” etc.

Upon arraignment counsel for defendant filed a motion to set aside the information for the following reason:

“The information is not found, indorsed, presented, nor filed as prescribed by the Constitution and statutes of this state, in this: that prior to the filing of the information by the prosecuting attorney the defendant, Willie Tucker, has not been legally committed by a magistrate for the offense charged against him.”

Which motion was overruled, and which ruling of the court is assigned as error. The compláint on which the examining magistrate held the defendant to answer to the district court charged not only substantially, but almost in the identical language, the same crime for which the defendant was tried and convicted in the district court. We think that it was never contemplated that the information should charge the crime in the same language, or word for word, as charged in the preliminary complaint filed before the committing magistrate. In the case of Ponosky v. State, ante, 126 Pac. 451, it was held that:

“When it appears that the charge in the complaint before the committing magistrate is substantially the same as that charged in the information, a motion to quash on the ground that the offense charged in the information differs from that charged in the complaint upon which the defendant was held to answer is unavailing, and was properly overruled.”

The motion to set aside the information was .properly overruled.

A demurrer was also interposed on the ground that more than one offense is charged in the information. The demurrer was overruled and exception taken. A motion in arrest of judgment based on the same ground was also denied and exception duly taken. These rulings of the court are assigned as error, and relied upon for a reversal of the judgment. It is argued that the information charges two distinct and separate offenses: one the larceny of five hogs, the property of Walter Sampson, and the other the larceny of nine hogs, the property of Lena Nelson, without alleging they were committed at the same time and place, and without the equivalent allegation “then and there.” It is elementary that the information must charge but one offense.

Section 6697, Comp. Laws 1909 (Procedure Criminal), provides as follows:

“An indictment must be direct and certain as it regards: 1. The party charged. 2. The offense charged.”

Section 6699 provides:

“The indictment must charge but one offense, but where the same acts may constitute different offenses, or proof may be uncertain as to which of two or more offenses the accused may be guilty of, the different offenses may be set forth in separate counts in the same indictment and the accused may be convicted of either offense, and the court or jury trying the cause may find all or either of the persons guilty of either of the offenses charged, and the same offense may be set forth in different forms or degrees under different counts; and where the offense may be committed by the use of different means, the means may be alleged in the alternative in tlie same count.”

The. first provision is in accordance with the rule declared and enforced by an express provision of the Bill of Rights (section 20), which declares in all criminal prosecutions the accused shall be informed of the nature and cause of the accusation against him, and the invariable rule of the common law that the indictment must be certain; that is, that it must set forth the special manner of the whole fact, so that it can be clearly seen what particular offense, and not merely what nature of offense is intended to be charged; and it is required by the latter provision that but one offense can be charged in the same indictment or information. The information in this case alleges two separate and distinct ownerships of the property alleged to have been taken, without alleging that the property of the two owners was stolen at the same time and by the same act or transaction, and, if it should be presumed that possession accompanied the ownership, still it cannot be presumed without an allegation to that effect that the possession was at one and the same place, and that the taking occurred at one and the same time and as one act or transaction. An essential element of the crime of larceny is the trespass, although the trespass may be constructive and not actual, and, where it is charged that there was a trespass against two or more persons, it would seem clear that the presumption is that the trespasses were separate and distinct. There is no presumption that because it is charged to have been committed on the same day and in the same county it constitutes but a single offense, and the absence of. an allegation to that effect cannot be supplied by intendment or implication. If the information alleged that the property of two owners was taken at the same time and by the same act, it would not be bad for duplicity, as it is held by the weight of authority that the larceny of property belonging to two or more persons at the same time and place and by the same act or transaction constitutes but one offense, and may be so charged in an indictment or information. It must be alleged, however, that the larceny was so committed. It Is our opinion that the demurrer to the information should have been sustained, and for this same reason it was error to overrule the motion in arrest of judgment.

The judgment is reversed, and the cause remanded, with direction to the court below to sustain the demurrer to the information, with leave to file an amended information if the state so desires.

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


text:
    STATE v. IRA CLARK.
    No. A-1218.
    Opinion Filed December 14, 1912.
    (128 Pac. 161.)
    1. LARCENY — Taking Possession of Property. Under the Statutes of Oklahoma a person who takes personal property unlawfully, feloniously, and with intent to deprive another thereof, is guilty of larceny; and it is immaterial whether the property is taken from the owner or another.
    2. INDICTMENT AND INFORMATION — -Surplusage. An allegation in an information charging a misdemeanor which is not essential to the validity of the information nor a necessary ingredient of the offense is surplusage; and it is not material whether the proof upon the trial of the case supports, conflicts with, or refers to, such clause or allegation.
    3. LARCENY — Evidence—Sufficiency. For facts under which a conviction should have resulted, and under which it is held error for a trial court to advise an acquittal, see opinion.
    (Syllabus by the Court.)

      Appeal from Harper County Court; B. C. Krause, Judge.

    Ira Clark was convicted of petit larceny. From a judgment for defendant, the State appeals.
    Reversed.

      D. P. Parker, County Atty., and Smith C. Matson, Asst. Atty. Gen., for the State.
   ARMSTRONG, J.

This is an appeal by the state from a judgment of the county court of Harper county, discharging defendant in error, who was tried in said court at the April, 1911, term on a charge of petit larceny.

The agreed statement of facts incorporated in the record and signed by the county attorney and E. J. Dick, attorney of record in the court below for Ira Clark, discloses that an information was filed against the defendant in error, charging him with the larceny of a watch; the charging part of the information being as follows:

“* * * That Ira Clark did, in Harper county, state of Oklahoma, on or about the 31st day of December in the year of our Lord one thousand nine hundred and ten and anterior to the presentment hereof, unlawfully, willfully, and knowingly take, steal, and carry away, by stealth and fraud, from the lawful possession of Charlie Jenkins, bailee for hire, one certain watch with silverode case and Waltham movement, said watch being of the value of five dollars ($5.00), the personal property of one Othal E. Love, said watch being at the time of said unlawful taking, stealing, and carrying away by said Ira Clark in the lawful possession of said Charlie Jenkins, bailee for hire of said property, as aforesaid, said bailment then and there giving said Charlie Jenkins a special interest in said watch, said Charlie Jenkins having found said watch in the public highway of Harper county, Oklahoma, during the summer of 1910, under circumstances which did not give him any knowledge or means of inquiry as to the true owner thereof, with the unlawful intent of the said Ira Clark to appropriate the same to his own use, and to deprive the bailee, as special owner, thereof, contrary to the form of the statutes,” etc.

State’s witness Jenkins testified that he found the watch in the public highway on the road leading from Buffalo, Okla., to Ashland, Kan.; that he did not know the owner of said watch, and made considerable inquiry concerning its ownership, but was unable to discover the true owner; but that after the watch was stolen, and a few days before the case was tried, he learned that it belonged to Othal E. Love. Witness Love testified that he lost the watch in question on the road from Buffalo, Okla., to Ashland, Kan., in May, 1910, and identified the watch. All the material allegations in the information were established by the testimony of witnesses for the state.

When the state closed its case, the defendant in error, by counsel, filed the following pleading:

“Comes now the defendant, Ira Clark, and demurs to the evidence introduced by the state, for the reason that the same is insufficient to constitute a public or private offense, and the facts are insufficient to prove a special ownership in Charles Jenkins, as alleged in the amended information; and for the further reason that no bailment or special interest or ownership in the watch is shown; and for the further reason that the undisputed testimony of the state is that the watch was found by Charles Jenkins in the state of Kansas, and not in the state of Oklahoma; and for the further reason that no larceny has been proved by the state by this defendant, Ira Clark. We ask the court to instruct the jury to return a verdict of not güilty, and that the defendant be discharged.”

On this motion the court gave the following instruction:

“Gentlemen of the jury, the attorney for the defendant has filed his motion asking the court to direct the jury to return a verdict of not guilty. In this motion his objections are to the items in the amended information which allege that the property was found by Mr. Jenkins in the county of Harper, state of Oklahoma. The evidence shows that the property was found in the state of Kansas; and from that finding and the evidence it is the opinion of the court that there would not be sufficient property right in the finder of the property, where the property was found outside of the state, to constitute a bailment in the finder. The taking of said property so found from such finder would not constitute larceny. There is a fatal variance between the allegation of the amended information and the proof. You are directed, therefore to return a verdict of not guilty. Select your foreman.”

Whereupon the county attorney entered the following objection and exception to the action of the court:

“Comes now the plaintiff and excepts to the finding and instruction of the court as not in accordance with the law, and gives notice of appeal at this time to the Criminal Court of Appeals of the state of Oklahoma on the ruling of the court, said ruling not being in accordance with the law governing the rights to the possession of property in case of bailments. The bailee acquired his right to possession by finding said property. Plaintiff asks for 45 days in which to make and serve a case-made, 10 days to suggest amendments, and 5 days to settle and sign.”

The jury retired and returned the following verdict:

“We, the jury, drawn, impaneled, and sworn in the above-entitled cause, do, upon our oaths, find the defendant not guilty as charged in the amended information herein.”

When this verdict was returned, the county attorney obj ected to the verdict and reserved the legal questions for presentation to this court on appeal, as provided by statute. Judgment was rendered by the court in accordance with the verdict, and the prisoner discharged.

The action of the court indicates that he was laboring under the impression that, having included an allegation in the information that the property was found in Harper county, Okla., a conviction could not be had, unless this fact was established. In this the court was in error. This allegation was immaterial. It matters not where the property was found. If the larceny occurred in Harper county from one who had lawful possession as against the taker, it was larceny, regardless of where the person from whom it was taken acquired possession.

Section 3016, Comp. Laws 1909, provides that:

“One who finds a thing lost is not bound to take charge of it, but if he does so he is thenceforward a depositary for the owner, with the rights and obligations of a depositary for hire.”

Section 3009, Id., provides that:

“A deposit not gratuitous is called storage. The depositary in such case is called a depositary for hire.”

Section 3019,, Id., provides that:

“The finder of a thing is entitled to compensation for all expenses necessarily incurred by him in its preservation and for any other service necessarily performed by him about it, and a reasonable reward for keeping it.”

The finder of a chattel, though he does not by the finding acquire an absolute property and ownership, yet he has such a property right as will enable him to keep it as against all but the rightful owner. Hale on Bailments and Carriers, p. 20.

Bouvier says that in bailments for storage, for hire, the bailee acquires the right to defend the property as against third •parties and' strangers,' and is answerable for loss or injury occasioned through his failure to exercise ordinary care. Bouvier’s Law Dictionary, vol. 1, p. 215.

This rule is not affected by the special circumstances of the character of the thing found, the place of finding, or the relation of the finder to a third person, unless specifically so provided by statute. If the watch in question was, as a matter of fact, found in Kansas, and if there be a provision in Kansas changing this general rule, it would have been necessary for the defendant in error to plead and to prove such provision, if it had any bearing on the question. We are inclined to the view, however, that even a statutory provision in Kansas changing the aforesaid general rule would not have been material in this case. Under the law in Oklahoma a person cannot steal property from another without being liable to punishment. In order for property to be subject to larceny, it does not have to be taken from the owner with a felonious or unlawful intent to deprive the owner thereof. It is sufficient if the property is taken with unlawful or felonious purpose of depriving another thereof; the taker not having an interest therein entitling him to the possession and enjoyment of the article taken.

It follows that the court erred in advising the jury to return a verdict of not guilty. Under the facts disclosed by the record, a judgment of conviction should have been the result of the trial. A verdict of not guilty having been entered, and the prisoner having been discharged, he cannot be again tried on this charge.

The contention of the county attorney as to the question of law reserved is sustained; and it is held that the action of the court in directing a verdict of not guilty was error.

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


text:
    ALEX BATES v. STATE.
    No. A-1240.
    Opinion Filed December 14, 1912.
    (128 Pac. 163.)
    1. APPEAL — Severance—Discretion of Court. As to whether or not the state may have a severance in cases where defendants jointly indicted are prosecuted, is a question vested solely within the sound discretion of the trial judge; and this discretion will not be reviewed upon appeal, unless it affirmatively appears from the record that the appellant was injured thereby.
    2. LARCENY. — 'Warning to Evildoers. People of Oklahoma have suffered so much from the depredations of thieves that it is high time for the courts to let criminals of this class know in no uncertain terms that they must either respect the property rights of others, or leave the state, or that they will be sent to the penitentiary.
    (Syllabus by the Court.)

      Appeal from District Court, Blaine County; James R. Tolbert, Judge.

      Alex Bates was jointly indicted with B. F. Noah for cow stealing. A severance was granted, and from a conviction defendant Bates appeals.
    Affirmed.

      W. O. Woolman, for appellant.

      Smith C. Matson, Asst. Atty. Gen., and-A. L. Bmery, County Atty., for the State.
   FURMAN, P. J.

The only question involved in this record which we deem it necessary to discuss is presented in the brief of counsel for appellant as follows:

“Under the first specification of error, the contention of the defendant is that the court erred in granting a severance to the state on its request, after the cause was called for trial and each party had announced ready. It is our contention that under the theory and policy of the law as it exists in this state neither the state nor the defendant is entitled to severance, except as that right is conferred by statute, and the only statute law on the subject is as follows: Section 6830, Comp. Raws 1909, provided: ‘When two or more defendants are jointly indicted for a felony, any defendant requiring it must be tried separately. In other causes defendants jointly prosecuted may be tried separately or jointly, in the discretion of the court.’ Section 6831 Comp. Laws 1909, provided: When two or more persons are included in the sainé indictment, the court may, at any time before the defendants have gone into their defense, on the application of the county attorney, direct any defendant to be discharged from the indictment that he may be a witness for the state.’ The state has once made its election to proceed against the defendants jointly by informing against them jointly, by arraigning them jointly, by receiving their joint plea of not guilty, by assigning the same for trial as a joint cause, and by taking a joint bond, and by proceeding therein as a joint trial up to and including the time of the calling of the cause and the announcement of ‘ready’ by the defendants. We contend that the severance was not consented to by the defendants, and therefore not authorized by the state, as the charge was for a felony.”

Counsel fails to' cite a single authority which supports this contention, and admits in his brief that he has been unable to find any authority directly in point.

Sections 6487 and 6494 and 6830, Comp. Laws 1909, are as follows:

“Sec. 6487. This chapter establishes the law of this state respecting the subjects to which it relates, and its provisions and all proceedings under it are to be liberally construed, with a view to promote its objects, and in furtherance of justice.”

“Sec. 6494. The procedure, practice and pleadings in the district courts of this state, in criminal actions or in matters of criminal nature, not specifically provided for in this Code, shall be in accordance with the procedure, practice and pleadings of the common law, and assimilated as near as may be with the procedure, practice and pleadings of the United States or federal side of said court.”

“Sec. 6830. When two or more defendants are jointly indicted for a felony, any defendants requiring it must be tried separately. In other cases defendants jointly prosecuted may be tried separately or jointly, in the discretion of the court.”

These three statutes must be constructed together.

In the case of Dan Anderson v. State, decided at the September term (ante, 126 Pac. 840), after a full review of the authorities, we held that where defendants jointly indicted demand a severance, the question as to which defendant shall be tried first is vested solely within the sound discretion of the trial court; and that this discretion will not be reviewed upon appeal, unless it affirmatively appears from the record that the appellant was injured thereby. We do not think that there can be any question, under the statutes above quoted and’ the common law, but that the state may demand a separate trial of persons jointly prosecuted for an offense. But, even if this were an open question in Oklahoma, we think the contention of counsel for appellant is conclusively answered in the brief of the Assistant Attorney General, which is as follows:

“It is contended that the trial court erred in granting a separate trial, upon the application of the county attorney, of each of the defendants jointly informed against.

“Counsel for plaintiff in error contend that a severance could only be had at the request of either of the defendants, because the state, by informing against them jointly, had thereby elected to try them jointly, and was bound by such election. Counsel admits that he has been unable to find authority to support his contention. There is none.

“The statute of the state governing is section 6830, Compiled Laws of Oklahoma, as follows: ‘When two or more defendants are j ointly. indicted for a felony, any defendant requiring it must be tried separately-. In other cases defendants jointly prosecuted may be tried separately or jointly, in the discretion of the court/

“In the first place, it must be admitted that the state could have accomplished the separate trial of these defendants by informing against them separately; and neither defendant could have said nay, although jointly complained against, tried, and bound over, by the examining magistrate. People v. Plyler [121 Cal. 160] 53 Pac. 553. If that be true, what would be the reason for a construction that the state may not directly do what it could have accomplished by indirection?

“An accused jointly indicted or informed against in a felony case has no absolute right to a joint trial. Pie cannot compel his codefendants to be tried with him; but each of them, by demanding separate trials, may thereby compel him to be separately tried. One of two joint defendants may plead guilty, thereby compelling the other to be tried alone.

“Will this court say that just because two men are jointly accused that they, or either of them, may compel the state to try both at the same time, or else not try either ? Suppose one of them should never be arrested, or else make his escape after his arrest, then what remedy would the state have? Proceed against the other? No; because you have elected to prosecute him with the other, and you are bound by such election. Therefore he escapes punishment altogether, or the state must wait until the other is apprehended. What utter nonsense such a theory really is.

“In the case of In re Curran, 48 Va. 619, the General Court of Virginia said the following: T am of opinion that the objection, upon which the third error assigned is based is neither sound nor plausible. It alleges "that it was error to try the prisoner separately; it not appearing that he elected to be so tried.” By the common law, until it was changed by a recent act for the summoning of venires and impaneling juries in criminal cases, the commonwealth, and not the prisoner, in case of joint indictments, had the right of election, subject to the control and discretion of the court, whether to arraign and try prisoners or defendants„ jointly indicted, separately or jointly. By the law now in force (see Revised Criminal Statute, Session Acts 1847-48, p. 149, sections 11 and 12), each defendant has a right to a separate trial, if he so elect. Indeed, they must necessarily be tried separately where the offense is a felony, unless they elect a joint trial and agree in their challenges. But, even if they should so elect, the attorney for the commonwealth or the court may nevertheless elect to have a separate trial; so that whilst any and every joint defendant is entitled to a separate trial, if he so elect, against the will of the court or the attorney for the commonwealth, joint defendants cannot be tried jointly without the concurrent election of themselves, on the one hand, and the attorney for the commonwealth or the court, on the other.’

“The following decisions are to the same effect: Stewart v. State, 58 Ga. 577; State v. Johnson, 34 La. Ann. 48; State v, Thaden, 43 Minn. 325, 45 N. W. 614; Metz v. State 46 Neb. 547, 65 N. W. 190; Com. v. Hughes. 11 Phila. [Pa.] 430; State v. Marvin, 12 Iowa, 499; Allen v. State, 10 Ohio St. 287; 1 Wharton’s Crim. Law, sec. 433; Bishop’s Crim. Proc. sec. 1018; State v. Bradley, 9 Rich. [S. C.] 168; State v. McGrew, 13 Rich. [S. C.] 316; Hawkins v. State, 9 Ala. 137 [44 Am. Dec. 413]; State v. Thompson, 13 La. Ann. 515; State v. Roberts, 50 W. Va. 422, 40 S. E. 484.

“Our statute was not intended to abrogate the common-law rule that in the discretion of the court a separate trial of joint defendants may be granted on the application of the state. It was intended by the statute to confer upon defendants a greater privilege than ever before possessed by them, the privilege of the right to a separate trial in felony cases upon their demand — -a right not to be defeated by either the court or the prosecuting attorney.

“In such case the severance must be granted by the court. In all other cases the severance may be granted by the court. And this section, in order to promote the interests of justice, must be construed to mean that such a severance may be granted on the application of either the state or defendant.

“A resume of our position, concisely stated, is this-: That in felony cases, where a defendant demands it, a separate trial must be granted; that in felony cases, where the state asks it, a separate trial may be granted, in the discretion of the court; that in misdemeanor cases, where either party asks the severance, it is discretionary with the trial court to grant it.”

We therefore hold that the court did not err in granting a severance to the state in this case.

Counsel next contends that the verdict is contrary to the evidence. To our minds this is a plain, ordinary case of cow stealing. People of this state have suffered so much from depredations of this kind that it is high time for this class of criminals to know that they must respect the property rights of others, leave the state, or go to the penitentiary.

There are no material errors in the record. The judgment of the lower court is therefore, in all things, affirmed.

ARMSTRONG and DOYLE, JJ., concur.