text:
    JOE PROCTOR v. STATE.
    No. A-2829.
    Opinion Filed Feb. 20, 1919.
    Rehearing Denied May 24, 1919.
    (180 Pac. 715.)
    1. GAMING — Conducting Gambling House — Sufficiency of Indictment. The indictment in this case held to sufficiently charge a violation of section 2498, Rev. Laws 1910.
    2. GAMING — Sufficiency of Evidence. The evidence in this case carefully considered, and held sufficient to support the verdict and judgment of conviction.

      Appeal from County Court, Jefferson County; Ben F. Saye, Judge.

    Joe Proctor was convicted of conducting a gambling bouse, and he appeals.
    Affirmed.

      Ledrue Guthrie, for plaintiff in error.

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

The plaintiff in error, Joe Proctor, hereinafter designated defendant, was by indictment jointly charged with Fred Adams with violating section 2498, Revised Laws 1910. The indictment was returned by the grand jury of Jefferson county, and, by reason of the same charging a misdemeanor, the case was transferred to the county court of said county. The defendant was tried alone; convicted, and sentenced to pay a fine of $250 and .to be confined in the county jail of Jefferson county for 60 days and until the said fine and costs in said case were paid. To reverse the judgment rendered, he prosecutes this appeal.

The indictment, omitting caption and signature, in this case is as follows:

“In the name and by the authority of the State' of; Oklahoma:

“At the March, 1916, term of the district court of Jefferson county, state of Oklahoma, begun and held at. the city of Waurika, said county, on the 6th day of March, 1916, the- grand jury of said county, good and lawful men legally drawn and summoned according to law to diligently inquire into, and true presentment make of all public offenses against the state of Oklahoma, committed or triable within the said county, upon their said oaths, in the name and by the authority of the state oif Oklahoma* do present and find that in said Jefferson county, and! state of Oklahoma, on the 15th day of December, in the year of our Lord 1915, and prior to the finding of this indictment, the said Joe Proctor and Fred Adams did operate and conduct a gambling house for gambling purposes in the manner and form as follows, to wit: That the said Joe Proctor and Fred Adams, then and there being, did then and there willfully, knowingly, and unlawfully conduct and cause to be conducted a place in the town of Ringling known as the Emma L. Bryan place in Jefferson county, where gambling devices were operated and conducted, in which the said Joe Proctor and Fred Adams, then and there unlawfully conducted and caused to be conducted games of faro, monte, poker, roulette, and other games played with dice, cards, and other gambling devices for money, checks, credit, and other representatives of value, con+rary to the form of the statutes in such cases madtr and provided, and against the peace and dignity of the state.”

The defendant demurred to the indictment on the ground thaf the same did not state facts sufficient to constitute an offense. The court overruled the demurrer, and the defendant did not except.

The undisputed evidence is as follows:

W. P. Harris testified that he knew the place known as Proctor & Adams place in the city of Ringling, and that its reputation was that it was a place for whisky, gambling, and rough-house; that he assisted in taking things away from there when they were in the back yard of that place, and that the things were paraphernalia and things that were used in gambling houses — a table with a slit in it and a table covered with plaid stuff, and chairs and things like that.

J. W. Bidie testified that he was the sheriff of Jefferson county and resided in Waurika; that he knew the defendant; that the defendant and Fred Adams told witness that they conducted the place in question; and that one time he found whisky and gambling paraphernalia in the house,, which Proctor & Adams told witness they conducted.

Emmery Morris testified that he knew the place called “Proctor & Adams House,” and that it was in the town of itingling, and that he had been there when gambling was being conducted; that it was some time during the winter before, about December; that several different kinds of games were being conducted, poker and dice games; that people were standing around playing so thick that witness could hardly see; that there was money there; that he was in the place known as “Proctor & Adams three or four times”; that sometimes there was nothing doirg, and then again you would go in at night and the house would be full, and you could hardly get in; that he knew the place as Proctor & Adams place in Ringling; and that it was a gambling place, and a place to get a drink, and that was the reputation it had.

Pony Carpenter testified that he was acquainted i .'fh the town of Ringling, and that he knew the defendant; that he knew the place of business in Ringling that was known as Proctor & Adams place; that he had been in -¡here, and that he had been in there when gambling was going on when they were betting money; that it was known as Proctor & Adams place.

Bill Grace testified that he lived in Ringling, and that he knew the defendant, and had known him about 18 years: that he knew Fred Adams, and that he knew the place in the town of Ringling known as the Proctor & Adams place; that Proctor and Adams told him it was their place, that he had never seen the defendant in the place but one time; and that when witness went in to raid them, nothing was doing.

Sim Stotts testified that he was the city marshal of Ringling, and he knew the defendant Fred Adams, and that he knew where the place of business in Ringling was.; that he was acquainted with the reputation of the place known as Proctor & Adams place; that they called it the “• oint.”

The foregoing was all the material evidence in the case, and thereupon the defendant requested the court to ins! ruct-the jury to render a verdict of acquittal in favor of defendant, which the court refused to do, and the de-fei dant excepted.

The indictment sufficiently charges a violation of section 2498, Rev. Laws 1910, and the court did not err in overruling the demurrer thereto.

There is only one error assigned and insisted upon by the defendant in his brief, “that the competent evidence’ does not tend to reasonably support the verdict of the jury/’ and therefore all other errors assigned in the petition in error will ■ be regarded as abandoned; no fundamental error appearing in the record.

The uncontradicted evidence is that at the time and place alleged in the indictment a gambling house, known as Proctor & Adams place, was conducted in which games interdicted by section 2498, Revised Laws, were played, and that the said place had the general reputation of being a gambling house, and therefore the only material question to be answered is: Was said gambling house conducted by the defendant? No evidence was offered by the defendant, and in addition to evidence tending indirectly to show that the said gambling house was conducted by the defendant and Adams, there is direct positive evidence of two witnesses that the defendant and Adams admitted to each of said witnesses that the defendant and Adams conducted said gambling house, and hence the court did not err in refusing to direct a verdict of acquittal.

Section 2498 provides:

“Any person who deals, plays or carries on, or opens or causes to be opened, or who conducts, either as owner or employe, whether for hire or not, any game of faro, monte, poker, roulette, craps, or any banking or percentage game played with dice, cards, or any device for money, checks, credit, or any representative of value, is guilty of a misdemeanor.”

“The state may show the defendant’s house had the general reputation of being a gambling house.” Ostendorf v. State, 8 Okla. Cr. 378, 128 Pac. 143.

In the case of Chas. Noll v. State, 10 Okla. Cr. 157, 135 Pac. 287, it is held:

“That, in a prosecution under section 2498, Revised Laws, it is essential, to sustain a conviction, to 'show that prohibited games were played by some person at the accused’s place of business for money, checks, or other representatives of value.”

In Martin v. State, 2 Ala. App. 175, 56 South. 64, it is held:

“The offense denounced by Code 1907, sec. 6985, punishing the keeping or being concerned in keeping a gaming table, may be .committed by one act or by a series of acts, and to show the character of the table it is competent to prove a series or any number of games played thereon, and that the same was kept in a room frequented bi gamblers and in which gaming was done, whether accused was or was not present at all the games.

“Where there was evidence that accused kept a gaming table for gaming, or was interested in keeping the same for gaming, evidence of gambling on the table whether accused was present or absent, was admissible.”

The evidence shows beyond a reasonable doubt that tanking games denounced by said section 2498, Rev. Laws 1910, were played at defendant’s place of business in Ringling for money as alleged in the indictment, and that the said defendant’s place was equipped with gambling paraphernalia and maintained by the defendant for the purpose of conducting games denounced by said section 2498, and it is entirely immaterial, the games being conducted in a place maintained by the defendant, whether the defendant was present or not when the games were played; and the evidence sufficiently supports the verdict rendered.

“The verdict of a jury will not be set aside for want of evidence to sustain it when there is any evidence in the record from which the jury could legitimately draw the conclusion of the defendant’s guilt. Nowlin v. State, 7 Okla. Cr. 27, 115 Pac. 625, 121 Pac. 791.

Finding no prejudicial error in the record, the judgment of the trial court is affirmed.

DOYLE, P. J„ and MATSON, J., concur.


source: Caselaw Access Project

author: DOYLE, P. J.

license: Public Domain

text:
    JOHN ALLEN v. STATE.
    No. A-2841.
    Opinion Filed May 8, 1919.
    Rehearing Denied May 31, 1919.
    (180 Pac. 564.)
    1. APPEAL ANI) ERROR — Change of Venue — Discretion—Reversal. An application for a change of venue is addressed to the sound discretion of the trial court, and, unless it clearly appears that there is an abuse of such discretion, this court will not reverse the judgment for failure of 'the trial court to grant a change of venue.
    2. JURY — Drawing of Additional Names — Open Venire. Under the statute (sections 3692 and 3693, Rev. Laws .1910), it is within the discretion of the trial court to order an additional drawing of names from the jury box, or to direct that, an open venire issue to the sheriff for such number of jurors as may he deemed necessary to be selected from the body of the county.
    3. HOMICIDE — Dying Declaration — Question for Court. It is the province of the court to determine, in the. first instance, the admissibility of declarations offered in evidence as dying declarations.
    4 SAME — Admissibility. Where it is shown that deceased had been advised by the attending physician, and that the. advice was such as to induce in his mind a belief that recovery was impossible and death impending, a declaration made by deceased after he had been so advised is admissible as a dying declaration.
    5. EVIDENCE — Medical Books. Medical books are not admissible as testimony.
    6. HOMICIDE — Homicide in Commission of Robbery — Intent— ‘^Murder.” A homicide perpetrated without any design to effect death by a person engaged in the commission of a robbeiry is. under the ¡statute, “murder,” although the robber did not intend to kill when he fired the fatal shot.

      7. APPEAL AND ERROR — Invited Error — Instructions—Complaint. In a prosecution for murder where erroneous instructions are given at the instance or request »otf the defendant, and being more favorable to the defendant than the law requires, he cannot after- . wards be heard to complain that the giving of the law as requested was error on the part of the trial court.

      Appeal from District Court; Love County; '* W. F. Freeman, Judge.

    John Allen was convicted of manslaughter in the first degree, and he appeals.'
    Affirmed.

      Jas. H. Mathers, for plaintiff in error.

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

This appeal is prosecuted from a conviction had in the district court of Love county in which plaintiff in error, John Allen, was found guilty of manslaughter in the first degree, and his punishment assessed at imprisonment in the penitentiary for. the period of 21 years.

The information jointly charged that in said county on the 28th day of November, 1915, John Allen and Tom Canty, while acting together in the commission of a felony, to wit, joint robbery, did kill and murder one Pete Roland,- by shooting him with a pistol.

The evidence shows: That Sunday afternoon and evening on the date alleged, Pete Roland, the deceased, together with Ott Chambers, Elmer Hensley, Sid -Sloan, Claude Blankenship, and Bill Canty, were playing cards in an open place in the brush about three-quarters of a mile west of the town of Oswalt. That night about 8 o’clock they had two fires burning, when defendant John Allen and Tom Canty stepped from the brush with six-shooters in their hands, and ordered, “Hands up.” Pete Roland started to run, and defendant Allen shot him; took his money from him and dragged him back. They searched those present, taking from them their money and valuables, and then lined them up one .behind the other and marched them away, telling them not to look back or to come back. After marching about 150 yards, and after waiting a few minutes, they returned and picked up Roland and carried him to a nearby house. Two or three of those present testified that they had known the defendant Allen for about ten years, and that he was the man that shot Pete Roland.

Several witnesses testified to meeting defendant Allen and Tom Canty that evening not far from where the shooting occurred.

As a witness in his own behalf, defendant Allen testified that he had lived in Love county 14 years; that on the Sunday Pete Roland was shot he left home about , 1 o’clock and visited one or two neighbors, later met Tom Canty on “he road, and he got on the horse behind him, and they started to Oswalt; that he had been drinking that afternoon with the boys; that Tom- Canty gave'him a drink that made him sick, and on getting to Oswalt he gave him another drink; that his mind was absolutely blank from the time he took the last drink until the next morning ; that he had no recollection of anything that occurred that Sunday night after arriving at Oswalt with Tom Canty; that the whisky he drank was doped.or poisoned; that he and Pete Roland were friends; that early Monday morning he was told that Pete Roland had been shot, and that he was accused of it, and he examined his gun to see if there were any empty shells in it, and found that it had not been fired; that his mind at that time, was cloudy.

Mrs. John Allen ■ testified that her husband returned that Sunday night about 11 o’clock; that she hjaid him making a noise in the yard and went out and called to him, and he did not answer; that he tried to talk, but could not say anything that' she could understand; that he looked crazy and acted crazy, and his eyes were glassy; that he did not know where he was and did not know her; that she bathed his head and finally got him to lie down across the bed with his clothes on; that the next day his mind did not seem to be right.

Bill 'Canty testified that he was a brother of Tom Canty, and was present when Pete Roland was shot; *hat immediately before the shooting defendant John Allen and another man with a handkerchief over his face appeared at tiie poker game; that he did not know the man with the ¡-h ; that he heard the shot, but did not see who fired it, and did not see defendant Allen strike or kick Roland; th.a; he was charged with murder, arrested, and held in jail 38 days.

The first assignment of error is that the court erred in denying defendant’s application for a change of venue. The record shows .that, five days before the trial began, the defendant served notice upon the county attorney that he would make application for a change of venue- on account of the prejudice of the inhabitants of Love county, and his application was supported by a large number cf affidavits.

The state, resisting the application, examined said affiants in open court. Several of said affiants testified they were not sworn to the affidavits signed 'by them, and that no notary public was present when they signed the same. Several stated they- thought they were signing a petition to remove the trial from Love to another county. A few of said affiants could not call to mind the name of any person who said defendant could not get a fair and impartial trial in Love county. Two of said affiants had been convicted of violating the prohibitory liquor laws.

The state then called and examined an equal number of witnesses from different parts of the county to show that there was not in the minds of the inhabitants of Love county such bias or prejudice as would prevent defendant from having a fair and impartial trial therein.

It has been the uniform holding of this court that the granting of a change of venue is, under the statute, a matter resting within the sound discretion of the trial court, and, unless it clearly appears that there is an abuse of such discretion, this court will not reverse the judgment for failure of the trial court to. grant a change of venue. Gentry v. State, 11 Okla. Cr. 355, 146 Pac. 719, and cases cited.

After a careful examination of the testimony taken upon the hearing, which covers more than 200 pages of the transcript, our conclusion is that the trial court was fully warranted in finding that there was no prejudice which would prevent said defendant receiving a fair and impartial trial in Love county. It follows that the court did not err in denying the application for a change of venue.

A challenge in writing was interposed in behalf of the defendant to a panel of additional jurors sutomoned upon an open venire directed to the sheriff, on the ground:

“That the talesmen served and summoned herein were not drawn, served, summoned, and made to appear as required by law, and that passion, prejudice, and unfairness was exhibited in the selection of said jurors, which facts defendant offers proof thereof.”

In support of this challenge, defendant called juror R. Duke, who testified that he lived in Love’s Valley, and the previous day the sheriff telephoned him to meet him at the store; later a deputy sheriff met him there and summoned him as a juror, and then asked to show him where certain persons lived; that he went with the deputy .sheriff to four places where jurors were summoned.

Also W. R. Richards, court clerk, who testified that the names in the jury box had not been exhausted.

The statute authorizes a challénge to the panel when the panel is from persons whose names are not drawn as jurors, on account of any bias of the officer who summoned them, which would be good ground of challenge to a juror. Section 5848, Rev. Laws 1910. If the challenge bt considered as made for bias of the officer, it was properly overruled, because there is. nothing in the record to show that there was any bias, actual or implied, on the part of the officer who summoned the open venire.

The statute provides that:

‘'Additional and other drawing of as many names as the court may order may be had at any such time as the court or judge may order for the completion of a grand or petit jury panel, or for the impaneling of a new grand' or petit jury, during any term of court, if, in the judgment of the court, the same shall be necessary, or, if for any cause, the court, in its discretion, shall' deem other jurors necessary.” Section 3692, Rev. Law’s 1910.

The statute further provides that—

“At any time during the term of any court, after the petit jury has been drawn and summoned in the manner herein provided for, when, for the trial of any. cause, civil ■or criminal, the regular panel of jurors shall appear to be insufficient, the jury may be completed from talesmen, or the court may direct that an open venire he issued to the ■sheriff or other suitable person, for such number of jurors ■as may be deemed necessary, to be selected from the body of the county, or from such portion of the county as the ■court may order: Provided, that no person shall serve as a talesman oftener than once a year.” Section 3693, Rev. Laws 1910.

Under the foregoing provisions of the statute, it is within the discretion of the trial court to order an additional drawing of names from the jury box, or to direct' that an open venire issue to the sheriff for such number of jurors as may be deemed necessary to be selected from the body of the county. It follows that the challenge to the open venire was properly overruled.

Several errors are assigned upon rulings of the court in the admission and rejection of evidence.

^ The' first of which is that the court erred in admitting the testimony of Dr. W. N. Kearney detailing declarations of the deceased, because'they were not made under a sense ■of impending death.

I)r. .W. N. Kearney testified:

. That he resided at Oswalt; had practiced medicine 'for 23 yeárs; was called to attend Pete Roland within an ’.hour- .after he was shot and found him in a condition of "Collapse from a gunshot wound in his left side. That the 'wound was necessarily fatal. That Dr. Looney was with ’him the next day and agreed with him that the wound was necessarily fatal. That, after he and Dr. Looney had 'examined the wound, he explained to deceased the character of his wound, and that there was no possible chance iof recovery. That in the morning of the day Roland died, in answer to his questions, he stated, “Pete, you will have to go,” and Roland asked him: “Do you think you can •keep me alive until my mother comes? She will be here at 2 o’clock.” And lie told him he thought he could. That later Roland stated that the defendant Allen shot him and robbed him of $22; that Allen hit him over the head with a gun and kicked him. That Roland died about 3 p. m. the second day after he was shot.

To render a dying declaration admissible in evidence, it should be made clearly to appear that the declaration was made under n sense of impending death, and that all hope of recovery was gone.- This may be made to appear from what the injured person said, or where, from the nature and extent of his injuries, it is evident that he must have known that he could not survive. It is sufficient if it satisfactorily appears that the declaration was made under a sense of impending death, whether it be directly proven by the express language of the declarant or be inferred from his evident danger, or the opinions of the medical attendants, stated to him, or from other circumstances of the case, such as the length of time elapsing between the making of the declaration and his death.

It is for the court to consider from the evidence whether a declaration was made under circumstances rendering it admissible as a dying declaration, and the credibility to be attached to a dying declaration is a matter for the jury.

The preliminary proof in this case was clearly sufficient to warrant the conclusion of the court that the declaration was made under a sense of impending death, ar d without hope of recovery. The declaration of the deceased was therefore properly admitted in evidence.

The next is that the court erred in refusing to admit in evidence a certain medical authority. It appears that the defendant called as a witness Dr. D. Autry, who testified that “Dr. Clevenger’s Medical Jurisprudence of Insanity” is recognized by the medical profession as an authority on diseases of the mind. Defendant then offered to read in evidence a page from this book. On objection the court held the same to be inadmissible. .

It is sufficient to say that medical books are not admissible as testimony, and the Same was properly excluded.

The trial court, at the request of counsel for the defendant, submitted the issue of murder as defined in Penal Code, subdivision I,. sec. 231B, Rev. Laws 1910 — that homicide is murder, “when penetrated without authority of law and with a premeditatéd design to effect the death of the person killed, or of any other human being,” and the issue of manslaughter in the first degree. In the instructions given the court made no reference whatever to murder as defined by the third subdivision. of section 2313— that homicide is murder “when perpetrated without any design to effect death by a person engaged in the commission of any felony.”

The defendant was not tried for deliberate and. premeditated murder. The information was an accusation of murder committed while engaged in the commission of a felony, and the defendant was tried for killing Pete Rol- and, without a design to effect his death, during the perpetration of a robbery. A homicide which occurs during the perpetration of a robbery is, under the statute, “murder,” although the robber did not intend to kill when he fired the fatal shot. So in this case, upon the undisputed facts, the power to convict of manslaughter in the first degree, which belongs to the jury in cases where the degree depends upon the intent, could not properly ibe exercised, because premeditated design or an intent to kill is not a necessary ingredient of the crime in this kind of murder, and for this reason the instructions given by the court were misleading and inapplicable to the accusation and the nneontroverted facts in evidence in the case.

The record shows that, after the jury had deliberated on their verdict for several hours, they were returned into court and announced that they desired an explanation from the court of instruction numbered 14, which is as. follows:

“(14) If you believe from the evidence that, at the tine of the alleged shooting, the defendant, John Allen, was in such a state of voluntary intoxication that he was incapable of reflection upon the nature and consequences of his act, and that he was incapable to form a design to effect the death of Pete Roland, then it is your duty to acquit the defendant of the charge of murder.”

Whereupon, over defendant’s objection, the court added to said instruction:

“Then you should inquire as to whether or not the defendant is guilty of manslaughter in the first degree.”

The instruction without this modification was given on the request of the defendant. In the case of Cheadle v. Shite, 11 Okla. Cr. 506, 149 Pac. 919, L. R. A. 1915E, 1031, it is said:

“Under our Penal Code, first subdivision, sec. 2313, Rev. Laws 1910, homicide is murder, ‘when perpetrated without authority of law and with a premeditated design to effect the death of the person killed, or of any other human being,’ and evidence of intoxication is admissible to show an absence of the premeditated design to kill, for the purpose of determining whether the offense was murder or manslaughter, and a state of intoxication which will reduce homicide from murder to manslaughter in the first degree must be of such character and extent as to render the defendant incapable of entertaining or forming a design to effect death, and the question is for the jury to determine.”

In the Cheadle Case there was no pretense that the homicide was committed by a person engaged in the commission of a felony, and the doctrine of that case has no application to the case at bar.

The erroneous instructions having been given in compliance with the request of the defendant, and being more favorable to the defendant than the law requires, the errors complained of come within the rule of “invited error.” It is a general rule that when the defendant requests the trial court to give certain instructions to the jury as the law governing his case, which are refused, but which in whole or in part are embraced in the instructions given by the court, he cannot afterwards be heard to complain that the giving of the law as requested was error on the part of the trial court.

After' a very careful examination of the record, we have failed to discover anything whereof the defendant has just right to complain. Under the law and upon the undisputed facts, it would seem that the demands of justice and the protection of society clearly required in this case that the penalty prescribed by law as a punishment foi murder should have been imposed upon the defendant.

However, upon the record before us our duty is performed by an affirmance of the judgment and sentence.

The judgment of the district court of Love county herein is therefore affirmed.

ARMSTRONG and MATSON, JJ., concur.


author: MATSON, J.

text:
    ELWOOD WARD v. STATE.
    No. A-3121.
    Opinion Filed May 31, 1919.
    (181 Pac. 158.)
    APPEAL AND ERROR — Prejudicial Error — Affirmance—Rule of Court. When no counsel appears, and no briefs are filed, the court will examine the pleadings, the instructions of the court, and the exceptions taken thereto, and the judgment and sentence, and, if no prejudicial error appears, will affirm the judgment.

      Appeal from District Court, Washington County; K. B. Boone, Judge.

    Elwood Ward was convicted of the crime of manslaughter, and he appeals.
    Judgment affirmed.

      Charlton & Farrell, for plaintiff in error.

      S. P. Freeling, Atty. Gen., and W. C. Hall, Asst. Atty. Gen., for the State.
   MATSON, J.

This is an appeal from the district court of Washington county, wherein the defendant, Elwood Ward, was convicted of the crime of manslaughter in the first degree, and sentenced to serve a term of 25 years’ imprisonment in the state penitentiary for the killing of one Grover Buoy in the city of Bartlesville on the 27th day of August, 1916.

At the time of the killing, the defendant was a police officer in the city of Bartlesville, and the deceased was a farmer boy about 21 years of age, who had lived in that community all his life. The killing occurred in a restaurant known as Jimmie’s 'Cafe, in the city of Bartles-ville, about 2 o’clock in the morning of Sunday, the 27th day of August, 1916.

The evidence on the part of the state makes out a case of murder, and while the defendant attempted to justify this killing on the ground of self-defense, the evidence of the defendant would only tend to reduce the degree of the offense to manslaughter in the first degree.

This cause has been pending in this court since the 24th day of August, 1917. No brief has been filed in behalf of the defendant, nor was any appearance made at the time the case was submitted in November, 1918. At that time the Attorney General moved the court to affirm the judgment for failure to prosecute the appeal. No response has been made to such motion, and it is apparent that the appeal has been abandoned.

Rule 9 (12 Okla. Cr. vii, 165 Pac. x) of this court provides :

. “When no counsel appears, and no briefs are filed, the court will examine the pleadings, the instructions of the court, and the exceptions taken thereto, and the judgment and sentence, and, if no prejudicial error appears, will affirm the judgment.”

The court has examined the pleadings, instructions, judgment, and sentence, and has in addition thereto read a large part of the evidence. We find no prejudicial error, and, in accordance with rule 9, supra, the judgment of conviction is affirmed.

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


author: PER CURIAM.

text:
    Ned McDaniel v. Brown.
    No. A-2336.
    Opinion Filed May 31, 1919.
    (180 Pac. 156.)
    CLERKS OF COURTS — Failure to Pay Over Fees to County — Misdemeanor — Jurisdiction—Em' ezzlement. Pen. Code (section 2092, Rev. Laws 1910), provides: “If there he in any other chapter of the laws of this state a provision making any specific act criminal and providing the punishment therefor, and there he in this Penal Code any provision or section making the same act a criminal offense or prescribing the punishment therefor, that offense and the punishment thereof shall be governed by the special provisions made in relation thereto, and not by the provisions of this Penal Code.” Held that, in -a prosecution against a district court clerk for failing and refusing to pay fees charged and collected as clerk’s costs into the county treasury, the specific provisions of the fees and salary act (section 3213, Rev. Laws 1910) must govern as against provisions of the Penal Code. Held, further, that when the alleged amount of fees embezzled is $20 or less, the information charges only a misdemeanor, of which the county court has exclusive jurisdiction.
    Application by Ned McDaniel for writ. of prohibition to Hon. G. A. Brown, District Judge of Jackson County.
    Writ awarded.
   PER CURIAM.

This was an application for writ of prohibition, to prohibit the district court of Jackson county and Hon. G. A. Brown, specially assigned to preside over said court, from further proceeding in the trial jf an information wherein petitioner, Ned McDaniel, as clerk of the district court of Jackson county, was charged with the embezzlement of fees alleged to be received by him in the sum of $9.15, as costs, in civil action No. 709 in said district court, entitled Farmers’ Bank of Olustee, Plaintiff, v. Mrs. Annie L. Scott, Defendant, the same being then and there the money and property of, due, payable, and unpaid to, the county of Jackson and the county treasurer of said county.

It is averred in the petition: That the defendant interposed a demurrer to said information on the ground, among others, that said district court had no jurisdiction of the offense charged or attempted to be charged therein, which demurrer was overruled by the court; that thereupon the defendant entered a plea of not guilty, and the case proceeded to trial; that the jury rendered their verdict finding the defendant Ned McDaniel guilty as charged and leaving the punishment to be fixed by the court; that motions for new trial and in arrest of judgment were duly filed, and that the court fixed the time for pronouncing judgment and sentence on the verdict.

It is further averred that upon the record attached and the undisputed facts it appears that the district court of Jackson county' wag and is without jurisdiction to try said information, and, unless prohibited by a writ of prohibition from this court from proceeding further in said case, and from pronouncing judgment and sentence against this petitioner, he will suffer irreparable injury thereby; that petitioner is wholly without means and will be unable by reason of his poverty to secure and pay for a transcript and case-made for appeal to this court from said judgment and that petitioner has no other adequate remedy to secure his rights.

In the case of Warner v. Mathews, District Judge, 11 Okla. Cr. 122, 143 Pac. 516, the precise question here presented was considered and determined. It was therein held:

“The Penal Code provides (Rev. Laws 1910, sec. 2092) : ‘If there be in any other chapter of the laws of this state a provision making any specific act criminal and providing the punishment therefor, and there be in this Penal Code any provision or section making the same act a criminal offense, or prescribing the punishment therefor, that offense and the punishment thereof shall he governed by the special provisions made in relation thereto, and not by the provisions of this Penal Code.’ Held that, in a prosecution against a district court clerk for failing and refusing to pay fees charged and collected as clerk’s costs into the county terasury, the specific provision of the fees and salaries act (section 3213, Rev. Laws 1910) must govern as against' provisions of the Penal Code. Held, further, that when the alleged amount of fees embezzled is $20 or less, the information charges only a misdemeanor, of which 'the county court has exclusive jurisdiction.”

It is our opinion that, under the provisions of the F onal Code quoted in the opinion in the case of Warner v. Mathews, District Judge, the offense charged, in the information in this case is a misdemeanor. It follows that the district court of Jackson county is without jurisdiction to render judgment on the verdict rendered in said cause.

It is therefore ordered that the writ issue prohibiting the respondent as prayed for in the petition.


text:
    GEORGE CUNNINGHAM v. STATE.
    No. A-3012.
    Opinion Filed June 3, 1919.
    (181 Pac. 317.)
    BURGLARS — Burglary in the First Degree — Information. For information held insufficient to charge the «rime of burglary in the first degree, see body of opinion.

      Appeal from District Court, Oklahoma County; John W. Hay son, Judge.

      George Cunningham was convicted of burglary in the first degree and sentenced to serve a term of seven years in the state penitentiary, and he appeals.
    Reversed and remanded, with instructions.

      Loyal J. Miller, for plaintiff in error.

      S. P. Freeling, Atty. Gen., and W. C. Hall, Asst. Atty. Gen., for the State.
   MATSON, J.

The Attorney General has filed the following confession of error in this case:

“On the 27th day of December, 1916, in the district court of Oklahoma county, state of Oklahoma, plaintiff in error was convicted oif the crime of burglary in the first degree, and sentenced to serve a term of seven years in the state penitentiary. On the 22d day of May, 1917, he lodged in this court his appeal from said judgment of conviction.

“Plaintiff in error was convicted upon an information which reads in words and' figures as follows, to wit:

“ ‘In the District Court in and for Oklahoma County, State of Oklahoma. The State of Oklahoma, Plaintiff, v. George Cunningham, Floyd Monroe, Knox Atkinson, Defendants. Information. (Filed in District Court, Oklahoma County, Oklahoma, May 22, 1917. James ■ Beaty, Court Clerk, by Cliff Myers, Deputy.)

“ ‘In the name and by the authority of the state of Oklahoma comes now John Embry, the duly qualified and acting county attorney in and for Oklahoma county, state of Oklahoma, and on his official oath gives the district court in and for said Oklahoma county and state of Oklahoma to know and be informed that heretofore, to wit, on the 2d day of July, A. D. 1916, in Oklahoma county, state of Oklahoma, George Cunningham, Floyd Monroe, Knox Atkinson, whose more full and correct names are to your informant unknown, then and there being, did then and there willfully, unlawfully, and feloniously commit the crime of burglary in manner and form as follows, to wit: The said defendants George Cunningham, Floyd Monroe, end Knox Atkinson, then and there being, did then and there in the nighttime break and enter a certain building, to wit, a building located at No. 1311 North Barnes street' in Oklahoma City, Oklahoma county, state of Oklahoma, then and there occupied by Mrs. Ollie Edwards and her two children as her permanent dwelling; that the said Mrs. Ollie Edwards and her said children were in the building at the time of the offense herein alleged; that the said Mrs. Ollie Edwards then and there had in her possession and then and there owned and held certain personal property consisting of jewels, jewelry, and coins, all of the value of about $800 good and lawful money of the United States; that the said breaking and entering of said building as aforesaid was accomplished by the- said defendants, George Cunningham, Floyd Monroe, and Knox Atkinson, by breaking and unfastening a screen and window, the same being a part of said dwelling house, and after so having broken the said window and unfastening said screen window then and there entering through said open window, all of said acts of the said defendants, George. Cunningham, Floyd Monroe, and Knox Atkinson, being contrary to the form of the statutes in such cases made and provided and against the peace and dignity of the state of Oklahoma. John Embry, County Attorney, Oklahoma County, by John Du Marrs, Assistant County Attorney.’

“A demurrer to this information ;was duly filed and overruled by the court. The information fails to charge that defendant broke into and entered the building with the ‘intent to commit some crime.’ The information alleges the naked breaking into the building without alleging the breaking into said building with any intent to commit a crime, or that even any crime, larceny, or some other offense, was committed.

“In view of the fact that this information was challenged by a demurrer, it is our opinion that the information upon which plaintiff in error was convicted is fatally do ■fective, and that the judgment of the lower court will necessarily have to be reversed.”

Burglary in the first degree, of which crime the defendant was convicted, is defined in section 2611, Rev. Laws 1910, as follows:

“Any person who breaks into and enters in the nighttime the dwelling house of another, in which there is at the time some human being, with intent to commit some crime therein, either:

“First. By forcibly bursting or breaking the wall, or an outer door, window, or shutter of a window of such house or the lock or bolts of such door, or the fastening of such window or shutter, or,

“Second. By breaking in any other manner, being armed with a dangerous weapon or being assisted or aided by one or more confederates then actually present; or,

“Third. By unlocking an outer door by means of false keys or by picking the lock thereof, or !by lifting a latch or opening a window, is guilty of burglary in the first degree.”

One of the material ingredients of the offense is that the breaking and entering must have been done with intent to commit some crime in the dwelling house. There is no allegation in the information of an intent to commit some crime, neither does the information allege that a lar-ency was committed by said defendants within the dwelling house. Had such an allegation been contained in the information, the inference might have been drawn that the breaking was with intent to steal, but the information above set forth is wholly deficient in that it fails entirely to directly allege any intent to commit some crime or to allege facts from which the inference would necessarily arise that the breaking was with intent to commit some crime.

For these reasons, we think that the confession of error of the Attorney General is well taken, and the cause is reversed and remanded, with instructions to the trial court for further proceedings not inconsistent with this opinion.

Mandate forthwith.

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


text:
    MORRIS BROWN v. STATE.
    No. A-2967.
    Opinion Filed June 9, 1919.
    (181 Pac. 318.)
    TRIAL — Argument—Comment on Defendant’s Failure to Testify. Code Or. Proc. see. 5881. Rev. Laws 1910, prohibits any comment by a prosecuting' attorney in a criminal case on the failure of the defendant to testify, and such comment constitutes reversible error, even though it be made in disclaiming any intention of referring to the failure of the defendant to testify in bis own behalf.

      Appeal from Superior Court, Muskogee County; H. C. Thurman, Judge.

    Morris Brown was convicted of a violation of the prohibitory liquor law, and he appeals.
    Reversed, and remanded for a new trial.

      P. A. Gavin, McAdams & Haskell, and J. Fentress Wilson, for plaintiff in error.
    S'. P. Freeling, Atty. Gen., and W. C. Hall, Asst. Atty. Gen., for the State.
   DOYLE, P. J.

The plaintiff in error, Morris Brown, was by information filed in the county court otf Muskogee county charged with having unlawful, possession of 21 quarts of whisky with intent to sell the same. The cáse was transferred to the superior court of said county, where upon trial he was convicted and sentenced to four months’ imprisonment in the county jail and to pay a fine of $250. To reverse the judgment rendered, he prosecutes this appeal.

The defendant objected to the jurisdiction of the court to proceed with the trial of the case upon the ground that the case had not been transferred from said county court to the superior court in the manner provided by law. The objection was overruled and exception allowed.

The evidence shows or tends to show that on the 4th day of June 1916, the defendant purchased a drug store in the city of Muskogee known as the Indiana drug store; that said drug store had the reputation of being a place where intoxicating liquors were kept and sold; that on the 10th day of June, 1916, said drug store was searched by officers in the execution of a search warrant,'and 21 quart bottles of whisky found therein; that the defendant was not in the store at the time said whisky was found, the store being in charge of a clerk who, two hours previous to the search, had been employed by the defendant. There was no evidence of any sale of intoxicating liquor having been made by the defendant.

Upon the conclusion of the evidence the defendant moved the court to direct the jury to return a verdict of acquittal. The motion was denied and exception allowed.

In the view we have taken of the disposition necessary to be made of this case it is neither important nor necessary to* consider more than one of the various questions presented in the record and brief. It is insisted that the court erred in refusing to grant a new trial because the ■county attorney in his argument to the jury commented on the failure of the defendant to testify as a witness in' his own behalf.

It appears from the record that in the course of his address to the jury the county attorney made some statements which counsel for the defendant objected to as improper. The record is as follows:

“Counsel for the defendant interrupted the county attorney and objected to his remarks as follows: Since the defendant has offered no evidence, there is no conflict in the testimony, and the defendant excepts to the argument of counsel for the state.

“County Attorney: I desire now to withdraw the statement.

“Counsel for Defendant: I now move the court to discharge the jury and order a new trial.

“Count}’’ Attorney: I did not say that the j ury ought to consider the fact that the defendant did not take the stand.

“Whereupon the court overruled the motion to discharge the jury and order a new trial and allowed exceptions.”

■Our Code of Criminal Procedure (section 5881, Revi Laws 1910) provides:

“In the trial of all indictments, informations, complaints and other proceedings against persons charged with the commission’ of crime, offenses or misdemeanor before any court or committing magistrate in this state, the person charged shall at his own request, but not otherwise, be a competent witness, and his failure to make such request shall not create any presumption .against him nor be mentioned on the trial; if ■ commented upon by counsel, it shall be ground for a new trial.”

This statutory provision is mandatory, and when the defendant does not elect to testify as a witness in his .own behalf, and the prosecuting attorney in his argument tp the jury comments on the failure of the defendant to testify as a witness, such comments constitute reversible error. Wilson v. Territory, 9 Okla. 331, 60 Pac. 112; Sturgis v. State, 2 Okla. Cr. 362, 102 Pac. 57; Brown v. State, 3 Okla. Cr. 442, 106 Pac. 808; Nowlin v. State, 7 Okla. Cr. 27, 115 Pac. 625, 121 Pac. 791.

In the case of Weinberger v. State, 8 Okla. Cr. 441, 128 Pac. 160, it is said:

“The statute is in accordance with the constitutional guaranty that ‘no person shall be compelled to give evidence which will tend to incriminate him, except as in this Constitution specifically provided.’ The clear intent of the statute is that the jury in determining their verdict shall entirely exclude from their consideration the fact that the defendant did not elect to testify, and any reference by the prosecuting attorney in his address to the jury to the fact that the defendant did not testify constitutes misconduct, and, under the terms of the statute, the trial court has no discretion, but must grant a new trial. Every person accused of crime is entitled to a fair trial under the forms of law before he may be convicted.”

We are inclined to think that the proper procedure for the county attorney, if he desired to discuss the effect of Ms remarks, would have been to ask the court to have the jury retire before discussing the objections made to the same. As it appears from the record, the effect of his remarks in disclaiming any intention of referring to the failure of the defendant to testify was to call to the attention of the jury the fact that the defendant did not elect to testify as a witness in' his own behalf. For this reason, the judgment must be reversed, and the cause remanded f or a new trial.

ARMSTRONG and MATSON, JJ., concur.


text:
      Ex parte M. NICHOLS.
    No. A-2720.
    Opinion Filed June 14, 1919.
    (181 Pac. 518.)
    CONTEMPT — “Indirect Contempt” — Procedure. Any willful disobedience of any process or order lawfully issued or made by any court in this state, not committed in the immediate view and presence of the court, is an indirect contempt of court. In such eases, the con+emnor must be proceeded against by written accusation, and upon demand shall be granted a trial by jury.

      Appeal from District Court, Wagoner County; , Rt P. de Graffenreid, Judge.

    Bob Wagner, Sheriff of Wagoner County, Oklahoma, was found guilty of direct contempt of court by willfully disobeying the court’s order to produce the body of one M. Nichols before the court, in compliance with a writ of habeas corpus obtained by Nichols, and sentenced to pay a fine of $150, and he appeals.
    Judgment reversed and respondent discharged.

      Robert F. Blair, for plaintiff in error.

      R. McMillan, Asst. Atty. Gen., and J. Berry King (J. S. Dickey, Jr., of counsel), for defendant in error.
   PER CURIAM.

Bob Wagner, sheriff of Wagoner county, Okla., was fined $150 for direct contempt of the' district court of Wagoner county, consisting in his willful disobedience of an order of said court to produce the body of one M. Nichols before said court on a certain date, in compliance with a writ of habeas corpus issued by the clerk of said court, by direction of the judge of said court given over the telephone, but after said judge had been informed of the nature of the application and the contents thereof, by hearing the petition read to him over the telephone, and thereby determining that said writ should issue. Numerous questions are involved by said appeal, but, in view of the disposition made hereof by the court, it is only necessary to consider one proposition of law.

The respondent, Bob Wagner, was summarily proceeded against and fined for direct contempt of court, without a written accusation having been preferred against him, and without a trial by jury, although a jury trial was demanded by him. It is contended in his behalf that this is a case, if a case of contempt at all, of indirect contempt, and that the court erred in proceeding against him summarily without a written accusation, and in denying him a trial by jury.

Section 25, article 2, of the Constitution, provides:

“The Legislature shall pass laws defining contempts and- regulating the proceedings and punishment in matters of contempt: Provided, that any person accused of violating or disobeying, when not in the presence or hearing of the court, or judge sitting as such, any order of injunction, or restraint, made or entered by any court or judge of the state shall, before penalty or punishment is imposed, be entitled to a trial by jury as to the guilt or innocence of the accused. In no case shall a penalty or punishment be imposed for contempt, until an opportunity to be heard is given.”

Section 2277, Rev. Laws 1910, provides:

“Contempts of court shall be divided into direct and indirect contempts. Direct contempts shall consist of disorderly or insolent behavior committed during the session of the court and in its immediate view and presence, and of the unlawful and willful refusal of any person to be sworn as a witness, and the refusal to answer any legal or -proper question; and any breach of the peace, noise or disturbance so near to it as to interrupt its proceedings, shall be deemed direct contempt of court, and may be summarily punished as hereinafter provided for. Indirect contempts of court shall consist of willful disobedience of any process or order lawfully issued or made by court; resistance willfully offered by any person to the execution, of a lawful order or process of a court.”

Section 2279, Id., provides:

“In all cases of indirect contempt the party charged with contempt shall be notified in writing of the accusation and have a reasonable time for defense; and the party so charged shall, upon demand, have a trial by jury.”

In this proceeding, evidence was heard as to the power of the sheriff at the time of and subsequent to, the service-of the writ of habeas corpus upon him, to produce the body of the petitioner in court as required by the writ. This is not a case where the court had knowledge of the power of the sheriff to produce the body of the prisoner, but it was necessary for the court to hear evidence before a determination of that fact could be ascertained. In no sense, then, could this be considered a contempt committed in the immediate view and presence of the court. Under the definition of direct and indirect contempts of court contained in section 2277, supra, if the sheriff was guilty of contempt in this instance, it was of an indirect contempt of court, and under the 'Constitution and statutes aforesaid, before being proceeded against, there should have been ap accusation in. writing filed against him, and upon demand he should have been granted a trial by jury. The failure to proceed against him according to law was erroneous, and the judgment rendered is null and void and the plaintiff in error is entitled to a reversal of the judgment and to be discharged.

For the reasons stated, the judgment is reversed, and the respondent (plaintiff in error) is ordered discharged.


text:
    JOE RICHARDS v. STATE.
    No. A-3200.
    Opinion Filed June 17, 1919.
    (181 Pac. 520.)
    1. APPEAL AND ERROR — Time in Misdemeanor Cases — Record or , Case-Made — Dismissal. Procedure Criminal (section '5991, Rev. Laws 1910), provides that: “In misdemeanor cases the appeal must he taken within sixty days after the judgment is rendered: Provided, however, that the trial court or judge may, for good cause shown, extend the time in which such appeal may be taken not exceeding sixty days.’’ Held that, when an appeal in a misdemeanor case is not taken within the 60 days prescribed by the statute, the record or case-made must affirmatively show that the trial court, or judge thereof, for good cause shown, extended the time; otherwise this court is without jurisdiction to review the judgment, and such appeal will be dismissed.
    2. APPEAL AND ERROR — Case-Made—Filing. Under Rev. Laws 1910, sec. 5242, it is necessary that, the case-made be iiled with the papers in the case in the court below, and. when that is not done, such case-made will be stricken from the flies.

      Appeal from County Court, Seminole County; D. G. Hart, Judge.

    Joe Richards was convicted of a violation oif the prohibitory law, and he appeals.
    Appeal dismissed.

      M. A. Kennamer, for plaintiff in error.

      S. P. Freeling, Atty. Gen., and W. C. Hall, Asst. Atty. Gen., for the State.
   DOYLE, P. J.

Plaintiff in error, Joe Richards, was convicted in the county court of Seminole county on a charge that he did have in his possession one quart of alcohol with the unlawful intent to sell the same, and his punishment was fixed at six months’ confinement in the county jail and a fine of $250. From the judgment rendered on the verdict, he appeals.

The Attorney General has filed a motion to dismiss the appeal for the following reasons:

First. That the same was not filed in this court within the time provided by law.

Second. The case-made was not filed in the court below, and therefore this court is without jurisdiction of the case.

It appears from the record that the judgment in this case was rendered on the 31st day of July, 1917. The petition in error and case-made was filed in this court on November 14, 1917, 106 days after the rendition of the judgment and 46 days after the statutory time for filing the appeal had expired. The case-made, contains no -order extending the statutory time of 60 days for filing of appeal.

Our Procedure Criminal provides:

“In misdemeanor cases the appeal must be taken within sixty days after the judgment is rendered: Provided, however, that the trial court dr judge may, for good cause shown, extend the time in which such appeal may be taken not exceeding sixty days.” Section 5991, Rev. Laws 1910..

It is the uniform holding of this court that, when an appeal in a misdemeanor case is not taken within the 60 days prescribed by the statute, the record or case-made must affirmatively show that the trial court or judge thereof extended the time; otherwise this court is without jurisdiction to review the judgment, and such appeal will be dismissed. Gunter v. State, 13 Okla. Cr. 83, 162 Pac. 231.

It also appears that the case-made was not filed in the court below as required by section 5242, Rev. Laws 1910. Under the statute it is necessary for the case-made to be filed with the papérs in the case in the court below. When this is not done, such case-made will be stricken from the files. See Johnson v. State, 5 Okla. Cr. 577, 114 Pac. 339.

It therefore follows that the motion of the Attorney General should be sustained.

It is so ordered, and the purported appeal herein is dismissed, and the cause remanded.

ARMSTRONG and MATSON, JJ., concur.


text:
    NATE HOLLY v. STATE.
    No. A-3192.
    Opinion Filed June 17, 1919.
    (181 Pac. 518.)
    APPEAL AND ERROR — Extension of Time for Filing Appeal — Statute. An order made by a trial court extending tbe time within which to make and serve a case-made does not automatically extend the time within which to file the appeal. All such orders should cover both the time within which to make and serve case-made and the time within which to file the appeal, as provided in sections 5991 and 6007, Rev. Laws 1910. Both these sections must be complied with.
    (Syllabus by the Court.)

      .Appeal from County Court, Kioiva County; ' J. L. Carpenter, Judge.

    Nate Holly was convicted of a violation of the prohibitory liquor law, and he appeals.
    Appeal dismissed, and cause remanded, with directions.

      Thos. W. Conner, and J. R. Hunter, for plaintiff in ■error.

      S. P. Freeling, Atty. Gen., and W. C. Hall, Asst. Atty. Gen., for the State.
   PER CURIAM.

Plaintiff in error, Nate Holly, was convicted in the county court of Ottawa county on a charge that he did sell one-half pint of whisky to one J. T. Brown, and in accordance with the verdict of the jury was sentenced to be confined for 30 days in the omm+.v fail and to pay a fine of $50. On September 10, 1917, judgment was rendered on the verdict. On November 12th an appeal was attempted to be perfected by filing in this court .on November 12, 1917, a petition in error with case-made.

The Attorney General has filed a motion to dismiss the appeal on the ground that the case-made contains no order extending the time beyond 60 days for filing an appeal in this court, citing section 5991, Rev. Laws 1910; Stumpf v. State, 6 Okla. Cr. 159, 117 Pac. 648; Hamlin v. State, 12 Okla. Cr. 321, 155 Pac. 904; Rhodes v. State, 12 Okla. Cr. 86, 162 Pac. 230; Gunter v. State, 13 Okla. Cr. 83, 162 Pac. 231.

In Pinchback v. State, 14 Okla. Cr. 302, 170 Pac. 714, this court held:

“An order made by a trial court extending the time within which to make and serve a case-made does not automatically extend the time, within which to file the appeal. All such orders should cover both the time within which to make and serve case-made and the time within which to file the appeal, as provided in sections 5991 and 6007, Rev. Laws 1910. Both these sections must be complied with.”

It therefore follows that the motion of the Attorney General to dismiss the appeal should be sustained. It is so ordered, and the purported appeal herein is dismissed, and the cause remanded to the trial court, with direction to enforce its judgment and sentence.


author: ARMSTRONG, J.

text:
    W. D. JANUARY v. STATE.
    No. A-2838.
    Opinion Filed June 17, 1919.
    (181 Pac. 514.)

      1. HOMICIDE — Murder—Information. The information in this case held to sufficiently charge the crime of murder.
    2. JURY — Drawing and Selecting Jurors — Quashing of Venire. The law governing the selection of jurors and in drawing juries is directory, and a substantial compliance therewith is sufficient. To authorize the quashing of a venire, the defendant must show irregularities in connection therewith which are reasonably calculated to deprive him of a substantial right.
    3. HOMICIDE — Corpus Delicti — Proof. Where expert evidence is not introduced to show the cause of death, and the undisputed evidence shows that, the defendant shot the deceased three times in his body while the deceased was sitting in a buggy, from which he immediately jumped, took a step or two, fell upon the ground, and expired, it is sufficient to establish the corpus delicti as charged in the information.
    4. TRIAL — Instructions—Sufficiency. Instructions must lit' considered as a whole, and when so considered, if they correctly charge the law, they are .sufficient.
    5. APPEAL AND ERROR — Trial—Comment on Defendant’s Personal Appearance — Objection. It is improper for a prosecuting attorney, when the defendant is not a witness in the case, to adversely comment upon the personal appearance of such defendant, but in order to have such comments reviewed on appeal they must be timely objected to and the court requested to direct the jury not to consider them.
    6. HOMICIDE — Defenses—“Unwritten Law.” The so-called unwritten law, “the right to avenge wrongs done a female member of a defendant’s family by killing the wrongdoer,” does not exist in this state.

      7. PARDON — Appeal—Mitigating Circumstances — Executive Clemency. This court is governed entirely by the law as applied to the record, and where the record discloses the fact that a conviction resulted in a trial which was conducted in the lower court free from error, and there is ample proof to support the verdict of the jury and judgment of the court, which imposed the minimum punishment provided by law, for mitigating circumstances, if any, entitling the wrongdoer to relief from the results of his crime, relief must be sought, through executive clemency.

      Appeal from District Court, Cleveland County; F. B. Swank, Judge.

    W. D. January was convicted of murder, his motion for new trial was overruled, and he appeals.
    Affirmed.

      B. F. Williams, J. E. Luttrell, and J. A. Cowen, for plaintiff in error.

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

The plaintiff in error, W. D. January, hereinafter called defendant, was informed against for the murder of Milton Keck, convicted, and sentenced to imprisonment in the penitentiary at hard labor 'for the term of his natural life. To reverse the judgment rendered, he prosecutes this appeal.

The charging part of the information is as follows:

“That on the 14th day of January, 1916, in Cleveland county, state of Oklahoma, W. D. January, late of said county and within the jurisdiction of this court, did unlawfully, wilfully and intentionally, maliciously and fe-loniously, and without authority of law, and with a premeditated design to effect the death of one Milton Keck, in and upon the body of said Milton Keck made a violent assault and battery, and with a certain and deadly weapon, to wit, a pistol, then and there had and held in the hands of him, the said W. D. January, shoot him, the said Milton Keck, and thereby inflicted three mortal wounds upon the body of him, the said Milton Keck, by him, the said W. D. January, as aforesaid. He, the said Milton Keck, did then and there immediately die, as was intended by him, the said W. D. January, he should, contrary to the statute in such cases made and provided, and against the peace and dignity of the state of Oklahoma.”

The defendant demurred to the information upon the ground “that said information does not state facts sufficient to constitute a public offense against the laws of the state of Oklahoma.”

The court overruled the demurrer to the information, and the defendant excepted. Thereupon the defendant filed a motion to quash the jury panel and introduced a volume of evidence, which we deem unnecessary to recite, in support of such motion. The court overruled said motion, and the defendant excepted.

The material evidence, which is not disputed, shows that the deceased, Milton Keck, was about 19 years of age, a man in size and weighing about 150 pounds; that for some time he had kept company with a daughter of the defendant, became engaged to marry her, and under promise of marriage seduced her, and she became pregnant, and upon being notified 'by Keck that he would not marry her, on December 17, 1915, attempted suicide by taking carbolic acid; her life was saved, and on the 22d day of December, 1915, she miscarried; all of which said facts were well known to her father, the defendant, prior to the time Keck was shot; that the 14th day of January, 1916, was a very cold day, the ground being covered with ice, and on the morning of said day the defendant walked to Moore, a town in the vicinity of the defendant’s home, and there met Hetzel Drake; that Drake accompanied the defendant home, and while so walking, and prior to reaching the defendant’s home, the defendant and Drake met the deceased traveling in a single buggy; that, he had gloves on and had a lap robe wrapped about his legs; that the buggy stopped and the defendant asked the deceased if he was Milton Keck, and Keck answered that he was; that the defendant approached to within about six feet of the deceased and shot him three times with a pistol; that the deceased jumped out of the buggy carrying the Jap robe with him; that just after the first shot was fired Keck said, “Oh, God damn you,” and just after that the defendant said, “You have ruined my family;” that when Keck jumped out of the buggy he took one or two steps and fell on his left side on the frozen ground and died; that no shot was fired after Keck was out of the ibuggy; Keck was driving very slow with his hands under the lap rope; that after the shooting was over the defendant went over and looked at Keck and said, “I believe he is dead,” and the defendant and Drake then walked on to Mr. Emory’s; that nothing was seen in the buggy except a milk can; that no weapon was seen except the pistol that the defendant used; that on arrival at Mr. Elmory’s the defendant called him out and told him.there was a dead man in the road up there and he wanted him (Emory) to notify the authorities; that the defendant and Drake then walked on to the defendant’s home, ate dinner, and the defendant had a team hitched up and he and Drake came on to Norman and he had a conversation with a deputy sheriff and surrendered.

The clothing worn by the deceased at the time of his death was, against the objection and exception of the defendant, admitted in evidence.

The defendant pleaded not guilty by reason of self-defense and insanity, and extensive testimony of experts and others was offered in support of and against the plea of insanity.

The defendant excepted to the giving of the fourth and twelfth paragraphs of instructions given, which said instructions are as follows:

“(4) You are further instructed that the presumption of innocence remains with the defendant, and is thrown around him for his protection up to the moment when the killing is proved or admitted. When the killing is proved or admitted, it then devolves upon the defendant to show any circumstances of mitigation to excuse or justify it by some proof strong enough to create in the minds of the jury a reasonable doubt of the defendant’s guilt of the offense charged, unless the proof upon the part of the state shows the defendant was justified or' excusable.” (Excepted to by the defendant and exception allowed.)

• “(12) The law gives to every person the right to fight in his self-defense to protect himself from the unlawful attacks of his adversary, and if necessary to save his life or to prevent great bodily injury he may take the life of his assailant, and is not required to desist or cease from the use of force until his adversary has entirely abandoned the conflict or has been disabled to such an extent that further force is unnecessary on the part of the person inflicting the injury.

“The law of self-defense is given a person for his protection, and it cannot be pleaded as a defense by one who himself is the aggressor, or who enters voluntarily into a difficulty armed with a deadly weapon, no matter in how much danger he may be placed in the" course of the difficulty, nor how imminent it may become.

“In this connection you are further instructed that if the defendant, W. D. January, armed himself' with a deadly weapon for the purpose of having a difficulty with the said Milton Keck, and having reason to believe that it would or might result in death or serious bodily harm to defendant or said Milton Keek, or if said defendant sought to take the law into his own hands and kill said Milton Keck, then the defendant cannot plead self-defense in this case.” (Excepted to by defendant and'exception allowed.)'

The defendant also excepted.to parts of paragraphs 6, 14, 15, and 16 of instructions given, which said parts complained of are as follows :

No. 6: “You are instructed that a design to effect death is inferred from the killing,” etc.

No. 14: “If from all the evidence in the -case there is a reasonable doubt in your minds as to the sanity of the defendant when he killed Milton Keck,” etc.

No. 15: “If-there is a reasonable doubt in your minds that the brain of the defendant, W. D. January, at the time he killed said Milton Keck,” etc.

No. 16: “At the time he killed said Milton Keck,” etc.

There were several requested instructions which were refused and their refusal excepted to, which we do not think essential to set out. The defendant moved for a new trial, which was overruled, and exceptions saved.

The defendant insists that the court committed prejudicial error in overruling the demurrer to the indictment. With this contention we cannot agree. The information contains every averment essential to charge the crime of murder in plain, concise, and intelligent language, and informed the defendant precisely what he must be prepared to meet, was sufficient, and the court did not err in overruling the demurrer thereto. Teague v. State, 13 Okla. Cr. 270, 163 Pac. 954.

“An indictment is sufficient if the offense charged therein is clearly set forth in ordinary and concise language, without repetition, and in such manner as to enable a person of common understanding to know what is intended thereby.” Starr v. State, 9 Okla. Cr. 210, 131 Pac. 542.

In Deen v. State, 7 Okla. Cr. 150, 122 Pac. 341, Judge Doyle, speaking for the court, said:

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

A most careful reading and consideration of the evidence fails to convince us that the contention otf the defendant “that legal evidence was excluded or that illegal evidence was admitted” to the prejudice of the defendant, is well founded.

We do not think that the extraordinary probing by the defendant as to appointment of and action of the jury commissioners in drawing the panel against which the motion to quash was directed disclosed, any irregularity which resulted in depriving the defendant of any substantial right, or was reasonably calculated to do so. The statute governing the appointment of the jury commissioners and their action is merely directory, and a substantial compliance with the statute is sufficient. Section 3701, Revised Laws 1910; Wadsworth v. State, 9 Okla. Cr. 84, 130 Pac. 808. The court did not err in overruling the motion to quash the jury panel.

It is insisted that the corpus delicti was .not proven beyond a reasonable doubt. With this insistence we cannot agree.

That the defendant shot. the. deceased as alleged in the: information is not only conclusively shown by the evidence,, but it is álso shown that the defendant admitted the shooting, and that the deceased, after the last three shots were* fired, jumped. out of the buggy in which he was seated,, took one or two steps, fell on the frozen ground, and expired almost immediately. The location of the bullets which' entered the body of the deceased was shown, and was of the character to produce death. Certainly, notwithstanding no expert testimony was introduced as to the cause of; death, there was sufficient evidence to show beyond a reasonable doubt that, the deceased came to his death at the' hands of the defendant by shooting, and we think that the' suggestion that the deceased may have come to his death by falling from the buggy upon the frozen ground is ut-„ terly untenable.

The defendant complains that the evidence fully sustains the plea of insanity, and that the defendant should have been found not guilty on that ground. The plea of' insanity presented an issue of fact entirely for the consideration and determination of the jury, and there being evidence of the sanity of the defendant at the time of the* shooting, we are powerless to set aside the finding of the jury; there being necessarily included in their finding of guilty that the defendant was sane at the time of the* killing.

The clothing worn by the deceased at the time he was: shot was properly admitted in evidence. Morris v. State, 6 Okla. Cr. 29, 115 Pac. 1030; Saunders v. State, 4 Okla. Cr. 264, 111 Pac. 965, Ann. Cas. 1912B, 766.

Instructions must be considered as a whole, and certainly parts of paragraphs of instructions cannot be intelligently considered, and when this is done we are unable* to see that paragraphs 4 and 12 of the instructions are not fair statements of the law, or that, paragraphs 6, 14, 15, and 16 of the instructions complained of invade the province of the jury. The cause of death not being an issue of fact in the case, the question was, Did the defendant .act in self-defense or was he insane at the time of the killing? and the court might have properly so instructed the jury. Again, the cause of the death of the deceased is conceded by the defendant. Hence it cannot be said that the paragraphs and parts of paragraphs of the instructions complained of constituted fundamental error.

We have carefully considered the requested instructions refused, and are of the opinion that the court did not err in refusing to give either one of the requested instructions.

Under the holding of this court in Corliss v. State, 12 Okla. Cr. 526, 159 Pac. 1015, cited by the defendant, a technical error was probably committed in the admission of the rebuttal testimony complained of. If error was thereby committed, it was not such error as to prejudice any material right of the defendant, and therefore would not -entitle him to a reversal of the judgment.

It is finally complained that the county attorney was guilty of misconduct prejudicial to the defendant in his argument to the jury .by adversely commenting upon the personal appearance of the defendant; he not being a witness in the case. We do not think that the remarks complained of were within the realm of legitimate argument, but the record does not disclose that the remarks were excepted to or that the court was requested to instruct the jury to disregard them. Hence the question is not properly here for review.

The unpardonable wrong done the defendant’s daughter by the deceased does not constitute a defense to the crime for which the defendant was convicted. The so-called unwritten law referred to in the brief of counsel for the defendant — that is, “the right to avenge a wrong done a female member of one’s family by killing the wrongdoer” —does not exist in this jurisdiction.

Neither do the courts of this state possess the pardoning power. If the due execution of the law has worked a result entitling the defendant to relief on account of the palliating circumstances in this case,, such relief can only be had by way of executive clemency.

A reversal of a judgment of conviction in this class of cases can only be based upon legal grounds. There being no such error disclosed by the record in this case, the judgment of the trial court is affirmed.

DOYLE, P. J., and MATSON, J., concur.


text:
    DONALD DUNCAN v. STATE.
    No. A-2884.
    Opinion Filed June 21, 1919.
    (181 Pac. 736.)
    1. HIGHWAYS — Obstruction—Sufficiency of Information. For information held sufficient to charge offense of obstructing public highway, see body of opinion.
    2. INDICTMENT AND INFORMATION — Negativing Exceptions in Criminal Statutes. Exceptions to the operation of criminal statutes which form no substantive element of the offense, need not he negatived in the information. :
    3. TRIAL — Plea of Not Guilty — Scope of Proof. Under section 5800. Rev. Laws 1910, three kinds of pleas to indictments or in-formations are authorized : ail' matters of fact tending to establish a defense, other than of a former conviction or acquittal, may he given in evidence under a plea of not guilty.
    4, HIGHWAYS — Obstruction—Defense—Evidence. Where the defendant claimed that the highway which he was charged with obstructing constituted a part of a stock-grazing district authorized to be established by section 1 of chapter 61, Sess. Laws 1913, evidence tending to prove that such stock-grazing district was established subsequent to the fencing across such highway by defendant, and subsequent to the commencement of the prosecution, was properly excluded.
    5. SAME. For other matters held to constitute no lawful defense to a prosecution for obstructing a section line highway, see opinion.

      Appeal from County Court, Ellis County; S. A. Miller, Judge.

    Donald Duncan was convicted of the offense of obstructing a public highway, and sentenced to pay a fine of and the costs of the action, and appeals.
    Affirmed.

      C. B. Leedy, for plaintiff in error.
    5. P. Freeling, Atty. Gen., and R. McMillan, Asst. Atty. Gen., for the State.
   MATSON, J.

This is an appeal from the county court of Ellis county, wherein the defendant was convicted on the 14th day of November, 1916, of the offense of obstructing a section line highway, and sentenced to pay a fine of $5 and the costs of the action.

The trial was had before the court, a jury having been "waived. Defendant interposed a demurrer to the information, which was overruled, and to the action of the court -in overruling the same the defendant excepted, and presents this as ground for reversal. The information, filed July 24, 1916, is in substance as follows:

!‘On the-day of May, 1916, one Donald Duncan .did then and there unlawfully, willfully, knowingly, and wrongfully obstruct and damage a certain public road then and t-here duly and lawfully established, to wit, the section line highway running east and west between sections 16 and 21, in township 18, north of range 22, west Indian meridian, at a point just east of and near the point common to sections 16, 21, 17, and 20 in said township and range, by erecting and maintaining a fence across and upon said section line highway and public road, contrary to,” etc.

The information is based on section 7, art. 6, c. 173, Session Laws 1915, which reads in part as follows:

“Any person or persons who shall willfully or knowingly obstruct or damage any public road * * * 'by fencing across or upon the right of way of the same * * * shall be deemed guilty of a misdemeanor, and upon conviction shall be fined not less than five dollars nor more than two hundred dollars, or by imprisonment in the county jail for not exceeding six months, or by both such fine and imprisonment.”

The information states the acts constituting the offense in ordinary and concise language and in such a manner as to enable a person of common understanding to know what is intended. It also states the particular circumstances of the offense charged, and is sufficient to charge the offense under the provisions of section 7, art. 6, c. 173, Laws 1915, above quoted.

The contention advanced that the information is insufficient for the reason that it contains no allegation that said fences were not erected by defendant in compliance with section 1, c. 61, Session Laws 1913, establishing grazing districts and permitting rough lands to be inclosed in fences under certain conditions, is untenable, for the reason that said provisions of law form no substantive pai. ©f the offense set out in section 7, art. 6, c. 173, Session Laws 1915, but constitute a matter of defense not necessary to be negatived in the information.

Defendant also filed what he styled a special plea in bar to the action, and alleged in said plea that he should not be required to answer or plead to the merits of the charge made against him, and should not be placed upon trial upon said charge for the reason that the fences erected by him upon and across the section line and public highway were lawfully constructed by virtue of section 1, c. 61, of the Session Laws of 1913, in that the lands embraced in the inclosure constituted two or more sections of land, two-thirds and more of which lands were unsuitable for cultivation and were being used for grazing purposes prior to and at the time of the filing of the said information; that said land is sandy, rough, and unbroken grazing land, and unfit for cultivation, and the defendant constructed the fences about and around said land prior to the commencement of this prosecution, and has permitted public roads to be run anywhere across said grazing district wherever designated by any legal authority; that the section lines were not at the time said fences were constructed nor since that time have been used or needed for public mail routes, and defendant has at all times maintained substantial gates which were easily opened and closed across said section line, and that said gates were erected and maintained long prior to the filing of the information in this cause, and were erected by virtue of the law above referred to; that defendant has more than 650 head of cattle in said pasture for grazing purposes, and is maintaining said grazing district in accordance with the laws of this state, and is ready and willing to erect and maintain swinging and automatic gates at any and all points designated by any lawful authority.

The defendant further stated:

That, on the 8th day of November, 1916, the board of county commissioners of Ellis county established a grazing district of all of the territory embraced within the fences which he is alleged to have unlawfully erected, and, further, that there is pending in the district court of Ellis county an action in equity, seeking to enjoin the defendant from maintaining the fences and gates across the section line; that contempt proceedings were instituted against defendant, seeking to punish him for maintaining the fences across said section line, and that on the 7th day of October, 1916, said court refused to punish defendant for contempt, but gave defendant until November 17, 1916, to remove all fences and obstructions on and across said section line embraced within said alleged grazing district, provided %the board of county commissioners of said Ellis county did not, in the meantime, establish a grazing district of said territory; that thereafter the said board, as heretofore alleged, did, on November 8, 1916, establish a grazing district of said territory, and that by virtue of said order ■ of said board the fences and gates upon and across all of the section lines described in the information were lawful; that the information in this cause was filed prior to any lawful action and on behalf of the board of county commissioners of Ellis county, and should not be maintained; that on the 13th day of September, 1916, the prosecuting witnesses in this case, or some of them and others, did unlawfully remove, tear down, and open the gates and inclosures around certain section lines embraced within the said alleged grazing district; that on the 18th day of September, 1916. a majority of the board of county commissioners of Ellis county did find that the land embraced within the said grazing district was suitable for cultivation, and refused by their order to permit a gracing district to be established within the boundary as set forth herein; that thereafter, on November 8, 1916, said board of county commissioners, upon petition of the township board of the township in which said lands were located, did annul and set aside their order of September 18, 1916, and did establish a grazing district of said lands.

For which reasons defendant prays that the information be quashed and set aside, and that he be discharged from custody.

To this purported plea in bar the state filed a demurrer for the reason that the said plea did not state facts constituting a defense to the charge set forth in the information.

The court sustained the demurrer to the plea in 'bar, to which action the defendant excepted, and alleges that the court erred. This assignment of error is wholly without merit.

Under section 5800, Rev. Laws 1910, three kinds of pleas are authorized to an indictment or information, to wit: First, a plea of guilty; second, a plea of not guilty; third, a plea of former judgment of conviction or acquittal of- the offense charged.

Section 5805 provides:

“The plea of not guilty puts in issue every material allegation in the indictment or information.”

Section 5806 provides:

“All matters of fact tending to establish a defense other' than specified in third subdivisión of section 5800 may be given in evidence under a plea of not guilty.”

The action of the court, therefore, in sustaining the demurrer to the special plea in bar was clearly correct. If as a matter of fact the defendant had erected the fences around a stock district established according to law, the evidence tending to establish that defense was permissible under the plea of not guilty. A special plea in bar was entirely unnecessary, and only tended to incumber the record.

But as the defendant offered evidence to show that at the time of the trial- the board of county commissioners of Ellis county had established a stock district out of the lands embraced within the fences alleged to have been unlawfully constructed across the public highways as charged in the information, attention will be paid at this time to the merits of this defense. There was no attempt or offer by the defendant to prove that the provisions of section 1, c. 61, Session Laws 1913, had been complied with by him prior to the erection of fences across the section line or prior to the commencement of this prosecution. All that he claims and asks to be considered as a valid defense to this action occurred subsequent to the building of the fences by him across the section lines and subsequent to the commencement of this prosecution. None of the matters pleaded as a defense existed at the time of the commencement of the prosecution; and, while the defendant may have thought that a stock district would and should be established out of the land embraced within the fences, and while it was undoubtedly his intention to permit the lawful authorities to designate public highways across said alleged stock district, yet nevertheless it was his duty to have said district designated for public highways before any fences were built by him across any section line highways.

It was clearly the intention of the Legislature by the enactment of chapter 61, Session Laws 1913, to permit the establishment of grazing districts of rough lands unsuitable for cultivation and to permit the erection and maintenance of fences across section lines only in cases where the owner or lessee of such grazing districts permits public roads to be run anywhere across said district designated by the road overseer, or the township board, county commissioners, or other officials legally authorized to designate public highways.

It was clearly not the intention of the Legislature to permit the owner or lessee of such lands upon his o<wn initiative to fence up section line highways in this state without the permission of the lawful authorities for the establishment of highways across said district at other points, and for the erection and maintenance of gates in said fences at points where said highways intersect the same under the direction and supervision of the official authorized to establish and maintain public highways. The action of the county commissioners in subsequently designating the land herein inclosed as grazing district forms no valid defense to the defendant’s action in unlawfully fencing the section line highways prior to the establishment of such grazing district.

The defense interposed, therefore, was not well founded in law, and evidence tending to establish the same was properly rejected by the trial court, and as no other defense was interposed, but defendant admitted the constructing and maintaining of fences across said section line as alleged in the information, his conviction "was proper,' and clearly sustained by the evidence, and is not contrary to law.

The judgment is affirmed.

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