author: DAVENPORT, J. PER CURIAM.

text:
    C. A. BRANT v. STATE.
    No. A-7664.
    Opinion Filed Oct. 11, 1930.
    As Modified on Denial of Rehearing Jan. 24, 1931.
    (295 Pac. 235.)

      J no. Y. Roberts, for plaintiff in error.
    J. Berry King, Atty. Gen., and Ed Crossland, Asst. Atty. Gen., for the .State.
   DAVENPORT, J.

The plaintiff in error, hereinafter called the defendant, was convicted of having possession of intoxicating liquor with the unlawful intent to barter, sell, give away, or otherwise dispose of the same to others contrary to the statutes, and was sentenced to pay a fine of |200 and be imprisoned in the county jail for a, period of 90 days. Prom which judgment the defendant has appealed to this court.

The testimony, in substance, on behalf of the state, shows that the defendant was engaged in operating, a filling station and garage in the city of Perry, Noble county, Oída., and that portions of the building in which the garage was located were used and operated by Roy Pollock, who was running a radiator shop, and Robert C. Henderson, ivho was an automobile mechanic, in repairing cars and such other work as came to his shop; that both Pollock and Henderson were paying the defendant for the privilege of occupying a part of the building a certain per cent, of the money collected for the work performed by them in the nature of rent.

The sheriff and his deputies, armed with a search warrant, went to the garage on the 22d day of June, 1929, and searched the same and found some empty bottles in the building, and a bottle in the front room of tbe garage building with a little whisky in it, and on the outside of the building, up near a wall where the dirt from, the wash rack had been thrown through a window — buried in this dirt — they found a five-gallon container full of whisky.

The defendant testifying in his own behalf denied any knowledge of the whisky being buried in the dirt, and stated that, at 2:30 in the afternoon of the evening the garage was searched and the whisky found, he had washed a car and thrown the dirt out of this window and at that time the dirt was a little higher than the window; when the garage was searched and the whisky found in • this dirt pile it had been pressed down until it was below the window; that he knew nothing about the whisky being there, did not own it, and had nothing to do with it.

Pollock and Henderson both testified they knew nothing about the whisky being placed where it was found by the officers. This is, in substance, the testimony offered by the state and the defendant.

Several errors have been assigned by the defendant. The first error assigned is that the information in this case, and the affidavit for the search warrant, and the search warrant in this case, are all of them insufficient. An examination of the information shows that it states sufficient facts to charge the defendant with the crime of possession of intoxicating liquor with intent to sell, barter, give away, or otherwise dispose of the same to others contrary to law.

It is urged by the defendant in his brief that the affidavit for the search warrant in said case does not state sufficient facts to authorize the magistrate to issue the search warrant to search the place or business of the defendant. While the affidavit in this case is to some extent informally drawn, it states that the prohibitory liquor laws of the state of Oklahoma are being violated, and particularly the statute against the sale of illicit liquor; that the affiant knows C. A. Brant, and knows that said premises are a place of storage of illicit liquor, to wit, whisky, and probably wine and beer. Further in the affidavit it is stated that the premises are a public resort, being a public garage, and that liquors are being kept, bartered, and sold there. There are several statements in the affidavit that are immaterial and would not be sufficient to authorize the issuing of a search warrant by the magistrate, but the paragraphs of the affidavit above set out are sufficient to authorize the issuing of a search warrant, and the court did not err in admitting the testimony offered by the state.

It is contended that other parties were occupying the building with the defendant, and the testimony of the defendant shows that he had nothing to do with the jug of whisky found in the dirt pile, and for that reason one of the parties is as liable to have placed the whisky there as the defendant. The defendant does not dispute the testimony of F. H. Yeager, one of the state witnesses who claimed he found a pint bottle in the office, under the counter in the front room, with whisky in it. All of the testimony was before the jury, and the court substantially and correctly instructed the jury as to the law, and the jury found for the state. This court will not disturb the verdict of the jury where there is any competent testimony sufficient to warrant the jury in finding a verdict of guilty. The evidence is sufficient to sustain the judgment.

The case is affirmed.

EDWARDS, P. J., and CHAPPELL, J., concur.

On Petition for Rehearing.

PER CURIAM.

The original opinion in this case was rendered on October 11, 1930'. Petition for rehearing was filed October 22,1930.

The court, after considering the testimony and record in the case, denies the petition for rehearing. After a careful examination of the record it appears that the sentence imposed in this case is excessive and should be modified. It is therefore ordered that the sentence of 90 days in the county jail and a fine of |200 be modified to a sentence of 60 days in jail and a fine of $200.


source: Caselaw Access Project

author: CHAPPELL, J.

license: Public Domain

text:
    A. A. WATKINS v. STATE.
    No. A-7716.
    Opinion Filed Jan. 24, 1931.
    (295 Pac. 417.)
    H. A. Stanley, for plaintiff in error.

      The Attorney General, for the State.
   CHAPPELL, J.

Plaintiff in error was convicted in the county court of Carter county on a charge of unlawful possession of intoxicating liquor, and his punishment fixed by the jury at a fine of $50 and imprisonment in the county jail for a period of 30 days.

Defendant contends, first, that the court erred in overruling his motion to quash the panel.

It appears from the record that the regular jury panel of 12 men was one man short, and the court directed Monroe Gunter, deputy sheriff and witness for the state, to summon an additional juror, and he thereupon called one J. W. Sumner. The defendant objected to the summoning of such juror by Gunter, and, when the objection was overruled, exercised one of his peremptory challenges, and the juror was excused. It does not appear from the record that the defendant exercised any other peremptory challenges nor that the jurors impaneled were not fair and impartial; nor does it appear from the record that the defendant suffered any material injury by the calling of this special juror by Gunter. After the jury was impaneled and sworn and the state had called its first witness, the defendant challenged the panel on account of the facts above stated.

A challenge to the panel must be taken before the jury is sworn, and must be in writing, specifying plainly and distinctly the facts constituting the ground of challenge. Section 2669, C. O. S. 1921; Beatty v. State, 5 Okla. Cr. 105, 113 Pac. 237.

The challenge to the panel not having been taken in the time and manner required by law, and it not appearing from the record that the defendant suffered any material injury or prejudice by reason of the calling of the special juror by the deputy sheriff, Gunter, the court did not err in overruling the motion to quash the panel.

Defendant next contends that the court erred in admitting incompetent, irrelevant, and immaterial testimony.

The court permitted the state to show that the officer found, the defendant, intoxicated, on the highway, and arrested him, and found a worm and still and some more equipment in his car after the arrest. This evidence was admissible as tending to connect the defendant with the liquor found on his farm and to establish his intent in the possession of the same.

No substantial errors appearing upon the record, the cause is affirmed.

DAVENPORT, P. J., and EDWARDS, J., concur.


author: EDWARDS, J.

text:
    Ex parte JOE OWENS et al.
    No. A-8044.
    Opinion Filed Jan. 24, 1931.
    (295 Pac. 415.)

      Kenneth B. Kienzle, for petitioners.
    J. Berry King, Atty. Gen., and Smith 0. Matson, Asst. Atty. Gen., for respondent.
   EDWARDS, J.

This is an original proceeding in ha-beas corpus. Petitioners allege: That they are unlawfully restrained by the sheriff of Pottawatomie county. That on December 19, 1930, petitioners were put on trial in the district court of that county, sitting* at Tecumseh, and that the trial of said case continued throughout the day. That the case was submitted to the jury about 5 o’clock p. m., which then retired to consider its verdict and which arrived at a verdict about 8 o’clock p. m. Then, pursuant to instructions of the trial court, a sealed verdict was returned into- open court at Tecumseh at 9 o’clock a. m., on December 20. That prior to said time, on December 17, 1930, a county seat election was held in Pottawatomie county, at which the electors voted on the cities of Tecumseh and Shawnee as candidates for the county seat. That at said election Shawnee received more than two-thirds of the votes cast, and the same having been canvassed and the returns certified to the Governor, at 4:17 o’clock p. m., on December 19, 1930, the Governor issued his proclamation declaring Shawnee the county seat. That, by reason of such proceedings and proclamation, the district court at Tecumseh, upon the issuing of said proclamation, ceased to exist, or, if it existed, it lost jurisdiction, for the reason that all proceedings in the trial subsequent to tbe issuance of the proclamation were at a place other than the county seat of Pottawatomie county and were and are null and void. That thereafter, on December 29, 1930, the district court then sitting at Shawnee sentenced each of the petitioners in accordance with the verdict returned at Tecumseh to1 a term of five years in the state reformatory at Granite. The respondent admits the allegations of petitioners are substantially correct, and that respondent, the sheriff of Pottawatomie county, is restraining, said petitioners by virtue of such judgment and sentence.

The Constitution of this state designates Tecumseh as the county seat of Pottawatomie county. Section 8, art. 17. It also provides for the removal by election of county seats from the places named. Section 6, art. 17. After providing for the calling of an election and in certain cases a second election, it is in part as follows:

a* * Upon the holding of any such election the board of canvassers shall certify and return said vote to the Governor, who shall thereupon at once declare the result and cause the will of the electors to be carried into effect. * * *”

The section further provides:

“* * * If a majority of all the votes cast in the county at such county seat election shall be in favor of any town, such town shall thereafter be the county seat. * * *”

The latter section further provides, in substance, that, in case of a second election, the county seat shall be subject to change under the same condition except as to the majority of votes required for removal.

Section 25 of article 7, Id., is:

“The terms of the district court shall he held at the county seat of the respective counties.”

See, also, sections 3057 and 3072, Comp. St. 1921.

No decision has been called to our attention, nor have we been able to find any case involving' a state of facts such as is here presented; that is, a case challenging the jurisdiction of a court where the county seat is declared changed during the course of the trial. There is an abundance of authority that the county seat is the proper place for the transaction of all public business. 15 C. J. 895, 896, and authorities cited. In Belford v. State, 96 Ark. 274, 131 S. W. 953, 954, it was held:

“A court has been defined to- be ‘a place where justice is judicially administered,’ and in order to constitute a court it must meet at the place that is appointed by law and the judicial power of such court can only he exercised at such place.”

A district court is defined in Eichoff v. Caldwell, 51 Okla. 217, 151 Pac. 860, L. R. A. 1917E, 359, and a district court was- defined by this court in Jones v. Busby, 37 Okla. Cr. 68, 256 Pac. 758, as follows:

“A district court is an arm of the state government, vested with judicial power, consisting of a judge and a clerk and other officers necessary for the transaction of business, assembled to- administer justice at a time and place where by law it was authorized to be held.”

iSee, also-, in this connection, Wonacott v. Rice, 27 Nev. 102, 73 Pac. 661; Whitener v. Belknap, 89 Tex. 273, 34 S. W. 594; Funk v. Carroll County, 96 Iowa, 158, 64 N. W. 768; Ex parte Lyde, 17 Okla. Cr. 618, 191 Pac. 606.

As stated, none of these cases are directly in point. We assume that no one, in the light of the statutes and Constitution, would assert that a district court could be commenced and held at some town other than the county seat. If that were done, a different question would be presented and many of the decisions cited by petitioners would be in point.

Decisions defining de facto officers, including judges, de facto political divisions, including counties, are enlightening. 33 C. J. 971, § 101; C., B. I. & P. By. Co. v. Carroll, Brough, Bobinson & Humphrey, 143 Okla. 128, 287 Pac. 411; 15 C. J. 418, § 47. The rule stated by these cases applies in principle to a de facto county seat, although there are few authorities directly involving county seats. Board of Commissioners, etc., v. Kansas, 19 Okla. 375, 91 Pac. 699, 709, is a case in which the validity of certain funding bonds of Day county, Okla., was at issue. The authority of the district court to sit at a place other than the county seat was challenged. The act of Congress creating several counties, including, Day county, established the county seat of the latter at Ioland. It provided that the district court should be held at county seats. The district court for Day county was held at the town of Grand instead of Ioland. The Supreme Court of the territory held, in substance, that Grand was a de facto county seat and the proceedings of the court there valid, saying:

“* * * ppe third defense presented by the answer of the plaintiff in error is that the county seat of Day county was established by an act of Congress at Ioland, and that the district court of said county could only be legally held at such county seat, and that no court was held at, Ioland on July 10, 1900, and no proceedings were there' had in the district court of Day county touching the funding of the county’s indebtedness. It appears from the record that on July 10, 1900, the session of the district court of Day county was held at Grand, instead of at Io-land, and was being held at Grand at the time this case was heard. * * * That the term of court was held at Grand, instead of at Ioland may therefore be regarded as settled. That Grand was the place where all the public business of Day county was and is transacted was and is a matter of such public notoriety that the court and all persons interested would take notice of, and would not and could not question or ignore it. That Ioland was the originally established county seat is also a fact beyond controversy. * * * There remains, therefore, only the question as to whether or not the determination of the court sitting at Grand, in the county of Day, was a binding and conclusive determination as against parties litigant, appearing in the court and without objecting at the time, and submitting to the court their controversies to be determined by it. If Ioland was the county seat de jure, Grand was the county seat de facto, and this the district court of Day county, being, a court of general jurisdiction, woud take judicial notice of, and the validity of the proceedings had could not be questioned in a collateral proceeding. * * *”

The provisions in the Constitution designating the county seats of the various counties and providing for the removal by vote of the people of the county are legislative provisions; that is, they are not embedded in it in the sense of the usual constitutional guaranties. The purpose in designating places as county seats and providing for the removal by vote of the people of the county was to provide orderly government and an orderly method of changing county seats and to insure stability and certainty until the Legislature or the people of the county had acted. Section 4, art. 17, Const.; Frantz v. Autry, 18 Okla. 561, 91 Pac. 193. These provisions are not changed in the usual way by amendment to the Constitution but in a legislative manner by the people of a limited area. In so providing, the Constitutional Convention did not attempt legislation which would meet every condition possible to arise in the changing of a county seat, but only the usual conditions which might be expected to arise. Hence these provisions do not require a construction so literal, technical, and precise as to result in an absurdity. If the reasoning of petitioners should be sustained and the county seat be in fact removed for all purposes at the instant the Governor affixed his signature, and the court then in session have 'been dissolved and jurisdiction, have been lost, a ridiculous situation would exist. Petitioners would have been in jeopardy in a court of competent jurisdiction, and, if the removal of the county seat dissolved the court, it would not have had power to have ordered the jury and petitioners transported from the late county seat to the new. If a defendant had been tried, a verdict returned, and he were standing to be sentenced, all in a court of competent jurisdiction, and while the judge of the court was pronouncing sentence, and before it was concluded, the Governor should complete his signature to the proclamation, the sentence would have been coram non judice and void. This is not the law. Though we may admit, for the purpose of this case, that instantly upon the signature by the Governor to the proclamation declaring the result of the election the de jure county seat ipso facto was removed from Tecumseh to Shawnee, certainly there continued a de facto county seat at Tecumseh until the conclusion of the trial then in progress. We therefore conclude that the district court properly continued with the trial at Tecumseh until it was completed.

The writ is denied.

DAVENPORT, P. J., and CHAPPELL, J., concur.


author: FUBMAN, PRESIDING Judge.

text:
    RILEY JOHNSON v. STATE.
    No. A-336.
    Opinion Filed January 18, 1911.
    (112 Pac. 760.)
    1. APPEAL — Record—Plea to Indictment. Where the record shows that the defendant was duly arraigned and that he demanded time in which to plead to the indictment, and when the case was subsequently called for trial he announced ready for trial and participated in the selection of the jury, and the county attorney, after reading the indictment to the jury, stated that the defendant had pleaded not guilty thereto, and where' the instructions of the court informed the jury that the defendant had pleaded not guilty, this sufficiently shows that the defendant had pleaded to the indictment.
    2- RAPE — «Evidence—Judicial Notice — Boundaries of Counties and Location of Cities, (a) Por evidence sustaining a conviction for statutory rape, see opinion, (b) A defendant may be convicted for the crime of rape upon the uncorroborated testimony of the prosecuting witness, (c) Courts of Oklahoma take judicial notice of the boundaries of the counties and the location of the cities and towns therein.
    3. NEW TRIAL — Newly Discovered Evidence — Showing of Diligence., (a) Where a defendant filed a motion for new trial .based upon alleged newly discovered ev'dence, it Is not sufficient for him to assert that he had used due diligence to discover this evidence prior to the trial; hut he should state the facts with reference to the question of diligence, so that the court can determine as. to whether or not the diligence used was sufficient, (b) Por a motion for new trial based upon the ground of alleged newly discovered evidence, which was altogether insufficient, see opinion.
    (Syllabus -by the Court.) .

      Appeal from, District Qourt, Marshall County'; D. A. Richardson, Judge. .

      Eiley Johnson was convicted of rape, and be appeals.
    Affirmed.

      F. E. Eennamer, Chas. A. Coaleley, and I. 0. Leváis, for appellant.

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

First. The defendant’s first assignment of error is as follows: “The plaintiff in error was not required or allowed to plead before the trial of the cause.” The record does not sustain this assignment of error. On the contrary it shows that on the 26th day of April, 1909, the defendant was duly arraigned and demanded 24 hours within which to plead to the indictment. On the 3d day of May, 1909, this cause was called for trial and both the state and the defendant announced ready for trial, and a jury was duly impaneled, and that the county attorney thereupon read the indictment to the jury and stated that the defendant had pleaded not guilty. The county attorney then stated the case in behalf of the state to the jury, and counsel for the defendant stated the ease to the jury in behalf of the defendant. The court instructed the jury that the defendant had pleaded not guilty. These recitals in the record are sufficient to show that the defendant entered a plea of not guilty. See Sam Wood v. State, 4 Okla. Cr. 436, 112 Pac. 11.

Second. After the state introduced its evidence, the defendant moved the court to inform the jury that the evidence was not sufficient to warrant a conviction, and to advise the jury to find the defendant not guilty. This motion was overruled by the court, to which the defendant excepted. This prosecution was brought under the first paragraph of section 2353, Snyder’s Comp. Laws Okla. 1909, which is as follows:

“Bape is an act of sexual intercourse with a female not the wife of the perpetrator under either of the following circumstances: First. When the female is under the age of 16 years.”

Nettie Fisher, the prosecuting witness, testified that she did no.t know just exactly how old she was, but that she thought that she was 14 years of age. This evidence was introduced without objection or exception on the part of the defendant. She further testified that she was living with her father, Alex Fisher, and that she was acquainted with Riley- Johnson, and had known him for about a year; that aibout a year ago before the trial the witness, in company with her sister and brother, took supper with Riley Johnson, the appellant; that after supper Riley Johnson carried her home to her father’s house, and while on the road he had sexual intercourse with her; this occurred at night; that Riley Johnson had had sexual intercourse with her twice before in the woods near the home of the witness’ father. She testified that as the result of this' sexual intercourse she became pregnant with child; that Riley Johnson at this time was living with his father in the town of Woodville. Alex Fisher testified Lhat he was the father of the complaining witness'and that he lived about two miles from Woodville; he remembered the circumstances of Nettie’s going to supper with Riley Johnson about a year before the trial began, and that Riley Johnson came back home with her. He also testified that at this timé Riley Johnson was paying attention to and was going with his daughter. He testified that he did not know how old the prosecuting witness was; that all he had to go by was what the doctor said, and that Dr. Jones had waited on his wife when Nettie was born, and that this was the only time that Dr. Jones had attended his wife during childbirth. Dr. E. A. Jones testified that he lived at Woodville and was a physician; that he knew Alex Fisher and Nettie Fisher; that the witness would have resided at Woodville 16 years from the 6th of next June; that in the fall or the next spring after he came to Woodville he was the physician of Alex Fisher’s wife when her girl baby was born; and that he never waited upon Alex Fisher’s wife at any other time.

We think that this evidence clearly makes a ease against the defendant. This court takes judicial notice of the boundaries of the counties and of the location of the cities and town therein, and we therefore know that Woodville is in Marshall county, Okla. The evidence of the doctor is clear as to the age of the prosecuting witness, and brings her within the protection of the statute, whether or not she consented to her defilement. The party ravished is a competent witness. How far she is to be believed must be left to the- jury, and a conviction may be had for this offense upon -her uncorroborated testimony. See Reeves v. Territory, 2 Okla. Cr. 358, 101 Pac. 1039. It would indeed be a harsh and unjust rule of law that would require corroboration of that which in the very nature of things in many cases could not be corroborated. We therefore hold that the' court did not err in refusing to advise the jury to acquit the defendant.

Third. The defendant filed a motion for new trial upon the ground of newly discovered evidence, and claims that if a new trial were granted him, he would be able to prove by Mollie Ingram and Lou Johnson that the prosecuting witness in this ease was over 16 years of age at the time of the commission of this offense. Defendant .alleges that since his arrest on the charge of this case he has been confined in jail and been unable to make any inquiries with reference to the- testimony in the case; that he has used all reasonable diligence in procuring evidence in his behalf; and that he did not discover the testimony of the said Lou Johnson and Mollie Ingram until after his conviction. Defendant stated that he had exercised due diligence in procuring testimony in his behalf before the trial began. This is merely the statement of a conclusion. Such an affidavit should state the facts, so as to enable the court to see that due diligence had been exercised. The record shows that the father of the defendant resided at Wood-ville. With the least effort on the part of the defendant or his counsel he should have been in possession of the alleged facts set up in his motion for new trial long before the trial of this case took place. The record further shows that the verdict was rendered against the defendant the same day on which the motion for new trial was filed. No explanation was made as to how or why it was that the defendant could discover this testimony as soon as he was convicted, but could not find it out before the trial.. Defendant had had a preliminary trial at which the state’s evidence was introduced, and in which he was represented by the same counsel, who represented him in the final trial. The town of Woodville is about 15 miles from the county seat where the trial took place. It is not alleged that counsel for the defendant even visited Woodville to make any investigations in behalf of their client; that the defendant or his counsel ever even requested the father of the defendant, who resided at Woodville, to make any investigations as to the facts of the case. They rested their defense entirely upon the hope that the jury would believe the testimony of the defendant rather than the testimony of the prosecuting witness. Under these circumstances it was too late, after the conviction, to begin to exercise that diligence which should have been exercised before the trial. Counsel cannot remain idle before a trial and after there has been a conviction discover evidence which they could have discovered prior to the trial by the exercise of diligence, and thereby obtain a new trial. The trial of a criminal caséis a very serious matter, and the law requires that defendants and those representing them must be diligent in preparing to defend their cases. It is their duty to prepare their cases for trial before á conviction has been had.

The jury saw and heard all of the witnesses in this case. They accepted the testimony for the state, and rejected that for the defense. We cannot, say that they were not justified in so doing.

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

ARMSTRONG and DOYLE, Judges, concur.


author: FHEMAN, PRESIDING Judge.

text:
    JOHN HENSON v. STATE.
    No. 541.
    Opinion Filed February 6, 1911.
    (113 Pac. 224.)
    1. APPEAL — Record—Time for Serving Case-Made. Unless the case-made is served within the time allowed by the trial judge, the case-made will be stricken from the record.
    2. APPEAL — Failure to File Brief — Affirmance. Where an appeal is taken to this court, and no brief is filed on behalf of the appellant; the judgment of the lower court will be affirmed, unless fundamental errors appear in the record.
    (Syllabus by the Court.)

      Appeal from District Court, Osage County; John J. Shea, Judge.'
    John Henson was convicted of grand larceny, and he appeals.
    Affirmed.

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

First. Judgment was pronounced upon the defendant on the 15th day of July, 1909, at which time the court allowed the defendant 60 days’ time within which to make and serve a case-made. Defendant server! his case-made upon the county attorney on the 14th day of September, 1909. There being 31 days each in July and August, the 60 days allowed by the court for serving a case-made had expired before the case-made was served. The case-made is therefore stricken from the record.

Second. No appearance has been made in this court on behalf of appellant. The Attorney General has filed a motion to affirm this case for want of prosecution of the appeal. We have examined the record, and find that no material error was committed during the trial.

The judgment of the lower court is therefore affirmed.

ARMSTRONG and DOYLE, Judges, concur.


author: FURMAN, PRESIDING Judge.

text:
    TOM SPENCER v. STATE.
    No. A-372.
    Opinion Filed February 6, 1911.
    (113 Pac. 224.)
    1. APPEAL — Record of Arraignment — When Immaterial. Where the record shows that the defendant was present at the trial and was represented by counsel, that he pleaded not guilty, that he offered testimony in his own behalf, and the issues in the case were properly submitted to the jury, the fact that the record failed to show that the defendant was duly arraigned is immaterial.
    2. BURGLARY — Ownership of House — Evidence—Judicial Notice. (a) Proof of any kind of rightful 'possession of the house burglarized as against the burglar is sufficient to sustain the allegation of ownership of such house.
    (b) Courts take judicial notice of the boundaries of counties and county lines and of the location of towns and cities therein.
    3. TRIAL — Instructions—Sufficiency. The instructions must be considered as a whole, and, when considered altogether, if they fairly and correctly state the law applicable to the case, they will ■be sufficient.
    4. SAME — Refusal of Requests. It is not error for the court to decline to give instructions requested by counsel for the defendant even when such instructions correctly ,'State the law, if the court has a'ready in the general instructions correctly given the law applicable to the case.
    5. APPEAL — Affidavit on New Trial — 'Record—Trial—Impeachment of Verdict, (a) Affidavits in support of a motion for a new trial will not fbe considered on appeal unless such affidavits are properly incorporated in the record and duly certified to by the trial judge.
    Ob) Jurors will not be permitted to impeach or contradict their verdict by affidavits or otherwise after they have been discharged from the jury and mingled with the public.
    (Syllabus by the Court.)

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

    Tom Spencer was convicted of burglary in the second degree, and his punishment was assessed at two years’ confinement in the state penitentiary, and he appealed.
    Affirmed.

      J. M. Humphreys, for appellant.

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

First, Appellant complains that he was forced to trial by the court without arraignment and that he was not permitted to plead to the indictment. The record discloses the fact that the defendant was first indicted for this offense on the 23d day of November, 1908, and that said indictment upon motion of the defendant was set aside on the 12th day of April, 1909, and that the defendant was held to await the action of the grand jury. On the 17th day of April, 1909, the grand jury returned into open court the indictment upon which the defendant was convicted. The defendant demurred to the indictment on the 19th day of April, 1909, which demurrer was by the court overruled. It therefore appers affirmatively from the record that defendant had knowledge of the contents of the instrument. The case was called for trial on the 22d day of April, 1909, when counsel for the defendant requested an attachment for an absent witness. This was refused by the court upon the ground that said witness had never been served with a subpoena. It also appears that the case went to trial without announcement of ready, for trial or application for a continuance b) either party. Defendant was present and was represented by able counsel and assisted in the selection of the jury and in the examination of the witnesses. It also appears that the defendant introduced a number of witnesses in his own behalf, and that he ‘testified in his own behalf. The instructions of the court, which under our statutes, constitute a part of the record, informed the jury that the defendant had pleaded not guilty. Under these conditions, it is immaterial that the record fails to show that the defendant was formally arraigned. This question was fully discussed and considered in the case of Sam Wood v. State, 4 Okla. 436, 112 Pac. 11.

Second. Defendant complains that the ownership of the building and the allegation in the indictment with reference to the location of the burglarized building were not proven. This contention is not sustained by the record. On the trial of this case, E. H. Warren, a witness for the state, testified that the house burglarized belonged to J. B. Wyriek. This testimony was sufficient to sustain the allegation of ownership contained in the indictment. In cases of this kind possession which is rightful as against the burglar constitutes ownership. Markham v. State, 25 Ga. 52; State v. Jaynes, 78 N. C. 504; Webb v. State, 52 Ala. 422; White v. State, 49 Ala. 344. The indictment alleged that the building burglarized was the property of J. B. Wyriek, and that it was located about '6 miles east of Wapanucka, Okla., in Atoka county. The states witness Warren further testified that the store burglarized was' situated about 14 miles west of Atoka in the western part of the county. The courts of this state take judicial notice of the boundaries of counties and of county lines and the location of towns and cities therein. See Riley Johnson v. State (decided at the present term), ante, 112 Pac. 760. Therefore this court will take judicial notice of the fact that a point 14 miles west of Atoka is about 6 miles east of Wapanucka, and is in Atoka county. So the contention of counsel for the appellant falls to the ground. But, even if this were not the law, the allegation that the building burglarized was about 6 miles east of Wapanucka was purely sur-plusage, and it was not necessary to prove it at all. The material allegation was that the building was the property of J. B. Wyriek and was situated in Atoka county. This was fully proven by the testimony. That is all that the law requires. See Reed v. State. 66 Ark. 110, 49 S. W. 350; Hamilton v. People, 24 Colo. 301, 51 Pac. 425; State v. Reid, 20 Iowa, 413; State v. Burdett, 145 Mo. 674, 47 S. W. 895.

Third. We-have carefully examined the instructions of the court in connection with objections thereto and criticisms contained in the brief of counsel for appellant. It is a fundamental principle of law that instructions must be considered as a whole, and, even if some paragraph in the instructions may not be as full as it should be, yet, if the law upon this subject is correctly given in some other portion of the instructions, it will bo sufficient; provided that there are no contradictory statements contained in-the instructions upon material propositions. We must presume that the jury was composed of men of at least ordinary intelligence, and that. they were capable of understanding the English language. Some paragraphs of the court’s charge arc no! as full as they might be; but their deficiencies are supplied in other parts of the instructions, and, taken as a whole, we find the charge of the court does not contain any material errors.

Fourth. A great number of special instructions were requested by the defendant. A number of them were given by the court, but most of them were refused. Some of these requested instructions do not correctly state the law. Others are more favorable to the defendant than the law permits. Others were not .applicable to the facts in the case, and those which were correct and applicable to the case had been given in the general charge of the court to the jury. We therefore find that the court did not err in refusing to give the special instructions asked by the defendant which were rejected by the court.

Fifth. The twenty-eighth ground in the motion of appellant for a new trial is as follows:

“The jury received evidence outside of the courtroom, and, after deliberating for 24 hours, decided the case upon one of the facts as stated by the jury, that the defendant was seen upon the streets of Atoka, in company with Edgar Miller, by members of the jury, after they had been discharged by the court for the night, and that, upon reassembly of the jurv the next morning, this is the evidence which finally brought about the verdict of guilty.”

This motion for a new trial was not sworn to, but we find in the record the affidavits of John McMurtrv, J. J. Jenkins, and T. E. Adams, who were jurors in the trial of this case touching this matter. The affidavit of John MeMurtry was verified on. the 13th day of May, 1909. The affidavit of J. J. Jenkins was verified on the 11th day of May, 1909. The affidavit of I. E. Adams was verified on the 10th day of May, 1909. The motion for a new trial wps filed in the district court of Atoka county on the 26th day of April, 1909, and was overruled by the court on the 1st day of May, 1909. There is no indorsement on. these affidavits showing that they were ever filed in the district court of Atoka county. So it is seen from the face of the 'record that these affidavits were not verified until nearly two weeks after the motion for a new trial was overruled. There is a statement in the case-made certified to by the judge who tried this case that these affidavits were not a part of the record. For these reasons we cannot consider this matter. But there is another ground which is decisive of this question. Jurors cannot be heard to impeach their verdict unless expressly authorized to do so by statute, and then only in the manner provided by statute. When jurors are impaneled, they are sworn to decide the case submitted to them according to the law and the evidence. For a juror to make an affidavit that he has violated his oath and rendered a verdict upon any other ground than the sworn evidence in a case places him in contempt of court. In Petitti v. State, 2 Okla. Cr. 135, 100 Pac. 1123, this court said:

“The rule of law that juries cannot impeach or contradict their verdict after they have been discharged and have mingled with the public is based upon the highest considerations of public policy. It can only be done when permitted by statute, and then only as the statute may prescribe.”

If, after being discharged and mingling with the public, jurors are permitted to impeach verdicts which they have rendered, judgments based upon verdicts of juries would rest upon a very uncertain foundation. Litigants against whom verdicts had been rendered would be continually importuning jurors and attempting to obtain from them affidavits upon which such verdicts could be assailed. This would result in perjury and bribery. There would be no end of litigation in cases tried before juries. Therefore, for the security of litigants, and to prevent fraud and perjury., as well as for the protection of the jurors themselves, courts will not allow jurors to impeach their own verdict unless they are permitted to do so by the express provisions of the statute. We have no statute permitting this to be done.

Sixth. The evidence in this case on the part of the state, if worthy of belief, conclusively proves that the defendant is guilty of the burglary eharg'ed in the indictment. The evidence for the-defense tended to establish an alibi. The jury saw and heard the witnesses and were in a much-better condition to determine as to who was worthy of belief than we are. We must therefore accept their determination as conclusive of this question.

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

ARMSTRONG and DOYLE, Judges, concur.


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    BOB TERRELL et al. v. STATE.
    No. 348.
    Opinion Filed February 6, 1911.
    (113 Pac. 223.)
    APPEAL — Record—Failure to File Case-Made in Time. Where the case-made is not 'filed within the time allowed by the judge who presided at the trial, such case-made will he stricken from the record.
    (Syllabus by the Court.)

      Appeal from Garter Gountyi Courtj I. B. Mason, Judge.

    Bob Terrell and another were convicted of violating the prohibitory liquor law, and they appeal.
    Affirmed, with directions.

      William Pfieffer, for appellants.

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

Judgment in this case was pronounced on the 15th day of July, 1909, and the defendants were granted by the court. 40 days within which to- prepare and serve a case-made, which time expired on the 24th day of August, 1909. On the 28th day of August, 1909, the defendants served their case-made upon the county attorney of Carter county. As this case-made was served after the expiration of the time prescribed by the trial court, we cannot consider the ease-made, and it must be stricken from the record. See Durant v. State, 3 Okla. Cr. 447, 106 Pac. 651.

The information in this case is in due form. There are no material errors in the instructions of the court, and the judgment is in strict conformity with the law. The conviction of the appellants is therefore affirmed, with directions to the county court of Carter county to proceed with the execution of the judgment

ABMSTBONG and. DOYLE, Judges, concur.


author: FUEMAN, PRESIDING Judge.

text:
    HENRY JOHNSON v. STATE.
    No. A-315.
    Opinion Filed February 6, 1911.
    (113 Pac. 552.)
    1. HOMICIDE — Self-Defense — Reasonable Doubt — Instructions. Where the issue of self-defense is presented by the testimony, the court should instruct the jury that, if the testimony upon this point raises in their minds a reasonable doubt as to whether or not the defendant at the time of. the homicide, acted in good faith and upon reasonable appearances of danger of receiving great .bodily harm or death at the hands of his assailant, the jury should resolve that doubt in favor of the defendant, and acquit him.
    2. SAME — Sufficiency of Evidence. It is not necessary that the jury should find that a defendant was justified in acting in Ms own necessary self-defense before they can acquit him in a prosecution for murder, but if the evidence upon the subject of self-defense raises in their minds a reasonable doubt as to whether or not the defendant was justified in acting in his own necessary self-defense, at the time he fired the fatal shot or struck the fatal blow, then the jury should resolve that doubt in favor of the defendant, and acquit him.
    3. APPEAL — Review—Improper Remarks of Prosecutor. Improper remarks alleged to have -been made by a county attorney in his closing argument to the jury will not be considered upon appeal, unless said remarks were objected to at the time made, and a motion was made requesting the court to exclude such remarks from the jury; and this must be made to appear (by proper recitals in the ease-made, duly certified to by the trial judge.
    (Syllabus by the Court.)

      Appeal from, District Court, Muskogee County; Joan H. King, Judge.
    Henry Johnson was convicted of manslaughter, and be appeals.
    Eeversed and remanded.
    Appellant was convicted for manslaughter in the first degree, and his punishment was assessed at imprisonment in the penitentiary for a period of four years, and he appealed. Eeversed and remanded.

      J. E. Wymd and S. M. Rutherford, for appellant.

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

First. Upon the trial of this case, in paragraph 12, the court instructed the jury as follows:

“You are instructed that a person has a right to fight in his necessary self-defense and to take the life of his assailant if he believes in good faith that it is necessary for him to do so, in order to prevent great bodily harm or death at the hands of his assailant; but in such case it must appear to the defendant, viewing the situation from his standpoint at the time, that the danger was so imminent and pressing, that it was necessary for him to act in order to prevent receiving great bodily harm or death at the hands of his assailant.”

An exception to this instruction was properly reserved at He time it was given. The instruction should have gone further and told the jury that, if the evidence on this point was such as to raise in their minds a reasonable doubt as to whether or not the defendant at the time of the homicide acted in good faith and upon reasonable appearances of danger of then receiving great bodily harm or death at the hands of his assailant, then the jury should resolve that doubt in favor of the defendant and acquit him.

Second. In paragraph 13 of the charge the court instructed the jury as follows:

“You are instructed that if you believe from the evidence, beyond all reasonable doubt, that the defendant 'made a felonious assault upon the witness, Sam Latta, with the unlawful and felonious intent to take his life, and with the premeditated design to effect his death, and that the ball fired from the pistol fired by the defendant struck and killed David Hartless, in this event the defendant would be guilty of murder the same as if he had intended to take the life of David Hartless, unless you find the defendant was justified in acting in his own necessary self-defense against the prosecuting witness, Latta.”

An exception to this instruction was properly reserved at the time it was given. This instruction should have gone further and informed the jury that, if the evidence on this point was such as to raise in their minds a reasonable doubt as to whether or not the defendant was justified in acting in his own necessary self-defense at the time he fired said shot, they should resolve such doubt in favor of the defendant, and acquit him.

Third. In their brief counsel for the appellant complain of remarks alleged to have been made by the county attorney in his closing address to the jury. Hpon this subject we find the matter correctly stated in the brief of counsel for the state, as follows:

“We have diligently searched this record and fail to find any place in it where the trial judge certifies that such argument was made. The record also fails to disclose that any objection was made to such argument at the time it was made, if made, and that request was made to withdraw same from the jury, ox that such request was refused and exception thereto taken. The first intimation that such occurred is in the motion for a new trial, which is not sworn to. This court said in the case of Johnson v. U. S., 2 Okla. Cr. at page 22, 99 Pac. 1022: ‘When the prosecuting attorney goes outside of the record and makes improper remarks calculated to prejudice the rights of the accused, it is the duty of the counsel of the accused to promptly interpose an objection to such remarks, and move the court to withdraw them from the consideration of the jury, and instruct the jury not to consider them. In the absence of the record showing a motion bv the accused to withdraw from the consideration of the jury the remarks complained of and the overruling of said motion, in cases other than capital offenses, this court will not reverse the judgment on account of such remarks.’ In Gillooley v. State, 58 Ind. 182, it was held that improper comments made by the prosecuting attorney to the jury, in his argument, must, to be available as ground for a new trial, be excepted to. This was also the holding in the following cases: Von Pollnitz v. State, 92 Ga. 16, 18 S. E. 301, 44 Am. St. Rep. 72; Wheeless v. State, 92 Ga. 19, 18 S. E. 303; State v. Jefferson, 43 La. Ann. 995, 10 South. 199; State v. Hall, 44 La. Ann. 976, 11 South. 574; Veasey v. State, 6 Ga. App. 208, 64 S. E. 709; Bias v. U. S., 3 Ind. T. 27, 53 S. W. 471. This question, therefore, is not properly presented by the record.”

The question which presents itself is as to whether or not the errors herein pointed out are such as to justify this court in granting the defendant a new trial. Section 6957, Snyder’s Comp. Laws Okla. 1909, is as follows:

“On an appeal the court must give judgment without regard, to technical errors or defects, or to exceptions. which do not affect the substantial rights of the parties.”

To determine the question as to whether or not the defendant has been deprived of a substantial right in this trial, we must consider the entire record in the case.

Testimony introduced in this trial is as follows:

/ Sam Latta testified, in substance, that on the day of the killing he went from the barber shop to the Buby Cafe for dinner. 'That he saw Henry Johnson, the defendant, and D'avid Hartless, the deceased, seated at the counter eating, as he went in. That lie passed them and sat down at the far end of the counter and remained seated about a minute. That he walked outside and talked to a Mrs. Wells for a minute. Thai Hairless came out of the restaurant just as Mrs. Wells walked away, but Johnson stopped to pay the cashier as he came out. That he saw Johnson take a gun out of his hip pocket and put it in the inside of his coat, as he came from the counter to the door. That as Johnson came out of the door, he turned toward him with the gun pointed at him. That he grabbed the gun and hit the defendant twice, when Hartless grabbed him from behind, and that they struggled for several minutes over about 20 feet of space, when the gun was discharged and the ball went through his side and killed Hartless. Witness admitted that he had before had trouble with the defendant, and admitted that he and his brother had beaten defendant’s stepfather in attempting to find out where defendant was. Said he felt suspicions of having trouble; that his brother had been having trouble with the defendant. ''

"Wm. F. Kelley testified .that he was passing, on the street at the time the trouble occurred. That he noticed the witness, Sam Latta, standing in front of the cafe and Hartless standing near him. That the defendant came out of the restaurant, took a step or two west and faced Latta, with his gun pointing at him. That Latta struck at defendant twice and grabbed the gun, and that Hartless grabbed Latta and in the scuffle the gun was discharged. That they did not scuffle down the ‘street.

Mrs. Wells testified that she came out of the restaurant and spoke a few words with Latta; that when she had walked about two doors east some one called to her to “look out,” and pushed her in a stairway just as the shot was fired.

Wm. M. Marquitz testified that he had a store next door east of the restaurant; that on the day of the killing he heard a scuffle in front of the store on the east of the store door. That he saw three men struggling together. That Johnson had the gun and Latta had a hold oh the gun or Johnson’s hand. That Hartless had a hold of Latta. That they scuffled west past his door before the shot was fired.

Genton Hargrove, a policeman, testified that he was about 60 feet west of the restaurant when the shot was fired, and facing the opposite direction. That he turned and walked east and met the defendant, who surrendered to him and handed him the gun. That he carried the defendant to the police station. That the witness, Sam Latta, came to the station and offered him $10 if he would let him get to the defendant.

Ellis Gourd testified that he knew the parties. That on the Friday following the shooting Latta told him that he grabbed Henry as he came out of the restaurant, and that if Hartless had kept his hands off there would have been no shootmg, but that he would have beat Henry to death.

Frank Long testified that he had been a deputy marshal before statehood, and at one time had a warrant for Johnson on Í1 account of trouble he had with a brother of Sam Latta. That Sam Latta told his brother that he ought to have killed Johnson, and that if he ever got a chance at him he would fix him. That witness afterwards told the defendant of the threats made by Sara Latta.

Sam Crossland testified that he was standing east of the restaurant when Johnson came out and turned east. That Latta either struck him or laid his hand on him. That witness started up the street and did not notice anything further until he heard the shot.

- 0. Richardson testified that when he went into the restaurant Latta was standing outside, on the west side of the door. That witness sat at a table next to the front window; that as Johnson went out of the door he turned east. That Latta either struck nim or reached over at him. That they clinched and scuffled east past the window and then back in front of the window, when the shot was fired.

W. R. Robinson testified that he was in Dr. Nicholas office on the day of the shootmg, when Sam Latta was there getting his wound dressed. That Latta stated that he grabbed Johnson in the collar as he come out of the door and struck him.

Chas. C. Jones testified that he was standing in front of the restaurant when Johnson came out. That Latta grabbed him by the neck from behind and struck him. That Johnson then pulled the gun, and Hartless and Latta both grabbed for it, and in the scuffle it was discharged.

The defendant testified that Mr. Long had told him of the threats made by Sam Latta. That he and Latta had not spoken for some time. That he left Tahlequah and was on his way to Bartlesville to avoid further trouble with Latta and his brothers. That he was in the restaurant when Latta came in and passed him, and that Latta grabbed him in the collar from the back and hit him twice. Hartless grabbed Latta, and said, “Don’t do that, Sam,” and defendant then pulled his gun, and in the scuffle the gun was discharged. That he did not fire the gun intentionally. That he was trying to get away from Latta.

It is seen from this that the evidence was conflicting.' The state’s witnesses made a plain case of attempted assassination. The witnesses for the defendant clearly presented the .issue of self-defense. Under these conditions it was a substantial right of the defendant to have the jury fully and affirmatively instructed as to the law of the case. We therefore hold that the errors herein-before pointed out were material, and that the defendant should have a new trial. The judgment of the lower court is therefore reversed, and the cause is remanded for a new trial.

ABMSTRONG and DOYLE, Judges, concur.


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    JIM BOYT v. STATE.
    No. A-375.
    Opinion Filed February 6, 1911.
    (113 Pac. 215.)
    APPEAL — Case-Made—Extension of Time for Service. "When the time granted by the court for making and serving a case-made has expired, the court is without power to grant further extension of time, and such order is void.
    (Syllabus by the Court.)

      Appeal from Garter County Court; I. R. Mason, Judge.

    Jim Boyt was convicted of malicious mischief, and he appeals.
    Affirmed.

      R. F. Turner, for appellant.

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

Appellant was convicted of malicious mischief, and was fined $250, and sentenced to six months’ imprisonment in the county jail.

Judgment was rendered iu this ease on the 23d day of July, 1909, and the appellant was granted 60 days within, which to prepare and serve his case-made. This 60 days expired on the 21st day of September, 1909. On the 22d day of September, 1909, 'after the time for serving the case-made had expired, appellant, through his counsel, applied to the county court of Carter county and obtained an order allowing appellant 20 days from said date within which to prepare and file his case-made. The time originally granted appellant had expired, and the court was without power to grant additional time, and such order is void. See Komiski v. State, 3 Okla. Cr. 431, 106 Pac. 800; Rasberry v. State, 4 Okla. Cr. 613, 103 Pac. 865. We must therefore sustain the motion of the Attorney General to strike the ease-made from the record.

The informat’on and the instructions of the court are correct, and the judgment is in due form.

The judgment of the lower court is therefore affirmed.

ARMSTRONG and DOYLE, Judges, concur.


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    FRED EDWARDS v. STATE.
    No. A-365.
    Opinion Filed February 6, 1911.
    (113 Pac. 214.)
    1. INDICTMENT AND INFORMATION — Objection on Motion to Exclude Testimony. Where a defendant pleads to an indictment or information, and goes to trial, and for the first time objects to the information or indictment when an attempt is made to introduce testimony thereunder, the objection should .be overruled if by any intendment or presumption the indictment can be sustained.

      2. INTOXICATING LIQUORS — Maintaining Place for Sale — Sufficiency of Evidence. For facts sufficient to sustain a conviction for maintaining' a place where liquors are kept for sale, see opinion.
    3. APPEAL — Harmless Error — Admission of Improper Evidence. Error of the trial court in admitting improper evidence will become immaterial, where the legal and proper testimony in the case conclusively established the guilt of the defendant.
    (Syllabus by the Court.)

      Appeal from Blaine County Court; C. E. Malcolm, Judge.

    Fred Edwards was convicted for maintaining a place where prohibited liquors were kept for sale, and he appeals.
    Affirmed, with, directions.

      I. E. Lookabaugh, for appellant.

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

First. The appellant was arraigned, and pleaded not guilty, and did not offer any objection whatever to the information, until after he was put upon trial and the jury were impaneled and the county attorney attempted to introduce evidence on behalf of the state. He then objected to the introduction of testimony, upon the ground that the information did not state facts sufficient to constitute a public offense under the laws of Oklahoma. This objection was overruled by the court. In the case of White v. State, 4 Okla. Cr. 143, 111 Pac. 1010, this court held that when an objection to an informa tion or indictment was presented for the first time upon a motion to exclude testimony, said motion should be overruled, if by any intendment or presumption the information or indictment could be sustained. The White case is decisive of this question. It is true that the information in this case is not quite as full as it might be; but the allegations are sufficient to inform the defendant as to the nature of the offense charged against him. The court, therefore, did not err in overruling the objection made by counsel for the appellant.

Second. The state in this case proved by a great number of witnesses that they had purchased whisky from the defendant at the place kept by him, and one witness swore that he had seen as many as 10 or 12 barrels of empty whisky bottles at the defendant’s place of business at one time. Another witness testified that he had seen Irunken men around defendant’s place. It wag proved that a barrel one-third full of whisky bottles was found in the defendant’s place of business at the time of his arrest. The defendant did not offer any testimony. Even if the court may have committed error in the admission of some of the testimony in this case, the evidence which was entirely legal and nroper is absolutely conclusive of the appellant’s guilt. It is therefore not necessary to consume time in the discussion of abstract questions of law, which in the light of the legal testimony could not be material to defendant’s guilt.

We find no material error in the record, and the judgment of the lower court is affirmed, with directions to the county court to proceed with the execution of the judgment.

ARMSTRONG- and DOYLE, Judges, concur.


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    W. F. WELLS v. STATE.
    No. A-530.
    Opinion Filed February 6, 1911.
    (113 Pac. 210.)
    1. GRAND JURY — Impaneling—Compliance with Statute. A substantial compliance with the statute with reference to impaneling grand jurors is all that the law requires.
    2. TRIAL — Instructions on Punishment. It is error for a trial court to substitute in instructions to the jury a different and higher punishment for an offense than that prescribed by the statute.
    3. EVIDENCE — Opinion Evidence — Hearsay, (a) It is error to allow a witness to testify that he thought there' was something crooked about a draft with reference to which he was testifying.
    (b) It is error to allow a witness to introduce as a part of his testimony letters which he had received from persons other than the defendant.

      4. EVIDENCE- — Declaration of Co-Conspirators — Opinion Evidence, (a) Declarations made by a co-conspirator after a conspiracy has terminated- are not admissible against a defendant on trial.
    (b) Where a witness testified to certain statements made by him and further testified- that he did not know what was meant by said statement, it is error to allow the witness to testify as to what he understood the statement to refer to.
    5. EVIDENCE — Acts of Co-Conspirator. Acts done by a co-conspirator after the -termination of the conspiracy are not admissible in evidence against a defendant, unless the defendant was present and had knowledge of said acts, or it is proven that he was in some way connected therewith.
    (Syllabus by the Court.)

      Appeal from District Court, McClain County; B. McMillan, Judge.

    W. F. Wells was convicted of burglary, and he appeals.
    Reversed and remanded.

      Wadlington & Wadlington, for appellant.

      Ben F. Franklin, Co. Atty., for the State.
   FURMAN, PRESIDING Judge.

First. Appellant filed a motion to set aside the indictment upon the ground that the trial court had erred in the matter of impaneling the grand jury. 'The action of the court in impaneling this grand jury was fully discussed in the ease of State v. Pollock, (decided at the present term), infra, 113 Pac. 307. The facts involved in so far as they are material are fully stated in that case, and it would be a useless waste of time and space to restate them here. We there held that the action of the court in impaneling this grand jury was in substantial compliance with the statute, and was therefore sufficient. See State v. Pollock, infra. The court did not err in refusing to set aside the indictment in this case.

Second. The indictment in this case is for burglary in the second degree. Upon the trial the court instructed the jury that, if they found the defendant guilty, they might assess his punishment at imprisonment for not less than 7 nor more than 30 years in the penitentiary. This is the punishment provided for burglary in the first degree. The punishment for burglary in the second degree is not less than two nor more than seven years’ imprisonment. The record does not show that the defendant saved an exception to the charge of the court in this respect. In bis motion for a new trial defendant did not complain of this instruction. Many errors committed by a trial court may be cured by the consent of the defendant, evidenced by the fact that no objection was made or exception thereto saved at the proper time. But we do not believe that even with the consent of the defendant a verdict should stand where the court has substituted a greater and a different punishment in the instruction than that provided by law.

Third. Upon the trial of this case George White, a witness for the state, testified that he found on the person of defendant at the the time of his arrest a draft for $40 drawn on the Central Missouri Trust Company, and made payable to A. J. Rud, which draft was indorsed by the said A. J. Rud to the defendant. Said witness, over the objection and exception of the defendant, was permitted to testify that the defendant directed him to turn said draft over' to the attorney for the defendant, and that the witness refused to do this because he thought that there was something crooked about the draft, and witness wished to investigate the matter further. The witness was permitted to introduce in evidence a number of letters which he had received from the Central Missouri Trust Company with reference to said draft. It was improper to allow the witness to tell what he thought about the draft, as this was a mere expression of his opinion. It was also improper to allow the state to introduce in evidence the letters which the witness had received with reference to said draft. This was all purely hearsay evidence, and should have been excluded.

Fourth. When the state’s witness H. T. McCarty was on the stand, he testified that he had a conversation with Freeman Carter, who was joined with the defendant in the indictment in this case. The conversation occurred on the day after said Carter was arrested upon this charge, and that said Carter tnen told said witness that he thought everything was in the clear, and- the witness was further permitted to testify that he did not know what said Carter meant by this, but that he understood it to refer to a trunk of clothing which the officers had found at the house of J. T. Jenkins. This evidence should have been excluded for two reasons: First. The declarations of a co-conspirator are not admissible in evidence against a party upon trial when they are made after the conspiracy has terminated. Second. It was improper to allow the witness to testify as to what he understood the remarks made by Carter referred to, and the objections to such evidence should have been sustained.

Fifth. When J. H. Jenkins, a witness for the state, was on the stand, he testified to purchasing some clothing from Will Carter in the town of Comanche. This was after the conspiracy, if any had existed between defendant and said Carter, had expired, and such evidence as to what was done by the said Will Carter was therefore not admissible against the defendant, unless the defendant was present, and had knowledge of or was in some way connected therewith. Defendant’s objection to this evidence should have been sustained.

The evidence in this case is such that we are of the opinion that the defendant was injured by the errors hereinbefore pointed out.

The judgment of the lower court is therefore reversed, and the cause is remanded for a new trial.

ARMSTRONG and DOYLE, Judges, concur.


author: FURMAN, PRESIDING Judge,

text:
    STATE v. W. T. POLLOCK.
    No. A-443.
    Opinion Filed February 6, 1911.
    (113 Pac. 207.)
    1. GRAND JURY — Selection and Impaneling. A substantial compliance with the statute with reference to the manner of selecting and impaneling a grand jury is all the law requires.
    2. GRAND JURY — Excusing Grand Juroi — Replacing on Panel. For facts held to be a substantial compliance with the statutes in drawing and impaneling a grand jury see opinion.
    (Syllabus by the Court.)

      Appeal from McClain County Cowt; George■ W. Welch, Special Judge.

    W..T. Pollock was indicted for permitting gaming on premises. On an order setting aside the indictment, the State appeals.
    Eeversed and remanded.
    An indictment was returned by the grand jury of McClain county at the June, 1909, term of the district court, against appellee, wherein he was charged with being the owner of a certain building located in' the city of Purcell, in McClain county, and that he knowingly and designedly permitted one A. S. Jones to set up in said building a gambling device, namely, a poker table, to be used for the purpose of gambling. This indictment was duly transferred from the district court to the county court of McClain county for trial. Appellee filed a motion in the county court to set aside this indictment. The grounds upon which this motion is based are stated in the opinion. The county judge-sustained the motion to set aside the indictment.

      Charles West, Atty. Gen., and Ben F. Franklin, Co. Atty., for the State.

      J. F. Sharp, for appellee.
   FURMAN, PRESIDING Judge,

(after státmg the.facts as above). First. This indictment was found by the grand jury at the June, 1909, -term of the district court of McClain county. Tbe record shows that, when the grand jury was first impaneled, R. E. Stone and.R. L. Robertson, being duly summoned to serve on said grand jury, were excused by the court. After said grand jury had been in session some two weeks, it was discovered that one member of the grand jury was a minor. Thereupon said minor was discharged from the grand jury, and the court entered the following order:

“In re grand jury. The court orders that the clerk of this court issue a venire for R. E. Stone and R. L. .Robertson, two of the grand jurors who were heretofore summoned as such, and who were excused by the court until they were otherwise needed.”

The grand jury was then reorganized, and the said R. E. Stone and R. L. Robertson became members of the reorganized grand jury, as appears from the following order of the court:

“It now appearing to the court that R. E. Stone and R. L. Robertson were summoned upon the regular venire to serve as grand jurors, and were excused by the court until otherwise needed to serve as' said grand jurors, as provided by law, and they are duly qualified for the completion of this panel, it is therefore ordered ■ by the court that the said R. E. Stone and R. L. Robertson be, and they are hereby, placed upon the regular venire of this grand jury, and 'it further appearing to the court that they and each of them possesses the necessary legal qualifications, and no one objecting to them or any one of the remaining panel, the following named persons are duly sworn and designated by the. court as the grand jurors for this the June, 1909, term of this court, to wit: J. B. Burleson, S. G-. Barrow, G. Albert, M. S. Robertson, D. Wynn, N. G-. Derrick, A. C. McEldery, R. C. Abernathy, R. J. Wardiow, G. W. Clopton, R. E. Stone, and R. L. Robertson.” •

, The indictment in this case was returned in the district court by this reorganized grand jury. Appellee claims-that the district court erred in having R. E. Stone and R. L. Robertson summoned on the panel of the reorganized grand jury after they had been excused by the court. Standing alone, the first entry in the record which shows that R. E. Stone and R. L. Robertson were excused would strongly indicate that they were discharged, and that their relation to the court as jurors had terminated, but the other entry in the record shows that they were only excused by the court until they were otherwise needed. There is no conflict between these orders of the court. The second order merely makes plain what was obscure in the first order in the record. The 'court has the power to make any alteration or correction in the'record which is necessary to cause it to speak the truth, and, if any mistake occurred in the first record, it was cured by the correction in the second record. We therefore find that as a matter of record the court never did discharge B. E. Stone and B. L. Bobertson, but only temporarily excused them, and that they were at all times subject to the orders of the court. . The question which now presents itself is as to whether or not the court had the power to temporarily excuse B. E. Stone and B. L. Bobertson, and to place them on the panel of the reorganized grand jury.

We fully agree with counsel for appellee that, under the common-law doctrine of a strict construction of penal statutes which prevails in most of the states of the Union, such action upon the part of the trial court would not only be illegal, but would also be ground for reversal, but the authorities cited by counsel for appellee are not applicable to the criminal jurisprudence of Oklahoma. Section 6487, Snyder’s Comp. Laws Okla. 1909, is as follows:

“The rule of common law that penal statutes are to be strictly construed has no application to this chapter.- 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.”

Section 3995, Snyder’s Comp. Laws Okla. 1909, is as follows:

“A substantial compliance with the provisions of this act shall be sufficient to prevent the quashing or setting aside of any indictment of a grand jury chosen hereunder unless the irregularity in drawing, summoning, or impaneling the grand jury resulted in depriving a defendant of some substantial right, but such irregularity must be specifically presented to the court on or before the cause is first set for trial.”

Section 6957, Snyder’s Comp. Laws Okla. 1909, is as follows:

“On an appeal the court must give judgment without regard to technical errors or defects, or to exceptions which do not affect 'the substantial rights 'of the parties.”

TJnder these sections, it is plain that the common-law doctrine of a strict construction of penal statutes has no application to the criminal laws of Oklahoma, and, indeed, should-have none. This doctrine originated at a time when the people believed in witchcraft, and when the whipping post and the ducking stool were resorted to as proper modes of legal punishment. At this time ex post facto laws were passed and enforced and bills of attainder were enacted and were regarded as legal and just. Under these conditions, the doctrine of a strict construction of penal statutes was almost a necessity, but these conditions have long since passed away, and under the wise, just, and humane system of laws which we have there is now no reason for continuing to enforce the arbitrary and illogical technical rules which prevailed at that time. Men are no longer governed by superstition. Intelligence is now the rule. Men are not prosecuted for political offenses, and punishments are not inflicted as a matter of malice or for revenge, but simply for the reformation of criminals, and for the protection of society. Many of the technical rules which are now enforced in the courts are simply antiquated relics of barbarism, and tend to obstruct and defeat the administration of justice. Penal laws should be construed liberally, with a view to promote the objects for which thfey were enacted, and in furtherance of justice; and, when it appears that there has been a substantial compliance with the provisions relating to criminal procedure, the action of the courts should be upheld, although the statute was not literally complied with, unless it affirmatively appears that, by the failure of the court to comply literally with the provisions of the statute, a defendant has been deprived of some substantial right. 'This is the true meaning and import of our statutes as we understand them, and it is upon this basis that we decide all questions submitted to us for determination. Applying, then, these rules of construction to the question now before us, what is the attitude of this case? It is not claimed that the law was not literally complied with in the original selection and drawing of the first grand jury, or that Stone and Robertson were not regularly selected and drawn as grand jurors in the first in-' stance. If Stone and Robertson had not been regularly selected and drawn as grand jurors, or if they had been discharged from the panel, a very different question would be presented to that which we are now called upon to decide. The irregularity complained of is that the court was without the power to excuse the grand jurors Stone and Robertson temporarily, and then to place them on the panel of the reorganized grand jury. We find the following provisions in section 3986, Snyder’s Comp. Laws Okla. 1909:

“The first names drawn, to the number stated in the judge’s order, not to exceed twenty-four, if a grand jury is ordered, shall be summoned as grand jurors, and the grand jury shall be impaneled from said persons. If the judge so directs, the persons summoned for the grand jury panel and not used may be transferred to the petit jury panel. Additional and other drawing of as many names as the court may order may be had at any such time as the court or judge may order for the completion of a grand or petit jury panel, or for the impaneling of a new grand or petit jury, during any term of court, if, in the judgment of the court th'e same shall be necessary, or if, for any cause- the court, in its discretion, shall deem other jurors necessary. The court may excuse or discharge any person drawn and summoned as a grand or petit juror, whenever, in its discretion, such action shall be deemed expedient.”

It is seen from this that the statute provides that “additional and other drawing of as many names as the court may order may be had at any such time as the court or judge may order for the completion of a grand or petit jury panel, or for the impaneling of a new grand or petit jury, during any term of the court, if, in the judgment of the court, the same shall be necessary, or if, for any cause the court, in its discretion, shall deem other jurors necessary,” and the statute further gives the court the power to excuse or discharge any juror drawn or summoned as a grand or petit juror, whenever, in its discretion, such action may be deemed' expedient. The statute makes a distinction between excusing and discharging a grand juror. When a grand juror lias been discharged, this terminates his connection with the court as a grand juror. But under this statute the court, in its discretion, may temporarily excuse a grand juror, and, if the necessity therefor occurs, may have said grand juror replaced on the panel. This statute vests the trial court with a wide range of discretion with reference to impaneling a grand jury, and the action of the court in this respect should not be disturbed unless it clearly appears that there has been an abuse of this discretion, whereby the party complaining has been deprived of a substantial right. The provision that a juror shall not be allowed to serve more than two weeks at any term, unless at the end of such period he is upon a panel engaged in the consideration of a Case in which event he may be excused when such case is terminated, applies only to members of the petit jury. ' In this case it is not shown that the action of the court in- temporarily excusing Stone and Eobertson from the grand jury and placing their names upon the panel of the reorganized grand jury deprived the defendant of a substantial right. When the law has been substantially complied with, and it is not shown that the defendant has been deprived of some substantial right, he will not be heard to complain. That this is the modern doctrine there can be no question.

“But statutes regulating the manner of making jury lists and the selection and drawing of grand jurors are frequently held to be directory merely and not mandatory; and it ■may be laid down as a general rule that courts do not look with indulgence upon objections to irregularities in selecting or drawing grand jurors committed without fraud or design and which have not resulted in placing upon the panel disqualified jurors, and that mere irregularities not affecting the competency of any of the jurors, at least such as do not amount to a substantial departure from the statutory requirements, but show an honest intention to conform thereto will not affect the validity of their proceedings.” (20 Cyc. p. 1306.)

The reasons for this rule of law are obvious. The grand juries do not try cases, but merely prefer charges against the accused. The manner of their selection is ordinarily of little consequence to a defendant, he being entitled to claim only fair and impartial grand jurors who possess the necessary qualifications, while, on.'the other hand, it is 'of great consequence to the administration of justice that it shall not be delayed by mere technical objections. For these reasons, we hold that the county court erred in sustaining the motion of the appellee to set aside the indictment in this case.

Section 6947, Snyder’s 'Comp. Laws Okla. 1909, is as follows :

“Appeals .to the Criminal Court of Appeals may be taken by the state in the following cases and no other: (1) Upon judg.ment 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 the state.”

Section 6950, Snyder’s Comp. Laws Okla. 1909, is as follows :

“An appeal taken by the state in no case stays or affects the operation of the judgment in favor of the defendant, until the judgment is reversed.”

From these sections it is seen that, when the appeal is from a judgment quashing or setting aside an indictment or information or from an order of the court arresting a judgment, an appeal taken by the state will not stay or affect the operation of such judgment or order in favor of the defendant until the judgment or order is reversed. An appeal upon a question reserved by the state does not bring up any part of the trial or proceedings of the case, except the question reserved and the judgment of acquittal, and, if such question reserved is decided in favor of the state, it simply settles that question of law, and does not affect the verdict of acquittal. As this is an appeal from a judgment setting aside an indictment, the judgment of the lower court is reversed and the case is remanded, with directions to the county court of McClain county to vacate the judgment setting aside the indictment and reinstate this cause upon its docket, and to proceed as though the order setting aside the indictment had never been made.

ARMSTRONG and DOYLE, Judges, concur.


text:
    CLAUDE CRAWFORD v. STATE.
    No. A-293.
    Opinion Filed February 6, 1911.
    (113 Pac. 200.)
    INTOXICATING LIQUORS — Sufficiency of Evidence — Judicial Notice— Intoxicating Qualities of Bitters. Courts do not take judicial notice of the fact that bitters are intoxicating; and where proof is offered of a sale of bitters to support the charge in the indictment or information that the defendant had sold intoxicating liquors, the state must prove that the bitters so sold were intoxicating.
    (Syllabus by the Court.)

      Appeal from Haskell County Court; A. L. Beckett, Judge.

    Claude Crawford was convicted of selling intoxicants, and he appeals.
    Reversed, with directions.

      Clark & Crittenden, Fred E. Fannin, and Day & Du Beds,. for appellant.

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

Appellant was indicted, charged with the offense of selling intoxicating liquors, and convicted by the jury. His punishment was assessed by the court at a fine of $250 and imprisonment in the county jail for a period of 60 days.

The only evidence introduced by the state was that the defendant had sold bitters. No proof was offered showing that the bitters sold by the defendant were intoxicating. Courts do not take judicial notice of the fact that bitters are intoxicating. The evidence is insufficient to sustain the verdict.

The judgment of the lower court is therefore reversed, with directions to the county attorney to dismiss this prosecution, unless he can prove that the bitters sold by the defendant to the prosecuting witness were intoxicating.

ARMSTRONG and DOYLE, Judges, concur.


author: FURMAN, PresidiNS Judge.

text:
    DAVID MAKATCH v. STATE.
    No. A-661.
    Opinion Filed February 6, 1911.
    (113 Pac. 200.)
    APPEAL — Record—Certification of Transcript. Where an. appeal is attempted to be taken upon a transcript of the record, the clerk of the court from which the appeal is taken must certify that the transcript contains a true and correct copy of the record of the proceedings of the lower court.
    (Syllabus by the Court.)

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

    David Makatch was convicted of manslaughter, and he appeals.
    Dismissed.

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

This is an attempted appeal upon a transcript of' the record from the lower court; but there is no certificate of the clerk of the district court of McCurtain county, certifying that the transcript of the record contains a true and correct copy of the record in this case in said court.

■ The motion of the Attorney General to dismiss this appeal must therefore be sustained.

ARMSTRONG and DOYLE, Judges, concur.


text:
    CHARLES TERRY v. STATE.
    No. A-678.
    Opinion Filed February 6, 1911.
    (113 Pac. 199.)
    APPEAL — Time for Taking. Where an appeal is not taken -within the time prescribed by statute, this court does not acquire jurisdiction of the case, and upon motion the appeal will be dismissed.
    (Syllabus by the Court.)

      Appeal from Osage County Court; C. T. Bennett, Judge.

    Charles Terry was convicted of failing to support his infant child, and he appeals.
    Dismissed.

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

The Legislature of 1909 amended the law with reference to the time within which appeals should be taken in criminal cases, and required that in misdemeanor cases the appeal must be taken within 60 days after the judgment was rendered; provided, however, that the trial court or judge may for good cause shown extend the time within which appeals may be taken not exceeding 60 days. This law was approved by the Governor on the 17th day of February, 1909, and was in effect at the date of this trial. Judgment was pronounced in this case on the 27th day of September, 1909. The appeal was filed in this court on the 25th day of March, 1910. It is true that the county court did attempt to extend the time within which an appeal might be taken; but an order made by the county judge extending the time for taking an appeal bej^ond 120 days after the rendition of the judgment is void. This court, therefore, has never acquired jurisdiction of the appeal in this case, and the motion of the Attorney General to dismiss this appeal must be sustained.

The appeal is therefore dismissed, with directions to the county court of Osage county to' proceed with the execution of the judgment.

ARMSTRONG and DOYLE, Judges, concur.


author: ARMSTRONG, Judge,

text:
    JOHN SCHLUMBOHM v. STATE.
    No. A-346.
    Opinion Filed February 6, 1911.
    (113 Pac. 235.)
    1. CRIMINAL LAW — Day in Which to Plead — Waiver, (a) When a defendant is arraigned on a felony charge, he is entitled to a day in which to plead, under our statute, if he demands it, and it is error to refuse it.
    (b) Upon the trial court permitting the defendant to withdraw his plea and upon his filing a demurrer, the error is cured.
    2. PERJURY — Indictment—Sufficiency, (a) It is not necessary for an information charging perjury to name the person holding the court or the officer before whom the false oath was taken.
    (b) It is sufficient if it appears that the oath was administered before the court, and that the court had jurisdiction to try and determine the issues involved.
    (Syllabus by the Court.)

      Appeal from District Court, Washita County; James B. Tolbert, Judge.

      John Sehlumbohm was convicted of perjury, ana appeals.
    Affirmed.
    An information was filed against the plaintiff in error in the district court of Washita county on the 12th day of June, 1909. He was arraigned on an amended information on the 15th day of June, and 'requested 24 hours in which to plead. The request was refused, and he excepted. Afterward, on the same day, the court permitted him to withdraw his plea of not guilty, and file a demurrer to the information, which demurrer was overruled, and he excepted. The case was tried before a jury on the 2'lst day of June, 1909, and resulted in a conviction. Motions for new trial and in arrest of judgment were filed and overruled and exception saved^ and an appeal was taken to this court.

      T. A. Edwards, for appellant.

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

(after stating the facts as above). There are only two questions urged by counsel in his brief for reversal of this cause; the first being that the court erred in refusing to allow the appellant 24 hours in which to plead. TJnder our statute a defendant upon arraignment is entitled to one day in which to plead, and it is' error to refuse such time. We do not deem it necessary to consider this proposition, however, as the record shows that the plaintiff in error was permitted to withdraw his plea of not guilty and file a demurrer. If there had been anything in this contention, it was cured by this action of the court and the action of the plaintiff in error in filing the demurrer. The second proposition, as contended for by counsel, is that the amended information upon which plaintiff in error was put upon trial is insufficient. This proposition is raised by a general demurrer to the information, and is discussed at some length, and numerous authorities cited in the argument and brief of counsel.

The objections to this information as urged by counsel for the plaintiff in error are that it does not allege that the plaintiff in error was sworn and did take a corporeal oath, and that it does not allege that the oath was administered by a person having authority to administer the same; it being the contention of counsel that the information should name the person administering the oath, and contain allegations showing that he had authority to administer the same. In support of this contention counsel quotes section 5372, Wilson’s Rev. & Ann. St. 1903, which section is as follows:

“In an indictment for perjury, or subornation of perjury, it is sufficient to set forth the substance of the controversy or matter in respect to which the offense was committed, and in what court or before whom the oath alleged to be false was taken, and that the.court or person before whom it was taken had authority to administer, with proper allegations of the falsity of the matter on which the perjury is assigned; but the indictment need not set forth the pleadings, record, or proceedings with which the oath is connected, nor the commission or authority of the court or person before whom the perjury was committed.”

The statute does not say “and before whom.” It says "or before whom.” A careful investigation of the authorities cited by counsel discloses the fact that the prosecutions in most of. those cases were based upon an indictment or information growing out of nonjudicial or quasi judicial proceedings, and in such cases the name of the officer before whom the oath was taken sjhiould be given. Under -modern statutes, however, when; the indictment or information charges the' perjury to have been committed in open court, especially in the trial of civil cases, the general rule seems to be that it is not necessary to set out the name of the person holding the court, nor is it necessary to name the officer before whom the false oath was taken. The designation of the court is sufficient. Nor is it necessary to allege that an oath was administered. It appears to be sufficient to charge that the defendant was duly sworn. The information before us, however, sets out the material facts of the oath, after alleging that appellant was duly sworn before the court. Smith v. People, 32 Colo. 251, 75 Pac. 914; State v. O’Hagan, 38 Iowa, 504; State v. Farrow, 10 Rich. Law (S. C.) 165.

In the case of State v. O’Hagan, 38 Iowa, 504, cited supra, the indictment in that cause was as follows: “The defendant was then and there duly sworn before the court,” etc. The court says:

“This objection could not avail, even on demurrer, for it is well recognized by the authorities that it is sufficient to charge that the defendant was duly sworn.”

In the case of McClerkin v. State, 105 Ala. 107, 17 South. 123, the Supreme Court of Alabama, in discussing these propositions, says:

“It seems that an indictment for perjury, while it is' entirely proper, following the form in the Code for perjury in a civil case, to aver the particular officer before whom the oath was taken, it is not necessary to do so for the legal sufficiency of the indictment. * * * . The averment in this respect is that the defendant was duly sworn to testify, etc. 'This is all that is necessary to aver in any case.”

In the case w.e are considering the information alleges that the appellant was first duly sworn before the court before giving said testimony. The information also alleges that the court had jurisdiction to try and determine the issues involved, .etc.

The Supreme Court of Oregon, in the case of State v. Woolridge, 45 Or. 390, 78 Pac. 335, in discussing this question, says:

“That an indictment for perjury alleged to have been committed by the defendant as a witness in a civil action tried in the circuit court, etc., * * * the averment that the false oath was taken in such court, without designating the officer by whom it was administered, was sufficient. Mr. Chief Justice Prim, speaking for the court (in another case quoted from [State v. Spencer] 6 Or. 152), in distinguishing the mode of alleging the necessary facts in other cases, said: ‘But, if the.oath in which perjury was assigned had been administered by the clerk in some outside matter, then it would have been necessary to allege that it was taken before the clerk/ ”

In the ease of State v. Green, reported in 24 Ark. 591, in discussing the same questions as raised here, the court says:

“Most of the objections thus taken to the indictment might have deserved consideration if every indictment for perjury now required the same details and recitals as the law required for indictments for the same offense at common law, but by our statute and that of most of the. states that strictness in the details and recitals in indictments for perjury is not required/’

The perjurer is a most dangerous character. By his false oath honest men are deprived of their property, the character of good men and women is destroyed, and the liberty and lives of the innocent are taken away. Many times the most depraved criminals escape justice by the reckless disregard of a perjurer for the truth; and it is not infrequent that the gallows is cheated through the same agency. The willful and corrupt perjurer has no regard for the rights of any one, and is entitled to no sympathy at the hands of a jury or in a court of justice.

The record in this case shows that this appellant destroyed the home o'f his neighbor, that he stole his wife and carried her away to a neighboring city, and there kept and visited her, and, in order to escape civil liability for his wicked acts, committed the perjury charged in this information. There is not the slightest controversy in the proof, yet this court is urged to strain at a meager technicality in procedure in. order that a guilty man may escape justice. If the doctrine of harmless error has any application, it should be in cases of this kind, where a trivial error in procedure did uot, and could not, deprive the appellant of a substantial right. If the appellant had been in any way prejudiced by this information, he would be in some attitude to complain, but, under the uncontroverted proof in this record, he was in no wise injured and does not so contend.

Some of the authorities hold that a defendant in the trial court can show as a matter of defense that the person who administered the false oath had no authority to administer the same, and also that the court had no jurisdiction to try and determine the cause. See Muir v. State, 8 Blackf. (Ind.) 154. The information before us shows that the appellant was duly sworn before the district court, and, as we have seen, a great many authorities hold that it is unnecessary for the information to allege the name of the person administering it. We think, however, it is the better practice to do so; but it is sufficient, when the proof shows, without contradiction, that the conviction is just, for it to appear in the information that the person charged was sworn before the court, and that the court had jurisdiction to try and determine the issues involved, all of which this information showed.

We find no prejudicial errors against the rights of the appellant in this record. The judgment' of the court below is therefore affirmed.

FURMAN, PresidiNG Judge, and DOYLE, Judge, concur.