text:
    Pim Boyd v. State.
    No. A-444.
    Opinion Filed April 26, 1910.
    (108 Pac. 431.)
    1. ABATEMENT — Death of Defendant. In a criminal action, the purpose of the proceeding' ¡being to punish the defendant in person, the action must necessarily abate upon his death.
    2. FINES — Death of Defendant — Abatement of Prosecution. A judgment of conviction against a defendant pending on appeal to the Criminal Court of Appeals is abated by the death of the defendant, and cannot be enforced against his personal representative.
    (Syllabus 'by the Court.)

      Appeal from Pottawatomie County Courtj E. D. Beasor. Judge.

    Pirn Boyd was convicted of an illegal sale of liquor, and brings error.
    Order that the proceedings abate.

      T. 0. Cutlip, for plaintiff in error.

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

Plaintiff in error was convicted in the county court of Pottawatomie county for a violation of the prohibition law and sentenced to pay a fine of $200 and costs and be confined for 30 days in the county jail, and, failing to pay said fine and costs, that he be further so confined one day for each dollar thereof. From which judgment he appealed by filing in this court November 25, 1909, his petition in error with case-made attached.

Since,the appeal was taken, and before the final submission of the cause, to wit, February 22, 1910, he departed this life. His death having been suggested, the proceedings abate, and no decision upon the merits of the appeal will be rendered. A civil action does not abate by the death of a party if the cause of action survive or continue, but in a criminal action the sole purpose of the proceedings is to enforce the criminal law and punish th,e person found guilty of a violation thereof. The personal representative of the- deceased is not responsible for the alleged violation of the law by the defendant during his lifetime, and cannot be required to satisfy the judgment rendered against him. It is only the person adjudged guilty who can be punished, and a judgment cannot be enforced when the only, subject matter upon which it can operate has ceased to exist. O’Sullivan v. People, 144 Ill. 604. 32 N. E. 192, 20 L. R. A. 143: Herrington v. State, 53 Ga. 552. In each of these eases the defendant died after the cause had been submitted to the appellate court for decision, and the right to continuo them in the name of a personal representative of the deceased was denied; the courts refusing to proceed further in the matter or pronounce any decision in the case.

In the case of March v. State, 5 Tex. App. 450, the court said:

“We are of opinion, then, that in a criminal prosecution, when the accused has taken an appeal in the manner prescribed by law, the proceeding is still pending and undetermined until the appeal shall have been decided; and that, in ease the appellant die whilst the appeal is pending and undetermined, the prosecution or the criminal action does not survive, but, on the death of the appellant pending the appeal, the posecution abates in ioio, whatever be the judgment appealed from.”

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 that the proceedings in this action do abate, and it is so ordered.

.FURMAN, Presiding Judge, and RICHARDSON,'Judge, concur.


source: Caselaw Access Project

author: .RICHARDSON, Judge.

license: Public Domain

text:
    Tillie Hill v. State.
    No. A-510.
    Opinion Filed May 4, 1910.
    (109 Pac. 291.)
    1. JURY — Number of Jurors — County Courts — Superior Courts. The superior courts created 'by Act approved March 6. 1909. are not county courts as the latter term is used in sec. 19, art. 2 of the Const., even when exercising- jurisdiction concurrent with the county courts.
    2. SAME. Under sec. 19, art. 2 of Const, of Okla., a jury for the trial of all civil and criminal cases in the superior courts, created by Act approved March 6, 1909, (art. 4, chap. 24 of Snyder’s Comp. Laws of Okla.) consists of twelve men, and that portion of section 1970 of Snyder’s Comp. Laws of Okla., providing for the trial of misdemeanors in the superior courts before a jury of six men, is unconstitutional and void.
    3. INTOXICATING LI QUO'Rc — Possession With Intent to Sell — Evidence — Other Offenses. In a prosecution for having in possession prohibited liquor with intent to sell the same, evidence of unlawful sales previously made by the defendant is competent as a circumstance tending to show the intent to sell. ,
    4. SAME — Instructions. In a prosecution for having- in possession prohibited liquor with intent to sell the same, evidence of prior sales made by the defendant by leaving a bottle of liquor on a table for the purchaser, which the latter takes, himself depositing and leaving on the table the purchase price thereof, is competent as bearing upon the question of the defendant’s intent to sell the liquor in possession; and in such case an instruction to the jury as to what constitutes a sale made 'by trick, artifice or subterfuge, is not improper.
    5. SAME — Instructions—Sale by Trick or Subterfuge. An instruction that, “By trick, artifice or subterfuge is meant that although the liquors are not handed to the buyer or the money handed directly to the seller, if such money is deposited in a place which . is accessible to the seller, such trick, artifice, or subterfuge would constitute a sale,” is erroneous for the reason that it omits a necessary ingredient of the sale, to-wit, delivering the liquor to the purchaser or placing it in a place where the purchaser gets it.
    6. SAME — Instructions—Sales by Agent. An instruction that, “If you find from the evidence that the whole course of defendant’s business is unlawful, or that she kept liquors for sale in violation of law, you are instructed that she would be responsible for any sales by her servants or agents, whether or not she knew of the particular sale or consented thereto, and no matter what her orders to them may have been,” is erroneous for not limiting the unlawful character of the defendant’s business to violations to the prohibition laws.
    ('Syllabus by the Court.)

      J ppeal from, Superior Court, Logan County; J. M. Sandlin, Judges

    The county attorney of Logan County filed in the Superior Court of that county an information against Tillie Hill charging her with the offense of unlawfully having in her possession certain spirituous, fermented and malt liquors with the intent on her part to violate section 1, article 3, chapter 69 of the Session Laws of 1907-8, by selling said liquors. When the cause was called for trial she demanded a jury of twelve men, which was overruled and she excepted. She was placed on trial before a jury of only six men, who found her guilty, and the court assessed her punishment at imprisonment for thirty days and a fine of $200.00. She filed a motion for a new trial, which was heard and overruled, •and she appeals.
    Eeversed and remanded.

      John H. Burford and Frank B. Burford, for plaintiff in error.
    —On question of number of jurors in superior court: People v. Luby, 56 Mich. 551; Jackson v. Coates, 6 A. & B. Ene. L. 1048, and cases cited; People v. Draper, 15 N Y. 543; Dipping v..City of Columbus, 117 Ga. 263; Rhodes v. Weldy, 46 Ohio St. 2'34; Jones v■ DuBois, 16 N. J. L. 293; Pitte v. Shipley, 46 Cal. 160.

      Fred S. Caldwell, for the State. No brief reached the reporter.
   .RICHARDSON, Judge.

The question of paramount importance in this ease is whether á defendant, over his objection, can be lawfully placed upon trial in the superior court for a misdemeanor before a jury composed of only six men. We are compelled to answer the question in the negative.

Section 19 of article 2 of our Constitution provides:

“The right of trial by jury shall be and remain inviolate, and a jury for the trial of civil and criminal cases in courts of record, other than county courts, shall consist of twelve men; but in county courts and courts not of record a jury shall consist of six men.”

In addition to the district and county courts specially created by our Constitution, the Legislature of this state by act approved March 6, 1909, created in every county in this state having a population of 30,000 or more, and having a city therein with a population of 8,000 or more, a court known as the superior court of such county, and bestowed up'on it general civil and criminal jurisdiction coextensive with the county. It gave to such court jurisdiction concurrent with the district court in all proceedings, causes and matters whatsoever, and jurisdiction concurrent with the county court in all civil and criminal matters, except matters of probate. It provided for a clerk, seal and records for said court, and by express terms made it a court of record. The act contained this further provision:

“Juries in said court shall be composed of the same number of men of the same qualifications as in the district court, and all laws relative to juries and jurors for district courts shall be, and are hereby made applicable to the said superior courts: Provided, however, that all misdemeanor cases shall be tried by a jury of six men, instead of twelve, to be selected the same as juries in the district courts.” (Snyder’s Comp. Laws of Okla., art. 4, chap. 24.)

There appears to us but little room for argument upon this question.' If- it b'e conceded that the- superior courts are “courts of record other than county courts/’ then alt debatable ground disappears; and after'a statement of that conceded fact as the'premise, nothing remains to be done but to substitute in the constitutional provision the term “superior courts” for" its equivalent expression, “courts of record, other than county courts”, and the conclusion inevitably follows that therefore by the mandate of the' Constitution a jury for the trial of civil and criminal cases in the superior courts shall consist of twelve men.

Counsel for the state, however, does not concede that the superior courts are courts other than county courts; on the contrary he insists that whenever the superior courts are exercising jurisdiction concurrent with the county courts, they are county ■ courts within the meaning of the Constitution. This then being the question, it might be well to define our terms before we proceed further. What is meant by the term “county courts” as used in this section of the Constitution ? Does that term refer to that, certain court, created in and far each county, defined, described and' its jurisdiction granted and limited by sections 11 to 17'inclusive of article 7 of the Constitution? Or is it used to designate a class of courts so known and denominated because their jurisdiction is limited by the geographical boundaries of the county ? If this last is true, then how many county courts are there in Logan County ? There is the District Court of Logan County, the Superior Court, of Logan County, and the County Court of Logan County, each of whose jurisdiction is limited by the 'geographical boundaries of the county. And in addition there are the various justice of the peace courts of Logan County, none of which are courts of record, but all of which exercise their jurisdiction co-extensive with, the county (sec. 18, art. 7 of Const., and sec. 8788, Snyder’s Comp.. Laws of Okla.), and are therefore, according to the test, county courts. And if the- foregoing is true, then what courts have :we-left to which section 19 of article 2. of-the Constitution -can apply?'. “A jury for the trial of civil and criminal cases in' courts of record other than county courts, -shall consist of twelve men, but- in-county courts and courts not of record a jury shall consist of six men”, says the Constitution. Yet, according to the test, all of the tribunals clothed with judicial power in this state are county courts, except the Senate when sitting as a court of impeachment, the Supreme Court and the Criminal Court of Appeals, none of which use a jury at all. Therefore the only jury known to our law is a jury of six men, and the constitutional provision in regard to a jury of twelve men is a jumble of meaningless words.

Take the other line of argument urged by the state, namely, that if the county courts referred to in Section 19 of article 2 of the Constitution are the county courts created by section 11 of article 7 of the Constitution,' still any other courts created pursuant to section 1 of article 7 of the Constitution are county courts within the meaning of the first quoted section when lawfully exercising jurisdiction concurrent with the county courts. If that is true, then 'is not the district court a county court when it is trying an action in debt for any amount between $500.00 and $1,000.00;, an action of which the district and county courts have concurrent jurisdiction? The district court, to be sure, is a court created by the Constitution itself, but so is the county court. The creation of the superior court, however, is authorized by the Constitution. The only difference is that the district court cannot be abolished by the Legislature, nor the jurisdiction unreservedly given it by the Constitution taken away, while the superior court may be abolished or its jurisdiction limited as the Legislature may see fit. But so long as the latter is not abolished and its jurisdiction not limited, so long as its jurisdiction is concurrent with the district court in all proceedings, matters and causes whatsoever, why should not the same reasoning apply to the district court which is sought to be applied to the superior courts? Why would not the district court be as much a county court as would the superior court when it exercises jurisdiction concurrent with the.county court? And if it be true, as contended by the state, that an inherent distinction exists between the district court and the superior court’ in this respect because the one is of legislative and tbe other of constitutional origin, then we answer that that same distinction must be made between the county courts and the superior courts, for here also the one is of legislative and the other of constitutional origin. And if the superior court is a county court when exercising jurisdiction concurrent with that court, then is it not also a district court when exercising jurisdiction concurrent with the district court; and a justice of the peace court when exercising jurisdiction concurrent with that court? And if it should try an action in debt for $100.00, and render a judgment against the defendant for that sum, would it have to certify a transcript of that judgment and have that .transcript entered upon the judgment docket of the district court before such judgment became a lien on real estate? Moreover, if the superior court is a county court when exercising jurisdiction concurrent with that court, then is not a jury of six men for this court absolutely commanded by the Constitution ’even in civil cases within the county court’s jurisdiction, especially that class of civil cases not within the jurisdiction of the district court? Is the superior court one court at one time and another and different court of another time? We think not. It is a court sui generis. It has the jurisdiction of a district court and also jurisdiction which the district court does not have; it has concurrent jurisdiction with the county court in certain matters but not in all, and it has jurisdiction which the county court does not have. It is a court of record other than the county court. The county court referred to in section 19 of article 2 of our Constitution is the county court created by section 11 of article 7 of that same Constitution; and that court is the only court of record in this state in which a jury of six men may be used. The Legislature is powerless in the face of the Constitution to provide otherwise. The test is not the character of case to be tried, but the court in which it is tried. See People v. Luby, 56 Mich. 551, an almost identical case decided'by Chief Justice Cooley, one of the greatest of constitutional lawyers. It may be that, tested by reason and logic, the provision should be otherwise; but that is a matter for the consideration of the people in their sovereign capacity of constitution makers and amenders, and not for us.. There is nothing more unreasonable or illogical in this procedure than.there is in trying an action for $600 claimed.as debt.in the .district court with a jury of twelve men, while the county court in an adjoining room is trying the very same character of ease for the very same amount with a jury of six men. TJnder the Constitution twelve men constitute a jury in the superior court in all cases, and in civil cases and misdemeanors it requires the concurrence of at least nine jurors to render a verdict, and in felony cases the concurrence of the full twelve. The court therefpre erred in overruling the demand of plaintiff in error for a'jury of twelve men.

! 'The next contention of the plaintiff in error is that the verdict is contrary to the law .and the evidence, in that there was no sufficient proof that the plaintiff in error was in possession of the liquor in question, or, if she was, that such possession was with an unlawful intent on her part'to sell the same. Since the cause must be reversed however for the error already indicated, we deem it unnecessary to review this assignment, or to make any comment thereon further than to say that we consider the evidence sufficient to sustain .the verdict. Evidence of unlawful sales previously made by the defendant is competent in cases of this kind as a circumstance tending to show an essential ingredient of the offense, namely, the intent to sell the liquor in possession. The state of the evidence in this case is such that the jury might well have believed beyond a reasonable doubt that the liquor in question was the property of the plaintiff in error, that it- was kept by her for the unlawful purpose of selling the same, and that it was being sold not only with her knowledge and consent but also under her direction. It may be that this liquor was kept for an innocent and lawful purpose, but it occurs to us that when half a barrel of - whisky and a tub of iced beer are found under a trap-door in the floor , of a house, which-trap-door is covered with a carpet, and directly over which sets a lady’s dresser, and when it is shown that numerous sales of whiskey and beer are being constantly made in the premises, a juror might be indulged the belief that such liquor was kept for an unlawful purpose.

Also it is contended that the evidence shows that the liquor in question was in the possession of a servant or employee of the plaintiff in error, and that the previous sales, if any had been made, were made by such servant or employee, and that the evidence does not show that said sales, if made, were made under the direction or with the knowledge and consent of the plaintiff in error. And plaintiff in error contends that a master is not punishable criminally for the offenses of his'servants unless they were committed by his command or with his consent. We assent to the principle of law stated, but are unable to say, upon a consideration of all the evidence, that the facts are as claimed by plaintiff in error. •

The court instructed the jury as follows:

“By a sale as meant in the charge in this case, is a delivery of the possession of the liquors described for a consideration, either by the defendant or by a servant or agent of the defendant, with the defendant’s knowledge or consent or by trick, artifice or subterfuge, no matter what the disguise or pretense may be, to some person or persons who parts with the consideration in exchange for the liquors, and an intention to sell said liquors means having possession and control of the same with the purpose to deliver the said liquors either in person or by agent, or by any trick, artifice or subterfuge or pretense to some person who shall pay a consideration therefor; and both the possession and the intention to sell the particular liquors charged must be proven as independent facts to your satisfaction beyond a reasonable doubt before you will be warranted in returning a verdict of guilty. By trick, artifice or subterfuge is meant that although the liquors are not handed to the buyer or the money handed directly to the seller, if such money is deposited in a place which is accessible to the seller, such trick, artifice or subterfuge would constitute a sale.
“If you find from the evidence that' the whole course of the defendant’s business is unlawful or that she ■ kept liquors for sale in violation of law, -you are instructed that she would be responsible for any sales by her servants or agents, whether or not she knew of the particular sale or consented, thereto, and no matter what her orders to them may have been.”

The plaintiff in error complains of that portion of the instruction which deals with the matter of trick, artifice or subterfuge; and she says that the same was not applicable to the evidence in the case and was misleading and confusing., - The evidence in the case, however, tended to show that sales had been made in this place by leaving a bottle of liquor on the table which the purchaser would take and in exchange therefor would deposit and leave upon the table the purchase price thereof. Such evidence was competent as being proof of previous sales made by-trick, artifice or subterfuge, and as bearing upon the intent with which the plaintiff in error had in her possession the liquor in question, and it was not improper for the court to instruct upon it. That portion of the instruction, however, in which the court told the jury, “By trick, artifice or subterfuge is meant that although the liq-ors are not handed to the buyer or the money handed directly to the seller, if such money is deposited in a place which is accessible to the seller, such trick, artifice or subterfuge would constitute a sale,” standing alone would not be correct, for the reason that it omits a necessary ingredient of a sale, to wit, delivering the liquor to the purchaser or placing it where it is accessible to the purchaser and where the purchaser actually gets it. Also that portion of the instruction in which the court said to the jury that, “If you find from the evidence that the whole course of the defendant’s business is unlawful or that she kept liquors for sale in violation of law, you are instructed that she would be responsible for any sales by her servants or agents, whether or not she knew of the particular sale or consented thereto, and no matter what her orders to them may have been,” is erroneous for the reason that it is not every unlawful nature of the defendant’s business which would make her liable for unlawful sales of liquor made by her servants or agents. For instance, her house might have been a gaming house, and the whole course of her business unlawful in that she was engaged in the constant and deliberate violation of the gaming law though violating no other law, and under such circumstances the sale of prohibited liquors by one of her servants or employees, not by her direction or with her knowledge and consent, would not render her liable for his unlawful act; nor in such cas.e would the possession of intoxicating liquors by one of her employees with the intent on his part to sell the same, without her knowledge or consent, render her liable. Before that could be true, the course of plaintiff in error’s business must be unlawful with respect to the particular offense charged; that is, it must have been in violation of the prohibition laws, and the instruction should have been restricted to that. The court might well have charged the jury that if they found from the evidence beyond a reasonable doubt that the defendant was engaged in the unlawful business of selling liquor, then she would be criminally liable for any sales of liquor so kept by her for such purpose, made by her servants or agents in the course of her business, whether she was present or assented to the particular sale or not. This would have limited the effect of the unlawfulness of plaintiff in error’s business to the particular offense charged.

The judgment of the Superior Court is reversed and the cause remanded with directions to grant the plaintiff in error a new trial.

FUEMAN, Presiding Judge,.and DOYLE, Judge, concur.


author: PEE CDEIAM.

text:
    Campbell George v. State.
    No. A-252.
    Opinion Filed May 9, 1910.

      Appeal from Goal County Court; B. H. Wells, Judge.

    Campbell George was convicted of selling intoxicating liquor, and appeals.
    Affirmed.
   PEE CDEIAM.

Plaintiff in error, Campbell George, was convicted in the county court of Coal county of the crime of unlawfully selling intoxicating liquor, and was on the loth day of Apiil, 1909, sentenced to be confined in the county jail for a term of thirty days and' pay a fine of fifty dollars. From which judgment he appealed by filing in this court on July 16, 1909, his petition in error with case-made attached. No briefs have been filed and we are not advised as to what plaintiff in error relies upon for a reversal -of said judgment. Counsel for the state has filed a motion to dismiss or affirm for want' of prosecution. We have examined the record and no error is apparent. The motion to affirm is allowed and the judgment of the lower court is hereby affirmed.

The clerk of this court will issue mandate to the county court of Coal county, directing said county court to cause the judgment and sentence to be enforced.


author: PEE CUBIAM.

text:
    Jim Whitfield v. State.
    No. A-237.
    Opinion Filed May 9, 1910.

      Appeal from Garter County Court; Z. B. Mason, Judge.

    'Jim Whitfield was convicted of selling intoxicating liquor, and appeals.
    Affirmed.

      J. B. Champion and 8. II. Butler, for plaintiff in error,

      Fred 8. Caldwell, for the State.
   PEE CUBIAM.

Plaintiff in error, Jim Whitfield, was convicted in the country court of Carter county of the crime of unlawfully selling intoxicating liquor, and was on the 29th day of January, 1909, sentenced to be confined in the.county jail for á term of thirty days and pay a fine of fifty dollars. From which judgment he appealed by filing in this court on July 5, 1909, his petition in error with case made attached. No briefs have been filed and we are not advised as to' what plaintiff in error relies upon for a- reversal of'said judgment. Counsel for the state has filed S' motion to dismiss or affirm for want of prosecution. ‘ We have examined the record and no error is apparent. The motion to affirm is allowed and the judgment of the lower court is hereby affirmed. The clerk of this court will issue mandate to the county court of Carter county, directing said county court to cause the judgment and sentence to be enforced.


text:
    H. A. Todd, Jr. v. State.
    No. A-334.
    Opinion Filed May 9, 1910.

      Appeal from Canadian County Court; 11. L■ Fogg, Judge.

    H. A. Todd, Jr., was convicted of selling intoxicating liquor,, and appeals. '
    Affirmed.
   PEE CUBIAM.

Plaintiff in error* H. A. Todd. -Jr., was convicted in the county court of Canadian county of-the crime of unlawfully selling intoxicating liquor, and was on the 31st ,day of July,- 1909, sentenced to be confined in the county jail for a term of sixty days and pay a fine of two hundred dollars. Eroin which judgment he appealed by filing in this court on September 39, 1909, his petition in error with case-made attached. No briefs have been filed and we are not advised as to what plaintiff in error relies upon for a reversal of said judgment. Counsel for the state has filed a motion to dismiss or affirm for want of prosecution. We have examined the record and no error is apparent. The motion to affirm is allowed and the judgment of the lower court is hereby affirmed. The clerk of this court will issue mandate to the county court of Canadian county, directing said county court to cause the judgment and sentenced to be enforced.


author: PEE CTJEIAM.

text:
    Robert Crittenden v. State.
    No. A-63.
    Opinion Filed May 12, 1910.

      Appeal from District Court, Mushogee County; J. H. King, Judge..

    Eobert Crittenden was convicted of robbery, and appeals.
    Appeal dismissed.

      Williams & Williams, for plaintiif in error.

      Chas. West, Atty. Gen., and Smith C. Matson, Asst. Atty Gen., for the State.
   PEE CTJEIAM.

Eobert Crittenden, plaintiif in error, was convicted in the district court of Muskogee county for the crime of robbery, and on the 30th day of July, 1908, he w^s sentenced to serve a term of ten years in the state penitentiary. From which judgment and sentence he appealed by filing in this court on January 2, 1910, his petition in error with case-made attached. Now on this 12th day of May, 1910, a motion haying been filed to dismiss said appeal on behalf of plaintiff in error, it is by the court ordered that said appeal be, and the same is hereby dismissed, and the cause remanded to the district court of Muskogee county, with directions to enforce the judgment and sentence.


author: BICHABDSON, Judge.

text:
    Tom Beasley v. State.
    No. A-340.
    Opinion Filed May 16, 1910.
    (109 Pac. 238.)
    1. APPEAL — Review of Evidence — Sufficiency. Where the evidence . is conflicting, and that on ¡behalf of the prosecution such that if believed by the jury a verdict of guilty should result, a judgment of conviction will not be set aside on the ground that the verdict is contrary to the evidence.
    2, INTOXICATING LIQUORS — Indictment—Negativing Exceptions. It is not necessary, in an indictment or information for selling liquor in violation of art. 3, chap. 61, of Snyder’s ‘Comp. L. of Okla., that the exceptions contained in art. 1 of said chapter toe negatived.
    ('Syllabus by the Court.)

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

    Tom Beasley was convicted of selling whisky; and' was sentenced to pay a fine of $50.00 and to be imprisoned in the county jail for a term of thirty days. From an order overruling a motion for a new trial and in arrest of judgment he appeals.
    Affirmed.

      James B. Miller, for plaintiff in error.

      Fred 8. Caldwell, for the State. '
   BICHABDSON, Judge.

Four grounds for a reversal are urged here, namely: that the court erred in overruling plaintiff in error’s motion for a new trial; that the court erred in overruling plaintiff in error’s motion in arrest of judgment; that the verdict of the jury was contrary to the law; and that the verdict was-contrary to the evidence.

We have examined the evidence and find it conflicting. The prosecuting witness testified that he bought whisky from the plaintiff in error, stating the time and place of the purchase; the -latter in his testimony denied the matter in toto. This presented a question as to the credibility of the witnesses and the weight and value to be given to their testimony; and of this the jury were the sole judges. This record shows no such condition as would justify this-court in holding-that the verdict was contrary either to the law or the evidence.

The motion in arrest, of jurgment was based upon the failure of the information, which' was drawn under art. 3, chap. 61, Snyder’s Comp. Laws of Olda., to negative the' exceptions contained in article 1 of said chapter. It lias already been twice held by this court in construing this-same act-that it is not necessary that the indictment ■ or information negative the exceptions contained in article one. Smythe v. State, 2 Okla. Cr. 286, 101 Pac. 611; De Graff v. State, 2 Okla. Cr. 519, 103 Pac. 538. And it would seem that the rule of stare decisis would now be applicable to this question.

The assignment that the court erred in overruling plaintiff in error’s motion for • a - new trial presents no question not already considered.. . -.

Finding no error, -the judgment of -the lower court is affirmed. ,

FURMAN, Presiding Judge,, and D.OYLE, Judge, concur.


author: RICHARDSON, Judge.

text:
    Nealy Prince v. United States.
    No. A-137.
    Opinion Filed May 16, 1910.
    (109 Pac. 241.)
    1. HOMICIDE — Instructions — “Murder”—“Manslaughter.” In an instruction -correctly defining- murder and manslaughter; the - statement, .“You see by .these- definitions that in murder- malice . must exist-, -but that manslaughter is the killing, of human being without malice,” made, not as a definition of either offense," c but only as distinguishing t-he two; is not- reversible error:
    2." INSTRUCTIONS — Verbal Inaccuracies. Instructions should be considered as' á whole; -and -when so considered, if théir various’ parts are not inconsistent with each other and on the .whole correctly. state the law, they are sufficient. Mere verbal inaccuracies will not' vitiate them. ' '
    3. HOMICIDE — Instructions—Burden of Proof.,, Upon a trial for murder, an instruction to the jury that, “If you find in this casé that the killing is proven, then the burden of proving circumstances to mitigate or justify or excuse 'such killing devolves upon the defendant, unless by the .proof on the part- of the prosecution it is sufficiently manifest that the offense committed only amounted to manslaughter, or that the accused was justified or excused in committing the homicide,” when properly explained or properly limited in its application, is not error.
    (Syllabus by the Court.)

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

    .On the 26th day of February, 1907, Nealy Prince was indicted in the United States Court for the Southern District of the Indian Territory for the crime of murder. Upon the admission of Oklahoma into the Union the cause, being then untried, was transferred to the District Court of Garvin County. Trial thereof was had in said court during the October, 1908, term, and resulted in a verdict finding plaintiff in error guilty of the crime of manslaughter, and assessing his punishment at imprisonment in the penitentiary for a term of ten years. A motion for a new trial was overruled, and sentence was pronounced and judgment entered upofi said verdict, from which plaintiff in error prosecutes this appeal.
    Affirmed.

      Carr '& Field, for plaintiff in error.-
    — Citing: Pnce v. State, 1 Olda. Cr. 358; Mackay v. People, 2 Colo. 13; People v. Campbell, 30 Cal. 312; Caw v. People, 3 Neb. 369; Green v. White, 37 N. Y. 407. On instruction relative to burden of proof: Dmis v.’U. S., 160 U. S. 469; Coffin v. 27: S., 156 U. S. 432; 11 Cyc. Ev. 306; 12 Cyc. 379.

      Chas. West, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State. —
    Martin v. Territory, 18 Olda. 370; Barclay v. U. S., 11 Olda. 503; State v. Bathburn, 74 Conn. 524; Henry v. People, 198 111. 162.; Knight v. State (Fla.) 32 So. 110;' Thompson on Trials, sec. 2487; Peters v. U. 3., 94 Fed.' 129; People v. Chun Heong, 85 Cal. 329; State v. Pierce, 65 Iowa, 85. On question of shifting burden of proof: Gabe Hawlci-ns v. U. S., 3 Oída. Cr. 651; Rayburn v. Sbaie, 69 Ark. 177; Agnew v. U. 8., 165 IT. S. 49.
   RICHARDSON, Judge.

Two alleged errors, are relied upon as grounds for the reversal of this cause, the first of which is that the trial court erred in instructing the jury as follows:

“You see by these definitions that in murder malice must exist, but that manslaughter is the killing of a human being without malice.”

The contention is that this instruction required the jury to find plaintiff in error guilty of manslaughter, even though they were convinced that he took the life of the deceased in his necessary self-defense, that being a killing without malice. Plaintiff in error contended below that in committing the homicide he acted in his necessary self-defense; and, if the quoted portion of the instruction stood alone, it would be subject to the construction sought to be placed upon it by plaintiff in error, and would undoubtedly be erroneous. But it does not stand alone. It is only a detached portion of an instruction given by the court defining murder and manslaughter and drawing the distinction between them. The whole of the instruction given was as follows:

“Murder, under the law under which this cause is tried, is the unlawful killing of a human being, in the peace of the state, with malice aforethought, either express or implied. But under the charge of murder, a defendant may be convicted of the crime of manslaughter, and you are told that the crime of manslaughter is committed by any person who unlawfully and wil-fully, but without malice, kills another, in the peace of the state. You see by these definitions that in murder malice must exist but that manslaughter is the killing of a human being without malice. Therefore, the court tells you in order that you may better understand your duties in the premises, that malice may be either express or implied, and that, it must be present in order to make a manslaughter murder.”

And then the court proceeds to define express and implied malice. It will be observed that in this instruction the court first defined murder; then follows a correct definition of manslaughter as that offense existed in the Indian Territory, to-wit: “manslaughter is -committed by any person who unlawfully and wilfully, but without malice, kills another in the peace of the state”. Then comps the part objected to, namely: “You see by these definitions that in murder malice must exist, but that manslaughter is the killing of a human being without malice”. This does not purport, and could not have been understood, to be a definition of either murder or manslaughter. On the contrary specific reference is- made to the definitions already given; and the court here merely draws the distinction between the two grades of the offense by pointing: out the matter which differentiates them; that is, the existepce of malice in the former and its absence in the latter. The other elements of wilfulness and unlawfulness are common to each of the offenses; but this portion of the instruction did not purport to deal with those, but dealt only with that which distinguished the two. Certainly this portion of the instruction could have been more happily framed; but no person possessing the sound mind and discretion prescribed by law as one of the qualifications of jurors, when hearing or reading this portion of the instruction in connection with the complete instruction, could possibly have misinterpreted it. And that fact is further emphasized and reinforced by a consideration of the whole charge; for later on the court gave a full and correct substantive instruction upon manslaughter, telling the jury under what circumstances they should find plaintiff in error guilty of that crime, of which instruction no complaint is made. The instructions must be considered as a whole; and when so considered, if their various parts are consistent with each other, and on the whole correctly state the law, it is sufficient. Mere verbal inaccuracies will not vitiate them. Cave v. United States, 2 Okla. Cr. 258, 100 Pac. 1118; Price v. State, 1 Okla. Cr. 358, 98 Pac. 447.

The second assignment of error is that the court erred in instructing the jury as follows:

“If you find in this case that the killing is proven, then the burden of proving circumstances to mitigate or justify or excuse such killing devolves upon the defendant, unless by the proof on the part of the prosecution it is sufficiently manifest that .the offense committed only amounted to manslaughter, or that the accused was justified or excused in committing the homicide.”

The objection urged to this instruction is that.it informs the jury that under certain circumstances the burden shifts from the prosecution to the defendant. Plaintiff in error contends that this is never the case, unless specially so provided by statute; and that while this is a statutory provision from a chapter of Mansfield’s Digest of th e Statutes of Arkansas put in force in the Indian Territory, nevertheless the punishment for murder and manslaughter in the Indian Territory was that prescribed by the United States statutes and not the Arkansas law, and therefore this statutory provision was not applicable to the offense of murder and manslaughter in that jurisdiction.

This instruction is in almost the identical words of section 863 of the Indian Territory Statutes taken from Mansfield’s Digest of the Statutes of Arkansas, and which was put in force in the Indian Territory by Act of Congress of May 2, 1890. We recently had occasion to examine this section in the case of Gabe Hawkins v. United States, 3 Okla. Cr. 651. It was not given by the trial court as an instruction in that case; but was considered by .this court in determining when and to what extent the burden shifts to the defendant on a trial for murder. While the Revised Statutes of the United States, and not the Arkansas law, were in force in the Indian Territory in so far as the definition of the crimtes of murder and manslaughter and the punishment prescribed therefor were concerned, yet the Arkansas law respecting the procedure governing the trial even of those offenses was in force in the Indian Territory to the exclusion of all other laws. Binyon v. U. S., 4 Ind. Ter. 542; Simon et al. v. U. S., 4 Ind. Ter. 688; Driggers v. U. S., 7 Ind. Ter. 752, 104 S. W. 1166; Taylor v. U. S., 6 Ind. Ter. 350, 98 S. W. 123; Leftridge v. U. S., 6 Ind. Ter. 305, 97 S. W. 1018. And the statute un-, der consideration relates only to the procedure. In Williams v. U. S., 4 Ind. Ter. 269, this very statute was given as a portion of the instructions in the case, and a conviction for murder was affirmed by the Court of Appeals in the Indian Territory, though the propriety of the instruction was not raised or passed on. This statute was in force in the Indian Territory, and applicable to this case; and by its terms, if the prosecution proves the killing without showing facts sufficient to raise a reasonable doubt as to the defendant’s justification or excuse, the unlawfulness of the killing is presumed, and thereupon the burden shifts to the defendant to produce sufficient testimony to raise a reasonable doubt as to his justification or excuse. If the defendant discharges this burden, then it returns to the prosecution, and to warrant a conviction the prosecution must overcome such reasonable doubt thus raised by proof beyond a reasonable doubt of each essential element of the crime. And where the court gives that statutory provision as an instruction, and also instructs the jury, as he did in this case, that upon the whole case the burden is on the prosecution to prove the defendant’s guilt beyond a reasonable doubt; that every presumption of law, independent of evidence, is in favor of innocence; that this defendant is presumed to be innocent of any offense; that this presumption-remains with him throughout the trial, and attends him step by step; and that if upon a consideration of all of the evidence there remains a reasonable doubt of the defendant’s guilt, he must be acquitted; certainly the giving of the instruction complained of, thus limited in its application, could not be held error. On the contrary, it is proper. People v. Flahave, 58 Cal. 249; People v. Hawes, 98 Cal. 648, 33 Pac. 791; People v. Neary, 104 Cal. 373, 37 Pac. 943; Duncan v. People, 134 Ill. 110, 24 N. E. 765; People v. Tarm Poi, 86 Cal. 225, 24 Pac. 998; Bell v. State, 69 Ga. 752; Murphy v. People, 37 Ill. 447; State v. Tabor, 95 Mo. 585, 8 S. W. 744; Territory v. McAndrews, 3 Mont. 158; Territory v. Rowand, 8 Mont. 110, 19 Pac. 595; State v. Keith, 9 Nev. 15; People v. McGonegal, 62 Hun. 622, 17 N. Y. Supp. 147; State v. Mazon, 90 N. C. 676; State v. Jones, 98 N. C. 651, 3 S. E. 507; State v. Thomas, 98 N. C. 599, 4 S. E. 518, 2 Am. St. Rep. 351; State v. Byers, 100 N. C. 512, 6 S. E. 420; State v. Rollins, 113 N. C. 722, 18 S. E. 394; Com. v. Drum, 58 Pa. 9; People v. Callaghan, 4 Utah, 49, 6 Pac. 49; Cotrell v. Com., 13 Ky. Law. Rep. 313, 17 S. W. 149; People v. Boling, 83 Cal. 380, 23 Pac. 421; Territory v. Manton, 8 Mont. 95, 19 Pac. 387; Hammil v. State, 90 Ala. 577, 8 So. 380.

The judgment of the district court is affirmed.

FUBMAN, Presiding Judge, and DOYLE, Judge, concur.


text:
    Sam Remer v. State.
    No. A-230.
    Opinion Filed May 16, 1910.
    (109 Pac. 247.)
    1. INDICTMENT AND INFORMATION — Forma! Requisites. The omission of the words, “In the name and by the authority of the State of Oklahoma,” in an indictment or information is not fatal, where the entire record shows that the prosecution is conducted in the name and by the authority of the state.
    2. JURY — Impaneling — Talesmen to Complete Jury. Where the jurors of the regular panel in attendance upon the county court exceed the number required for a trial jury, but on account of challenges exercised either peremptorily or for cause are insufficient from which to oibtain a jury for the trial of a particular cause, it is not error for the court to order the summoning of' talesmen for the completion of the jury.
    3. JURY — Qualifications—Prejudice Against Particular Crime. The prejudice of the jury commissioners or of the individual jurors against a particular crime is no ground for a challenge to the panel or to the individual iurors.
    4. SAME — Prejudice Against Defendant. The prejudice of individual jurors against the defendant is no ground for a challenge to the panel, but should be raised by challenging for cause the prejudiced jurors individually.

      5. CONSTITUTIONAL LAW — Appointment of Jury Commissioners. The appointment of commissioners charged with the duty of selecting jurors is not necessarily an executive function, and the power to make such appointment may properly be conferred upon the judge of the district court.
    6. JUIRY — Challenge to Panel — Grounds Exclusive. The grounds enumerated in the statute upon which a challenge to the panel of jurors can be founded exclude all grounds not enumerated.
    7. SAME — Necessity for Hearing Evidence. It is not error for the trial oourt to refuse to hear evidence offered in support of a challenge to the panel of jurors, where the challenge states no facts which, if proven, would justify the court in sustaining it.
    8. INSTRUCTIONS — 'Reasonable Doubt. An instruction that if the jury believe from the evidence that the defendant sold whisky to C, then they should convict, is erroneous for failing to tell the jury that they must so believe beyond a reasonable doubt.
    9. INSTRUCTIONS — Weight of Evidence — Testimony of Detectives. It is proper to refuse a requested instruction that the jury should. . receive with caution the testimony of a detective, the jury being the sole judges of the credibility of the witness and the weight to be given his testimony.
    (Syllabus by the Court.)

      Appeal from, Comanche County Court; James Ii. Wolverton, Judge.

    Sam Berner was convicted of selling whisky and was sentenced to pay a fine .of $100.00 and to be imprisoned in the connty jail for a term of sixty days. He filed a motion for a new trial, which was heard and overruled, and he appeals.
    Be-versed and remanded.

      Ray & Cunningham, for plaintiff in error.

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

The first assignment of. error is that the court erred in overruling plaintiff in error’s demurrer to the information. This demurrer was predicated upon the fact that the information did not show or allege that the prosecution was conducted in the name and by the authority of the state of Oklahoma. The entire record shows, however, that the prosecution was carried on in the name and by the authority of the state; and that, is sufficient. Arie v. State, 1 Okla. Cr. 666, 100 Pac. 33; Reeves v. Territory, 2 Okla. Cr. 351, 101 Pac. 1039; Caples v. State, 3 Okla. Cr. 72, 104 Pac. 493.

Next the plaintiff in error contends that tne court erred in calling talesmen for the completion of the trial jury. As bearing upon this assignment the case-made shows the following:

“The defendant now objects to any talesm'en being called because there is a regular panel that has been drawn under the provisions of the law for this term of court; that said panel has not been quashed or exhausted and objects to the jury being-made up of talesmen. The Court overruled the motion for the reason that there were not any other jurors in attendance at this court that- is drawn for this term of court. To which ruling of the court the defendant excepts and the exception allowed.”

The record further shows that there were only eight jurors •in attendance upon the court, although eighteen had been drawn and only one had been excused. Whether the other nine were found by the sheriff; and if found and summoned, whether they obeyed the summons, or whether the facts were such that the court should have issued an attachment for them, does not appear from the case-made. Be that as it may, this record shows no such state of facts. as would make it error for the court to order the summoning of talesmien for the completion of this jury, when on account of individual challenges, either peremptory or for cause, a trial jury of six men could not be selected from the eight jurors in regular - attendance. Section 3987 of Snyder’s Comp. Laws of Oklahoma provides that, “At any time during a term of court, after a petit jury has been drawn and summoned in the manner as herein provided, for the trial of any cause the regular panel of jurors shall appear to be insufficient, the jury may be completed from talesmen, or the court may direct an open venire to issue to the sheriff for such number of jurors as may be deemed necessary to be selected from the body of the county”. The record shows no irregularity in the proceedings in this respect, and we can presume none.

The next assignment of error is that the court erred in overruling plaintiff in error’s challenge to the panel of petit jurors. The challenge to' the panel was in writing, and the grounds stated therein were as follows:

"(1) For the reason that said list of jurors are not fair and impartial jurors for the trial of this class of causes but are biased and prejudiced many of them in favor of this class of prosecutions and against this class of violations of law.
“(2) For the reason that the jury commissioners Avho placed the names of the electors in the box for jury service are all three biased and prejudiced in favor of the prosecution of this class of violations of the law, and are interested generally in the prosecution of this particular class of offenses, and did select the names of electors and place the names in the jury box of the County of Comanche for the County Court of men known to them to be particularly opposed to this class of violations of law, and did not place in said jury box the names of fair and impartial electors for said jury service required by law.
“(3) For the reason that the said jury commissioners have no legal right or authority in law to act, they acting or pretending to act under and by virtue and warrant of an appointment as such jury commissioners made by Judge Johnson of the district court in this district, the said appointment being void and illegal, no power being conferred by the Constitution of the state of Oklahoma upon district judges to exercise executive authority and the Legislature of the state is powerless to confer such an exercise of power upon said district judge.”

This challenge was based on novel grounds. It alleged prejudice on the part of the jurors, not against the plaintiff in error, but only against the offense. We presume that if a defendant was charged with murder, then by the same token he would be entitled to a trial by a jury composed of men entirely indifferent as to whether murder be committed in their county or not, men who entertain no prejudice whatever against the crime of murder. It is generally thought that a juror should be a man, not only law-abiding himself, but imbued with a desire to see the laws in their entirety honestly and righteously enforced against all offenders; that the enforcement of the law is contemplated and intended, and that it will be enforced better by those in sympathy with it and who recognize the necessity and justice of it than by that class of persons who are indifferent or who desire to violate it or thwart its administration. We had always heard that good citizens are prejudiced against any “class of violations of law;” that good citizenship implies a respect for and an obedience to all laws, so long as they are laws, and a willingness and desire to see them effectively administered. And we are told here for the first time that a defendant has a vested and inalienable right to be tried by a jury who possess no regard for the particular law alleged to have been violated, selected by commissioners on friendly terms with the particular offense charged. This may be so; but we have been cited to no authority therefor. We conjectured that plaintiff in error was claiming a constitutional right to a trial by a jury of his peers; but upon an examination of the Constitution we find no such provision therein, the Constitution guaranteeing to him only a “trial by an impartial jury of the county.” And while we have not looked further for authority, yet we are reasonably certain that we could have found none if we had looked, and more certain that we should not follow it if we found it.

We will say further that if the individual jurors composing this panel were actually prejudiced against this defendant, 3ret that was no ground for a challenge to the panel. The jurors might have been competent in every- other case pending in the court. This defendant could have challenged for cause every individual juror; and he had the right to use every means by which to show their disqualification upon individual challenges for cause which he could possibly have used upon this challenge to the panel. The statute (sections 6795 and 6801 of Snj'der’s Comp. Laws of Olda.) enumerates the matters upon which a challenge to the panel can be founded; the matters thus enumerated are exclusive, and the bias or prejudice of the jurors is not among them.

As to the third ground alleged, the appointment of jury commissioners charged with the. duty of selecting jurors is not necessarily an executive function, and the power to make such appointment may properly be conferred upon the district judge. This is done in a great number of states.

It is next urged that the court erred in refusing to hear testimony in support of the allegations contained in the challenge to the pane] of jurors set out above. The court committed no error in this respect, for the reason that the challenge to the panel set forth no facts which if proven would have justified the court in sustaining the same. Every paragraph thereof was subject to exception, and there was no occasion for the trial court to waste any time in the vain matter of hearing testimony thereon.

The court gave the jury the following instruction:

“No. 2. The court instructs the jury that if you believe-from the evidence that the defendant, Sam Remer, did at the time and place alleged in the information barter, sell or give away intoxicating liquor, to-wit: whisky, to one Rufe Correll,- it will be your duty to find the defendant guilty”.

The defendant objected to the giving of this instruction in this form, and his objection being overruled, saved an exception. The objection to the instruction was well taken. This instruction went to the very gist of the case. It might be termed the substantive instruction in the case; the one embodying the elements of the crime charged, and informing the jury under what circumstances they should convict the defendant, and to which every other instruction given was merely adjective or explanatory. And that being true, it was essential that this instruction should be correct. But it is not. It tells the jury that if they only believe from the evidence that the defendant sold the whisky, then it is their duty to convict. How strong that belief should be the jury were not told. Under this instruction they were authorized to convict even upon a vague, uncertain belief founded upon a bare preponderance of the evidence; whereas the statute and the adjudged cases require that the belief be a positive one based upon evidence possessing that degree of probative weight and force that it satisfies the minds of the jurors of the defendant’s guilt beyond a reasonable doubt. Claxton v. Com. (Ky.) 30 S. W. 998; Pierson v. State, 99 Ala. 148, 13 So. 550; Webb v. State, 73 Miss. 456, 19 So. 238; Burton v. State, 107 Ala. 108, 18 So. 284; Carr v. State, 104 Ala. 4, 16 So. 150. Every instruction which submits to the jury a hypothetical state of facts upon tlic finding of the truth of which they are to convict the defendant should tell the jury that they must find those facts from the evidence beyond a reasonable doubt. Such instruction should embody only the facts essential to a conviction; and it is the better practice to incorporate in the same instruction the alternative proposition, that if upon a consideration of all of the evidence the jury entertain a reasonable doubt of the truth of any one or more of those essential facts, they should acquit. We would recommend the following as a proper instruction in this ' character of case:

“The court instructs the jury that if they believe from the evidence in this case beyond a reasonable doubt’that the defendant, Sam Remer, in this county and state, on or about the 1st day of February, 1908, did sell whisky in any quantity, whatever to one Rufe Correll, then it will be your duty to find the defendant guilty as charged in the information. On the other hand, if, upon a consideration of all of the evidence in this case, you entertain a reasonable doubt as to whether the defendant, in this county, on or about the date mentioned, did sell, whisky t® the said Rufe Correll, then you should acquit the defendant/’

The defendant requested the court to give the jury the following instruction:

“You are further instructed that the evidence in this case shows that the vritness, Rufe .Correll, was the cause of some 15 prosecutions being instituted against different men in the city of Lawton, within two days, and that he worked for those two days securing testimony. In this connection you are instructed that the evidence of a detective in liquor cases should be received with greatest caution.”

The court refused to give this instruction, and the defendant excepted and assigned the court’s refusal as error here. This instruction was properly refused. It is indirectly, if not directly, an instruction upon the weight of the evidence; and it is not the law in this jurisdiction that the court should instruct upon the weight of the evidence either in behalf of or against the defendant. In this case it was solely for the jury to say, uninfluenced by the expression of any opinion on the part of the court, what weight and value should be given to the testimony of Rufe Correll. If the fact that he acted as a detective, or the general method of his operations in any manner discredited the witness, that was proper subject for argument to the jury, but not for an instruction on the part of the court. In Fletcher v. State, 2 Okla. Cr. 300, 101 Pac. 599, Judge Furman said:

“We think that it is error for the court to single out any special witness, personally, and burden his testimony with any suggestions which might indicate to the jury that in the opinion of the court such witness was liable to testify -falsely. Instructions as to the credibility of witnesses should be general and apply equally to all of the witnesses for the state and the defendant alike.”

It is not every detective whose testimony should necessarily be viewed with caution. His general character, his motives and purposes, his manner of operating and his apparent sincerity and truthfulness are all matters as much to be considered in determining the weight to be given his testimony as they are in determining the value of the testimony of any other witness. It requires no particular legal learning or acumen to apply such a test, and the jury are thought to be as capable as the court of determining whose testimony they snould receive with caution. Hie law makes that their province.

For the error indicated above the cause is reversed and remanded with directions to grant the defendant a new trial.

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


author: KICIIAKDSON, Judge.

text:
    Dr. J. R. Wilson v State.
    No. A-342.
    Opinion Filed May 16, 1910.
    (109 Pac. 289.)
    1. COURTS — County Courts — Trial in Term Time. The trial of cases in the county court, not triable under justice of the peace procedure, can he had only in term time.
    2. COURTS — Lapse of Terms. The terms of courts of record begin on the day fixed by law; and if the judge be not present in his court, or a judge pro tem. selected, within two days after the first day of the term, then the term lapses, and cannot there- ' after be revived by the judge or any other officer of the court; and any attempted proceedings had in such court after the lapse of the term is coram non judice and void.
    3. APPEAL — Record. A journal entry showing the opening of the court on a day subsequent to the first day of the term as fixed by law is alone not sufficient to show that the court did not convene on the day fixed by law. The case-made must affirmatively show the absence of an order convening the court on the proper day.
    4. COURTS — Presumption of Regularity of Proceedings. Irregularities in the proceedings of courts or record will not be presumed, but must be properly and affirmatively shown.
    5. INSTRUCTIONS — Good Character. Por proper and improper instructions upon the good character of the accused in a criminal case, see the opinion.
    6. APPEAL — Assignments of Error — Abandonment. Assignments of error not presented in the brief or oral argument will be deemed abandoned.
    (Syllabus by the Court.)

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

    Dr. J. ft. Wilson was convicted in the County Court of Stephens County of the offense of selling liquor, and he appeals.
    Affirmed.
    2?. E. Morris and Gilbert & Bond, for plaintiff in error.

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

First it is urged that tlie County Court of Stephens County was without jurisdiction to hear and determine this cause at the time it was tried. This matter was not presented below but is raised here for the first time on appeal. The contention is that under section 9, article 1, chapter 27 of the Session Jjaws of 1907-08, the four regular terms of the county court in the several counties of this state must commence on the first Monday of January, April, July and October of each year; and that the July, 1909, term of this court was not opened until the 3rd day of August, on which day the plaintiff in error was tried.

■It is true that the county court is a .court of record; and the trial of cases therein can be had only in term time, except that such court is always open for the transaction of all probate business, the trial of cases triable under justice of the peace procedure, and for the purpose of taking and entering judgments by confession. Sec. 1999, Snyder’s Comp. Laws of Oída. And ’it is also true that the term begins on the day fixed by law; and if the judge be not present in .his court, or a judge pro tern, selected, within two days after the first day of the term, then the court by operation of law stands adjourned for the term. In such ease the term lapses, and thereafter neither the judge nor any other officer of the court can revive it; and arty attempted proceeding had in such court after the lapse of the term is corcm non judice and void. Sec. 6255, Snyder’s Comp. Laws of Okla.; American Fire Ins. Co. v. Pappe, 4 Okla. 110, 43 Pac. 1085; In Re McClaskey, 2 Okla. 568, 37 Pac: 854; In Re Terrill, 52 Kan. 29, 34 Pac. 457; In Re McClaskey, 52 Kan. 34, 34 Pac. 459; U. P. Ry. Co. v. Hand, 7 Kan. 380; In Re Millington, 24 Kan. 214; Cullum v. Casey & Co., 1 Ala. 351; Wightman v. Karsner, 20 Ala. 446; Brumley v. State, 20 Ark. 77; Neal v. Shinn, 49 Ark. 277, 4 S. W. 771; People v. Bradwell, 2 Cow. 445; Wight v. Wallbaum, 39 Ill. 554; Hoye v. State, 39 Ga. 718; Lewis v. Hoboken, 42 N. J. L. 379; State v. Roberts, 8 Nev. 239; Holman v. Hogg, 83 Mo. App. 370; Garza and Lopez v. State, 12 Tex. App. 261; Thomas v. Fogarty, 19 Cal. 644; People v. Sanchez, 24 Cal. 17.

But in this case the only evidence, record or otherwise, contained in the case-made tending to show that the County Court of Stephens County did not convene on the first Monday in July is the journal entry of the opening of the court on August 3, 1909, the day the plaintiff in error was tried, which entry is as follows:

“In the County Court in and for Stephens County, Oklahoma :
“Be it remembered, that on this, the 3d day of August, 1909, at the City of Duncan, at the court room in Stephens County, Oklahoma, the County Court of Stephens County, Oklahoma, was duly opened by proclamation of the sheriff for the said July, 1909, term of said court.
“Officers present: W. H. Admire, county judge, presiding; W. M. Oates, sheriff; B. H. Smith, stenographer and ex-officio clerk, C. C.; T. M. Wilkinson, clerk County Court.
“'When the following business was transacted, to-wit:”

iThis entry cannot be held to establish the fact that the court was not convened on the first Monday in July. For aught wo know the court may have been regularly convened on that day, and may have been in session and trying cases on each juridical day between the first Monday in July and the first Monday in October of that year; and this entry may be the usual entry which the court makes on the convening of the court each day, changing only the date. Or, for aught we know, the County Court of Stephens County may have convened on the first Monday .in July, and on that day may have taken a recess until the 3rd day of August. This it had the power to do. The case-made contains no recital showing the absence of a journal entry convening the court on the first Monday in July, nor does it recite any other fact from which the absence of such an entry could be legitimately inferred. We are not permitted to presume that the court failed to observe the law, nor to hold that it so failed by a doubtful construction of this particular entry. The offense charged being one within the jurisdiction of the court, the plaintiff in error being present, and tbe trial being bad on a da}’- between the dates ñxed by law for convening and finally adjourning the term, every presumption is in favor of the regularity of the proceeding; and this must be overcome by a proper showing in the case-made before we should hold that the court did not have jurisdiction.

The court gave the jury the following instruction:

“Fifth. Gentlemen of the jury: There is testimony in this case with reference to the good character of the defendant in the community in which he lives and you may consider this testimony in making up your verdict in 'this case and in determining the issues, such evidence should be considered by you in connection with all the other evidence in this case and give it such weight and credit as you should any other evidence in this ease as I have instructed you herein, such evidence is competent for defendant and to be considered by you in determining his guilt or innocence”.

Plaintiff in error did .not except to this instruction, but saved exceptions to the refusal of the court to give each of the following requested instructions:

“One. Gentlemen of the Jury: Evidence has been introduced in this case seeking to establish'the good character of the defendant in the community in which he resides; I charge you in this connection in your deliberation in this case you may consider such testimony in determining the innocence or guilt of the defendant, and if you find the evidence for and against the defendant to be equally divided, then the evidence of good character should weigh in the defendant’s favor, and you should acquit him, if his good character has been established..”
“Two. Gentlemen of the Jury: You are instructed that the evidence of good character should be considerd by you with the other evidence of guilt or innocence without regard to the apparently conclusive or inconclusive character of such other evidence, and although there may be sufficient other evidence to warrant, a finding of guilt, if the good character of the accused creates the reasonable doubt of guilt, then you should acquit the defendant.”

The instructions requested were properly refused. Cannon v. Territory, 1 Okla. Cr. 600, 99 Pac. 622; Morris v. Territory, 1 Okla. Cr. 617, 99 Pac. 760. On principle it would seem that the very fact that the court admits the evidence as to the defendant’s good ■ character could not but be understood by the jury as a command to consider it; and it would seem also that when such evidence is admitted, and the court instructs the jury to acquit if, upon a consideration of all the evidence in the case, they entertain a reasonable doubt of the defendant’s guilt, that would be all that should be required. Be that as it may, however, we hold that it is sufficient in cases of this kind fo'x the court to instruct the jury, in substance, that if they believe from the evidence that prior to the alleged offense, the defendant had the general reputation in his community of being a moral, law-abiding citizen, then they should consider that fact and give to it such weight as they deem proper, in determining the question of the defendant’s guilt or innocence; but if,, upon a consideration of all the evidence in the case, including that bearing upon the defendant’s good reputation, the jury nevertheless believe beyond a reasonable doubt that the defendant is guilty as charged, then his previous good reputation would constitute no justification or defense.

Other assignments of error were made, but have not been notieéd in plaintiff in error’s brief .or oral argument, and will therefore be treated as abandoned.

Finding no error, the judgment of the county court is affirmed.

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


text:
      In re M. F. Fraley.
    No. A-757.
    Opinion Filed May 21, 1910.
    (109 Pac. 295.)
    1. HOMICIDE — Reduction of Homicide to Manslaughter — Cooling Time. In determining whether a homicide is reduced from murder to manslaughter, the question is not only did the defendant’s passion engendered by a sufficient provocation in fact cool, tout also was the time intervening between the giving of the provocation and the hilling sufficient for the passion of a reasonable man to cool7 An affirmative answer to either question precludes a reduction of the homicide to manslaughter.
    2. SAME — Question of Law and Fact. If a fatal wound be inflicted immediately following a sufficient provocation given, then the question as to whether the defendant’s passion thereby aroused had in fact cooled, or as to whether a sufficient time had elapsed in which the passion of a reasonable man would have cooled, is a question of fact to be determined upon a consideration of all the facts and circumstances in evidence; but when an unreasonable period of time has elapsed between the provocation and the killing, the court is authorized to say as a matter of law that the cooling time was sufficient.
    3. HOMICIDE — “Murder.” A deliberate killing committed in revenge for an injury inflicted in the past, either near or remote, is murder.
    4. HABEAS CORPUS — 'Riight to Bail — Burden of Proof. Upon an application for bail by writ of habeas corpus after commitment for a capital offense, the -burden is upon the petitioner to show facts sufficient to entitle him to bail, when those facts do not appear from the evidence adduced on the part of the prosecution.
    5. SAME — Presumptions. When the homicide is proven or admitted, the court on an application for -bail will not presume for the prisoner either justification or mitigation merely because the evidence for the prosecution fails to show their absence. Unless the evidence for the prosecution shows the presence of facts tending to justify, excuse, or mitigate the offense, the burden is on the petitioner to show them'.
    6. HABEAS CORPUS — Right to Bail — Injury From Confinement— Sufficiency of Showing. Affidavits of physicians stating that in their opinion confinement in jail will result disastrously to the petitioner, and which state no facts upon which such opinion is -based, make no sufficient showing for the admission of the prisoner to bail.

      7. HABEAS CORPUS — Right to Bail — Evidence. Evidence examined and held to justify the refusal of bail.
    (Syllabus by the Court.)
    . Original Proceeding in Habeas Corpus.

    Application of M. F. Fraley for writ of habeas corpus to the end that' he be let to. bail.
    Cause heard and bail refused/

      1). A. McDougal and Boone, Leahy '& McDonald, for petitioner.
    — Citing: Ex parte Randon, 12 Tex. App. 155; Re Genero Lo Sasso et ak, 10 L. R. A. 847; Richards v. State, 9 Tex. App. 616; McCoy v. Slate, 25 Tex. 33; In re Thomas, 20 Okla. 167.

      Chas. West, Atty. Gen., Smith G. Matson, Asst. Atty. Gen., and L. F. Roberts, for the State.
   RICHARDSON, Judge.

This is an original application in this court by M. F. Fraley for a writ of habeas corpus, by which he seeks to be let to bail pending the final hearing and determination of a charge of murder filed against him in Osage County. The writ was allowed, and was made returnable on May 6, 1910, on which day the respondent, R. A. Cornell, sheriff of Osage County, filed his 'return thereto. On said day written stipulations were also filed in this court by the attorneys for the petitioner and the state, stipulating and agreeing that on April 11, 1910, a complaint was filed against petitioner before E. L. McCain, a justice of the peace in and for 'Osage County, charging petitioner with the murder of one Dan Parker, upon which complaint a warrant of arrest was duly issued and served; that on April 22, 1910, petitioner's examining trial was held before said justice of the peace, upon the conclusion of which petitioner was committed without bail to answer a charge of murder in the district court; that the presence of the petitioner before this court is waived; and that this court shall hear and determine this application upon a transcript of the testimony taken at the preliminary hearing and upon certain affidavits here presented.

Petitioner contends that he should bo let to bail, first, because the proof of his guilt of a capital offense is not evident or the presumption thereof great; 'and second, that if his guilt is evident, the circumstances are such that the court should nevertheless exercise its discretion and admit the petitioner to hail.

Petitioner did not testify in. the examining trial, nor were any witnesses introduced in his behalf. The testimony taken, which is uncontradicted in this court, shows-, that the deceased, Dan Parker, on April 11, 1910, was sitting upon or leaning against a railing in front of a drug store in the city of Pawhuska; that he had been in that position for some ten or fifteen minutes engaged in conversation with some gentleman beside him in regard to the sale of certain walnut timber; that the petitioner came around the corner, walked up in front of the deceased, said “Hello, Dan,” and without further warning immediately fired two shots into the deceased in quick succession; that the deceased jumped up, threw up his hands, staggered, and fell off the side walk. The petitioner thereupon walked around an obstruction and fired four more shots into the deceased; that the petitioner then walked off, and after going some distance, turned and came back, and putting his pistol close to the head of the deceased, snapped it a time or two and said: “You damned son of a bitch, I told you Fd kill you; you killed my boy.” The substance of the foregoing facts are testified to positively by seven eyewitnesses, and they stand in the record undisputed. It is further shown that after the deceased fell off the side walk his pistol fell out of his pocket; but the evidence nowhere tends to show that the deceased ever at any time had his pistol in his hand, or that he ever made any effort or demonstration to draw it. No previous conversation or difficulty of any kind or character between the petitioner and the deceased was shown or intimated.

The testimony does not show it, but it was stated by counsel for the petitioner in presenting this case, that the deceased, some nine or ten months previously, had shot and killed the son of the petitioner, and that the deceased had been tried for the offense and had been acquitted; and it is urged here that when the petitioner saw the deceased on this occasion, the recollection of that event must have engendered in him a passion which overcame him; that the killing was committed in the heat of such passion, was without premeditation, and therefore not murder. To this we cannot assent, even if we could take the statement of counsel as a proper substitute for testimony tending to prove the facts stated. In Ragland v. State, 125 Ala. 12, 27 So. 983, four hours intervening between the provocation and the killing was held as a matter of law to be sufficient cooling time to preclude the reduction of a homicide to manslaughter. Perry v. State, 102 Ga. 365, 30 S. E. 903, and Rockmore v. State, 93 Ga. 123, 19 S. E. 32, each hold three days as a matter of law sufficient cooling time. Com. v. Aiello, 180 Pa. St. 597, holds from one to two hours sufficient, and State v. Williams, 141 N. C. 827, 53 S. E. 823, holds fifteen minutes sufficient. And the authorities are all agreed that the question is not alone whether the defendant’s passion in fact cooled, but also was there sufficient time in which the passion of a reasonable man would cool. If in fact the defendant’s passion did cool, which may be shown by circumstances, such as the transaction of other business in the meantime, rational conversations upon other subjects, evidence of preparation for the killing, etc., then the. length of time intervening is immaterial. But if in fact it did not cool, yet if such time intervened between the provocation and the killing that the passion of the average man would have coofed and his reason have resumed its sway, then still there is no reduction of the homicide to manslaughter. Savary v. State, 62 Neb; 166, 87 N. W. 34; Hurst v. State, 40 Tex. Cr. 378, 46 S. W. 635; People v. Bush, 65 Cal. 129, 3 Pac. 950; Reese v. State, 90 Ala. 624, 8 So. 818; McNeil v. State, 102 Ala. 121, 15 So. 352, 48 Am. St. Rep. 17; People v. Sanches, 24 Cal. 17; State v. Holmes, 12 Wash. 169, 40 Pac. 735; Ex parte Brown, 65 Ala. 446; Smith v. State, 103 Ala. 4, 15 So. 843; Hawkins v. State, 25 Ga. 207, 71 Am. Dec. 166; State v. Yarbrough, 39 Kan. 581, 18 Pac. 474; Sparks v. Com. (Ky.) 14 S. W. 417. If the fatal wound be inflicted immediately following a sufficient provocation given, then the question as to whether the defendant’s passion thereby aroused had in fact cooled, or as to whether or not such time had elapsed that the passion of a reasonable man would have cooled, is a question of fact to be determined upon a consideration of all the facts and circumstances in evidence; but when an unreasonable period of time has elapsed between the provocation and the killing, then the court is authorized to say as a matter of law that the cooling time was sufficient.

Ordinarily one day, or even half a day, is in law much more than a sufficient time for one’s passion to cool; and a killing committed upon a provocation given some nine or ten months before is not, on account of that provocation or any passion engendered thereby, reduced to manslaughter. A deliberate killing committed in revenge for an injury inflicted in the past, however near or remote, is murder.

The uncontradicted testimony in this case convinces us that the proof of the petitioner’s guilt of a capital offense is evident, and that he is not therefore entitled to bail as a matter of right. The rule was laid down by the Supreme Court of this state in the ease of In re Thomas et al., 1 Okla. Cr. 15, 93 Pac. 980, to the effect that, upon an application for bail by writ of habeas corpus after commitment for a capital offense, the burden is upon the petitioner to show that he is illegally deprived of his liberty; that is, the burden is upon the petitioner to show facts sufficient to entitle him to bail, where those facts are not shown by the evidence adduced on the part of the prosecution. This is a just and salutary rule and has been uniformly followed in this state. Ex parte Johnson, 1 Okla. Cr. 414, 98 Pac. 461; Ex parte Smith, 2 Okla. Cr. 24, 99 Pac. 893. We are not permitted to presume for the prisoner either justification or mitigation merely because the evidence for the -prosecution fails to show their absence. On the contrary, unless the evidence for the prosecution shows the presence of facts or circumstances tending to justify, excuse or mitigate the offense, then the burden is upon the petitioner to make that showing by evidence at least sufficient to generate a reasonable doubt in that respect. It is the law in this jurisdiction that even in the trial of the case, the commission of the homicide by the. defendant being proved, the burden of proving circumstances -of mitigation that justify or excuse it devolves upon him, unless the proof on the part of the prosecution tends to show that the crime committed only amounts to manslaughter, or that the defendant was justifiable or excusable. Section 6854, Snyder’s Comp. Laws of Oklahoma. That being true in the ultimate trial of the case where the question of the defendant’s guilt or innocence, ivith all its momentous consequences to him, is to be passed upon, why should a different rule prevail on an application for bail, whose only purpose is to procure a release from custody during the short period of time intervening before the trial? We find in this record nothing from which it. could be inferred that the petitioner acted in his necessary self-defense, either real or apparent; or that the homicide was anything else than murder. What may be disclosed upon the final trial we do not know.

The petitioner’s next contention, that the circumstances are such that the court-should exercise its discretion and admit him to bail, is based upon the written unverified statements of two physicians, which, however, by agreement of the attorneys on each side we here treat as affidavits, and which are as follows:

“I, Ira Mullins, (a regular practicing physician of Hominy, Oklahoma,) have been personally acquainted with M. F. Fraley for the last five years. And knowing his make up both mentally and physically as I do, I think that to keep Mr. Fraley in jail for any length of time will destroy his mind permanently or cause his death. (Signed) Iea MulliNS, M. D.”
"I, Thomas M. Berry, (a regular practicing physician) do hereby declare that after being personally acquainted with M. F. Fraley for some time know him to be seriously endangered both mentally and physically by being confined in prison at this time.
“(Signed) Ti-ios. M. Bebet."

Treating these statements as affidavits, they are wholly insufficient upon which to exercise a discretionary ¡Dower to admit the petitioner to bail. Neither of them undertake to state any facts whatsoever, but state only opinions and mere general conclusions. The facts upon which these opinions and conclusions are based are not before us. They should be stated in order that we may draw our own conclusions. We have a proper deference for the < opinion of reputable physicians upon, matters pertaining to their profession, but when we are called upon in a judicial capacity to act upon their opinions, we must insist upon haying a statement of the facts upon which they are based. We cannot be expected to adopt their opinions without, knowing the facts and circumstances which induce them.

Bail is denied, the writ is discharged, and petitioner is remanded to the custody of the sheriff of Osage County to await his trial in due course.

FIJBMAN, PRESIDING Judge, and DOYLE, Judge, concur.


text:
      In re W. J. Bollin.
    No. A-756.
    Opinion Filed May 21, 1910.
    (109 Pac. 288.)
    1. BAIL — Capital Offense — Evidence. Evidence examined, and held to justify the refusal of bail to a defendant in custody upon a charge of murder. ,
    2. SAME — Mere Conflict in Evidence. A mere conflict of testimony even upon a vital issue, does not of itself entitle a defendant held for murder to be ’admitted to bail. The evidence must ibe considered as a Whole; and when so considered, unless a reasonable doubt of the defendant’s guilt of murder is generated, ibail should -be denied.
    3. HOMICIDE — Reduction to Manslaughter — Heat of Passion. iHeat of passion alone does not reduce a homicide from murder toi manslaughter; there must be adequate provocation, and the fatal blow must be the unpremeditated result of the passion thus aroused.
    4. SAME — “Adequate Provocation” — Words and Gestures. Mere words, gesture or threats, however opprobrious or violent, constitute in law no adequate provocation for passion such as will reduce a homicide from murder to manslaughter.
    (Syllabus by the Court.)

      Original Proceedings in Habeas Corpus.

      .Application for bail by writ of habeas corpus.

    Application beard, and bail refused.

      Massingale & Duff and Smith & Wagner, -for petitioner.

      Chas. West, Atty. Gen., Smith C. Matson, Asst. Atty. Gen., Rutherford Brett, and Billups & Ash, for the State.
   RICHARDSON, Judge.

On the 18th day of April, 1910, the petitioner was arrested, charged with the murder of one George Wilson alleged to have been committed on that day in the city of Cordell in Washita County. A preliminary examination was had, and petitioner was ordered committed without bail to await further action against him on said charge in the district court. Thereafter an information was filed against petitioner in the District Court of Washita County, charging him with the crime of murder, upon which information he was duly arraigned, and to which he entered a plea of not guilty. On April 25th the petitioner filed in said district court an application for a writ of habeas corpus by which he sought to be released on bail. The writ was allowed, and made returnable on April 28, 1910. On the return day the cause was submitted to the court upon the testimony taken in the preliminary hearing, and on May 3, 1910, the court, after hearing and considering the matter, made and entered an order denying the petitioner bail.

On May 6, 1910, an original application for a writ of habeas corpus seeking the allowance of bail was filed by the petitioner in this court, and the writ was granted. Return thereto has been made; the matter by agreement has been submitted to us upon the testimony taken at the preliminary hearing and upon the. briefs and oral argument of counsel, and now comes on for determination.

There is no diversity of opinion as to the law applicable; and the sole question here presented is, Does the evidence before us show such facts as should induce a reasonable doubt as to whether petitioner was justifiable or excusable in his act, or as to whether the offense was only manslaughter? If it does, then the petitioner is entitled to bail; otherwise, he is not.

We have carefully read and considered all the evidence presented, as well as the briefs in behalf of each party; ánd we have come to the conclusion that the judgment of the District Court of Washita County was right, and that the petitioner should be denied bail.

The testimony tends to show that one side of petitioner’s farm fence was in the road reservation, and that at the instance of some three or four citizens of the township, among whom the deceased was one, the township trustees directed the road supervisor to notify petitioner to draw in his fence; that the road supervisor in person delivered such notice in writing to the petitioner on the morning of the killing and within an hour before it took place; that upon receipt of the notice the petitioner said to the supervisor that the fence in question had been there for eight or ten years, and that he would see to it that every son-of-a-bitch who had had anything to do with that matter got tended to, and that to their hurt. The deceased was a member of the petit jury which had just been empaneled in the county court; and the court having taken a recess, he and the other jurors had come down from the court room, and the deceased was standing on the sidewalk at the foot of the stairs when the petitioner came up. Petitioner and deceased there had some words, which.no one appears to have understood very clearly. One of them called the other a liar, and it must have been the petitioner, for the deceased immediately shook his first at him and said, “I will beat the stuffing out of you if you talk to me that way again. Go on away and let me alone; I don’t want to have any trouble with you.” Petitioner then walked off a few steps, opened his knife and came back with it opened in his hand and held behind his back, and made a remark to deceased which one witness testifies to have been, “You are no part of-a gentleman, you won’t do what you say you will;” thereupon deceased started at petitioner, but stopped three or four feet distant from petitioner and made no further advance. Petitioner then said, “Come on Avith it; if you are going to do it, do it,” and immediately stuck his knife, with a three or a three and a half inch blade, into deceased’s heart, inflicting a wound from which death ensued within fifteen minutes.

There is testimony to the effect that deceased bore the general reputation of being a violent man, and the testimony of one witness to the contrary. There is a conflict of testimony as to some of the statements made, three witnesses testifying that Wilson called petitioner a son-of-a-bitch, but none of the others out of the many who testified to having- witnessed the difficulty, heard it. There are also one or two other matters in which there is some conflict in the testimony. A mere conflict of testimony, however, even upon a vital issue, does not of itself entitle the petitioner to bail. The evidence must be considered as a whole, and when so considered, unless a reasonable doubt of the defendant’s guilt of a capital offense is generated, bail should be denied. In re Thomas, 1 Okla. Cr. 15, 93 Pac. 980. Heat of passion alone does not reduce a homicide to manslaughter; there must be adequate provocation for it, and the fatal blow must be the unpremeditated result of the passion thus aroused. Nor do mere words, gestures or threats, however opprobrious or violent, constitute in law an adequate provocation. Bishop’s New Criminal Law, vol. 2, see. 704; Wharton on Homicide, (3d Ed.) sec. 173; 21 Cyc. p. 743, and eases there cited. See, also, Reese v. State, 90 Ala. 624, 8 So. 818; Allen v. State, 52 Ala. 391; Com. v. Eckerd, 174 Pa. St. 137, 34 Atl. 305; Smith v. State, 49 Ga. 482; Peri v. People, 65 Ill. 17.

We find herein no element of legal justification or excuse. We do not know what may be shown upon the final trial. II is sufficient to say, without entering upon a minute discussion of the evidence, that we concur with the district court in its finding that the petitioner is not entitled to bail.

Bail will therefore be denied. ,. , •

FUBMAN, PRESIDING Judge. and DOYLE, Judge, concur.


text:
    S. B. Caveness v. State.
    No. 171.
    Opinion Filed May 21, 1910.
    (109 Pac. 125.)
    1. JUDGES — Prejudice—Disqualification. Under the law as it existed prior to the passage of the Act approved March 22, 1909. (art. 6, chap. 2G of Snyder’s Comp. Laws of Okla.) it was error to refuse a change of judge, where the defendant, ¡before the case was called’ for trial, filed an affidavit in due form stating that the presiding judge was' prejudiced against him, and that by reason thereof he could not have a fair and impartial trial .before said judge.
    2. CRIMINAL LAW — Sale of Liquors — Entrapment. The state is not precluded from prosecuting a defendant for selling liquor because the purchase was made by an officer, for the purpose of instituting a prosecution thereon.
    (Syllabus by the Court.)

      Appeal from Pottawatomie County Court; E. D. Reasor, Judge.

    S. B. Caveness was convicted of selling whisky, and he appeals.
    Beversed and remanded.

      Pendleton, Abernathy <£. 'Howell, for plaintiff in error.

      Fred 8. Caldwell, for the State.
   BICHABDSON, Judge.

Before this cause was called for trial below plaintiff in error made and filed an affidavit in due form stating that the presiding judge was prejudiced against him, and that by reason thereof a fair and impartial trial could not' be had before said judge; and he prayed a change of judge.' The application was overruled, and an exception was taken. The trial was had before the passage of the Act approved March 22, 1909, relating to the disqualiification of judges (art. 6, chap. 26 of Snyder’s Comp. Laws of Okla.), and under the uniform holding of this court construing the law as it existed prior to the passage of said act, the court committed reversible error in refusing a change of judge.

The sale in this case, according to the state’s evidence, was made to a deputy sheriff, who purchased the whisky as evidence upon which to base a prosecution. Plaintiff in error contends that in such case, the sale being solicited by an officer and agent of the state, a prosecution therefor cannot be maintained. This is not true. De Graff v. State, 2 Okla. Cr. 519, 103 Pac. 538.

For the error indicated the cause is reversed and remanded with- directions to set aside the judgment and grant plaintiff in error a new trial.

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


author: PER CURIAM.

text:
    A. O. Burton v. State.
    No. A-33.
    Opinion Filed May 21, 1910.
    (109 Pac. 1113.)

      Appeal from Choctaw County Court; W. T. Glenn, Judge.

    A. O. Burton was convicted of soliciting the purchase of intoxicating liquor, and he appeals.
    Appeal dismissed.

      T. S. Hardison and D. K.-Fooshee, for plaintiff in error.

      Fred 8. Caldwell, for the State.
   PER CURIAM.

The state has filed a motion to dismiss this appeal on two grounds: First, that this court is without jurisdiction to hear and determine the same, because it is not shown that notice of appeal was served upon the county judge, or the clerk of the county court, or upon the county attorney; and, second, for want of prosecution, because no brief has been filed on the part of plaintiff in error. The motion is well taken on both grounds. The case-made shows no service of notice of appeal upon either the county attorney, county judge, or clerk of the county court. Service of such notice is an indispensable prerequisite to the taking of an appeal, and where such notice is not given this court acquires no jurisdiction of the cause on appeal. Also the petition in error was filed in this court on November 13, 1908, and no brief has been filed in behalf of plaintiff in error to this &.3.J. The motion to dismiss will therefore be sustained. The appeal is dismised, and a mandate is ordered issued to the county court of Choctaw county, directing said court to enforce its judgment herein.


author: PER CURIAM..

text:
      In re G. A. Shaw.
    No. 199.
    Opinion Filed May 21, 1910.
    (109 Pac. 1117.)

      Appeal from District Court, Creer County; G. A. Brown, Judge.

    G. A. Shaw filed in the district court of Greer county an application for writ of habeas corpus, which was denied, and he appeals.
    Appeal dismissed.

      Garrett & Stewart, for petitioner.

      Chas. West, Atty. Gen., and Chas. L. Moore, Asst. Atty. Gen., for the State.
   PER CURIAM..

The state has moved to dismiss this appeal on two grounds: First, that this court is without jurisdiction to hear and determine the same, because it is not shown that notice of appeal was served upon the clerk of the district court and upon the county attorney; and, second, for want of prosecution, because no brief has been filed on the part of plaintiff in error. The motion is well taken on both grounds. No service of notice of appeal upon either the clerk of the district court or the county attorney is shown. Service of such notice is an indispensable prerequisite to the taking of an appeal, and where such notice is not given this court acquires no jurisdiction of the cause on appeal. Also the petition in error was filed in this court on May 18, 1908, and no brief has been filed in behalf of plaintiff in error to this day. The motion to dismiss will therefore be sustained. Appeal dismissed.


text:
    G. McGinnis v. State.
    No. A-132.
    Opinion Filed May 23, 1910
    (109 Pac. 80.)
    APPEAL — Notice. Where no notice of appeal was served and filed as required iby Snyder’s 'St. sec. 6949, the appeal will be dismss-ed.

      Appeal from Coal County Court; B. H. Wells, Judge.

    G-. McGinnis was convicted of a violation of tbe prohibition law, and he appeals.
    Dismissed.

      C. M. Threadgill, for plaintiff in error.

      Fred 8. Caldwell, for the State.
   PER CURIAM.

Plaintiff in error was convicted in the county court of Coal county of a violation of the prohibition law. •The record before us does not contain the judgment. An appeal was attempted to be taken by filing in this court, April 12, 1909, a petition in error with case-made attached.

On March 19, 1910, on behalf of the state, there was filed a motion to dismiss the appeal for the reason that “no notices of appeal have ever been served and filed as provided and required by section 6949, Snyder’s Statutes.” In order to give this court jurisdiction, the notices prescribed by the statute must be served upon the clerk of the court and prosecuting attorney, and proof of services of such notices must be filed with the clerk of this court within the time which an appeal may be taken. That was not done in this ease. The motion to dismiss the appeal must therefore be sustained.

It is therefore ordered that the purported appeal be and the same is hereby dismissed, and the cause remanded to the county court of Coal county, with direction to enforce the judgment and sentence.