text:
    HENRY HOLMES v. STATE.
    No. A-105.
    Opinion Filed November 23, 1910.
    (111 Pac. 687.)
    APPEAL — Necessity of Notice — Dismissal. When no notices of appeal are given as provided by statute, this court is without jurisdiction to consider a case on appeal.
    (Syllabus by the Court.)
    Appeal from District Court, Olcfuslcee County, John Caruthers, Judge.

    Henry Holmes was convicted of assault with a dangerous weapon, and appeals.
    Dismissed.

      Grossan & Beplogle, for plaintiff in error.

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

The Attorney General files the following motion:

“Comes now Charles West, Attorney General, and moves the court to dismiss the appeal in the above-entitled cause for the reason that the record discloses that no notices of appeal were served upon the district clerk and county attorney as required by section 6949, Compiled Laws of Oklahoma, 1909, Snyder.”

Upon a careful examination of the record, we fail to find that notices of appeal were given to the district clerk and county attorney. In the ease, of Arispi v. Territory, 2 Okla. Cr., at page 80, 99 Pac., at page 1100, Judge Doyle said:

“An appeal may be taken, as a matter of right, by the defendant from any judgment against him, under the provisions of our Criminal Code; but the matter of perfecting an appeal is a matter of statutory regulation. It must be in the manner prescribed by law. Sections 5606-5621, art. 16, c. 68 (Procedure-Criminal), Wilson’s Rev. & Ann. St. 1903, prescribes specific and definite rules of practice for taking appeals in criminal cases. So far as appears by the record in this case, there has been a failure to comply with these statutory provisions. In order to give this court jurisdiction, notice, as required by the foregoing provision, must be served upon the clerk of the court and the prosecuting attorney. The proof of service and the notices, or a waiver of the same, should be filed with the record in the appellate court, or, in lieu thereof, there should be filed duly authenticated copies. There is no case in this court upon the record before us which confers jurisdiction to review the errors set forth in the petition in error. In the case of Bailey et al. v. Territory of Oklahoma, 9 Okla. 461, 60 Pac. 117, Chief. Justice Burford, expressing the opinion of the court, in part says: ‘The notice to the clerk of the trial court and to the county attorney are the prerequisite steps to conferring on this court the jurisdiction to hear and determine the particular cause.’ The Attorney General having filed motion to dismiss the appeal for the reasons hereinbefore stated, we are of opinion that the motion to dismiss the appeal should be sustained. For the reasons stated, the purported appeal is dismissed at the cost of plaintiff in error.”

In the case of Ensley v. State, infra, 109 Pac. 250, Judge Richardson discusses the kind and character of notices of appeal necessary to give this court jurisdiction, and cites practically all the authorities on this subject.

No such notices having been given in this 'case, we are without jurisdiction to consider it. The appeal is therefore dismissed.

DOYLE and RICHARDSON, Judges, concur.


source: Caselaw Access Project

author: PER CHRIAM.

license: Public Domain

text:
    E. SIMPSON v. STATE.
    No. A-304.
    Opinion Filed November 23, 1910.
    (111 Pac. 947.)
    INTOXICATING LIQUORS — Information — Sufficiency — Conveying Liquor in State. An information charging a defendant with having conveyed intoxicating liquor from one place in the state of Oklahoma to another place in the state must fay proper allegations so identify the particular transaction as to enable the defendant to prepare for trial.
    (Syllabus by the Court.)

      Appeal from Washita County Cowrlj R. L. Shem, Judge.

    E. Simpson was convicted of a violation of the prohibitory liquor law, and appeals.
    Reversed and remanded.

      Smith & Wagner, for appellant.

      Fred S. Caldwell, for the State.
   PER CHRIAM.

The information in this case charged the defendant with having unlawfully carried intoxicating liquor from one place in the State of Oklahoma to another place in said state. The defendant demurred to the information, upon the ground that it did not charge the defendant with the commission of any offense. The court overruled the demurrer, and the defendant excepted.

We think that the demurrer to the information should have been sustained. The information should have contained such descriptive averments as would have enabled the defendant to identify the particular transaction, for which he was to be tried, and thereby enable him to prepare for trial. See Sturgis v. State, 2 Okla. Cr. 363, 102 Pac. 57.

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


author: PEE OTTETAM.

text:
    S. H. HAYES v. STATE.
    No. A-260.
    Opinion Filed November 23, 1910.
    (111 Pac. 1020.)
    1. INTOXICATING LIQUORS — Information—Language of Statute. It is permissible to charge in an information that the defendant “did unlawfully sell, barter, give away, and otherwise furnish certain intoxicating liquors, to wit, whisky.” This is substantially the language of the statute, and charges but one offense, and will sustain a verdict, upon proof that the defendant sold, bartered, or.gave away whisky.
    2. APPEAL— Review — Instructions—Necessity for Exceptions. Errors committed by the trial court in its instructions to the jury, if not fundamental, will not be ground for reversal upon appeal, unless they were duly excepted to at the trial.
    (Syllabus by the Court.)

      Appeal from Cleveland County Court; N. E. Sharp, Judge.

    S. H. Hayes was convicted of violating the prohibition law, and he 'appeals.
    Affirmed.

      B. F. Wolf, for appellant.

      Fred S. Caldwell, for the State.
   PEE OTTETAM.

First. The information, in substance, is in the language of the statute, refers to but one and the same transaction, and charges but one offense. The trial court, therefore, did not err in overruling the demurrer to the information.

Second. No exceptions were reserved to the instructions of the court to the jury. We therefore cannot consider the objection now attempted to be made to said instructions. The charge of the court is subject to criticism, but the errors therein contained are not fundamental.

The judgment of the lower court is therefore affirmed.


author: EUBMAN, Presiding Judge.

text:
    QUINTY PRESLEY v. STATE.
    No. A-154.
    Opinion Filed November 23, 1910.
    (111 Pac. 1019.)
    APPEAL — Briefs—Time for Filing Briefs must be filed within the time prescribed by the rules, or an extension of time should be applied for; otherwise, they will be stricken from the record.'
    (Syllabus by the Court.)

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

    Quinty Presley was convicted of harboring a criminal charged with a felony, and he appeals.
    Amended and affirmed.

      J. E. Whitehead, for plaintiff in error.

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

The case-made was filed in this court on the 1st day of May, 1909. On the 14th day of May, 1910, the Attorney General filed a motion to dismiss the appeal, because no briefs on the part of the plaintiff in error had ever been filed in this court. On June 7, 1910, this motion was submitted to the court; but, owing to the great press of business and the sickness of one of the judges, the court has not been able to dispose of the motion. On July 36, 1910, six weeks after the motion was submitted, without obtaining permission of the court, and without making any explanation why the brief was not filed within the time required by law, an attempt was made to file a brief on behalf of the plaintiff in error.

This brief comes too late to be considered by this court. It is useless to prescribe a time within which briefs must be filed, if the rule can be disregarded, as it has been in this case. The court has already been greatly hindered in its work by failure to have briefs on file when eases are reached for submission. We therefore find it imperatively necessary to enforce the rule. This court cannot wait always on the convenience for counsel.

We have examined the record carefully. The information is- in proper form, the evidence is amply sufficient to sustain the verdict, the charge of the court is correct, and the judgment is regular. We do not find that any reversible error was committed on the trial.

The judgment of the trial court is amended, so as to provide for the confinement of the defendant in the state penitentiary at MeAlester. The judgment is affirmed.

DOYLE and RICHARDSON, Judges, concur.


author: FUBMAN, Presiding Judge.

text:
    COLON COCHRAN v. STATE.
    No. A-268.
    Opinion Filed November 23, 1910.
    (111 Pac. 974.)
    1. INDICTMENT AND INFORMATION — Conviction of Offense Included in Charge — Joinder of Counts — Distinct Offenses — Robbery and Riot, (a) An indictment or information must charge but one offense; but where the same' acts miay constitute different offenses, or where the proof may be uncertain as to which of two or more offenses the accused is guilty, the different offenses may be set forth in separate counts in the indictment, and the accused may be convicted for either offense.
    (b) Where a crime is divided into different degrees, the greater degree charged in an indictment or information includes the lesser degree.
    (c) Where a defendant is indicted for an offense, the jury cannot legally convict the defendant of any other offense unless the commission of such other offense is necessarily included in that for which the defendant is indicted.
    (d) Where the defendant had ’been indicted for robbery, he cannot be convicted for riot when the indictment contains but one count charging robbery.
    (e) The same indictment or information may contain two counts, one count charging robbery, the other count charging riot, provided the averments in the indictment or information show that both counts are based upon one and the same transaction; and upon the trial the accused may be convicted of either of these offenses.
    2. AlPPEAL — Reseuvation of Grounds of Review — Trial-—Retirement of Judge from Courtroom, (a) A matter assigned as error in a motion for new trial and in the petition in error, but not shown by the case-made to be true, cannot be considered in the appellate court. Matters occurring in open court in the progress of a trial, of which the judge must have knowledge, cannot toe incorporated in the record by affidavits, but must be made a part of the case-made by proper recitals certified to by the trial judge.
    (b) -If, for any reason, a judge finds it necessary to retire from the courtroom during the trial of a criminal case, he should order that business shall toe suspended during his absence. The judge, in criminal cases, should have the court under his immediate control every moment of time in which it is open and transacting business.
    (’Syllabus by-the Court.)

      Appeal from District Court, Adair County; John II. Pitchford, Judge.

    Colon Cochran was convicted of riot on a charge of robbery, and he appeals.
    Beversed and remanded.

      Williams & Williams, for plaintiff in error.

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

First. The defendant, after having secured a severance, was tried upon an information in which he was jointly charged with Willie Cochran, Sam Sawney and Nelson Teehee with the crime of conjoint robbery, alleged to have been committed upon Jonas Holt, John Bogers and Jesse Thompson, in Adair County, Oklahoma, on the 27th day of March, 1909. Upon the trial of this case, among other things the judge instructed the jury that the defendant might be convicted of riot. The jury returned the following verdict to the court:

“We, the jury, drawn, impaneled, and sworn in the above entitled cause, do upon our oaths find the defendant, Colon Cochran, guilty as charged in the information herein of riot.
“J. R. Jones,
“Foreman.”

The court sentenced the defendant to five years’ imprisonment in the state penitentiary at McAlester. All of these matters are fully set forth in the case-made and transcript of the record.

The first question which presents itself is as to whether or not under our system a conviction for riot can be had upon an information charging robbery. Section 6697, Snyder’s Comp. Laws Okla. 1909, is as follows:

“The indictment must be direct and certain as regards: (1) The party charged. (2) The offense charged. (3) The particular circumstances of the offense charged, when they are necessary to constitute a complete offense.”

Section 6699 is as follows:

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

From these sections it is seen that the indictment or information, with the single exception therein stated, must charge but one offense and must be certain and direct as regards that offense. When a crime is divided into different degrees, the greater degree charged in an indictment or information always includes the lesser. This is the rule under every system of criminal pleading of which we have knowledge, and this rule is recognized by section 6875, Snyder’s Comp. Laws Okla. 1909, which section is as follows:

“The jury may find the defendant guilty of any offense the commission of which is necessarily included in that with which he is charged in the indictment, or of an attempt to commit the offense.”

This section must be construed in connection with section 6699, hereinbefore quoted, which provides that an indictment must charge but one offense. It therefore cannot mean that the jury can convict a defendant of any offense necessarily included in the allegations of1 the indictment, for a skillful pleader could so shape the allegations of an indictment as to include several separate and distinct offenses in the same count. It will be found upon an analysis of this section that the jury have no power to convict a defendant of any offense unless it is necessarily included in the offense with which he is charged in the information or indictment, or an attempt to commit such offense. If, therefore, the offense of riot is not necessarily included in that of robbery, a defendant, charged only with robbery cannot lawfully be convicted of riot. “Bobbery” is defined by our statute to be the wrongful taking of personal property in the possession of another from his person or immediate presence and against his will, accomplished by means of force or fear. See section 2309, Snyder’s Comp. Laws Okla. 1909. Section 2312 is as follows:

“The fear which constitutes robbery may be either: (1) The fear of an unlawful injury, immediate or future, to the person or property of the person robbed or of any relative of his, or member of his family; or (2) the fear of an immediate and unlawful injuiy to the person or property of any one in the company of the person robbed, at the time of the robbery.”

From this it is seen that force is not a necessary element in the crime of robbery. If personal property is wrongfully taken from the possession of another from his person or immediate presence and" against his will, through fear of an unlawful injury, immediate or future, to the person or property of the person robbed', or of a relative of his or member of his family, such taking is just as much robbery as though it was committed by actual force. Section 2497 of Snyder’s Comp. Laws Okla. 1909 is as follows:

“Any use of force or violence, or any threats to use force or violence, if accompanied by immediate power of execution, by three or more persons acting together and without authority of law, is riot.”

From this it is seen that the statutory elements of the crime of riot are the use of force or violence, or threats to use force or violence, accompanied by immediate power of execution. Unless these elements exist, there can be no riot; but robbery may be committed with an entire absence of all of these elements. The offense of robbery may be committed when there was no immediate force used or attempted to be used, through fear of future injury to the person or property of the person robbed, or of any relative of his or member of his family. But this would not be true as to riot. We therefore cannot say that riot is a necessary element of robbery; and, if it is not a necessary element of robbery, neither can it be said that it is necessarily included in robbery. Bobbery is divided into three classes, each of which is subject to a different punishment. Bobbery in the first is punishable by imprisonment in the state penitentiary for not less than ten years. Bobbery in the second degree is punishable by imprisonment in the state penitentiary not exceeding ten years. Conjoint robbery is punishable by imprisonment in the state penitentiary for not less than five and not more than fifty years. See sections 2316, 2317, 2318, Snyder’s Comp. Laws Okla. 1909. Under section 2818, Snyder’s Comp. Laws Okla. 1909, a person may be convicted for an attempt to commit robbery in either of these degrees.

Under section 6699, Snyder’s Comp. Laws Okla. 1909, there can be no impropriety in incorporating a count for riot in an information or indictment for robbery, when the proof renders it uncertain as to which offense was actually committed, and when by proper averments it is made to appear that both counts are based upon the same transaction. Sturgis v. State, 2 Okla. Cr. 363, 102 Pac. 57. The offenses of robbery and riot, while separate and distinct, are in many respects so much alike that cases may arise in which it would be uncertain ás to which offense had .been actually committed. For instance, it is expressly provided in section .3310, Snyder’s Comp. Laws Olda. 1909, that, if force or fear is employed as a means of escape, it does not constitute robbery. There is no such exception as this in our statute for riot. In the present case the defendant admitted that he and those acting with him by force and fear did take from the párties named in the information the pistols charged in' the information, but claim, in substance, that this was done for the purpose of disarming them and thereby protecting the defendant and those acting with him. On this subject the court charged the jury as follows:

“Gentlemen, this is a very serious charge, and if the proof satisfies your minds beyond a reasonable doubt that this defendant, by the use of intimidation or of force, or putting these parties in fear of danger, and took this property, with the intention of depriving the owner of the use of the same, and you are satisfied of that, beyond a reasonable doubt, then it is your duty to find a verdict of guilty, as charged in the information,■ of robbery; that is, conjoint robbery. If you believe from the evidence, gentlemen, that the defendant did not take the property for the purpose of depriving the owner of the use thereof, but you believe from the evidence, or there is a reasonable doubt upon your minds that, at the time they took the pistols, it was for disarming the officers, I charge you, gentlemen, that would not be robbery, as contemplated by the law. Now, to constitute robbery, the force or fear must be employed to obtain possession of the property, or to prevent and overcome the resistance of the taking. If employed wholly as a means of escape, it does not constitute robbery. I charge you further, gentlemen, if, after viewing all the evidence, there is a reasonable doubt upon your minds as to whether or not this defendant that is now on trial, at the time of taking these pistols, that he did not intend to deprive the owners of these pistols, but simply for the purpose of ■ disarming the officers, and you find from the evidence they were acting together, and you find from the evidence that the officers were down there for the purpose of apprehending any one, or if they came down there for the purpose of quelling any reported disturbance, and you believe that, from the evidence, beyond a reasonable doubt, Colon Cochran with the other defendants, acting together, and conspiring together for the purpose of resisting the officers, and did resist the. officers, or interfered with the officers, and acting together placed the officers in danger of their lives unless they would surrender their arms, in that case the defendant would be guilty of riot. If you believe from the evidence beyond a reasonable doubt that the defendant, Colon Cochran, and the other defendants acting together, interfered with the officers in the execution of their duty as officers by this intimidation, and getting possession of these pistols, then it would be your duty to return a verdict of guilty against the defendant, Colon Cochran, for riot. I will read you the law on that, gentlemen: ‘Any use of force or violence, or any threat to use force or violence, if accompanied by immediate power of execution, by three or more persons acting together and without authority of law, is riot. If the purpose of the riotous assembly was to resist the execution of any statute of this state or of the United States, or to obstruct any public officer in this state or of the United States, in the performance of any legal duty, or in serving or executing any legal process, such person is-punishable by imprisonment in the state prison not exceeding ten-years and not less than two. If such person carried at the time-of such riot, any species of firearms, or other deadly or dangerous weapon, or was disguised, he is punishable by imprisonment in the state prison not exceeding ten years and not less than two/ So, gentlemen, if after viewing all of the evidence, there is no reasonable doubt that the defendants conspired together, and that they used force to deprive them, or interfered with the officers by depriving them of their weapons, in that case it would be your duty to return a verdict of-guilty of riot against the defendant.. On the other hand, gentlemen, if you, beyond a reasonable doubt,, believe the defendant used force or intimidated these parties and robbed them of their pistols, with the intention of depriving the-owner thereof, it would be your duty to return a verdict of guilty as charged in the information.”

This instruction was responsive to the evidence in the case,, and, if the information had contained a count charging the offense of riot, the instruction would have been proper. If the jury had believed the witnesses for the state, the defendant was guilty of robbery. If, on the other hand, they entertained a reasonable doubt as to the purpose of the. defendant in taking the pistols, the defendant. was guilty of riot. Before the question of riot could be submitted to or passed upon by the jury, under section 6699, Snyder’s Comp. Laws Olda. 1909, the information must have contained a separate count charging riot. This is the statute law of the state, and we have no power to change it.

Second. The defendant, in his motion for new trial, alleged the following:

“Because the court left the bench and relinquished control of the trial during its progress for the period of at least ten minutes, that the court was out of the room where the trial was being held, the door was closed and entirely out of the presence, sight and hearing of the jury. That during this temporary absence of the court the trial continued as though the court was presiding.”

In support of this ground for a new trial the defendant filed two affidavits. The matter of the absence of the trial judge during the trial is not elsewhere referred to in the record. The question which must first be determined is as to whether or not an alleged error of this character can be presented to this court in this manner. There can be no question that it is proper and necessary to support any ground contained in a motion for a new trial which did not occur in open court by affidavits accompanying the motion for new trial or by oral testimony given upon the hearing of the motion for new trial, so that the judge may be properly informed as to the truth of the matter; and that such affidavits and testimony may be considered ■ by this court in reviewing the decision made by the trial court. But when the facts relied upon as a ground for new trial occurred in open court and are within the personal knowledge of the trial judge, affidavits and oral testimony are unnecessary, for the court is already informed as to such matter. If it is .desired to reserve any such questions for the decision of this court, it must be done by a recital in the case-made of the facts as they occurred and duly certified to by the trial judge.

The ground for a new trial here presented involves a charge of misconduct on the part of the trial judge. If it were permissible to file affidavits in support of this ground for a new trial, then the state should be permitted to file counter affidavits if it saw proper. This would force the judge to make a finding upon controverted questions of fact as to his own misconduct and would result in an unseemly contest in which the judge would be on trial before himself. As we understand it, no one should be permitted, much less forced, to be the judge of his own case. If a trial judge should be guilty of any act of wrongdoing at the trial of a criminal case and then refuse to certify a statement of what occurred, in the case-made, it should be brought to this court by a petition for a writ of mandamus to compel the judge to certify to, in the case-made, a statement of what occurred. If it is permissible to incorporate such questions in the case-made by affidavits, where would the matter end? If one part of the case-made, as to matters, occurring in open court during the progress of the trial, can be incorporated in the record by. affidavits, why could not all such matters also be so incorporated in the record? What then would become of the statutory provision that the case-made must be certified to by the trial judge? As to the proper manner of incorporating in the record questions which arise during a trial in open court, in the case of Turner v. State, 4 Lea, 209, the Supreme Court of Tennessee said:

“This being a matter occurring in open court, the proper mode to put it in the record would have been to request the judge to insert it over his own signature in the bill of exceptions.”

The United States Court of Appeals for Indian Territory, in referring to such grounds for new trial, in the ease of Starr v. United States, 4 Ind. T. 555, 76 S. W. 107, said:

“They certainly cannot be brought here by the affidavit of the attorney for the defendant.”

In the case of Slaughter v. United States, 5 Ind. T. 235, 82 S, W. 732, the record contains the following statement:

“Be it further remembered that during the trial of this case, while the Assistant United States District Attorney, Mr. J. E. Humphrey, was making his opening argument for the government to the jury, the presiding judge retired from the courtroom.”

Then follows a. further recital in the record as to what occurred during the absence of the judge. The writer of this opinion was of counsel for appellant in the Slaughter case. It is true that through abundant caution affidavits were filed in that case as to the absence of the judge from the courtroom, but the question was carried before the appellate court upon the recitals contained in the bill of exceptions. This case shows how such matters may be incorporated in the record.

The Supreme Court of Oregon, in the case of State v. Drake, 11 Or. 399, 4 Pac. 1205, uses the following language:

“Now, it is perfectly clear that the matter alleged in the affidavit of the defendant could, in no way, constitute any part of the record, except through the instrumentality of a bill of exceptions. It is not intended, in such cases, that a party make a statement in writing of what he conceives to be his grievances, and by swearing to it and filing it, and then moving for a new trial, and the court overrules the motion, he has incorporated the matter into the record so as to make it a part thereof and to enable this court to review it. If this can be done, the statement of exceptions provided by the Code, to be settled, signed and allowed by the court before whom the cause was tried, to bring such matter into the record, and lay the foundation for appellate review, becomes a useless and meaningless thing. The whole business may be accomplished without the aid of the court, and untrammeled by its authority. It has always been supposed that the record of a court is made up under the solemn sanction of the court, and to make exceptional matters, occurring during the progress of the trial, a part of that record, it must be so ordered by the court.”

In the case of Saunders v. State (decided at the present sitting of the court) infra, 111 Pac. 965, the question of presenting errors -which were alleged to have been committed in open court during the regular trial of the cause by affidavits was passed upon, and we there held that affidavits could not be used for this purpose, but that such alleged errors could only be presented by recitals in the case-made certified to by the trial judge. We know that numerous cases can be found in which such questions have been presented, without question, by affidavits; but for the reasons hereinbefore given we regard this practice as contrary to the philosophy of the law and as being dangerous to the defendants upon trial and to the administration of justice. We therefore hold that errors occurring in open court during the regular trial of the cause can only be presented for review upon appeal by recitals contained in the ease-made., except such as are specifically provided for in section 1, art. 7, p. 326, Sess. Laws 1905. See Lee Lamm et al. v. State (decided at the present term of this court), infra, 111 Pac. -. To prevent complaint in the future that judges have absented themselves from the courtroom during the progress of a trial and allowed the trial to proceed during such absence, we will say that, if for any reason a judge finds it necessary to retire from the courtroom, he should order that business shall be suspended during such absence. There is an absolute unanimity among all the appellate ■ courts that in the trial of criminal cases the judge should be present and see and hear all that occurs in open court during the trial. The only difference among the courts with reference to this question is that some states hold that the consent of the defendant cures the error, and others hold that such absence may be harmless error, according to the particular circumstances under which it takes place. We are not, however, disposed to apply the doctrine of consent or of harmless error to this question. The judge should have the court under his control during every moment of time in which it is open and transacting business.

There are a number of other minor questions presented in the brief of counsel for the appellant : but they relate to matters with reference to which no exceptions were reserved upon the trial, and therefore cannot be considered now.

For the error of the court in sustaining a conviction for riot upon-an information which contained only one count charging the defendant with robbery, the judgment of the lower court is reversed, and the cáse is remanded for.a new trial.

DOYLE and EICHABDSON, Judges, concur.


author: FURMAN, PRESIDING Judge. PER CURIAM.

text:
    COLON COCHRAN v. STATE.
    No. A-269.
    Opinion Filed November 23, 1910.
    (111 Pac. 978.)
    1. APPEAL — Reservation of Grounds of Review — Duty of Judge to Remain Present During Trial, (a) If, during a trial of a criminal case, the judge absents himself from the courtroom and relinquishes control of the trial, and the attorneys for the defendant desire to assign this matter as error, when the judge returns into the courtroom they should request him to make a record of his absence, or when they prepare their case-made they should incorporate in it a statement of the facts as they occurred.
    (to). Matters occurring in open court during the progrss of the trial can be shown only by proper recitals in the case-made duly certified to by the trial judge.
    (c) Ttial courts are admonished that during the' trial of a criminal case it is their duty to remain in control of the trial during every moment that court is open.
    2. EVIDENCE — Competency—Appeal—‘Review—Remarks of Judge. (a)When the reason why a person has gone to a certain place becomes material upon a trial, it is proper to allow such person to explain why he went there.
    (to) Where, upon a trial of a cause, objection being made to allowing an officer to explain why he went to the scene of difficulty, the trial court said: “In this connection I will say that it is the duty of an officer, when he is informed of a disturbance, to go and investigate it.” This is a correct statement of the law, and we cannot see how it could have injured the defendant in any manner. 1
    (c) In ruling upon the admissibility of evidence, trial courts should carefully abstain from commenting upon the weight or effect of testimony; tout where such remarks are made, and it is clear that they could not have injured the 'defendant, they will not constitute ground for new trial.
    3. APPEAL — Instructions—Necessity for Exceptions in Lower Court, (a) Errors committed in the instructions of the court to the jury, where no exceptions are reserved to such instructions and no special instructions were requested, will not be considered upon appeal unless they are fundamental or necessarily injured the defendant
    (Syllabus toy the Court.)

      Appeal from District Oowri, Adair County; John II. Püchforcl, Judge.

      Colon Cochran was convicted of an assault with intent to kill, and he appeals.
    Affirmed, with directions.

      Williams & Williams, for appellant.

      Smith 0. Matson, Assistant Attorney General, for the State.
   FURMAN, PRESIDING Judge.

First. The third ground set up in the motion for new trial is as follows:

“Because the court left the bench and relinquished control of the trial during its progress for the space of several minutes while R. Y. Nance, one of the attorneys for the state, was arguing the case to the jury.”

The defendant filed affidavits in support of this ground for a new trial. If, as a matter of fact, the judge should absent himself from the courtroom and thereby relinquish control over the trial, it is entirely proper that this fact should be incorporated in the motion for new trial; but we cannot consider the affidavits which are filed in support of this ground. If counsel for the defendant were desirous of bringing this question before this court upon appeal, when the judge returned to the courtroom they should have requested him to make a record of his absence, or they should have incorporated in the case-made a statement of the facts as they occurred. We can only consider matters occurring in open court during the progress of a trial when the facts are certified to us in the case-made by the trial judge. For a discussion of this question, see the companion case of Colon Cochran v. State (No. A-268) infra, 111 Pac. 974, and also the case of Saunders v. State, infra, 111 Pac. 965, both of which cases were decided at the present sitting of this court. We desire to renew our admonition to trial courts that in criminal cases it is their duty to remain in control of the trial during every moment that court is open.

Second. When the state’s witness, Jonas Holt, was on the stand, he was testifying as to why he went to the place where the difficulty occurred. To this counsel for the defendant objected. Whereupon the court said:

“I will let this officer explain why he went down there. In this connection, I will say that it is the duty of an officer, when he is informed of a disturbance, to go and investigate it.”

The defendant excepted to the remarks of the court upon the ground that such language was prejudicial to the’ rights of the defendant. As to why the officer went to the scene of the difficulty was material in this case. It was therefore entirely proper to allow him to state what caused him to go there. The remarks of the court to the effect that, when an officer is informed of a disturbance, it is his duty to go there and investigate it, was a correct statement of law and could not have in any manner injured the defendant. It would have been better to have incorporated this in the instructions to the jury. The court should be careful in ruling upon the admissibility of evidence and refrain from commenting upon the weight and effect of testimony; but we cannot see how the defendant was injured by this statement. Counsel for defendant do not cite a single authority in their brief in support of their contention.

Third. The brief of defendant complains of a number of alleged errors in the charge of the court. We have examined the record and find that no exception was reserved to the instructions given to the jury, neither were any instructions requested by the defendant. We also find that, while the instructions are not above criticism, yet they do not contain any fundamental errors. If counsel for the defendant desires this court to consider an alleged error in the instructions of the court, they must except to such instructions when given, and thereby give the trial court an opportunity to correct any errors that-may exist in the instructions. If counsel fail to except to the instructions of the court or to request any special instructions on behalf of the defendant, they thereby waive all objections to the instructions, save those that are -fundamental or which necessarily injured,the defendant. We find no such errors in the instructions given. The evidence amply sustains the verdict of the jury and would have justified the infliction of the extreme limit of the law.

The judgment of the lower court is affirmed, with directions to the court to reform the sentence imposed and make the term of imprisonment therein provided begin upon the reception of defendant in the penitentiary.

Denied December 17, 1910.

APPEAL — Instructions—Presumption of Innocence — Requests—Exceptions — Necessity. Where the court failed to instruct the jury upon the presumption of innocence and where no exception was reserved to such failure, and no special instruction was requested on this subject, and where the court did instruct the jury that the 'burden was upon the state to establish the guilt of the defendant by competent evidence beyond a reasonable doubt, the failure of the court to instruct on the presumption of innocence will nor c<ma*iiuxe reversible error.

(Syllabus .by the Court.)

DOYLE and RICHARDSON, Judges, concur.

ON MOTION FOR REHEARING.

PER CURIAM.

Counsel for appellant has filed a motion foi a rehearing in this case in which it is alleged that this court did not consider appellant’s assignments of error, setting forth the fact that the district court, in its instructions to the jury, did not charge them that the defendant was presumed to be innocent until the contrary was proven beyond a reasonable doubt. The defendant did not request any special instruction from the trial court upon this question, and no exception was reserved to the charge of this court for failing to instruct the jury that the defendant was presumed to be innocent. The trial court did charge the jury that the burden was upon the state to prove by competent evidence beyond a reasonable doubt that defendant was guilty of the offense charged against him in the information before they could convict him; and the court also repeatedly informed the jury that if they had a reasonable doubt as to the defendant’s guilt, they must give him the benefit of such doubt and acquit him. Under these conditions and circumstances we do not believe this case should be reversed because the court failed to charge on the presumption of innocence. This question was before the Supreme Court of California in the case of People v. Matthai, 130 Cal. 442, and that court said:

“Complaint is made that the court failed to instruct the jury, as provided by section 1096 of the Penal Code, that a defendant in a criminal action is presumed to be innocent until the contrary i's proved. Section 1127 of the Penal Code provides that, in charging the jury, the court must state to them all matters of law necessary for their information, and assuredly the instruction as to presumption of innocence is one which should be given in every case of the court’s own motion. But in this case the defendant made no request that such instruction should be given, and, as held in People v. McNutt, 93 Cal. 658 (29 Pac. 243), in the absence of a request, the failure of the court to charge upon any specific principle, of law will not-be held error.”

In the case of Stevens v. Commonwealth, 45 S. W. 76, the Court of Appeals of Kentucky said:

“It is further urged that error was committed in instructions refused and in those given. A specific instruction was asked upon the doctrine of reasonable doubt, and one that the law presumes the defendant innocent until his guilt is proven beyond a reasonable doubt. Instruction 2, which was given, gave the law as to reasonable doubt, viz: Tf the jury entertain a reasonable doubt of the defendant being proven guilty, they will acquit him/ In the first instruction given, they were told that if they believed from all the evidence, beyond a reasonable doubt, that the defendant had committed the act charged, they would find him guilty. Instruction 3 gave the law as to corroboration of the testimony of an accomplice. But it is insisted that the trial court erred to the prejudice of appellant in not giving the instruction as to reasonable doubt in the same terms approved in the case of Brady v. Com., 11 Bush. 282, and that of Payne v. Com., 1 Metc. (Ky.) 370, in which the additional direction was contained that, if the jury entertained a reasonable doubt of any fact necessary to make out defendant’s guilt, they should acquit him. While that instruction is undoubtedly correct, and has been approved by the court in numerous other eases, we think the instruction given conveys the same meaning to the mind of any competent juror.
“It is further insisted that the presumption of innocence is another and different thing from a reasonable doubt, in this: that a reasonable doubt can arise only upon the testimony aftex its introduction, while the presumption of innocence is with the defendant before the introduction of any testimony, the burden being on the commonwealth to establish affirmatively the guilt of the accused, as charged in the indictment. It seems to us, however, that this distinction is rather plausible than real. The jury are required to believe from the evidence, to the exclusion of a reasonable doubt, in the guilt of the defendant,' which is a' distinct requirement of affirmative testimony showing the guilt of the accused before conviction can be had. This being so, and the jury being, required, in order to a conviction, to believe such affirmative testimony, to the exclusion of a reasonable doubt, it can in no sense be fairly said that any juror competent to sit upon a trial could, under the instruction in this case, have believed he was authorized to convict upon a preponderance of testimony. And, while the instruction asked as to the presumption of innocence might have been proper, we are unable to see that the court’s failure. to give it coxdd have operated to the prejudice of any substantial right of the appellant. For the reasons given, the judgment is affirmed.”

In the case of State v. Kennedy, 154 Mo. 269, the Supreme Court of Missouri said:

“Where the court fully and properly instructs the jury on reasonable doubt, its failure to instruct that the defendant is presumed to be innocent until his guilt is established, does not constitute reversible error, although the defendant had asked the court to give such instruction on the subject of the presumption of innocence.”

In the case of People v. Oustrander, 110 Mich. 60, the Supreme Court of Michigan said:

“Failure to instruct the jury in a criminal case as to the presumption of innocence is not reversible error, where the attention of the court was not called to the omission, and the charge as given was explicit to the effect that the guilt of the accused must be proved beyond a reasonable doubt. People v. Garney, 91 Mich. 646, followed.”

In the case of Morehead v. State, 34 Ohio, 212, the Supreme Court of Ohio said:

“An instruction by the court to the jury, that the state must prove the material elements of the crime beyond a reasonable doubt, fully secures to the defendant the benefit of the legal presumption of his innocence.”

In the case of State v. Maupin, 196 Mo. 164, the Supreme Court of Missouri said:

“It is not reversible error to refuse an instruction stating the presumption of innocence when the court has already fully instructed on the subject of reasonable doubt.”

We might continue to cite authorities to the same effect, but we deem these sufficient.

The only purpose which the law has in view in providing that a defendant is presumed to be innocent until his guilt is established by competent evidence beyond a reasonable doubt is to fix the burden of proof in the first instance and designate that the duty rests upon the state to produce evidence and effect persuasion beyond a reasonable doubt before the jury are authorized to convict a defendant. See Culpepper v. State, infra, 111 Pac. 679.

We therefore hold that when the trial court has omitted to instruct the jury that the defendant is presumed to be innocent until his guilt is established beyond a reasonable doubt by competent evidence, and when no exceptions were saved to the failure of the court to so instruct the jury and no special instruction was requested upon this subject, and when the court has clearly instructed the jury that the burden is upon the state to establish the guilt of the defendant by competent evidence beyond a reasonable doubt, the failure of the court to instruct upon the presumption of innocence will not constitute reversible error. The motion for rehearing is therefore denied, and the district court is directed to carry the judgment and sentence into effect without further delay.


author: PER CURIAM.

text:
    G. M. RAMSEY v. STATE.
    No. A-140.
    Opinion Filed November 29, 1910.

      Appeal from Pontotoc County Court; W. C. Edwards, Special Judge.

    G. M. Ramsey was convicted of violating the prohibition law, and appeals.
    Reversed and remanded.

      Qaibraith & McKeown and Crawford <£ Bolen, for plaintiff in error.
   PER CURIAM.

G. M. Ramsey was convicted of a violation of the prohibition law and on the 29th day of December, 1908, was by the court sentenced according to the verdict of the jurj to pay a fine of fifty dollars and to be confined in the county jail for a period of thirty days. From such judgment and sentence he appealed by filing with the clerk of this court, on April 17, 1909, his petition in error with case-made attached, together with proof of service of notices of appeal.

•The record shows that the following instruction was given and excepted to:

“7. The defendant, as a defense, claims that he did not sell intoxicating liquor at the time charged in said information, and if you are satisfied from the evidence that this statement is true, then your verdict should be a verdict of not guilty, because the defendant cannot be convicted in this case unless you are satisfied from the evidence that the defendant is guilty of unlawfully disposing of intoxicating liquor.
“Given and excepted to by defendant.
“W. C. EdwaRds, Judge.”

The identical question raised by this assignment was considered by this court in the case of Will Rea v. State, 3 Okla. Cr. 269, 105 Pac. 381, wherein the court held that an instruction in this form constitutes reversible error, because it in effect required the jury, before finding for acquittal, to believe from the evi-deuce that the defendant did not sell the intoxicating liquor as charged in the information. In other words, it virtually requires the jury to believe from the evidence that the defendant is innocent before finding him not guilty. It is not essential to an acquittal that the jury should believe that the defendant did not sell intoxicating liquor. The law presumes that he is not guilty as charged until his guilt has been established by competent evidence beyond a reasonable doubt. See, also, Weber v. State, 2 Okla. Cr. 329.

For this reason, without considering the other assignments, the judgment is reversed and the cause remanded to ’the county court of Pontotoc county.


author: BICHABDSON, Judge.

text:
      In re TOM TALLEY.
    No. A-817.
    Opinion Filed December 1, 1910.
    1. INFORMATION — Misdemeanors—Verification—-Necessity. Under the -Constitution and laws of this state, an information charging- a defendant with the commission of a misdemeanor is required to be verified in positive terms; and an unverified information and one verified only on information and belief are equally defective.
    2. SAME — Purpose of Verification. The requirement that an information charging a misdemeanor shall toe verified in positive terms -before a warrant of arrest may issue thereon, is intended for the preservation of the personal security and liberty of the individual, by forbidding the issuance of a warrant for his arrest except u-pon probable cause shown under oath, and by preventing the institution of baseless and unfounded prosecutions.
    3. SAME. The requirement that an information for a misdemeanor be verified before a warrant of arrest may issue thereon, does not purport to deal with the essentials of an information as a mere accusation, but only with the manner and means of obtaining the custody and jurisdiction of the defendant’s person.
    4- SAME — -Waiver of Verification. The verification is no- part of the information itself;and an unverified information properly charging a misdemeanor, signed by the county attorney, and filed in a court having jurisdiction of the offense, though insufficient to authorize the issuance of a warrant of arrest,, is nevertheless sufficient for all other purposes, if not properly challenged.
    5. SAME. The requirement that an information for a misdemeanor •be verified being intended for the personal benefit of the defendant, he may waive the same; and he does so by pleading to the information without moving to quash or set it aside.
    6. APPEAL — Jurisdictional Matters. Jurisdictional matters may be raised for the first time in the appellate court.
    7. SAME — Errors not Jurisdictional. It is error for a court to overrule a motion to quash an unverified information charging a misdemeanor, but the matter is not jurisdictional.
    8. HABEAS CORPUS — Purpose of Writ — Remedy by Appeal. The writ of habeas corpus is not intended for the correction of errors or mere irregularities, and cannot be substituted for an appeal or writ of error.
    9. SAME. Where a petitioner is imprisoned under a judgment of conviction for crime, unless the court was without jurisdiction to render the particular judgment, and the judgment is void and not merely voidable, relief cannot be had by habeas corpus, however numerous and gross may have 'been the errors committed during the trial or in the proceedings preliminary thereto.
    1U. INFORMATION — 'Felonies—Verification. There is no requirement in this state that an information charging a felony, filed ' in the district court, be verified.
    (Syllabus by the Court.)

      Original Proceeding bv Writ of Habeas Corpus.

    Application of Tom Talley for writ of habeas corpus.

    Writ discharged and petitioner remanded to custody.

      W. A. Huser and W. T. Banks, for petitioner.
    Citing Salter v. State, 2 Olda. Cr. 464.

      Fred S. Caldwell and J. C. Wright for respondent.
    Citing Ex parte Flowers, 2 Olda. Cr. 430; Ex parte Justus, 3 Olda. Cr. Ill; Snapp v. State, 2 Olda. Cr. 515; De Graf v. S'ta-te, 2 Olda. Cr. 519; Mulleins v. U. 8., 10 Olda. 288; Miller v. U. S., 8 Okla. 315; State v. Barr, 54 Kan. 230; Lewis v. State, 15 Neb. 89; State v. Brown, 181 Mo. 192; People v. Murphy, 56 Mich. 546. •
   BICHABDSON, Judge.

Tom- Talley, the petitioner, was convicted in the County Court of Okfuskee County of selling intoxicating liquor, and was sentenced to pay a fine of $300.00 and to be imprisoned in the county jail for a term of four months. He undertook to appeal from this sentence, but failed to serve the statutory notices of appeal, and for that reason his purported appeal was dismissed by this court for want of jurisdiction. He was then committed to jail in accordance with the sentence pronounced upon him. He now contends that his imprisonment is illegal, and by an application for a writ of habeas corpus he asks this court to inquire into and determine its legality. The illegality of his imprisonment is alleged to consist in the fact that the court was without jurisdiction to try him on the information exhibited against him, and that the sentence pronounced upon him thereunder was void, for the reason that said information was not verified as required by law. The petition for the writ and the return thereto show that the information was signed by the county attorney and properly charged the offense, but it was not verified in any manner. Does that entitle the petitioner to be discharged ? ' ■

The writ of habeas corpus is not designed for the correction of errors or. mere irregularities, and cannot be substituted for an appeal or writ of error. And where a petitioner is imprisoned under a judgment of conviction for crime, unless the court was without jurisdiction to render the particular judgment, and the judgment is void and not merely voidable, relief cannot be had by habeas corpus, however numerous and gross may have been the errors committed during the trial or in the proceedings preliminary thereto. In re Bonner, 51 Fed. 184; Ex parte Lehmkuhl, 12 Cal. 53, 13 Pac. 148; In re Sennott, 146 Mass. 489, 16 N. E. 448, 4 Am. St. Rep. 344; In re Ellis, 19 Mich. 322, 44 N. W. 616; Ex parte Shaw, 1 Ohio St. 81, 10 Am. Dec. 55; Ex parte Harlan, 1 Okla. 48, 21 Pac. 920; Ex parte Murphy, 1 Okla. 288, 29 Pac. 652; Ex parte Bond, 9 S. C. 80, 30 Am. Rep. 20; In re Rafferty, 1 Wash. St. 382, 25 Pac. 465; Ex parte Gibson, 31 Cal. 619, 91 Am. Dec. 546; In re Wilson, 140 U. S. 575, 35 L. Ed. 513; In re Graham, 74 Wis. 450, 43 N. W. 148, 17 Am. St. Rep. 174; Slate v. Barnes, 3 N. D. 131, 54 N. W. 541; Ex parte Patman, 1 Okla. Cr. 141, 95 Pac. 622; In re McNaught, 1 Okla. Cr. 528, 99 Pac. 241. This case therefore presents the sole question, Is the want of a verification a jurisdictional defect in an. information ? If it is, then the petitioner should be discharged; otherwise, he should not.

The law in this state bearing upon this question is found in see. 30, art. 2 of our Constitution, and sections 6577 and 6644 of Snyder’s Comp. Laws. The constitutional provision is as follows :

“The right of the people to be secure in their persons * * * against unreasonable * * * seizures shall not be violated; and no warrant ihall issue but upon probable cause supported by oath or affirmation describing as particularly as may be * * * the person . * * * to be seized.”

Section 6577 of Snyder’s Comp. Laws reads:

“When an information, verified by oath or affirmation, is laid before a magistrate, of the commission of a public offense, he must, if satisfied therefrom that the offense complained of has been committed, and that there is reasonable cause to believe that the defendant has committed it, issue a warrant of arrest.”

And section 6644 of Snyder’s Comp. Laws provides that, “All informations shall be verified by the oath of the prosecuting attorney, complainant or some other person.” This section was enacted at a time when felonies could be prosecuted only by indictment, and it therefore relates solely to misdemeanors, as is con-elusivly shown by a consideration of the two sections immediately preceding, and of sections 6485 and 6486 of Snyder’s Comp. Laws.

The several provisions quoted above are in pan materia and are to be construed together, the statutory provisions supplementing the constitutional one. In our opinion they are intended for the preservation of the personal security and liberty of the individual, by forbidding the issuance of a warrant for his arrest except upon probable cause shown under oath, and by preventing as far as possible the institution of baseless and unfounded prosecutions. They do not purport to deal with the essentials of an information as a mere accusation, but only with the manner and means of obtaining the custody and jurisdiction of the accused’s person. The verification is no part of the information itself; and an unverified information charging an offense in proper and intelligible language, signed by the county attorney and filed in a court having jurisdiction of the offense charged, though insufficient to authorize the issuance of a warrant of arrest, if not properly challenged is sufficient for all other purposes. The requirement that the information be verified being for the personal benefit of the defendant, we see no reason why he may not waive it if he desires; and if he submits himself to the jurisdiction of the court, either by voluntarily appearing and answering the information, or by failing to move to quash the same when arrested and brought up for arraignment, he thereby waives the defect. There are many rights vouchsafed an accused by our Constitution and laws which may be waived, and many of them have reference to the form of the accusation and the manner of its presentment. Thus it is provided by section 6738 of Snyder’s Comp. Laws that an indictment must be set aside when it is not found, indorsed, presented or filed as provided by the statutes of the state; but the section following provides that if the motion to set aside the indictment on that ground be not made, the defendant is precluded from afterwards making the objection; and it seems to us that this provision is also applicable to informations. It is so held by the. courts of practically all the states where prosecutions by informations are authorized. Kansas has in effect the same constitutional and statutory provisions that we have, and it is held in that state that verification of an information must be made in positive terms and not on information and belief; but the Supreme Court of Kansas held in State v. Otey, 7 Kan. 69, that the objection that an information is not properly verified is waived by pleading to the merits and going to trial. The same court reaffirmed that holding in a subsequent opinion by Justice Brewer in State v. Adams, 20 Kan. 311; and later in State v. Ruth, 21 Kan. 583, Justice Brewer said, “It is alleged that the information was insufficient for lack of a proper verification. The verification was defective, but the defect was waived by the defendant’s pleading to the merits and going to trial.” And in State v. Blackman, 32 Kan. 615, 5 Pac. 173, the court said.

“The third and last point made by counsel for the defendant is, that the verification of the information is not sufficient. It appears that the information was verified by the county attorney, who, after being duly sworn, stated in his verification, 'That the several allegations contained in the foregoing information are, according to the best of his knowledge, information and belief, true in substance-and in fact.’ This point was not raised in the court below, and hence the defendant is not in any condition to raise it in this court. The record shows that the defendant in the court below waived arraignment, pleaded not guilty to the information, and went to trial upon the merits of the action, without making any objection to the sufficiency of the information or to its verification. The defendant, therefore, waived all irregularities with reference to the sufficiency of the verification.”

State v. Longton, 35 Kan. 375, 11 Pac. 163, goes still further, and holds that when the defendant enters into a recognizance for his appearance to answer to the information, without making any objection to the sufficiency of the warrant or the verification of the information, he thereby waives the fact that the warrant was issued on an information insufficiently verified, and cannot afterwards have the warrant quashed or set aside on that ground. And in the case entitled In re Cummings, 11 Okla. 286, 66 Pac. 332, the Supreme Court of the Territory of Oklahoma held like-Avise. The syllabus of the latter case is as follows:

“The objection that a criminal complaint is verified on information-‘and belief, is waived by pleading to the merits, or entering into a recognizance for appearance at a future day.
“A verification on information and belief is sufficient for every purpose except merely the issuing of the warrant for the arrest of the defendant, and the objection to such verification must be made by motion to quash the warrant before plea to the merits, oi other steps are'taken which will operate as a waiver of such defect.”

The Supreme Court of Kansas had the question before it again in State v. Ellvin, 51 Kan. 784, 33 Pac. 547, in State v. Barr, 54 Kan. 230, 38 Pac. 289, and in State v. Osborn, 54 Kan. 473, 38 Pac. 572; and in each of these cases reaffirmed its previous holding. See also In re Lewis, 31 Kan. 71, 1 Pac. 283, and State v. Stoffel, 48 Kan. 364, 29 Pac. 685. The same question was before the Supreme Court of Colorado in Brown v. People, 20 Colo. 161, 36 Pac. 1040; Taylor v. People, 21 Colo. 426, 42 Pac. 652; and Bergdahl v. People, 27 Colo. 302, 61 Pac. 228; in each -of which the court announced and adhered to the rale declared by the Supreme Court of Kansas. In the last mentioned ease the court said:

“The failure to properly verify ah information is not one which-affects its sufficiency. It'is required to be verified as designated by sections 1432b and 1432h, 3 Mills' Ann. Stats. These are. provisions which are intended to and do comply with section 7, article 2 of our Bill of Eights, which, in substance, declares that no warrant to seize any person shall issue unless probable cause therefor is made to appear by oath or affirmation reduced to writing. This right, however, is one which may be waived, and unless properly presented below, cannot be raised in this court.”

In Nebraska an information must be verified in positive terms, and under the peculiar wording of the statute it is held that it must be verified before a judicial officer and cannot be verified before a notary public. Yet in Hodgkins v. State, 36 Neb. 160, 54 N. W. 86, the court said:

“It is argued that there is no valid.information, for the reason that the charge upon which plaintiffs in error were tried was sworn to before a notary public. It has been held by this court, in Richards v. State, 22 Neb. 145, and Davis v. State, 31 Id. 247, that the information should be sworn to before some judicial officer. In the last above case, however, it was held that an objection to the information on that ground will be waived unless made before verdict. And Judge Norval, in the opinion of the court, uses the following language: Tt (the objection) should have been raised by motion to quash before pleading to the information. This prosecution originated before the county judge of Lancaster County, with whom the above information was filed. Plaintiffs in error, having been convicted in that court, appealed to the district court. The first record we find of any objection to the information is after the jury had been sworn in the district court, where it appears they objected to any evidence being offered or' received: ,
“‘1st. Because there is no legal presentment as required by the Constitution and laws of the state.
" ‘2d. The affidavit of plaintiff does not contain facts sufficient to constitute a criminal action.
" '3d. There is no complaint filed in this case as required by law.’
"In the opinion of the writer the objection set out above should be held to apply only to the form of the information and the sufficiency of the allegations therein contained, and not to the want of a proper verification. But it is clear that the objection, even if sufficient, comes too late after a trial before the county judge upon the merits of the case, and after a jury had been selected and sworn in the district court. The provision for the verification of an information before a magistrate is surely not more imperative than the provision found in section 585 of the Criminal Code, that no information shall be filed against any person, except fugitives from justice, until such person shall have had a preliminary examination as provided by law. Yet it has been repeatedly held that by pleading not guilty and going to trial on the issue thus formed, the accused waives his right to object on the ground that he has not had a preliminary examination. (Cowan v. State, 22 Neb. 519; Washburn v. People, 10 Mich. 383; People v. Jones, 24 Id., 215; People v. Williams, 53 N. W. Rep. [Mich.] 779.) It is evident that the plaintiffs in error are not now in position to assert that the information was not legally verified. The judgment of the district court is right and is affirmed.”

To the same effect are Bailey v. State, 36 Neb. 808, 55 N. W. 241; Korth v. State, 46 Neb. 631, 65 N. W. 792; Johnson v. State, (Neb.) 73 N. W. 463, and Davis v. State (Neb.) 47 N. W. 854.

In State v. Montgomery, 181 Mo. 19, 79 S. W. 693, 67 L. R. A. 343, the Supreme Court of Missouri said, "This information is not verified, but no objection was taken to it on that account, and the failure was waived.” And in State v. Schnettler, 181 Mo. 173, 79 S. W. 1123, the court said:

“The omission to verify the information by the circuit attorney was simply an irregularity, did not render it or the proceedings under it void, and might have been amended at any time before trial by leave of court. It is axiomatic that a legal proceeding which is simply irregular is amendable, but even if this rule does not apply here, it is expressly provided by section 2481, Eevised Statutes 1899, that fany affidavit or information may be amended in matter of form or substance at any time by leave of court before the trial, and on the trial as to all matters as to form and variance, at the discretion of the court, when the same can be done without prejudice to the substantial rights of the defendant/ It is, therefore, perfectly clear that tjj.e information was not void, and might have been amended by the circuit attorney by leave of court at any time before trial had, if so desired. If, however, such objection is not raised on or before trial, it will be waived and can not be raised for the first time in this court.”

A very full and able discussion of this question is found in State v. Brown, 181 Mo. 192, 79 S. W. 1111, in which the information was not verified at all. The opinion is quite lengthy and exhaustive; the syllabus states the conclusions reached and is as follows:

“An objection that The' verdict is insufficient to sustain the judgment/ even if timely made, does not raise the defect that the information was not supported by affidavit, because no such ground is specified. Nor would a motion in arrest alone suffice to prevent a waiver of the affidavit, even if the motion specified that there was no affidavit to support the information.
“The failure to verify the information does not render it so defective that a motion in arrest would reach it, nor is it such &\ defect that the Supreme Court would arrest it without motion.
“The affidavit is no part of the information itself, but a thing separate and apart from the information and something additional thereto.
“The purpose of the statute requiring an information to be supported by affidavit is to afford a guaranty of the good faith of the prosecution and to prevent a careless, or vindictive, or reckless prosecution of "a citizen.
“A motion in arrest goes only to defects appearing on the face of the indictment or information, and not to an affidavit upon which the information may be based, or which merely verifies the charges in the information itself.
“The jurisdiction- of the court over a felony case does not depend on the affidavit, neither is the sufficiency of the information affected' by it. The filing of the affidavit or the verification off the information is but an additional step which the defendant may or may not waive.
“If the defendant fails to challenge the information for the reason that it is not supported by affidavit by motion to quash, he waives the affidavit, and it is too late to raise that objection by motion in arrest. Such objection, however specific, comes too late after verdict. Nor is it a matter to be reached by a demurrer. A motion to quash is the Missouri practice for reaching defects which do not appear on the face of the indictment or information.”

See also State v. Lewis, 181 Mo. 235, 79 S. W. 671; State v. Sheridan, 182 Mo. 13, 81 S. W. 410; State v. Hannigan, 182 Mo. 15, 81 S. W. 406, and State v. Speyer, 182 Mo. 77, 81 S. W. 430, in all of which there was no verification or pretense thereof.

In State v. Pancoast, 5 N. D. 514, 67 N. W. 1052, 35 L. R. A. 518, which was a prosecution by information, this question was raised and was disposed of by the court as follows:

“When the case was called for trial in Cass 'County, plaintiff in error moved to set aside the information, on the ground that it was not verified as the law requires. The information was verified by the state’s attorney of Morton County, to the effect that he believed it to be true. Without in any manner intimating that this was not a good verification, we think the motion came too late. Our statutes, as found in the Compiled Laws of 1887, were framed when accused persons were presented by indictment, and not by information; but chapter 71 of the laws of 1890 substitutes an information by the state’s attorney for the indictment of a grand jury, and section 5 of said act declares that the proceedings under indictment should, ‘as near as may be, apply to prosecutions by informations.’ Section 7283 of the Compiled Laws specifies the ground for setting aside an indictment; and these grounds, as applied to an information, would cover a defective verification. The next section provides: Tf the motion to set aside the indictment be not made, the defendant is precluded from afterwards taking the objections mentioned in the last section.’ The substance and almost the language of these provisions was borrowed from Minnesota. See chapter 110, Gen. Stat. 1878. The Supreme Court of Minnesota, in State v. Schumm, 47 Minn. 373, and State v. Dick, 47 Minn. 375, held that a motion to set aside the indictment could not be made after plea entered. In this ease, plaintiff in error, prior to his first trial, was regularly arraigned, and pleaded not guilty. He has never withdrawn, or asked to withdraw, that plea for any purpose whatever, and hence the motion to set aside the information came too late. But counsel sought to save the point by motion in arrest. It has been held in Minnesota that a matter which might furnish a ground for a motion to set aside an indictment cannot be raised by demurrer or in any manner except by such motion. State v. Brecht, 41 Minn. 50. By -sec. 7452, Comp. Laws, the grounds for motion in arrest are the same as, and none other than, the grounds for a demurrer to the information, as specified in sec. 7292, Comp. Laws. As the objection under consideration was proper ground for motion to set aside, and was not proper ground for demurrer, it follows that it cannot be raised by motion in arrest. Learned counsel admit in argument that the point could not be raised on demurrer, and this must be so because, under our practice, a demurrer goes only to the body of the information.”

In State v. McCafferty, 16 Mont. 33, 40 Pac. 63, it is held in terms that a defendant waives any right he may have to object either to the verification of the (original complaint before the committing magistrate, or to the verification of the information in the district court, by pleading to the merits in such court; and that to avail himself of such defect, he must move to quash or set aside the information before entering his plea. And to the same effect are Bryan v. State, 41 Fla. 643, 26 So. 1022, and Hammond v. State, 3 Wash. 171, 28 Pac. 334. In Lambert v. People, 29 Mich. 70, Justice Cooley said that an objection to the verification of an information, not made until after the jury is sworn, comes too late. In the case of In re Mary Eaton, 27 Mich. 1, it was held that a writ of habeas corpus will not be granted, after a final judgment in an ordinary criminal case, to test the sufficiency of the information on which the defendant was convicted. See, also, People v. Jones, 24 Mich. 214; People v. Harris (Mich.) 61 N. W. 871; Sutton v. Commonwealth, 97 Ky. 308, 30 S. W. 661; Long v. People, 102 Ill. 331; Frisbie v. United States, 167 U. S. 160, 39 L. Ed. 657; Schott v. State, 7 Tex. App. 616; People v. Dowd, 44 Mich. 488, 7 N. W. 71; People v. Murphy, 56 Mich. 546, 23 N. W. 215; People v. Gardner, 62 Mich. 307, 29 N. W. 19.

We take it as established, therefore, both on principle and by the authorities, that a defendant waives any objection which he. may have to the information on account of a defective verification thereof, or a total want of verification, by pleading thereto without moving to quash or set aside the information on that gfound. He thereby admits what the verification is intended to show, namely, that there exists probable cause to believe him guilty sufficient to warrant his arrest and trial on the charge; and after pleading to such information, he can no more take advantage of its want of verification than he could then take advantage of the fact that the indictment, if he were being prosecuted by indictment, was returned by the grand jury without hearing any evidence, or that the indictment was not endorsed “a true bill,” and signed by the foreman of the grand jury, both of which matters by the terms of the statute are waived unless a timely motion to set aside is filed. It was even held by the Supreme Court of the United States in an opinion rendered by Justice Brewer in the ease of In re Wilson, 140 U. S. 575, 35 L. Ed. 513, that if the law required that a grand jury be composed of not less than seventeen nor more than twenty-three members, and a grand jury composed of only fifteen members returned an indictment, “the defect in the number of grand jurors did not vitiate the entire proceedings, so that they could be challenged collaterally on habeas corpus, but it was only a matter of error to be corrected by proceedings in error;” and that “it is doubtful, at least, whether such defect is not waived if not taken advantage of before trial and judgment.”

The requirement being that the verification shall be in positive terms, it follows that a verification on miormation and belief, as were many of those in the cases cited above, so far as a compliance with the law is concerned, is the same as and no better than no verification at all, and leaves the information as vulnerable as though no pretense at verifying it had been made; and therefore, if the information be not void in the first mentioned case, it is not void in the latter. Also, if the defectiveness of a verification or the total want of one is waived by pleading to the information without moving to quash or set the same aside, then certainly the information cannot be void on that account, nor the court without jurisdiction; for all agree that jurisdictional matters may be raised even for the first time in the appellate court. And every time a court has sustained a conviction based upon an information not verified or defectively verified, it has thereby said that such defect was not jurisdictional. The record before us does not disclose whether the petitioner raised this question below, and, for the purposes of this case, whether he did so or not is -immaterial. For if he filed a motion to quash the information and the court overruled the same, the court committed error; but it was only error, and the court had as much jurisdiction after committing the error as it had before. The petitioner’s proper remedy was by appeal or writ of error. In that way only could the error be corrected. We are aware that in Salter v. State, 2 Okla. Cr. 464, 102 Pac. 719, this court held that such a defect might be raised by a demurrer or an objection to the introducing of evidence, and that an information verified only on information and belief is insufficent to support a judgment of conviction. But upon further consideration we now hold that such an information will support a conviction; that the proper and only manner to raise the question of verification is by motion to quash or set aside the information on that ground, and that if no such motion be filed and presented before pleading to- the information, the defect is waived. And Salter v. State, supra, in so far as it is in conflict with this holding, is hereby overruled.

That no misunderstanding with respect to the statements made above as to the necessity of the verification of informations may arise, we deem it proper to state further that the holding that such requirement exists relates solely to informations charging a misdemeanor. There is no constitutional or statutory requirement in this state that informations charging a felony be verified at all. As to felonies, the constitutional provision for a showing of probable cause supported by oath or affirmation, to authorize the arrest and detention of the accused, is fully met, (1) by the verified complaint filed with the examining magistrate as provided for by section 6577 of Snyder’s Comp. Laws, and (2) by the evidence taken under oath in the accused’s preliminary examination as required by section 30, art. 2 of the state Constitution, and by his being held to answer by the magistrate, or by the fact that the accused waived such preliminary examination, thereby admitting the existence of probable cause to believe him guilty sufficient to warrant his formal accusation and trial. But these preliminary proceedings are not required in misdemeanor cases; and for that reason, and also on account of the provisions of sec 6644 of Snyder’s Comp. Laws, information charging the commission of a misdemeanor must be verified unless verification be waived by the defendant.

It follows from the foregoing that the petitioner’s imprisonment is not illegal. The writ of habeas corpus heretofore issued will therefore be discharged, and the petitioner remanded to the custody of the sheriff with directions to execute the judgment of the court.

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


author: FUKMAN, Presiding Judge.

text:
    R. S. TOBIN v. STATE.
    No. A-193.
    Opinion Filed Dcember 3, 1910.
    (111 Pac. 981.)
    ANIMALS — .Death by Disease — Failure to Bury — Information., In prosecutions for violation of section 212, Snyder’s Comp. Laws Okla., 1909, the information must allege, and the state must prove, that 24 hours elapsed after the defendant had notice of or knew that a domestic animal had died of disease before said owner can be convicted for failing to bury or burn the carcass of said animal.
    (Syllabus by the Court.)

      Appeal from Pontotoc County Cnwtj Joel Terrell, Judge.

    E. S. Tobin was prosecuted for failing to bury or burn the carcass of an animal djdng of an infectious disease. From an order overruling a demurrer to the information, defendant appeals.
    Eeversed and remanded.

      Slone & Maxey, for appellant.

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

First. The prosecution in this case was instituted under section 212, Snyder’s Comp. Laws Okla. 1909, which section is as follows:

“It shall be the duty of every owner of every domestic animal in the state of Oklahoma, which may hereafter die of any contagious or infectious disease, either to burn the carcass thereof or bury the same within twenty-four hours after he had notice or knowledge of such fact so that no part of such carcass shall be nearer than two and one-half feet of the surface of the soil; provided, that all hogs, dying of any disease shall be burned. It shall be unlawful to bury any such carcass as mentioned in this section in any land along any stream or ravine, where it is liable to become exposed through erosion of the soil, or where such land is at any time subject to overflow. Owner, as used in this act, shall mean and include any person having domestic animals in his possession, either by reason of ownership, rent, hire, loan, or otherwise, and shall be subject to. all the pains and penalties of this act. (L. 1907-08 p. 21.)’’

The defendant demurred to the information upon the ground that it failed to allege facts sufficient to constitute an offense. against the law. The demurrer was overruled by the court, to which the defendant duly excepted. In this there was .error. The charging part of the information is that “the defendant did then and there unlawfully and wilfully and knowingly omit, fail, and neglect to burn or bury the carcass of said domestic animal, within 34 hours after the death of same.” The statute provides that, in a case of hogs dying of any disease, the carcass shall be burned within 34 hours after the owner has notice or knowledge of the fact that said hog had died of disease. The information charged the defendant with having failed to bury or burn the carcass of the hog within 34 hours after its death. It did not charge an offense against the law. The owner must have notice or have known for 34 hours that the hog had died from some disease. He may not get this notice until some time after the death of the animal, but under the statute he would not be guilty of an offense until after the expiration of the 34 hours from the time when he had notice or knowledge of the fact that the hog had died, and also notice that it died from disease. The court therefore erred in overruling the demurrer to the information.

Second. The court charged the jury as follows:

“Should you find from the evidence that the defendant permitted a domestic animal belonging to him which had died from any disease to remain unburied or burned for 34 hours, then you will convict the defendant. Excepted to by defendant.”

To this instruction the defendant reserved an exception. This instructions is radically wrong, as it required the jury to convict the defendant without reference to the question of notice or knowledge that the hog had died of disease. This charge is further erroneous, in that it would have required the jury to acquit the defendant if they found that the hog had been buried. This is not the law. The law is that hogs dying from disease must be burned within 34 hours after the owner has had notice of such death of such animal from disease. As this ease may be tried again, we will not discuss the testimony. We deem it proper to say that the Attorney General has confessed' error in this cause.

For the errors herein pointed out, the judgment of the lower court is reversed, and the case is remanded, with directions to the lower court to set aside the conviction and sustain the demurrer to the information.

DOYLE and BIOHABDSON, Judges, concur.


author: DOYLE, Judge.

text:
    STOKE R. WALLING v. STATE.
    No. A-148.
    Opinion Filed December 3, 1910.
    (111 Pac. 1101.)
    APPEAL — Fajlure to File Briefs — Affirmance. Where a defendant appeals from a judgment of conviction in a felony case, and no briefs are filed or argument presented, this court will make 'an examination of the record, and, if no error is apparent, will af,firm the case.
    ('Syllabus by the Court.)

      Appeal from District Court, Marshall County; D. A. Richardson, Jud.ge.

    Stoke B. Walling was convicted of manslaughter, and appeals.
    Affirmed.
   DOYLE, Judge.

Stoke E. Walling was indicted in the Dnited States Court within and for the Southern District of the Indian Territor}', at Ardmore, at the April term, A. D. 1907, for the murder of one Moses T. Jackson, on the 39th day of March, 1907, within that part of said jurisdiction which was organized as Marshall county when Oklahoma was admitted as a state. Dnder the provisions of the enabling act and the state Constitution, he was tried in the district court of Marshall county. On December 1, 1908, the jury sworn to try the case returned a verdict, finding Hie defendant guilty of manslaughter, and assessed his punishment at imprisonment for a period of 10 years and a fine of $500.

A motion for a new trial was filed, and on December 3, 1908, the same was overruled, and the court rendered judgment and sentence in accordance with said verdict, from which judgment an appeal was properly perfected by filing in this court on April %*{, 1909, a petition in error with case-made attached and proof of service of notice of appeal. No briefs have been filed by plaintiff in error, and no appearance was made on his behalf when the cause was called for oral argument.

On August 29, 1910, the Attorney General filed a motion to affirm the judgment for want of prosecution. It is apparent that the appeal in this case has been substantially abandoned, and for this reason we would be justified in sustaining the action of the court below without further examination of the record. Nevertheless, in deference to the gravity of the ease, we have deemed it our duty to fully and carefully examine the record.

Having so examined the entire record, and finding no substantial error therein, and that no substantial right of the defendant has been lost, and believing that a fair and impartial trial was had, the judgment of the district court of Marshall county is therefore in all things affirmed.

FURMAN, Presiding Judge, concurs; RICHARDSON, Judge,, who presided in the court below, disqualified and not sitting.