author: BEETT, J.

text:
    EUGENE FLOWERS v. STATE.
    No. A-2257.
    Opinion Filed March 20, 1917.
    (163 Pac. 558.)
    1 PERJURY — Oath—Violation. A witness, sworn to tell the Ibruth, and the whole truth, violates his oath if he knowingly, willfully, and corruptly conceals any part of the truth, material to the issue concerning which he is questioned. Far a half truth does not fulfill the' requirements of his oath, and constitutes perjury of the most dangerous character.
    2. SAME — Evidence—Sufficiency. The evidence examined, and held that the appellant’s own testimony is tantamounto to a plea of guilty.

      Error from District Court, Wagoner County; R. C. Allen, Judge.

    Eugene Flowers was convicted of perjury, and he brings error.
    Affirmed.

      P. E. Reed, for plaintiff in error.

      R. McMillan, Asst. Atty. Gen.,- for the State.
   BEETT, J.

In this case the plaintiff in error, whom we shall call defendant, as he appeared in the lower court, was convicted of perjury and sentenced to serve six months in the penitentiary. The defendant was a deputy sheriff of Wagoner county. And a large quantity of whiskey and spirituous liquor had been seized from time to time by the officers, and securely locked up in a cell in the county jail. And from the record it appears that J. E. Long, sheriff of the county, through other parties, corruptly and surreptitiously sold this liquor to one Stude-vant; and on the night of June 10, 1911, arranged for it to be secretly delivered to him. There were two wagon-loads of the liquor, and Studevant paid $370 for it. The defendant was called before the grand jury later, to give information as to what he knew about this transaction, and denied any knowledge whatever concerning it, and further stated that he knew of no one who did know anything about it. And this charge of perjury is based upon his testimony before the grand jury.

The material facts relied upon by the state to prove that the defendant swore falsely before the grand jury are: That on the night the whiskey was taken from the jailj Bill Conners, the party employed to take it from the jail and deliver it to Studevant, came to the defendant’s house, and asked him if everything was all right; that he answered that it was; that Conners testified that only two or three days before that he had had a conversation with the defendant with reference to getting this whiskey; that next morning Conners, while on his way to the residence of Studevant to collect for the whiskey, met the defendant, who was on his way to town, and told him he was then going after the money for the whiskey, to which the defendant replied: “All right, I will be back after a bit”; that after collecting the money Conners returned to. his own home; and the defendant later went there, and received the $370 and gave $100 of it back to Conners and put the other $270 in his pocket and left; that defendant met the sheriff on the street before reaching the courthouse, and handed him the roll of money, and the sheriff took $25 from the .roll of bills, and gave it to the defendant, and told him to hand it to Charley Smith, the undersheriff.

The defendant, as a witness in his own behalf, denied some of the detáils, as testified to by the witnesses for the state, but admitted that Conners gave him the roll of greenbacks, and told him to give it to the sheriff. But he says that when Conners gave him the money, he “was dumbfounded,” but did hot make any inquiry as . to what' it was for, or where it came from, but only said,“Bill, you go and make that delivery to Jim Long.” • He admitted that he then took the money, and delivered it' to the sheriff, and said, “Here, Mr. Long, are your key's, and this money that Bill Conners told me to give you.” And he says, “I looked him right straight in the eye, and Jim kinder ducked his head , and smiled.” And that when he turned to walk off, “Jim says ‘Wait a minute,’ and called me back, and tore off two tens and a five, and says, ‘Give this to Charley Smith,’ and I did it.” And Charley Smith took the money without any appearance of being dumbfounded, and even without a' question or a smile. There are many other incidents, proven by the state and admitted by the defendant, that show he swore falsely before the grand jury.

But with these facts locked up in his breast, the defendant went before the grand jury, and testified that he hád' no knowledge of the sale of this liquor, and did not know of any one that had anything to do .with it, or knew anything about it, and on the trial of this case tries to justify that statement on the grounds: First, that he was not personally present when the deal was made, and consequently had no personal .knowledge of its details; and, second, that the grand jury did not ask him specifically about. Conners coming to his house that night--, or about the roll of money delivered by Conners to him, ■and then by him to the sheriff, but.says, “If they had asked me these questions, I certainly would have told them along with other stuff too numerous to mention”; for, he says, “This ain’t a starting point.” But the defendant knew that the oath he took was to tell the truth and the whole truth. And he knew that in concealing these facts he was violating that oath. He knew that, 'these facts were material to the issue under investigation,, and that they were concealed in his own breast, and he knew that it was because the grand jury did not know these facts that they had called upon him, and asked him for whatever information he had, or if he did not know . before, perhaps he will learn that a half truth does not fulfill the requirements of his oath. It does in most instances amount to a falsehood, and is the most dangerous character of perjury,- and under that oath no man- has the right to willfully, knowingly, and corruptly suppress any part of the truth, material to the issue concerning which he is questioned.

Besides, the defendant swore positively that he knew nothing about the matter under investigation, and his own testimony in this case shows that he had concealed in his breast the exact information the grand jury were seeking, and which, under his oath and the questions asked, it was his duty to divulge. A -plainer case of perjury could not have been made. And the defendant’s own testimony is tantamount to a plea of guilty.

We have carefully read the briefs and the entire record, and think the only serious mistake made was in the extremely small penalty imposed upon the defendant by the jury, for one of the most dangerous and detestable of crimes.

The judgment is therefore affirmed.

DOYLE, P. J., and ARMSTRONG, J., concur.


source: Caselaw Access Project

author: ARMSTRONG, J.

license: Public Domain

text:
    T. J. SCOTT et ux. v. STATE.
    No. A-2289.
    Opinion Filed March 20, 1917.
    (163 Pac. 553.)
    1. CONSPIRACY — Homicide—Aiders and Abettors — Manslaughter. Proof -that one defendant committed an ¡assauliti with a dangerous weapon, and that the assault so made and the injury resulting was not and could not have been fatal, and, further, that anatlher defendant, with a different weapon, 'Committed the homicide charged, will not support a conviction for miurder or man-_ slaughter against the first person, unless the proof further shows that there was a conspiracy, between the parties to perpetrate the homicide, or that the first person aided, abattted, assisted, encouraged, or counseled the party who fired the fatal shot.
    2. WITNESSES — Cross-Examination of Defendant — Scope. The cross-examination of a defendant who elects to testify as a witness should he confined to the issues or to transactions which are pertinent to the issues.
    (b) It is tbe duty of itbe trial court to confine tlie cross-examination of any witness to proper channels.
    3. APPEAL AND ERROR — Harmless Error — Cross-Examination. Improper cross-examination which Clearly discloses the purpose of counsel for the state to degrade or to intimidate a defendant who has the stand as a witness, and which is calculated to prejudice the jury and serves no other purpose, constitutes reversible error.
    4. WITNESSES — Cross-Examination. For cross-examination held wholly improper and prejudicial, see opinion.
    5. TRIAL — Trial of Joint Defendants — Theory of Cass — Homicide. When husband and wife are jointly charged with murder, and the proof shows that the wife was engaged in a 'controversy with deceased, during which shells were fired by both participants, resulting in the injury of each, and the husband, who had the right to defend his family'and premises, appeared on the scene after the beginning of the controversy and after his wife had retired from the conflict, and when the proof further shows ithat there was no word or aot of hostility jointly engaged in by tbe defendants, and no claim is made that a conspiracy existed between them ’to' accomplish the homicide, then .the person firing the fatal shot is entitled to have his theory of the case submitted to the jury without being bux’dened with any hostlile act which may have been indulged in by his codefendant without his knowledge or acquiescence.

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

    T. J. Scott and Annie E. Scott were tried on a charge of murder and convicted of manslaughter in the second degree, and bring error.
    Reversed, and cause. remanded.

      J. F. Thomas, J. E. Michalson, E. L. Gregory, and Lewis Hunter, for plaintiffs in error.

      R. McMillan, Asst. Atty. Gen., for the State.
   ARMSTRONG, J.

The plaintiffs in error, T. J. Scott and Annie E. Scott, husband and wife, were tried at the December, 1913, term of the district court of Comanche county on a charge of murder and convicted of manslaughter in the second degree. The punishment of plaintiff in error T. J. Scott was fixed at two years in the penitentiary, and the punishment of plaintiff in error Annie E. Scott was fixed at one year in the county jail of Comanche county.

The information charges the plaintiffs in error with the murder of George Norton in Comanche county on the 18th day of August, 1913.

From the mass of proof introduced at the trial it appears that the plaintiffs in error resided some 25 or 30 miles from Lawton in a remote and more or less inaccessible district. Each had homesteaded a quarter section of land, upon which there were built meager improvements. Some years after the settlement the plaintiffs in error were married. The' plaintiff in error Annie E., Scott was formerly Annie E. McGinley, and had homesteaded a quarter section of land in her own right prior to becoming the wife of plaintiff in error T. J. Scott. The Scotts were farming in a small way. The deceased, George Norton, was a wealthy cattle man, who appears to have controlled extensive ranching interests in the immediate vicinity of the home of the Scotts. Trouble grew up between the Scotts and Norton on account of the fact that Norton’s cattle continually, broke into and destroyed the crops raised by them. Litigation ensued, wherein the Scotts recovered judgments against Norton, but the judgments were appealed and long delays entailed in the collection of the amounts assessed as damages by reason of the destruction of these crops. After some years of disagreement, during which considerable hostility growing out of these conditions had - arisen, the plaintiffs in error managed to get a loan on their farms and purchased wire, with which their farms were inclosed.

It seems that the country is a rugged one, through which there are few public highways — in fact, none; that the people of the country generally' used a passageway ■ that crossed the Scott farm; that in fencing the farm the Scotts closed this road and made a gate for the use of themselves and neighbors. Through this gate Norton and his employees had driven cattle which had scattered out over the farm and damaged the crops of the plaintiffs in error, following which Norton and his employees were forbidden the right to pass through the farm. The gates' were locked against them, and they were refused' permission to unlock the same or to pass over or through the. farm for any purpose.

Much ill feeling seems to. have existed between them for the reason, as contended by plaintiffs in error, that they felt that the deceased, on account of his prominence and standing financially, and on account of the poverty of the plaintiffs in error, was imposing on them; that he had prevented the establishment of a public highway through the community in order to give him an excuse for driving his stock through their inclosures. Many hard things had been said pro and con.

Upon the date of the homicide, Norton and certain of his employees undertook to pass through the farm of the Scotts and through the gate which had been locked against him. They drove by the house, which was near the gate, and asked if the gate was locked. ' Mrs. Scott told them it was, and that they could not pass through. Norton demanded the key, and it was refused him. He told Mrs. Scott that if she didn’t give him the key, he would take the gate down, and that he was going through; that attorneys had advised him that he had a right to go through the premises when he desired. T. J. Scott, the husband, was not at the house at the time. The deceased, Norton, came upon the premises armed with a shotgun loaded with buckshot. After béing denied the keys and forbidden the right to pass through the gate and across the farm, deceased directed his employees to take the gate down. Some words ensued between Mrs. Scott,the deceased, Norton, and one of his employees. At about this time T. J. Scott appeared on the scene and asked Norton what he was doing there with a gun. Mrs. Scott testified that she could not see him, but heard some one say, “G.et him before he gets to' the house,” and saw Norton point his gun as though he was attempting to shoot her husband, whereupon she seized a shotgun loaded with bird shot and fired in the direction of Norton, some of the bird shots striking him, causing slight wounds. Norton fired about the same time, the buckshot from his gun wrecking a number of utensils in the kitchen where Mrs. Scott was standing, one of the shots striking a girl who was working at the place, and one striking Mrs. Scott about the face.

T. J. Scott ran to the house and met the girl who was wounded, and spoke to her; he went on into the house and inquired if Mrs. Scott was hurt, and she told him something had hit her; that she was feeling queer and was dazed. She had already put up the shotgun. Mr. Scott passed on into a south room and told her to go to the girl who had been shot, and before she got to where the girl was, she heard another shot from the rear of the house. She took the girl to the house and bandaged her wounds.

T. J. Scott testified that he was down at his spring on the branch getting water for some calves; that he spoke to Norton, and asked him what he was doing there with a gun, and walked on with his back towards Norton, and heard two shots; that there were some trees in the yard and he could not see Norton; that he ran to the gate, went into the house, saw the girl standing with her arm around a post, and asked if she was hurt; that he ran on into the door and never stopped until he looked through the house; that he looked in at the door, and through a window and saw Norton standing with his gun drawn facing the house; that he could not hear or see Mrs. Scott, and in the house he found her leaning against a middle door, and asked her if she was hurt; that she said something had hit her, but she could not find blood; that he passed on through into another room, secured the rifle, and fired out of the window. This was the shot that killed the deceased. The shotgun wound was insignificant.

The proof all indicates that Mrs. Scott had put up the shotgun immediately upon firing the first shot. There is nothing to indicate that she took any part in the trouble after she was struck by the shot from Norton’s gun, nor that she counseled or encouraged any participation in the same by her husband.

For the purpose of this opinion, the following quotation from the examination of the plaintiffs in error is quoted as it appears in .the record:

“By Mr. Henderson: Q, Mrs. Scott, you say you occupied that place about 11 years? A. ,Yes, sir. Q. During all of that time, was Mr. Scott occupying the adjoining place? A. Yes, sir. Q. He was there when you went there? A. Yes, sir; he owned that place when I went there. Q. A man named Brandenburg made the original filing ón the place • you now occupy, didn’t- he ? A. On my place? Q. Yes. A. Yes, sir. Q. When you came on' to that place, Mr. Brandenburg was occupying it? A. Yes, sir; on that place. Q. Is that the place you first filed on, or did you make filing on the place adjoining it on the west? A. I made a settlement, not a filing. Q. On the place on the west? A. Yes, sir. Q. In making that settlement, you and Mr. Brandenburg had a tent across the line, half on your place and half on his? A. Yes, sir. Q. You lived there with him? A. No, sir. Q.' Lived there in the tent with him? A. No, sir.
“By Mr. Thomas: Object' to that; incompetent, irrelevant, and immaterial.
“By the Court: Overruled.
“By Mr. Thomas: Exception.
“By Mr. Henderson: Q. How long did you and Mr. Brandenburg live there in the tent?
“By Mr. Thomas: Objected to as assuming a fact not proven.
“By Mr. Henderson: Q. How long did — how long was you there while Mr. Brandenburg occupied the place? A. He didn’t occupy my place where I settled. Q. Where did you settle? The place you are on or the one west? A. The one west. Q. Brandenburg was on the place that you are on? A. Yes, sir. Q. Just had one tent between you? A. No, sir. Q. Did you say ‘Yes’ or ‘No’? A. I said, ‘No.’ Q. Where was Mr. McGinley then? A. I don’t know. Q. He was living, wasn’t he? A. I don’t know. Q. You never got any divorce from him until last January? A. No, sir. Q. You don’t know whether he is dead or alive? A. I do not. Q. How long have you been separated from your, husband known as McGinley ?
“By.Mr. Thomas: Objected to as incompetent, irrelevant, and immaterial; improper cross-examination.
“By the Court: Overruled.
“By Mr. Thomas: Exception.
“By Mr. Henderson: Q. Read the question. (Question read.) A. Eleven years. . Q. Did you leave Mr. Mc-Ginley when you came down to this place with Brandenburg?
“By Mr. Thomas: Objected to; incompetent, irrelevant, and immaterial, assuming a fact not proven.
“By Mr. Henderson: Q. I will ask ydu if you didn’t come with Brandenburg from up in Northern Oklahoma? A. I did not.
“By Mr. Thomas: Objected to; incompetent, irrelevant, and immaterial.
“By the Court: Overruled. ,
“By Mr. Thomas: Exception.
“By • Mr. Henderson: Q. Did you leave your husband at the time you came onto this land out there?
“By Mr. Thomas: Objected to, because it is incompetent, irrelevant, and immaterial; not proper cross-examination.
“By the Court: Overruled.
“By Mr. Thomas: Exception.
“By Mr. Henderson: Q. Read the question. (Question read.) A. Did I at the time? Q. Or about the time? A. No. Q. You was not living with him when you came onto this land? A. No. Q. ■ Mrs. Scott, how long did Mr. Brandenburg occupy this quarter section that you now.live on?
“By Mr. Thomas: Objected to; incompetent, irrelevant, and immaterial; not proper cross-examination.
“By the Court: Overruled.
“By Mr. Thomas: Exception.
“By Mr. Henderson: Q. Read the question. (Question read.) A. Well, he .owned it, I think three years, but wasn’t there. Q. Were you there most of the time he was on it? »A. He wasn’t there. Q. He wasn’t there the three years? A. Only at intervals. Q. At intervals? Did you acquire the relinquishment from him or from his heirs? A. From his heirs. Q. He died at Bowie, Tex.? A. No, sir. Q. Died down in Texas? A. So I understood. Q. Was you with him at his death? A. I was not.
“By Mr. Thomas: Objected to because it is incompetent, irrelevant, and immaterial; not proper cross-examination.
“By the Court: Overruled.
“By Mr. Thomas: Exception.
“By Mr. Henderson: Q. Didn’t you leave the place up there with Mr. Brandenburg in a wagon just prior to his death and start to Texas? A. I did not. Q. Didn’t you.leave there in a wagon with him? A. No, sir. Q. Didn’t you go down to Texas and was with him at his death? A. I did not. Q. You was not with him at any time on that trip to Texas when he died? A. No, sir. Q. Was he any relation of yours? A. No, sir. Q._ How long had you known him prior to the time you came onto this land up here? A. Two years, I think. Q. Where had you known him?
“By Mr. Thomas: The defendants object to that for the same reasons, incompetent, irrelevant, and immaterial; hot proper cross-examination.
“By the Court: . Overruled.
“By Mr. Thomas: Exception.
“A. In the Cheyenne country.
“By Mr. Henderson: Were you living with Mr. McGinley when you first met Brandenburg?.
“By Mr. Thomas: We object; same reason.
“By the Court: Overruled.
“By Mr. Thomas: Exception.
“By Mr. Henderson: Read the question. (Question read.) A. Yes, sir. Q. How long after you had known Brandenburg had you separated from McGinley?
“By Mr. Thomas: Same objection.
“By the Court: Overruled.
“By Mr. Thomas: Exception.
“By Mr. Henderson: Q. Read the question. (Question read.) A. Well, I don’t know exactly;.I couldn’t say. Q. I will ask you, Mrs. Scott, if it is not’a fact that old man Brandenburg after he came down and made settlement on this land went back to the Cheyenne coun-' try and brought you down to occupy these two pieces of land?
“By Mr. Thomas: Same objection; incompetent, irrelevant, and immaterial; not proper cross-examination.
“By the Court: Overruled.
“By Mr. Thomas: Exception.
“By Mr. Henderson: Q. Read.the question. (Question read.) A. He did not. Q. Who did you come down here with from the Cheyenne country?
“By Mr. Thomas: Same objection.
“By the Court: Overruled.
“By Mr. Thomas: Exception.
“A. Mr. Reeser. Q. Did he have any claim out there about this land?
“By Mr. Thomas: Same objection.
“By the Court: Overruled.
“By Mr. Thomas: Exception.
“By Mr. Henderson: Q. Read it. (Question read.) A. He was living on that land. Q. Which quarter was he living on? A. Mr. Brandenburg’s. Q. Living with Brandenburg? A. Yes, sir. Q. Brandenburg sent him after .you then ? '
“By Mr. Thomas: Objected to; same objection.
“By the Court: - Overruled.
“By Mr. Thomas': Exception.
“A. I don’t know that he did.
“By Mr. Henderson: Q. How came you to come down there? What occasioned your coming down there?
“By Mr. Thomas: Objected to; same reason.
“By the Court: Overruled..
“By Mr. Thomas: Exception.
“A. I came to locate on a-place; to gét a quarter of land.
“By Mr. Henderson: Q. Had Mr. Brandenburg advised you about the place or informed you where to come?
“By Mr. Thomas: Same objection; incompetent, irrelevant, and immaterial; not proper cross-examination.
“By the Court: Overruled.
“By Mr. Henderson: Q. Read the question. (Question read.) A. He told me there was vacant land down there. Q. What became of the quarter of land you filed on that you say was west of the original Brandenburg claim, West of the claim you live on now?
“By Mr. Thomas: Same objection.
“By the Court: Overruled.
“By Mr. Thomas: Exception.
“Q. (Question read.) A. It is still there.
“By Mr. Henderson: Q. Anybody claiming it? Did you sell it? A. Yes, sir. Q. Did you sell it? A. No, sir. Q. You never got a filing on it. A. No, sir. Q. When you came down there and first resided on this quarter section or there in that neighborhood, old man Cartright lived up the creek, didn’t he? A. Yes, sir. Q. You knew him then? A. I knew him -after I came down there. Q. Has Mr. Scott’s house always been at the samé place on his land that it was at the time of the homicide right at the corner next to your house? A. Yes, sir; that one has. Q. After Mr. Brandenburg went away or after his death, Mr. Scott boarded with you from that time on, didn’t he?
“By Mr. Thomas: Objected to; same reason.
“By the Court: Overruled.
“By Mr. Thomas: Exception.
“Q. (Question read.) A. Taken his meals there.
“By Mr. Henderson: Q; I say he took his meals there at your house? A. Part of the time. Q. Took meals there most of the time, didn’t, he, Mrs. Scott? A. Yes, the majority of the time. Q. When did Brandenburg leave? How many years now has he been gone?
“By Mr. Thomas: Samé record.
“By the Court: Overruled.
“By Mr. Thomas: Exception.
“A. You mean when he died? Q. Yes, when did he die? A. It was in 1905. Q. Where did he die. A. I have been informed he died at Graham, Tex. I don’t know.' Q. You say Mr. Scott has been living at the house boarding with you-most of the time since the time he went away?
“By Mr. Thomas: Same objection; let the same objection go to all of these questions.
“By the Court: Make the same record.
“By Mr. Henderson: Q. You say Mr. Scott has beén living at the house and boarding with you most of the time since Brandenburg went away? A. Part of the time. Q. Any one live with Mr. Scott? Q. Yes, sir. Q. Who lived there with him?' A. Different ones. Q. Can you name any of'them? A. Yes, sir. Q. Who is that? A. Archie Oaks. Q. Archie Oaks? A. Yes', sir; one year. Q. Who else? A. Joe Taylor one season, and different other hands that have been there. Q. Most of the' time nobody- there but you and him. A. No/ sir. •Q: ■ Nobody there with you? A. Yes, sir.' Q. Who lived with you? A. Different ones. Q. Mrs. Scott, who lived there-with you at any time since Brandenburg went away?
. A/ Well, the first one was— '
“By Mr. Thomas: Objected to; same objection.
“By the Court: Overruled;
“By Mr. Thomas: Exception.”

A similar cross-examination involving the previous married life of the plaintiff in error T. J. Scott was indulged in, but not as extensively. The court gave a lengthy charge in submitting the case to the jury; many paragraphs are complained of.

' ' Counsel for plaintiffs in error contend • that the evidence is insufficient to warrant the verdict; that' the cross-examination above set forth was prejudicial to the substantihl rights of the plaintiffs in error and deprived -them of that fair and impartial trial guaranteed by the law of the • land;. and that' the instructions of the court are erroneous, and do not fairly submit the issues to the jury. ' '

. . In -the first place, the evidence is such that the -jury would have been warranted in returning a verdict of not guilty as to Mrs. Scott. In fact, it is doubtful if, under the proof, a case was made against her. Nowhere in the record is it indicated that the state tried this case on the theory that there was a conspiracy between T. J.. Scott and wife to múrder the deceased. The instructions of the court did not submit any such issue. There is no controversy over the fact that the shot fired by T. J'. Scott resulted in the death of Norton. All of the .testimony indicates that Mrs. Scott was not a participant by .word or act in the conduct of T. J. Scott in the firing'of this shot. The court gave no clear charge which fairly submitted that phase of the case to the jury. There being no charge submitted as to a conspiracy theory, and no contention of that kind made on behalf of the state, in our judgment, the verdict was not correct as to her!. The bird shot wound was hardly serious, enough to be called a wound and could not have contributed to the death of Norton. Unless there was a conspiracy between' the plaintiffs in. error to murder Norton, then the judgment should not have been rendered against Mrs. Scott convicting her on the information charging murder. If the parties had been acting together under an agreement to accomplish the death of Norton, the case would be different,, but the record does. not indicate any such conspiracy. The proof on behalf of the state does not disclose any such arrangement. Annie E. Scott shot Norton with bird shot and withdrew from the conflict. This is clear beyond! question. T. J. Scott came upon the scene under conditions heretofore referred to and fired the fatal shot.

He was entitled to have his theory of the case submitted to the jury under this state of the case, and with- ' out being burdened with an instruction which linked his defense inseparably with the hostile acts charged against Mrs. Scott even before any conflict had occurred. The ■instructions are burdened with the idea that the two defendants killed Norton, whereas, under the facts, unquestionably Scott fired the fatal shot and Mrs. Scott had withdrawn from the conflict. The record does not disclose that these parties were guilty of any wrongful conduct when, acting together which should have been determined by this trial. If these parties were not guilty of conspiracy to murder Norton, then Mrs. Scott should have been tried for a different offense and Scott for the murder. The instructions do not fairly submit the issues.

The cross-examination set forth was wholly unwarranted and inexcusable. This court has had occasion to discuss conduct of this kind on the part of the trial court and prosecuting officer heretofore. See Rogers v. State, 8 Okla. Cr. 226, 127 Pac. 365; Watson v. State, 7 Okla. Cr. 590, 124 Pac. 1101, and Reams v. State, 12 Okla. Cr. 363, 157 Pac. 273.

In the Reams Case, recently decided by this court, the proposition presented by the cross-examination here exposed was held prejudicial and reversible errm. The error is more aggravated in the case at bar than in the Reams Case.

The judgment is reversed, and the cause remanded.

DOYLE, P. J., and BRETT, J., concur.


author: BRETT, J.

text:
    HENRY HUFFINE v. STATE.
    No. A-2263.
    Opinion Filed March 24, 1917.
    (163 Pac. 557.)
    PERJURY — Materiality of Testimony. To constitute perjury under the common law or our statute (Rev. Raws' 1310, sec. 2211)', the false testimony must be material to some issue or question in controversy, hence, where there is no issue pending or question in controversy, a statement under oath, although it be false, cannot be made the basis of a 'charge of perjury.

      Error from District Court, Tillman County; ■ Frank Mathews, Judge.

    Henry Huffine was convicted of perjury, and he brings error.
    Reversed and remanded, with directions to dismiss the case.

      Mounts & Davis, for plaintiff in error.

      R. McMillan, Asst. Atty. Gen., for the State.
   BRETT, J.

Plaintiff in error, Henry Huffine, was convicted of perjury, and sentenced to serve one year and one day in the penitentiary. This charge of perjury was Dased upon testimony given by plaintiff in error in a court of inquiry held by the county judge of Tillman county on the 18th day of August, 1913. In that court of inquiry the plaintiff in error was asked if he purchased any whisky of Joe Hodge on the night of August. 16. 1914. And he answered that he did not.

In the trial of the case at bar there was much evidence offered on behalf of the state to show that the plaintiff in error did purchase a quart of whisky of Joe Hodge on the night of the 16th, and that consequently his statement before the court of inquiry was false.

The plaintiff in error attempted to explain that he had only conditionally bargained- with Hodge for a quart of whisky, but that he refused to accept it, on account of its quality, and that the sale was therefore never consummated. But under the record it will be unnecessary to go into the issues raised by these facts; for the state proved that on August 17th, the day just preceding this court of inquiry, Hodge pleaded guilty to the charge of selling this whisky to the plaintiff in error. On direct examination on this question Hodge testified that he was first taken before the city court, and he was asked by the county attorney:

“Q. When was it with respect to the time you sold this whisky? A. The next day. Q. What did they charge you with? A. Selling whisky. Q. This transaction you have testified about? A. Yes, sir. Q. Did you enter a plea at that time in that court? A. Yes, sir; I pleaded guilty. Q. Did you pay a fine? A. Yes, sir.”

And on cross-examination he says they then took him to the. county attorney, and he was asked:

“Q. Did they file a case against you in the county court? A. Yes, sir. Q. You pleaded guilty to that’ charge, didn’t you? A. Yes, sir.”

At the conclusion of the state’s evidence the plaintiff in error interposed a demurrer to the evidence; one of the grounds of the demurrer being that the state’s evidence showed that the testimony given by the plaintiff in error in the court of inquiry was not material to any issue. The demurrer was overruled; and that ruling of the court is assigned as error. And we think the assignment is well taken.

When Hodge pleaded guilty to selling the plaintiff in error this whisky, that foreclosed any issue on that question. The plaintiff in error’s testimony could not affect the status of Hodge or the state. Hence it was immaterial to the state, or to Hodge, as to whether the plaintiff in error testified that he did or did' not purchase the whisky. There was no controversy between the state and Hodge on that question; no issue which the plaintiff in error’s testimony could affect, either one way or the other; consequently his testimony was wholly immaterial to the legal status or rights of any one. And under the law, even though his statement was false, under these conditions, it would not constitute perjury.

Our statute (Rev. Laws 1910, sec. 2211)' in defining perjury, among other things, says:-

A person under oath that “willfully and contrary to such oath, states any material matter which he knows to be false, is guilty of perjury.”'

And section 2216 says:

“It is no defense to a prosecution for perjury that the accused did not know the materiality of thé false statement made by him; or that it did not in fact affect the proceeding in or for which it was made. It is sufficient that it was material, and might have been used to affect such proceeding.”

In the instant case at the time the false testimony was given there was no proceeding either pending or in contemplation which the testimony of plaintiff in error could affect or in the determination of which it could be made material. The legal status of Hodge and the rights of the state had already been fixed and determined by Hodge’s plea of guilty. There was nothing left to try. Neither Hodge nor the state could be either helped or hurt or in any way affected by what the plaintiff in error would testify concerning the transaction to which Hodge had already pleaded guilty.

There are other assignments, but, as the case must be reversed for the reason- above stated, we deem it unnecessary to consider the matter further.

The judgment is reversed, and the cause remanded with directions to dismiss the case.

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


author: DOYLE, P. J.

text:
    L. B. PEYTON v. STATE.
    No. A-2710.
    Opinion Filed March 24, 1917.
    (163 Pac. 719.)
    APPEAL AND ERROR — Time for Appeal — Method of Appeal — Jurisdiction. In misdemeanor oases the appeal must- be taken within 60 days after .the judgment is rendered, provided, however,, that the trial court or judge may for good cause shown extend the time in which an appeal may be taken, not exceeding 60 days. In such cases the appeal is taken by filing in this court a petition in error with case-made attached, or transcript of the record, together with proof of service of notices of appeal as required by statute, and when this is not done within the -time prescribed 1 by Procedure Criminal (setc-i-on 5991, Rev. Lews 1910), this court does not acquire jurisdiction bf the appeal, and such an appeal will be dismissed.

      Appeal from County Court, Delaware County; H. L. Marshall, Judge.

    L. B. Peyton was convicted of maintaining and operating a public pool hall in an incorporated town without first securing a license issued by the county judge, a misdemeanor, and he brings error.
    Appeal dismissed.

      G. W. Goad, for plaintiff in error.

      P. Freeling, Atty. Gen., and R. McMillan, Asst.. Atty. Gen., for the State.,
   DOYLE, P. J.

L. B. Peyton, plaintiff in error, was tried ’ and convicted in the county court of Delaware county on an information charging the offense of maintaining and operating a public pool hall in an incorporated town without first securing license issued by the county judge. On the 10th day of February, 1916, judgment was rendered,- and he wás sentenced to pay a fine of $100 and costs. An appeal from this judgment was attempted to be taken by filing in this court on April 19, 1916, a petition in error with case-made. The At-. torney General has moved to dismiss the appeal on the ground that the petition in error with case-made was not filed in this court within the time allowed by law in which to perfect said appeal, in that the trial court or judge did not extend the statutory time of 60 days within which to' perfect said appeal, as shown by the case-madd. No answer to this motion has been filed. The record shows that 69 days had elapsed between the date of the judgment and the filing of the appeal in this court.

When, in a misdemeanor case, the appeal is not perfected within 60 days from the rendition of the judgment, the record must show a proper order made by the trial court or judge thereof before the expiration of the 60 days, extending the statutory time within which the appeal may be taken; otherwise the appeal will be dismissed, because this court is without jurisdiction to review the record on appeal. Alexander v. State, 11 Okla. Cr. 110, 143 Pac. 205.

It follows that the motion to dismiss the appeal should be sustained. It is therefore ordered that the attempted appeal herein be, and the same is hereby, dismissed.

ARMSTRONG and BRETT, JJ., concur.


text:
    NOAH SULLINS v. STATE.
    No. A-2714.
    Opinion Filed March 24, 1917.
    (163 Pac. 721.)
    INTOXICATING LIQUORS — Unlawful Possession — Sufficiency of- Evidence. In a prosecution for the unlawful possession of intoxicating liquor®, the evidence examined, and held sufficient to sustain, the verdict.

      Appeal from County Court, Pottawatomie County; Hal. Johnson, Judge.

    Noah Sullins was convicted of a violation of the prohibitory law, and he appeals.
    Affirmed.

      Joe M. Adams, for plaintiff in error.

      R. McMillan, Asst. Atty. Gen., for the State.
   DOYLE, P. J.

Noah Sullins, plaintiff in error, was cried in the county court of Pottawatomie county, on an information charging the unlawful possession of intoxicating liquors with the unlawful intent to sell the same. The. jury found him “guilty as charged in the information.” Upon this verdict he was sentenced to be confined in the county jail for a period of 30 days and to pay a fine of $50.

The only error assigned is that the evidence was insufficient to sustain the verdict. No brief has been filed.

The evidence' on the part of the state shows that three deputy sheriffs raided the place on South Broadway, Shawnee, known as the “Old Herald Building”; that the, defendant' was standing at the door and attempted to prevent the officers from entering the place; that they had to push him out of the way to get by; that they foúnd a bottle of whisky and whisky glasses. There was no evidence on the part of the defense.

An examination of the evidence satisfies us that the same is sufficient to sustain the verdict. No error being shown, the judgment is affirmed.

ARMSTRONG and BRETT, JJ., concur.


author: PER CURIAM.

text:
    JAMES HULSE v. STATE.
    No. A-2703.
    Opinion Filed March 27, 1917.
    (164 Pac. 989.).

      Appeal from County Court, Canadian County; R. B. Forrest, Judge.

    James Hulse was convicted of violating the prohibitory law, and appeals.
    Affirmed.

      J. N. Roberson, for plaintiff in error.

      R. McMiUan, Asst. Atty. Gen., for the State.
   PER CURIAM.

The plaintiff in error was convicted ' apun a charge of having sold whisky to oné Tom White-shirt, <and his punishment fixed at three months’ imprisonment in the county jail and a fine of $400. From the judgment rendered in pursuance bf the verdict he appealed, by. filing in this court on April 8, 1916, a petition in error with case-made.

No- brief has been filed, and on the call, of the case for final submission the Attorney General moved that the judgment be affirmed for failure to prosecute the appeal.

An examination of the record discloses that the • evidence is ample to support the verdict, and, no'error appearing that could affect the merits of the case, the judgment is affirmed.


text:
    ARTHUR DARRAH v. STATE.
    No. A-2724.
    Opinion Filed March 27, 1917.
    (163 Pac. 720.)
    APPEAL AND ERROR — Briefs and Argument — Affirmance. Where an appeal from a judgment of conviction is taken to this court and no briefs are filed or argument presented, this court will examine the record, and, if no error is apparent, the judgment will be affirmed.

      Appeal from County Court, Canadian County; R. B. Forrest, Judge.

    Arthur Darrah was convicted of a violation of the prohibitory law, and he brings error.
    Affirmed.

      W. A. Maurer, for plaintiff , in error.

      R. McMillan, Asst. Atty. Gen., for the State.
   DOYLE, P. J.

The plaintiff in error was convicted in the county court of Ganadian county upon an indict-, ment presented by the grand jury in the district court, which was duly transferred from the district cou'rt to said county court, charging the plaintiff in error with having unlawfully sold whisky to one D. T. Jones, and in accordance with the verdict of the jury he was sentenced to be confined in the county jail for four months and to pay a fine of .$300. From the judgment he ap- ■ pealed by filing in this court on April 29, 1916, a petition in error with case-made.

On the call of the case for final submission, the Attorney General moved to affirm the judgment for the reason that no brief has been filed and no appearance made for the plaintiff in error in this court.

We have examined the record, and find that the indictment is sufficient, that the instructions of the court fairly and fully present the law of the case, and that the verdict was well supported by the evidence. Finding no error in the record, the judgment is affirmed.

ARMSTRONG and BRETT, JJ., concur.


text:
    OMA LESENEY v. STATE.
    No. A-2270.
    Opinion Filed March 31, 1917.
    (163 Pac. 956.)
    HOMICIDE — Instruction—Manslaughter in First Degree. Where the indictment charges, and the evidence clearly shows, that the accused is guilty of murder or nothing, it is error for the court to instruct the jury upon manslaughter in the first degree; for in such eases, if the accused is guilty, the law fixes no other punishment for the crime than death or imprisonment for life. If, on the other hand, the accused is not guilty, nothing less than a complete vindication can meet 'the ends of justice; and the jury should not be permitted to deprive the accused of the benefit of a reasonable and well-founded doubt as to his guilt of murder by a compromise.

      Error from District Court, Stevens County; Frank M. Bailey, Judge.

    Oma Leseney was convicted of manslaughter in the first degree, and she brings error.
    Reversed and remanded.

      Hamon & Ellis, for plaintiff in error.

      R. McMillan, Asst. Atty. Gen., for the State.
   BRETT, J.

In this case plaintiff in error, Oma Leseney, was tried for murder; it being charged that she, in connection with others, poisoned her former husband, Joseph H. Howard, by willfully, knowingly, purposely, and maliciously administering arsenic. There was no allegation in the indictment, or attempt, either on the part of the state or the plaintiff in error, to prove that arsenic was negligently or recklessly administered by the plaintiff in error to the deceased. But the state’s theory was that the poison was willfully and purposely administered. And the theory of the plaintiff in error was that her husband was not poisoned at all. And under these conditions it is our judgment that the plaintiff in error was guilty of murder or nothing. If the state’s theory was true, then there could be no middle ground, no excuse, no extenuation, no palliation, no mitigation. '■* on the other hand, it was not true, then nothing less than a complete vindication could meet the ends of justice.

But the learned trial judge, over the protest and objection of the plaintiff in error, gave an instruction on manslaughter in the first degree; and the jury found th ■ plaintiff in error guilty of manslaughter in the first degree, and fixed her punishment at seven years in the penitentiary. The giving of this instruction is assigned as error; and, as above indicated, we think, the assignment is well taken; for either the state or the plaintiff in error, one or the other, by this verdict has been cheated. If the plaintiff in error is guilty, no other punishment is prescribed by law for her crime than death or imprisonment for life. ■ If, on the other hand, she is not guilty, or if the jury entertained a reasonable and well-founded doubt of her having committed the atrocious i‘.r.ime of which she was charged, then she was entitled to an acquittal at their hands. Under this record there is no middle ground, and it was tlie duty of the jury to bring in either a verdict of murder or ah acquittal. But by the unauthorized latitude given them in this instruction they might, and they did, do neither.

It can hardly be believed that, if the jury had believed beyond a reasonable doubt that the plaintiff in error was guilty of deliberately poisoning the man to whom she had plighted troth, they would have hesitated in finding her guilty of murder. And the very fact that they did not do this clearly indicates that they had a doubt upon that question. And, that being true, the plaintiff in error was, under the law, entitled to the benefit of that doubt, and should not have been' deprived of it by a compromise. She had a right to stand upon the battle ground selected by the state, and demand that she either be convicted of the crime charged, and for which she had been called into court to answer, or acquitted, since there was no evidence tending in the least to prove a lesser degree of the crime. The mam who lies in ambush and shoots his victim or the person who deliberately administers poison can be guilty of nothing less than murder; and under such conditions no set of crimes should be submitted to the jury from which they might carve the offense. But the question for the jury under such circumstances is whether of not the accused is guilty of the offense charged, and not what the degree of the offense is; for willful poisoning and shooting from ambush should be distinguished from other forms of homicide, for their very nature precludes every other hypothesis than that of deliberation and premeditation.

In Dresback v. State, 38 Ohio St. 365, the court says:

“The charge, in effect, told the jury that their duty would be fulfilled in case they found the accused guilty by returning a verdict for murder in the first or second degree, or for manslaughter. The evidence against the accused tended to prove that he purposely killed his wife by administering to her poison; and it tended to ■ prove no other grade of offense. If the jury found him guilty, it was their duty to find him guilty of murder in the first degree; but if the charge was not proved, he was entitled to an acquittal.”

In State v. Bertoch, 79 N. W. 378, the Supreme Court of Iowa, passing upon the question involved in the case at bar, says:

“It was the duty of the jury, if they entertained a reasonable, well-founded doubt of the defendant’s guilt of murder in the first degree, to have acquitted him; for, as we have seen, he could not be guilty in any less degree. The jury must have entertained a reasonable * * * doubt as to the defendant’s guilt as charged, that is, guilt in the first degree; otherwise it would not have acquitted him of that degree and convicted him of the second. Now, as we have seen, if the jury had such a doubt as to his guilt in the first degree, the defendant was enittled to have that doubt resolved in his favor, and to be acquitted. By the unauthorized latitude given in the instructions the defendant was deprived of the benefit of this doubt. We have read this record with the care that the importance of the case demands and while, in view of our conclusions, we should not discuss the evidence, nor express any view concerning it, we will say that our reading impresses us with the conviction that the defendant was materially prejudiced by the latitude given to the jury in the instructions. They give the jury the right to convict in a lower degree, when, possibly under proper instructions, and the doubt which they seem to have entertained, they would have acquitted.”

In Pliemling v. State, 46 Wis. 516, 1 N. W. 283, the Supreme Court of Wisconsin holds-that:

“Looseness and latitudinarianism in the construction of criminal law, and in the judicial trials of grave offenses, or compromises of legal principles and of honest judgment, in order to effect some agreement, or to render some verdict in the trial of high crimes, or of offenses of any grade induced by whatever influence, must not be tolerated by the courts, and the responsibility in such cases must rest upon the tribunal in which it is practiced or attempted. So far as possible, there should be absolute certainty in the administration of criminal law, and its essential principles will not be perverted or compromised by this court in any case.”

And the Supreme Court of California, in People v. Huntington, 138 Cal. 261, 70 Pac. 284, says:

“The only position taken by the prosecution was that appellant had caused death while committing a .felony, to wit, producing an abortion, and was therefore guilty of murder. There 'was no pretense that he was guilty of any crime less than murder. But after the evidence had been closed and the case had been argued to the jury upon the theory of murder by abortion, as above stated, the court at the last moment, of its own motion, instructed the jury that appellant might be convicted of manslaughter upon a totally different theory, to wit, .that death did not result from an attempt .to produce abortion, or to commit any other crime or unlawful act whatever, but that it resulted while he was doing a perfectly lawful act, that is, treating the deceased medically for a disease, upon the ground that said lawful act was done ‘without due caution of circumspection.’ Of course, 'the general proposition is true that there may be a conviction of manslaughter under an indictment for murder; but that proposition does not justify any kind of a charge which a court may give upon that subject, regardless of the character and theory of the prosecution in a criminal case. Instructions must be applicable to the facts and features of the case in hand. Under the circumstances of the case at bar, there should have been no instruction on the subject of manslaughter. The only-question _ legitimately before the jury was whether appellant had caused death while attempting to produce abortion. If that was the fact, he was guilty of murder, and there was no element of manslaughter present. But the jury, under the instructions, found him guilty of manslaughter; and he was therefore tried for one crime and convicted of an entirely different crime.”

And cases to the same effect might be multiplied, but the doctrine is not alone dependent upon the holdings of the courts, but is sound in reason and essential to the proper administration of justice.

The judgment is therefore reversed, and the cause remanded for further proceedings not inconsistent with this opinion.

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


text:
    J. C. CAIN v. STATE.
    No. A-2507.
    Opinion Filed April 4, 1917.
    (163 Pac. 958.)
    INTOXICATING LIQUORS — Sale—Sufficiency of Evidence. In a prosecution for unlawful sale of intoxicating liquor, tbe evidence as detailed in tbe opinion held insufficient to sustain a conviction.

      Appeal from County Court, Beaver County; John A. Spohn, Judge.

      J. C. Cain was convicted of a violátion of the prohibitory law, and he appeals.
    Reversed.

      J. W. Culwell, for plaintiff in error.

      R. McMillan, Asst. Atty. Gen., for the State.
   DOYLE, P. J.

Plaintiff in error was convicted upon a charge that he did unlawfully sell one pint of whisky to one Walter S. Kennedy. The jury failed to agree on the punishment. The court, having overruled a motion for a new trial, sentenced him to be confined in the ■county jail for 100 days and to pay a fine of $250, He appeals from the judgment.

Various errors have been assigned, but in the view we take of this case we deem it necessary to consider only the question of the sufficiency of the evidence to support the verdict.

The only evidence offered by the state was that of the complaining witness Kennedy, who testified that he “bought a pint of some intoxicating stuff supposed to be whisky” from Joe Cain, and paid him $1 for it; that the deal was made in Cain’s restaurant at Forgan. On cross-examination this witness testified as follows:

- “Q. You say you paid a dollar to Mr. Cain for something in a pint bottle? A. Yes, sir. Q. What was it? A. I called for whisky. Q. What did it taste like? A. It tasted like whisky. Q. Will you swear it was whisky? A. It was intoxicating. Q. What I want to know, will you swear it was whisky? A. It was made for whisky. Q. How long have you been living at Forgan? A. About two years. Q. Have you in the last three months been bootlegging? (Objection by county attorney sustained.) Q. You sell liquor sometimes? A. (No answer.) Q. You claim your exemption under the law from answering the question for fear it might incriminate you? A. Yes, sir.”

He also admitted that he had been convicted of a crime. The state rested.

Counsel' for plaintiff in error moved the court to direct a verdict of acquittal on the ground that the evidence was insufficient to warrant a conviction, which motion was overruled. Exception allowed.

As a witness in his own behalf, J. C. Cain testified that he was engaged in the restaurant and baker business at Forgan. He denied that he had ever sold the complaining witness, Kennedy, any whisky or intoxicating liquor. ■ ■

J. E. Spurier, engaged in the lumber business; C. P. Angleton, engaged in the grocery business; E. C. Lawrence, conducting a garage; R. A. Whisemont, a merchant; and a Mr. Montgomery qualified as character witnesses and testified that the general reputation of J. C. Cain as a law-abiding citizen was good, and that his reputation for truth and verácity was good. This was all the evidence on the trial of the case.

This court has always acted with great caution in granting new trials upon the ground that the verdict is contrary to the evidence, and-it is only in a case where the verdict is .clearly contrary to the evidence, or when, from the doubtful - character of the evidence against the defendant and the preponderance in his favor is such that it is evident that the jury were influenced by passion or prejudice, that a judgment will be reversed because the evidence is insufficient to sustain it.

In this case the only testimony to sustain the finding of the jury is that of an- ex-convict, who apparently was a professional bootlegger.

Upon a careful consideration of the evidence in the case, we are of opinion as a matter of law that the evidence was insufficient to justify a conviction. The judgment is therefore reversed.

ARMSTRONG and BRETT, JJ., concur.


author: DOYLE, P. J:

text:
    DAVE MYERS v. STATE.
    No. A-2754.
    Opinion Filed April 4, 1917.
    (163 Pac. 958.)
    APPEAL AND ERROR — Escape of Plaintiff in Error — Dismissal. This , court will not 'consider an appeal unless the plaintiff in error is where he can be made to respond to any order or judgment which may be entered in the case, and where the plaintiff in error makes his escape from the custody of the law and becomes a fugitive from justice, the appeal will be dismissed.

      Appeal from County Court, Oklahoma County; William H. Zwick, Judge.

    Dave Myers was convicted of unlawfully setting up and conducting a gambling game, and he appeals.
    Appeal dismissed.

      Walter, Hilpirt & Callihan, for plaintiff in error.
    S. P. Freeling, Atty. Gen., and R. McMillan, Asst. Atty. Gen., for the State.
   DOYLE, P. J:

The plaintiff in error was convicted in the county court of Oklahoma county of the offense, of unlawfully setting up and conducting a gambling game, and was sentenced to be confined in the county jail for 30 days and to pay a fine of $100. From the judgment he appealed by filing in this court on' May 11, 1916, a petition in error with case-made.

Counsel for the state have filed a motion to dismiss-the appeal on the ground that said plaintiff in error is a. fugitive from justice and cannot now be found in this-state. In support of the motion is filed an affidavit in part as follows:

“That about the 20th day of November, 1916, the said Dave Myers, together with his wife, departed from Oklahoma county, and, these affiants are informed, from the State of Oklahoma; that his whereabouts since said time have been unknown; that the said Dave Myers had', pending in the county court and district court of Oklahoma county some five cases, which cases were regularly, set for hearing, and were called for trial in said courts-since the date of the departure of said Dave Myers from. Oklahoma; that said Dave Myers in each and all of said causes failed to appear, and forfeitures were taken on his-appearance bonds and alias warrants issued; that the said Dave Myers has not been arrested under said warrants, by reason of the officers being unable to locate him. This affidavit is made in support of an application to be presented by the Attorney General of the State of Oklahoma for the dismissal of said appeal of the said Dave Myers now pending in the Criminal Court of Appeals.”

The affidavit is duly subscribed and sworn to by Roy Cogswell, Mike Conners, and C. M. Baker.

Upon an examination of the motion and the proof supporting the same, we are of opinion that plaintiff in error has waived the right to have his appeal in this case considered and determined.

The appeal is therefore dismissed.

ARMSTRONG and BRETT, JJ., concur.


text:
    WILLIAM HOLMES v. STATE.
    No. A-2758.
    Opinion Filed April 7, 1917.
    (163 Pac. 1112.)
    ABATEMENT OF PROSECUTION — Death of Plaintiff in Error. In a criminal action, tile puriio.se of the proceeding being to punish the defendant in person, the action must necessarily abate upon his death.-

      Appeal from District Court, Sequoyah County'; John H. Pitchford, Judge.

    William Holmes was convicted of manslaughter in the first degree, and he appeals.
    Ordered that the proceeding abate.

      Frye & Frye, for plaintiff in error.

      R. McMillan, Asst. Atty. Gen., and Luther Kyle, Co. Atty., for the State.
   DOYLE, P. J.

The plaintiff in error, William Holmes, was, by information, charged with killing W. Baxter Graham, in Sequoyah county, on the 14th day of February, 1915, by shooting him with a shotgun. Upon his trial he was found guilty of manslaughter in the first degree, and was sentenced to be imprisoned in the penitentiary for the term of ten years. From the judgment he appealed by filing in this court on June 12, 1916, a petition in error, with case-made. On the 10th day of January, 1917, while his appeal was pending and awaiting decision before this court, he departed this life. His counsel of record have filed a motion to abate, in part as follows: . '

“That the defendant, William Holmes, who departed this life as aforesaid, and the plaintiff in error herein, was one and the same person, as appears from the statement of Luther Kyle, the county attorney of Sequoyah county, State of Oklahoma, filed herewith, marked Exhibit C and made a part of this motion as if copied herein in words and figures. That the purpose for which this appeal was taken has now abated, and that the final determination thereof is unnecessary, and that the same should be abated and does by law abate upon the death of plaintiff in error.”

Attached to said motion is the following statement:

“I, Luther Kyle, the duly elected, qualified and acting county attorney, within and for the county of Sequoyah, State of Oklahoma, do hereby certify that I was personally acquainted with William Holmes, who was the plaintiff in error in the above-styled cause, and that the said William Holmes who departed this life in the city of Sallisaw, Sequoyah county, State of Oklahoma, on or about the 10th day of January, A. D. 1917, was the said plaintiff in error.
“[Signed] Luther Kyle, County Attorney.”

In a criminal action the purpose of the proceeding being to punish the defendant in . person, the action must necessarily abate upon his death. It is therefore Considered and adjudged that the proceeding in the above-entitled cause, and especially under the judgment therein rendered, has abated, and that the district court of Se-quoyah county enter its appropriate order to that effect.

ARMSTRONG and BRETT, JJ., concur.


text:
    JOHN CANNON v. STATE.
    No. A-2554.
    Opinion Filed April 9, 1917.
    (163 Pac. 1112.)
    APPEAL AND ERROR — Abandonment—Affirmance. Where a criminal matter was pending in the Criminal Court of Appeals since October 8, 1915, and plaintiff in error filed no brief, the appeal would be deemed abandoned, and the state’s motion to affirm for failure to prosecute would be sustained.

      Error from County Court,, Blaine County; Ed Baker, Judge.

    John Cannon was convicted of destroying certain spirituous liquors about to be produced in court as evidence, and he brings error.
    Affirmed.

      R. McMillan, Asst. Atty. Gen., for the State.
   BRETT, J.

Plaintiff in error was charged and convicted in the county court of Blaine county of destroying certain spirituous liquors about to be produced in court as evidence, and sentenced to serve 60 days in the county jail, and pay a fine of $50.

The matter has been pending in this court since October 8, 1915. Plaintiff in error has filed no brief, and on motion of the state to affirm for failure to prosecute the appeal, we find that the appeal has been abandoned, and that said motion should be sustained.

The judgment is therefore affirmed.

DOYLE, P. J., and ARMSTRONG, J., concur.


text:
    DAN GROVES v. STATE.
    No. A-2629.
    Opinion Filed April 9, 1917.
    (163 Pac. 1112.)
    APPEAL AND ERROR — Case-Made—Dismissal. A case-made or transcript of the record, filed without a petition in error, is a nullity¡ and this court being without jurisdiction to consider the cause, the attempted appeal will be dismissed.

      Appeal from County Court, Cotton County; J. C. Norman, Judge.

    Dan Groves was convicted of unlawfully selling whisky, and brings error.
    Appeal dismissed.

      R. McMillan, Asst. Atty. Gen., for the State.
   ARMSTRONG, J.

Plaintiff in error, Dan Groves, was convicted in the county court of Cotton county on a charge that he did unlawfully sell to R. V. Norvill a pint of whisky, and was sentenced to be confined in the county jail for a period of 30 days, and to pay a fine of $50 and the costs. From the judgment an appeal was attempted to be taken by filing in this court a case-made.

The Attorney General has filed a motion to dismiss said appeal on the following grounds:

“That on examination of case-made and record no petition in error appears to have been filed, and as a fact none was filed in the above-entitled cause. Under the statute (section 5997, Rev. Laws 1910), and rule No. 2 of the Criminal Court of Appeals (12 Okla. Cr. xvi, 101 Pac. vii), and in the following cases; Morrison v. State, 7 Okla. Cr. 244 [123 Pac. 169], Wynne v. State, 8 Okla. Cr. 52, 126 Pac. 266, and Edwards v. State, 2 Okla. Cr. 715, 103 Pac. 1072—this cause has no standing in this court, nor has this court attained jurisdiction thereof in the absence of such petition in error. 'Wherefore he prays that said appeal be dismissed.”

In the case of Wynne v. State, supra, it is held:

“A petition in error must be filed with the transcript of the record or case-made in order to perfect an appeal; and if a case-made or transcript of the record is filed without a petition in error, such filing will be a nullity, and such pretended appeal will be dismissed.”

An examination of the record discloses that the motion to dismiss is well founded. There being no petition in error filed in this case, the court is without jurisdiction to consider the cause.

For the reason stated, the appeal herein is dismissed.

DOYLE, P. J., and BRETT, J., concur.


text:
    JOHN MULLIKIN v. STATE.
    No. A-2663.
    Opinion Filed April 9, 1917.
    (163 Pac. 1113.)
    APPEAL AND ERROR — Venue—Conviction—Record. In a criminal case the venue must be proved as laid in the information; and where there is no evidence of venue in the record, a Conviction will be reversed.

      Appeal from County Court, Garfield County; E. L. Swigert, Judge.

    John Mullikin was convicted of a violation of a prohibitory law, and he appeals.
    Reversed.

      H. J. Sturgis and E. C. Patton, for plaintiff in error.

      S. P. Freeling, Atty. Gen., and R. McMillan, Asst. Atty. Gen., for the State.
   ARMSTRONG, J.

The plaintiff in error was convicted under an information charging:

“That on or about the 27th day of August, A. D. 1915, in said county of Garfield, and State of Oklahoma, one John Mullikin did then and there unlawfully have in his possession intoxicating liquor, to wit, beer and whisky, for the purpose of selling, bartering, giving away, and otherwise furnishing the same to others, in violation of the prohibitory liquor laws of the State of Oklahoma, contrary to,” etc.

From the judgment rendered upon the verdict, he appeals.

The evidence for the state was substantially as follows :

Elsworth Hume, sheriff of Garfield county, testified:

“Q. State whether or not you had occasion to go on East Broadway street' about No. 122% on or about the 26th of August, 1915. A. I had. I got a barrel of beer, and three cases of whisky, and four or five bottles, and some glasses.”

Clarence Dewing testified that he went with Mr. Hume “to 122% East Broadway about noon on the 26th or 27th of August; that the place is occupied by the Eagles’ Lodge.” .

George Souter testified that John Mullikin prepares the banquets at the Eagles’ Lodge, and that he had drunk liquor served at the banquets there.

At the close of the evidence counsel for plaintiff in error demurred to the evidence on the ground that the same was wholly insufficient to prove the offense charged in the information.

It is contended on the part of plaintiff in error that the evidence is wholly insufficient to support the verdict and judgment, and that the evidence fails to prove any venue. Witnesses say that they went to 122% East Broadway, but they failed to say what city, county, or state. Venue of an offense must be proved as alleged. Litchfield v. State, 8 Okla. Cr. 164, 126 Pac. 707, 45 L. R. A. (N. S.) 153; Brunson v. State, 4 Okla. Cr. 467, 111. Pac. 988. In the Brunson Case, Judge Furman said:

“Only those allegations in an indictment, which involve the guilt of a defendant are to be proved beyond a reasonable doubt. The venue of an offense does not' come within this class, but there must be some proof of venue. * * * In this case the state did not even attempt to prove venue. It is true that the purchaser of the beer testified that he lived in Muskogee, and had lived there for five or six years; and he also testified that he met the defendant on the street, and asked him if he had any beer. He does not say what street, or in what town, this transaction occurred. If he had testified that this transaction occurred in the streets of Muskogee, then the proof of Venue would have been sufficient.”

In a criminal case the venue must be proved as laid in the indictment or information. The proof may be either direct or indirect, but it must be one or the other, and the record must show it, or this court will reverse a judgment of conviction. No such proof was offered in this case. The judgment of the lower court is therefore reversed.

DOYLE, P. J., and BRETT, J., concur.


text:
    HAPPY ANDERSON et al. v. STATE.
    No. A-2699.
    Opinion Filed April 9, 1917.
    (164 Pac. 128.)
    HOMICIDE — Instructions—Applicability to Case. In a criminal case instructions to a jury must be applicable to the case. The law applicable is determined by the accusation and the evidence introduced upon the trial, and on a trial for assault with intent to kill, where the evidence tends to show justification in self-defense, it is the duty of the court to submit instructions properly embracing the law of self-defense.

      Appeal from District Court, Johnston County; J. H. Linebaugh, Judge.

    Happy Anderson and Babe Anderson were convicted of assault with intent to kill, and they appeal.
    Reversed.

      Cornelius Hardy, for plaintiffs in error.

      R. McMillan, Asst. Atty. Gen., for the State.
   DOYLE, P. J.

Happy Anderson and Babe Anderson were jointly charged, tried, and convicted of the crime of assault with a dangerous weapon with intent to kill, and their punishment fixed at imprisonment in the penitentiary for three years. From the judgments" rendered in pursuance of the verdict they appealed by filing in this court, on April 10, 1916, a petition in error with case-made. The Attorney General Jias filed the following confession of error:

“In this case we feel impelled to confess error, though we regret to have to do so. But before we get to the confession we wish to say that we fail to find so many errors in the record as defendants allege. We have read it through carefully and digested every syllable. It was an ugly family row. The two Andersons, the defendants herein, were brothers, and their father • and sister were in part mixed up in this trouble that originated through family gossip. Happy and Babe had a row with one Sam Toons, and Sam and Happy were brothers-in-law, each having married a girl by the name of Coffee, and these two were sisters. They all lived on almost adjoining lots and blocks in the same little town of Ravia. Sam Toons, the victim, had heard that the Andersons were snubbing his wife; in fact, she told him so. He went to them and told them they must stop it, and this originated the fuss in which the two Anderson boys, on the night of May 3d, after dark, met up with Sam alone, coming from town, and a fight was had. These two defendants, the Anderson boys, admit that a heavy and dangerous piece of iron was used by Happy Anderson in beating Sam, but claimed that they took it away from Sam before they used it. Sam came out of the fray with a knot on the back of his neck with a gash in it, a bruise in the side over his heart, a lick over the eye, one ear marked, and the other one nearly off, and the question is, as the three were together alone at the starting of the fight, as to who struck first.
“The defendants attempt to assail the character of Sam’s wife, and introduced two witnesses for that purpose, but in asking the question as to whether or not her character was good on the subject of peace and quietude, or truth and veracity, they do not put the question in the usual and authorized form, but ask if the witness was acquainted with her character for truth and morality, and especially for morality. The attorney who did this was doubtless a practitioner in the eastern part of the state, the Indian Territory part, where the laws of Arkansas were in force. The question authorized by the statute of that state is set out in Mansfield’s Digest of the Laws of Arkansas, sec. 2902, and has been construed more than one time lay the courts of that state. The words used in that statute are ‘truth and immorality.’ See said section; Majors v. State, 29 Ark. 112; Lawson v. State, 32 Ark. 222.
“A certain district judge in this state, the exact question to be asked under the circumstances not having been fully set forth, permitted the question asked as to the truth and immorality of a witness in the case of Litchfield v. State, 8 Okla. Cr. 177, 126 Pac. 707, 45 L. R. A. (N. S.) 153, and there this court very promptly ruled that that was a mixture of the truth and other elements of the moral character of a witness, and could not be answered. The Supreme Court of Oklahoma Territory had noticed this question in Flohr v. Territory, 14 Okla. 499, 78 Pac. 565, but, as this judge thought, had not permanently settled it.
“Though this is a mixed question, by the authorities we think that it is now settled in this state, and we refer to the authorities above and to Kansas Taylor v. Clendening, 4 Kan. 532; 40 Cyc. 2495; 33 A. & E. 1075; 5 A. & E. 587. So we think there is nothing to this exception.
“This court has passed on the question repeatedly where the inquiry was as to the character of the defendant. See Cannon v. Territory, 1 Okla. Cr. 607, 99 Pac. 622; Morris v. Territory, 1 Okla. Cr. 643, 99 Pac. 760, 101 Pac. 111; Dickinson v. State, 3 Okla. Cr. 158, 104 Pac. 923; Friel v. State, 6 Okla. Cr. 533, 119 Pac. 1124; Edmonds v. State, 9 Okla. Cr. 618, 132 Pac. 923; Gilbert v. State, 8 Okla. Cr. 548, 128 Pac. 1100, 129 Pac. 671. But this has no reference to a witness.
“We notice another objection as we go along, thinking it may possibly arise at the next trial, and that is that the court charged on flight. There is no error in this. See 12 Cyc. 610; People v. Flannelly, 128 Cal. 83, 60 Pac. 670; Cleavinger v. State, 43 Tex. Cr. R. 273, 65 S. W. 89.
“We notice another objection,-and that is the speech that was made by the prosecuting attorney. This was in accord with the law. The prosecuting attorney had the right to argue that case from the standpoint of the state. Sam Toons appears to háve been doing what any other man of self-respecting character would have done — defending the character of his wife. The Andersons had been maligning her. Old man Anderson, the father, had told Sam in her presence that ‘she would work him into trouble.’ Babe relates a conversation that the two Anderson boys had with Sam just preceding the fight, and which occasioned the fight, and that is that Happy told Sam when Sam had told him he must quit talking about Sam’s wife, this: ‘Haven’t you seen enough, and don’t you know enough to know that you have got no wife?’ Happy himself confirms this. Now Sam’s wife was the sister of Happy’s wife. Happy claims that he caught her in some sort of attempted assignation in the night with a man by the name of Faulkner, but .it is strange in all this record that Happy is the only man that ever saw aught wrong with her, and she says that Happy himself ruined her sister while at her own house, and that it was four months before she could get Happy to marry the girl' after the baby was born. All this comes out in the evidence, and the attorney for the state has a right to discuss - it. See Williams v. State, 4 Okla. Cr. 534, 114 Pac. 1114; Morgan v. State, 9 Okla. Cr. 26, 130 Pac. 522; Thacker v. State, 3 Okla. Cr. 489, 106 Pac. 986.
“In defense of Sam we say that there is nothing to show that he knew of this alleged adventure of Happy in catching Sam’s wife and Faulkner at the door of the old house in the night. -We are not pretending to defend the character of Sam’s wife, but Sam had the right to do so. They had a family of children, and while we do not think that Sam had the magnanimous character of the philosopher Cato, who is said to have lent his wife to his friend, .Hortensius, yet he was just an ordinary man, an ordinary husband, who seemed to know nothing against his wife, and to have had affection for her and trust in her, and a husband .like this may sometimes be the blindest of human beings. In fact, we see nothing to censure in Sam. He did right in fighting for his wife among this family of slanderers, and the county attorney had the right to discuss it. •
“But we get now down to the proposition where there is real error, as we think. ;We say again, we hate to make this confession, because these defendants should have been convicted. The evidence in the case was in sharp conflict as to who brought on the difficulty. Sam says the Andersons brought it on and turned back and struck him from behind. The Andersons say that Sam brought it on by first trying.to strike them with a piece of iron concealed in his hand.
“The court in charging the jury (see instruction 3), tells them that the defendant admits making an assault on Sam Toons; he does not say the first assault, and leaves the jury in confusion. The defendants deny that they made any first assault on Sam; but in his statement to the jury the court assumes that they brought on the difficulty. This, we think, was error. See Kelly’s Cr. Pro. sec. 394; Clark’s Cr. Pro. 468; 12 Cyc. 602. In making this statement to the jury, and this proposition is referred to nowhere else, the court ignored the theory of the defendants that Sam was himself the aggressor. This, should not have been done. See 11 Pl. & Pr. 191; Clark’s Pro. 470; Douglas v. Territory, 1 Okla. Cr. 589, 98 Pac. 1023; Gray v. State, 7 Okla. Cr. 104, 122 Pac. 265.
“The theory of the defendants was that of self-defense; but the court gave no charge to that effect. We agree with the court below and with the witnesses and' with the jury that there is little or nothing in this framed up contention of the defendants under the proof. But it was their theory of the case, however futile, and to ignore it has been time and again held as error by this court. See the recent case of McClatchey v. State, 12 Okla.. 173, 152 Pac. 1136, and other cases of similar character.
“Before leaving the case we must refer to the hip pocket movement alleged to have been seen by the defendants and their father at different times. As a fact, on the night of the fight, Sam was in his shirt sleeves, and he avers that he had no pistol nor even a pocket knife, and tjiere is not a line in this record to show that he ever had had a pistol, and he swears that he never owned one.
“This was a pretty brutal, dirty affair. The jury arrived at the right conclusion, but we think that these defendants were entitled to the charges before indicated in this confession, and that their failure to get them was error.
“However guilty a defendant may be, he must be convicted according to law. So we confess error herein.”

A careful examination of the record leads to the conclusion that the confession of error is' well founded. It is apparent that the court failed to instruct the jury upon the issue of self-defense relied upon as a justification for the assault charged.

We also think that the verdict was not warranted by the evidence. The defendants testified that Toons, the prosecuting witness, was the aggressor, but, discarding entirely the theory of self-defense, the evidence, at most, sustains only the conclusion that the assault was with intent to do bodily harm. The information was not questioned in the lower court. However, we deem it necessary to say that it is demurrable. It. attempts to charge the common-law crime of assault with intent to murder. The case was tried and the instructions of the court were based upon the statutory crime of assault with intent to kill'.

Because of the error in the charge of the court and the error in refusing to give the requested instructions on the law of self-defense, the judgment is reversed, and the cause is remanded.

ARMSTRONG and BRETT, JJ., concur.


text:
    NEAL TEAGUE v. STATE.
    No. A-2287.
    Opinion Filed March 10, 1917.
    Rehearing Denied April 10, 1917.
    (163 Pac. 954.)
    1. INDICTMENT AND INFORMATION — Sufficiency. An information .is sufficient, if it pleads every element essential to charge the crime pleaded, in plain, concise, and intelligible language, and apprises the defendant in an intelligible way of precisely what he must be prepared to meet.
    2. TRIAL — Instructions. A court is not required to charge the jury upon a theory entirely foreign to and different fi'om.the theory of the defendant in the case on trial.
    3. TRIAL — Demurrer to Evidence. Where there is any eonxpetent evidence reasonably tending to sustain the allegations of the information, the court should not sustain a demurrer to the evidence.
    4." APPEAL AND ERROR- — Harmless Error — Admission of Evidence. The admission of incompetent and immaterial evidence, as to a fact already admitted by the defendant, will be deemed harmless.
    5. PERJURY — Evidence—Testimony in Former Case. Where a person charged with perjury objects to the introduction of a transcript of his testimony in a former ease, upon which the charge of perjury- is based, upon (he ground that the transcript shows that in certain parts of his -testimony he was interrupted, and his answers to certain questions were incomplete,'held, that where the transcript shows no interruptions in -that part of his testimony which is material and upon which the charge of perjury is based, it is immaterial that, he was not allowed to answer fully some questions entirely foreign to the matter upon which the charge of perjury is based. But if the transcript had shown that the answers upon which the .charge of perjury was based were incomplete, and that it. might have put -the defendant in a different light, had he been allowed to complete the answers, then there would be merit in the objection.

      Error from. District Court, Sequoyah County; John H. Pitchford, Judge.

    Neal Teague was convicted of perjury, and he brings error.
    Ainrmed.

      Kyle & McCombs, for plaintiff in error.

      S. P. Freeling, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   BRETT, J.

The plaintiff in error, Neal Teague, who will be referred to as defendant as he appeared in the lower court, was convicted of perjury, and sentenced to five years in the penitentiary.

The material facts are that the defendant sold a piece of real estate near Sallisaw to one Wallace Tweedy for $1,300, Tweedy paying him $1,000 cash, and giving a note and mortgage on the real estate for $300, the balance of the purchase price. Before maturity Tweedy paid this $300 note with two mules, valued at $275, and a pony, valued at $50, making a total of $325, which satisfied the face of the $300 note and the. accrued interest. At the time of this settlement the defendant stated his wife had the note, and was away from home. He later made similar excuses for his failure to turn over the note and release °the mortgage. At maturity Tweedy was notified by a bank in Sallisaw that it was then holder and owner of the note, and was also advised that the bank had purchased the note before maturity, and without notice. And to avoid foreclosure proceedings Tweedy paid the note, and obtained a release of the mortgage. He then sued the defendant in the county court for $327.50, the amount paid the bank in satisfaction of the note. At the trial of that suit in the county court the defendant, Teague, testified that he only received $675 in money from Tweedy, and that the two mules and the pony were taken in settlement of the balance of the $1,000 cash payment, and that the $300 note was justly due at the time Tweedy settled it. This prosecution is based upon the testimony of the defendant, Teague, in the county court; the state charging that in truth and in fact Tweedy paid the defendant $1,000 in cash, and that the defendant willfully, knowingly, and corruptly swore that he received only $675 in cash.

The evidence' of the state in support of this charge is that Tweedy and the defendant, Teague, went to the store of John H. Morgan in Sallisaw the day they made the trade, and Tweedy handed Mr. Morgan a number of bills in greenback, tied up in separate rolls, and asked him to count out $1,000 and .give it to the defendant, Teague, and Morgan, and h:s son, Harry; and Tweedy, all testify positively that there was $100 in bills in each of these rolls, and that Morgan counted ten of these rolls, and turned them over to Teague, and that the amount paid to Teague was $1,000 cash in greenback, while Teague swore with equal positiveness in this case that the amount he received at Morgan’s store in money was only $675.

The defendant complains, first, because the court refused to sustain a demurrer to the information. But we have carefully examined the information, and do not agree with this contention. It is true the pleader might have used other language, and perhaps most pleaders would have been more verbose; but the information pleads every element essential to charge perjury in plain, concise, and intelligible language; and there can be no doubt that it apprised the defendant in a most intelligible way of precisely what he must be prepared to meet. And in Deen v. State, 7 Okla. Cr. 150, 122 Pac. 941, Judge Doyle, speaking for the court, said:

“An information is sufficient which states the facts clearly and distinctly, in -ordinary and concise language, ’ without repetition, and which, construed under the ordinary rules of construction of the English language, would enable a person of common understanding to know what was meant, and to apprise the defendant of the exact nature of the offense with which he was charged, although the same does not contain all the phraseology and technical language ordinarily used in criminal pleading.”

And in State v. Feeback, 3 Okla. Cr. 508, 107 Pac. 442, it is said:

“The true test of the sufficiency of an indictment is not whether it might possibly have been made more certain, but whether it contains every element of the offense intended to be charged, and sufficiently apprises the defendant of what he must be prepared to meet; and, in case any other proceedings are taken against him for the same offense, whether, the record shows with accuracy to what extent he may plead his former acquittal or conviction.”

Again, in Star v. State, 9 Okla. Cr. 210, 131 Pac. 542, it is said:

“An indictment is sufficient if the offense charged therein is clearly set forth in ordinary and concise language, without repetition, and in such a manner as to enable a person of common understanding to know what is intended thereby.”

And, tested by this plain common sense rule, rather than by some prolix and antiquated form, the information is sufficient:

Counsel next complain of instruction No. 6, which defines the crime of perjury. But this instruction is an exact copy of the statutory definition of perjury; and. among other things, tells the jury that:

“If a witness states any material matter, which he knows to be false, he is guilty of perjury.”

And the criticism that this instruction should have gone further and told the jury that swearing rashly and inconsiderately according to the witness’ belief would not constitute perjury is not well taken in this case, for the reason that there is no claim or pretense in this case on the part of the defendant that he swore rashly or inconsiderately; he does not even claim that he might have been mistaken, but he rests his defense squarely and solely on the proposition that the oath made by him in the county court was true. Then the only question for the jury to determine was whether or not the oath, as charged by the state, was false, and if so, was it known by the defendant.to be false at the time he made it.

There are other instructions complained of, but the objections raised we think are entirely without merit.

The defendant next insists that his demurrer to the evidence, interposed at the conclusion of the state’s testimony, and his motion for directed verdict, at the conclusion of all the evidence, should have been sustained, because the evidence failed to prove that the defendant had been sworn before giving his testimony in the county court. But the record shows there was some evidence which would justify a jury in finding that the defendant had been.sworn before giving the testimony in question. Several witnesses for the state testified that the defendant was a witness in his own behalf in the county court, and the minutes of the clerk of the county court were introduced in evidence, and show, among other things, that in the case of Wallace Tweedy et al. v. Neal Teague, No. 421, both plaintiff and defendant were present in person, and by attorneys, and both announced ready for trial; that a jury was impaneled, and the “witnesses called, sworn and examined.” While the state as a matter ■of precaution, perhaps, should have introduced more evidence on this point, yet, in view of the fact that the state showed the defendant was present, and was a witness in his own behalf, and that the witnesses in the case were called, sworn, and examined, it cannot be said there was no evidence to go to the jury on that question. It was purely a question of fact, to be determined by the jury, as to whether or not the defendant had been sworn before giving the testimony in question, and where there is any competent evidence tending to sustain the allegations-of the information, the court should not sustain a demurrer to the evidence-.

The next contention is “that the trial court erred in permitting the verdict in the case of Tweedy v'. Teague, to be read, in evidence,” citing Gray v. State, 4 Okla. Cr. 292, 111 Pac. 825, 32 L. R. A. (N. S.) 142, in support of this assignment. In Gray v. State, supra, one witness testified as to the result of the trial of the case in which the plaintiff in error, Gray, was charged to have committed perjury. And in passing upon that fact, which was assigned as error, Judge Richardson,- speaking for the court, said:

“No objection was made to this question or answer, nor was any request made to the trial court for an instruction limiting the effect of this testimony. The question and answer were both incompetent; but as plaintiff in error did not see fit to object to the same, and inasmuch as she requested of the court no instruction limiting the purpose for which the testimony could be considered, she is not now in a position to complain that the court did not give such instruction.”

In the case- at bar, however, the defendant did object to the reading of the verdict in Tweedy v. Teague, but the court permitted it to be read as part of the minutes of the clerk of the county court. After it had been read counsel for defendant said:

“I don’t know whether the court meant to admit the verdict or not. If it is the court’s idea that that verdict is immaterial for admission here in this case, I want to ask the court to withdraw from the consideration of the. jury that part of the record in which the witness read the verdict.”

To which the court replied:

“All I let that in for was for the purpose of showing the case was tried that day. I think the jury understood it.”

But counsel for defendant had, prior to the reading of the verdict, stated that they were willing “to admit that there was a verdict rendered on that day, and that the case was disposed ' of on that date,” and this admission should have satisfied both the court and the jury on that question. But since counsel admitted that fact, and since the court did what counsel requested, withdrew the verdict from the consideration of the jury, except for the purpose of showing a verdict was returned on that date, thus limiting its effect to that one'purpose, if the admission of this evidence was error, its effect was to only establish a fact already admitted by the defendant, and its admission for that purpose will be deemed harmless.

Counsel next complain because the court permitted the state to introduce in evidence the transcript of the testimony of Neal Teague, taken at the trial of Tweedy v. Teague in the county court, basing their objection on the fact that the transcript shows that in certain parts of the testimony th-e witness was interrupted, and 'his answers to certain questions were incomplete. But. the record shows no interruptions in that part of his testimony which is material and upon which this charge of perjury is based. Besides, in the trial of this perjury case, the defendant reiterated the same testimony, and insisted that it was true. He did not claim that he did not make the statements as shown by the transcript upon which this charge of perjury is based, or that the transcript was inaccurate as to those statements; and it was immaterial that he was not allowed to answer fully some question entirely foreign to the issue in this case. If the transcript had shown that the answers, upon which this charge of perjury was based, were incomplete, and that it might have put the defendant in a different light had he been allowed to complete the answers, then there would be merit in the contention. But under the record, there is no merit in the contention.

Finding no prejudicial error, the judgment is affirmed.

DOYLE, P. J., and ARMSTRONG, J., concur.


text:
    JAMES SPESS v. STATE.
    No. A-2701.
    Opinion Filed April 12, 1917.
    (164 Pac. 131.)
    CRIMINAL LAW7 — List of Adverse Witnesses — Constitutional Provisions. Section 20, art. 2, of the Constitution construed, and held, that under the last provision of this section the accused in capital cáses does not have to demand a list of the witness to be used by the state in chief, but that the Constitution makes the demand for him, and that a trial court has no more authority to force the accused to trial until he has waived this demand of the Constitution, or it has been complied with, than he has to force the accused to trial without an information or a jury; for both of these rights rest upon the same authority, and are guaranteed’ to the accused in the same section of the Constitution, and no one can nullify them, and the accused alone ican waive them.

      Error from District Court, Pawnee County; Conn Linn, Judge.

    James Spess was convicted of murder and sentenced to life imprisonment, and he brings error.
    Reversed.

      McNeill & McNeill, for plaintiff in error.

      R. McMillan, Asst. Atty. Gen., for the State.
   BRETT, J.

Plaintiff in error, James Spess, was convicted of murder, and sentenced to life imprisonment. The material facts are that plaintiff in error and two others robbed a bank at Terlton, and in resisting arrest plaintiff in error shot and killed Robert Moore, the deputy sheriff. When the case was called for trial in the district court, plaintiff in error filed a motion and affidavit asking for a continuance on the ground that he had not been served with either a copy of the information or a list of the witnesses, with their post office addresses, which the state expected to use as its witnesses in chief. This motion and affidavit of the plaintiff in error was not traversed in any way by the state, but, regardless of that fact, the court overruled the motion and forced the plaintiff in error to trial. Plaintiff in error continued to raise this objection at every stage during the progress of the trial, and in no way waived this constitutional right, or neglected to call the court’s attention to the fact that he did not waive it.

Regardless of our feelings “ in the matter, or any resentment we might have against the atrocious crime charged against the plaintiff in error, ■ the violation of a plain, simple, and unambiguous demand of the Constitution must not be tolerated by the courts; and responsibility in such cases must rest upon the tribunal in which it is practiced or attempted.

Section 20, art. 2, of the Constitution provides that:

“In all criminal prosecutions the accused shall have the right to a speedy and public trial by an impartial jury of the county in which the crime shall have been committed: Provided, that the venue may be changed to some other county'of the state, on the application of the accused, in such manner as may be prescribed by law. He shall be informed of the nature and cause of the accusation against him and have a copy thereof, and be confronted with the witnesses against him, and have compulsory process for obtaining witnesses in his behalf. He shall have the right to be heard by himself and counsel; and in capital cases, at least two days before the case is called for trial, he shall be furnished with a list of the witnesses that will be called in chief to prove the allegations of the indictment or information, together with their post office addresses.”

Under the last provision of this section of the Constitution the accused in capital cases does not have to demand a list of the witnesses together with their post-office addresses, but the Constitution makes that demand for him. And, unless he waives it, he cannot be legally put upon trial until that demand has been complied with.

Ordinarily in applications for continuance the court may exercise a sound judicial discretion, but it would be absurd to say that this discretion could go to the extent of nullifying a plain, simple, unambiguous demand of the fundamental law of the state, made exclusively for the benefit of the accused.

The court in the case at bar had no more authority to force the plaintiff in error to trial until he had waived this demand of the Constitution, or it had been complied with, than he would have had to force him to trial without an information or a jury. For both of these rights rest upon the same authority and are guaranteed to the accused in the same section of the Constitution; and no one can nullify them, and the accused alone can waive them. State v. Frisbee, 8 Okla. Cr. 406, 127 Pac. 1091.

In the case at bar the court should have continued the case until the plaintiff in error could be served with a list of the witnesses as required by law. And by reason of his failure to do this the plaintiff in error was clearly denied a plain constitutional. right, and the judgment must be reversed.

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

DOYLE, P. J., and ARMSTRONG, J., concur.