author:
DOYLE, Judge
      ' OWEN, Judge

text:
      Ex parte Wallace Dodson. Ex parte Henry Parris. Ex parte Fred Walker.
    Nos. 473, 474, 475.
    Opinion Filed February 28, 1910.
    (107 Pac. 450.)
    1. INDICTMENT AND INFORMATION — Sustaining Demurrer-Holding Accused for Grand Jury — Power of County Court. The provision of (Procedure Criminal, section 6751, Snyder’s St.: “If the demurrer is sustained, the judgment is final upon the indictment demurred to, and is a bar to another prosecution for the same offense, unless the court, being of opinion that the objection on which the demurrer is sustained may be avoided in a new indictment, direct the case to be resubmitted to the same or another grand jury” — has no application to misdemeanors prosecuted by indictment, transferred to a county court.
    2. SAME. Where a demurrer is sustained to an indictment, charging a misdemeanor, the county court has no power or authority to commit the defendant to await the action of a grand jury.
    3. SAME — Bar to Further Prosecution. The sustaining of a demurrer to an indictment, charging a misdemeanor, is no bar to a subsequent prosecution by information for the same offense. Owen J. Dissenting.
    (Syllabus by the Court.)
    Application of Wallace Dodson and others for a writ of habeas corpus.

    Writ denied, and petitioners remanded to custody.
    The petitioners, Wallace Dodson, Henry Parris, and Fred Walker, on December 7, 1909, filed in this court their separate petitions, each duly verified, wherein each avers that he is unlawfully restrained of his liberty by one James S. Sanders, sheriff of Cherokee county, at and in the common jail of said county. And for the reasons stated in said petitions, each petitioner prays that a writ of habeas corpus be 'allowed, and that he be discharged from such unlawful imprisonment. On said date there was also filed an agreed statement of facts, as follows:
    “Agreed Statement of Facts.
    “It is hereby stipulated and expressly agreed by and between J. I. Coursey, county attorney of Cherokee county, state of Oklahoma, and W. P. Thompson and Preston S. Davis, attorneys for the petitioners herein, as follows, to wit:
    “That the petitioner Wallace Dodson was indicted by the grand jury at the September term of the district court of Cherokee county, Okla., charging him with the sales of intoxicating liquors at various times within said county and state; said indictments being numbered in said court as follows, to wit: 285, 359, 358, 283, 286, 356, 278, 215, 360, 361, 284, 282, 357, 281, 363, and 364. That thereupon said district court transferred to the county court of Cherokee county the above-numbered cases, together with all the papers and a portion of the proceedings therein, which were filed in the county court, and numbered?, upon the criminal docket of said county court, respectively, as follows: 521, 584, 519, 522, 582, 514, 452, 586, 587, 520, 518, 583, 517, 589, and 590.
    “That the petitioner Henry Pañis was indicted by the grand jury at the September term of the district court of Cherokee county, Okla., charging him with the sales of intoxicating liquors at various times'within said county and state; said indictments being numbered in said court as follows, to wit: 236, 235, 237, 238, 240. That thereupon said district court transferred to the county court of Cherokee county the above-numbered cases, together with all the papers and a portion of the proceedings therein, which were filed in the county court, and numbered upon the criminal docket of said county court, respectively, as follows:-472, 471, 473, and 476.
    “That the petitioner Fred Walker was indicted by the grand jury at the September term of the district court of Cherokee county, Okla., charging him with the sales of intoxicating liquors at various times within said county and state; said indictments being numbered in said court as follows, to wit: 246, 346, 253, 347, 348, 345, 247, 249, 251, 250, 254, 352, 351, 353, 206, 241, 350, 245, 244, 243, 242, and 340. That thereupon said district court transferred to the county court of Cherokee county the above-numbered eases, together with all the papers and a portion of the proceedings therein, which were filed in the county court, and numbered upon the criminal docket of said county court, respectively, as follows: 482, 572, 489, 573, 574, 571, 483, 484, 487, 486, 490, 578, 579, 443, 477, 576, 48Í, 480, 479, 478, and 566.
    “That thereafter warrants were duly issued and served upon the petitioners in each of the above-enumerated causes, and thereafter said petitioners were admitted to bail, and that said causes coming on to be heard in the said county court, and said petitioners being called upon to enter their pleas to the said indictments on the 12th day of November, A'. D. 1909, interposed and filed in each of the said several causes a demurrer to the indictment; the grounds contained and set forth in each of the said several demurrers in each of the said above-enumerated causes being identically the same. A copy of one of said demurrers is hereto attached, herewith filed, marked ‘Exhibit A/ and made a part hereof.
    “That thereafter, and upon the 17th day of November, 1909, said demurrers came on to be beared before said county court, and the same were duly argued, pro and con, and thereafter on the 19th daj’’' of November, 1909, the court sustained each and all of said demurrers to said indictments in said cause, and entered his order to that effect upon the minutes of the court in each of the above-enumerated causes; said order being the same in each case, a copy of which taken from said minutes being hereto attached, herewith filed, and marked ‘Exhibit B/ and made a part hereof. That said court thereupon discharged the petitioner in each and every case and exonerated their bail therein. That said court did not enter any order whatever directing the case to be resubmitted to the same or to another grand jury.
    “That before the defendant left the court-room after these 'proceedings had been had as aforesaid, the county attorney filed in-formations charging these petitioners with the same offenses as were charged in the indictments herein above mentioned and enumerated; said informations against petitioner Wallace Dodson being numbered as follows, to wit: 682, 686, 689, 697, 698, 699, 700, 701, 702, 703, 704, 705, 720, 721, 722 — -which said enumerated informations correspond respectively to the indict-. ments charging these same offenses that had been set aside as aforesaid by said court and which were numbered in said county court as stated and set forth herein above. That a compared list, showing the number of the present informations, the number of the indictments in the county court, and the number of the indictments in the district court, and the name of the party to whom the liquor was charged to have been sold, and the dates of said sales for each of said petitioners in these said several enumerated causes herein, is hereto attached, herewith filed, marked ‘Exhibit C/ and made a part hereof.
    “That the same proceedings were had as to the petitioners Henry Parris and Fred Walker as were had in the cases against the petitioner Wallace Dodson, as set forth herein above; the in-formations against Henry Parris being numbered 679. 694, 715, 716, and 717, and the informations against Fred Walker being numbered 683, 687, 706, 707, 708, 709, 710, 711, 712, 713, 714, 732, 733, 734, 735, 736, 737, 738, 739, 740, 741, 742, 743, and 744.
    “That upon these informations aforesaid warrants were duly issued, and the defendants then and there arrested in the courtroom on the said 19th day of November, 1909, and the defendants, being unable to give a bond of $500, which was required by the court in each case, were committed by the court to jail.
    “It is further agreed that the petitioners herein are held by James S. Sanders, sheriff of Cherokee county, Okla.,' by virtue of commitments issued to him on the above informations and the warrants issued thereon in each of the above-numbered cases in the said county court out of the said county court of said county, which commitments are regular on their face, commanding the said sheriff that he hold the said petitioners in default of bail in each of the above-enumerated causes, and that said petitioners were duly incarcerated in the county jail of Cherokee county. Okla., where they have been confined since the said 19th day of November, 1909.
    “It is hereby agreed that the personal attendance of the petitioners herein, Wallace Dodson, Henry Parris, and Fred Walker, before the Criminal Court of Appeals, on the hearing upon these petitions for writs of habeas corpus, is waived. That the personal appearance and attendance of the sheriff of Cherokee county, Okla., James S. Sanders, is also waived.
    “It is further agreed and understood that the issuance of the preliminary writ of habeas corpus may be waived, and that the matters for each of said petitioners may be set down for hearing upon the merits as to whether they be finally discharged upon writs of habeas corpus by the Criminal Conrt of Appeals, on the 6th day of December, A. D. 1909.
    “It is hereby agreed that the above agreed statement of facts may be taken and considered in each and every of the cases herein above set forth and enumerated, and that the decision of the Criminal Court of Appeals in one of the causes shall be taken and entered of record in each of said enumerated cases herein.
    “Witness our hands this the 3d day of December, A. D. 1909, at Tahlequah, Oída. J. I. Ooursey, County Attorney for Cherokee County, Oklahoma. W. P. Thompson and Preston S. Davis, Attorneys for the Petitioners.”
    “Exhibit A. — Demurrer to Indictment.
    “Comes now the defendant and moves to set aside the indictment in this cause, for the following reasons:
    “First. That the allegations of the indictment do not con- • stitute a public offense.
    “Second. That the indictment charges more than one offense in one count.
    “Third. That the same was not properly transferred under the law from the district court to the county court.
    “Fourth. That the transcript does not show that there was a special instruction to the grand jury to investigate misdemeanors properly cognizable by the county court,'and over which the county court has sole and exclusive jurisdiction.
    “Fifth. That no instructions to the grand jury authorizing it to make investigations as to crimes over which the county court has jurisdiction were given by the district court, and made a matter of record as shown by the record of this court and the transcript in this case.
    “Sixth. That the county court has no jurisdiction in this case.”
    The court fixed the amount of the bail bond in each case at $2,500, upon giving of which the petitioners should be released pending the determination of their respective cases. Fifteen days were allowed to file briefs on behalf of petitioners, and the state was allowed 15 days to file answering briefs.

      W. P. Thompson and Preston 8. Davis, for petitioners.—
    Citing People v. Jordan, 63 Cal. 219, and Minn. v. Comfort, 22 Minn. 271.

      Fred S. Caldwell, Counsel to the Governor, and J. I. Coursey, Co. Atty., for the State.
    — Citing Rea v. State, 3„ Olda. 269, 105 Pac. 381.
   DOYLE, Judge

(after stating the facts as above). The proposition presented by this proceeding involves a singular question of practice where misdemeanors are prosecuted by indictment.

The criminal procedure act, as adopted from Oklahoma Territory, provides:

Section 6750, Snyder’s St.:

“Upon considering the demurrer, the court must give judgment either sustaining or overruling it, and an order to that effect must be entered upon the minutes.”

Section 6751, Snyder’s 'St.:

“If the demurrer is sustained, the judgment is final upon the indictment demurred to, and is a bar to another prosecution for the same offense, unless the court, being of opinion that the objection on which the demurrer is sustained may be avoided in a new indictment, direct the case to be resubmitted to the same or another grand jury.”

Section 6752, Snyder’s St.:

“If the court do not direct the case to be resubmitted, the defendant, if in custody, must be discharged, or >if admitted to bail, his bail is exonerated, or if he have deposited money instead of bail, the money must be refunded to him.”

Section 6753, Snyder’s St.:

“If the court direct that the case be resubmitted anew, the same proceedings must be had thereon as are prescribed in this act or in sections 6741, 6742 and 6743.”

Section 7 of article 3, e. 48, Sess. Laws 1908, provides-:

“For the trial of all criminal cases, now, or hereafter pending, or transferred in or to any county court, for the trial of all civil causes, now, or hereafter pending, in any county court, the pleadings, practice and procedure, shall be the same as that of the district court.”

Counsel for petitioners contend in their brief that:

“In these cases, the county court having the authority and power to make such orders of resubmission the same as the district court, but failing or refusing, it is to be presumed, therefore, that said court did not consider that the objection on which the demurrer was sustained might be avoided in a new indictment/ and, not having made such orders of resubmission, the said county court forever lost all further jurisdiction, power, authority, and control over any further or subsequent proceedings in said court against said defendants upon the same offenses, and also lost all further jurisdiction, power, and authority over the subject-matter or cause of action to charge, arrest, hold, commit to jail, or in any manner to restrain the defendants of their liberty.”

And further argue that:

“In these cases we do not claim that we have ever been in jeopardy, nor do we contend that we have ever been acquitted, but we do contend in all seriousness that the county court of Cherokee county was, and now is, for the reasons already stated herein, without any jurisdiction to' proceed further against these defendants upon these same charges under these informations. The statute says they shall be discharged, and the statute means what it says; nothing more, nothing less. Our plea and contention is not one in bar, but one of jurisdiction only; jurisdiction pure and simple; jurisdiction first, last, and all the time. The defendants have their choice of one of two things, namely, remain in jail for an indefinite period, wait for trials on the informations and interpose the defense of a plea in bar, and then stay in jail some more (for the agreed statement of facts shows that they cannot give the bail required and fixed by the county court), and await the slow process of appeal to procure justice and their liberty, or raise the question of the want of jurisdiction of the county court to proceed against them further under these informations by means of the writ of habeas corpus

We are of the opinion that petitioners’ contention is not well taken. The provisions of procedure criminal quoted cannot be extended to include indictments for misdemeanors. However, as this question has not hitherto been formally presented on appeal, we will not consider it.

It will be observed that section 6751, supra, requires that the resubmission must be 'made to a grand jury. As we view the law, this statute can have no application to misdemeanors prosecuted by indictment in county courts, for the reasons that such courts are without power or authority to direct a submission or a resubmission of a case to a grand jury. Section 6743, Snyder’s St., provides :

“If tlie court direct th.at the case be resubmitted the defendant, if already in custody, must so remain, unless he be admitted to bail, or if already admitted to bail, or money have been deposited instead thereof, the bail or money is answerable for the appearance of the defendant to answer a new indictment. Unless a new indictment is found before the next grand jury of the county is discharged, the court must, on the discharge of such grand jury, make the order prescribed in the preceding section.”

Prosecutions for misdemeanors may be by indictment or information, as they are concurrent remedies. Section 18 of the Bill of Bights, in part, provides:

“A grand jury shall be convened upon the order of a judge of a court having the power to try and determine felonies, upon his own motion; or such grand jury shall be ordered by such judge upon the filing of a petition therefor signed by one hundred resident taxpayers of the county; when so assembled such grand jury shall have power to investigate and return indictments for all character, and grades of crime.”

Section 6751, supra, is clearly repugnant to this provision of the Constitution; both cannot operate together. Under the con-titutional provision, the convening of a grand jury is an uncertain and undetermined matter, and should the county court, upon sustaining a demurrer, direct that the case be resubmitted anew, the defendant, if already in custody, must so remain unless he be admitted to bail, or, if already admitted to bail, the bail is answerable only for his appearance to answer to a new indictment. What certainty is there that the defendant would not spend the remainder of his natural life in jail? The county court cannot order that a grand jury be convened, and it is thus without power to afford the defendant the investigation for which he has been detained in custody. The district judge may convene a grand jury on his own motion or upon a proper petition; but, if a grand jury should be convened, what authority would a county court have over the same? And how could a county court enforce its * order that a defendant’s case be resubmitted to such grand jury? Tims the period of defendants’ incarceration for want of bail would not depend upon the time or the happening of any certain event, but would be subject to the aforesaid indefinite and uncertain contingencies.

Our Constitution provides (section 20, Bill of Eights) :

“In all criminal prosecutions the accused shall have the right to a speedy and public trial, by an impartial jury of the county in which the crime shall have been committed.”

An order directing the resubmission of a case to a grand jury by a county court would be a denial of this constitutional guaranty. No court in this state has the power to commit a defendant indefinitely. As ivas said by Chancellor Pirtle, in Ex parte Alexander, 2 Am. Law Reg. 44:

“A freeman should never, by the laws of freemen, be placed in such a dreary uncertainty of imprisonment as that, when he inquires of the daw of the land/ it cannot tell him when it shall end.”

On the other hand, it certainly cannot be claimed with any show of reason that in such eases the county court may direct the county attorney to file an information against the defendant. Our law makes no such provision.

A próposition very similar to the question in the cases at bar was considered by this court in the case of Rea v. State, ante, p. 269, 105 Pac. 381, wherein section 6690, Snyder’s St., was construed. Said section provides:

“The dismissal of the charge does not, however, prevent its being again submitted to a grand jury as often as the court may so direct. But without such direction it cannot be again submitted.”

In the Bea Case the defendant filed a motion to quash the information on the ground the identical offense charged therein had been previously investigated by the grand jury, and such charge had been by said grand jury dismissed. An indictment was returned without an order of the court directing the resubmission of the case. This court there held:

“This statute has no application to offenses prosecuted by information, and the court did not err in overruling the motion to quash the information upon this ground.”

If the construction contended for by the petitioners should prevail, then, in every ease of a defective indictment for a misdemeanor, it would only be necessary for the defendant to have a demurrer sustained in the county court, and he would have placed as effectual a bar to any further prosecution for that offense as a trial and verdict of acquittal would be. For the reasons stated, the doctrine, that' to have a second prosecution in cases of demurrer sustained, depends upon the judicial opinion of the court, that the objections raised by the demurrer may be avoided on a new indictment, and, in the absence of such opinion or finding by the court, the prosecution for that offense is at end, has no application in cases of misdemeanors prosecuted by indictment in county courts.

The demurrers filed show that the objections made are not in bar to a future prosecution. As a matter of good practice, upon sustaining a demurrer to an indictment or a dismissal thereof, in the county court, the reasons for sustaining the demurrer or of the dismissal should be entered upon the minutes. Our Criminal Procedure provides generally (section 7052, Snyder’s St.) :

“An order for the dismissal of the action, as provided in this chapter, is not a bar to any other prosecution for the same offense.”

As we view the law, the former indictment, the demurrer, and the judgment sustaining it in each of these cases — and it is admitted that each offense is identical, as the same now charged by information — do not constitute a bar to the further prosecution of said offenses by the informations filed, and the county court of Cherokee county has full jurisdiction of the offenses now pending on said informations.

For the reaons stated, the writ of habeas corpus is denied in each of said cases, and the petitioners are remanded to the custody of the sheriff of Cherokee county.

FUEMAN, Presiding Judge, concurs.

' OWEN, Judge

(dissenting). I am unable to agree with the conclusions readied by my colleagues in this case. The section of the statute referred to is as follows:

“If the demurrer is sustained, the judgment is final upon the indictment demurred to, and is a bar to another prosecution for the same offense, unless the court, being of opinion that the objection on which the demurrer is sustained may be avoided in a new indictment, direct the case to be resubmitted to the same or another grand jury.” (Section 6751, Snyder’s Comp. Laws 1909.)

I cannot agree that this section has no application to prosecutions for misdemeanors by indictment. Section 3989, Snyder’s Comp. Laws 1909 (Sess. Laws 1907-08, p. 474), is as follows :

“For the trial of all criminal cases, now, or hereafter pending, or transferred in or to any county court, and for the trial of all civil causes, now, or hereafter pending in any county court, the pleadings, practice and procedure shall be the same as that of-the district court.”

If this section has any meaning whatever, the county court must proceed in exactly the same manner as the district court would in a like case, and this is true after sustaining a demurrer as well as before. In my opinion, section 6751 either applies to prosecutions for misdemeanors, as well as felonies, or is unconstitutional. If it is repugnant to the provisions of the Constitution authorizing prosecutions by information, it can have no application in any case, for the reason that the procedure is identical in both the county and district courts.

This court said, in the case of Canard v. State, 2 Okla. Cr. 505, 103 Pac. 737:

“We understand the rules governing prosecutions by infor-mations to be identical to those covering prosecutions by indictment.”

I understand the rule to be, in construing a statute with reference to the Constitution, the courts will not construe the statute so as to make it conflict with the Constitution, but rather put such interpretation upon it as will avoid conflict, if such construetion. be possible. It is the duty of the court to construe a statute as not being in conflict with the Constitution, if that construction can reasonably be arrived at. This rule was announced in the ease of Ogden v. Saunders, 12 Wheat. 215, 6 L. Ed. 606. In that ease the court said:

“They are not only to be presumed to be constitutional, but the authority of this court to declare them void will only be resorted to in a clear case of conflict.”

In the case at bar, I do not believe it necessary to declare the statute in conflict with the Constitution. Certainly there is no clear case of conflict. Our Criminal Procedure Code was adopted from California. At the time of the adoption (1890), prosecutions could be had in the territorial cotírts of record by indictment only. Section 6751, supra, refers only to indictment. This section appeared in the California Code before adoption as follows :

“If the demurrer is allowed, the judgment is final upon the indictment or information demurred to, and is a bar to another prosecution for the same offense, unless the court, being of the opinion that the objection on which the demurrer is allowed may be avoided in a new indictment or information, direct the case to be submitted to the same or another grand jurj', or directs a new information to be filed. * * *”

It will be observed that this section differs from ours only in that it uses the words “or information” in addition to the word “indictment.” The purpose of that section is to give to the court passing on the demurrer the power to determine whether further prosecution shall be had. There is every reason for giving the court the power to determine whether the prosecution is meritorious and should continue. If for any reason a subsequent indictment or information could not cure the objection on which the demurrer is allowed, both the county and the defendant should be saved the costs and annoyance of a subsequent prosecution based on the same facts. It should not be left optional with the county attorney whether he continue further prosecution. He has discharged his duty when he reports the facts to the court in ah indictment or information, and then ’it becomes the court’s duty to determine whether the facts alleged warrant the prosecution. If he sustains the demurrer, he may direct the case to be resubmitted to a grand jury, or he may direct the case 'to be prosecuted by information. The- mere fact that the county attorney might not be possessed with -sufficient personal knowledge to verify the information, as required by the Constitution, does not change the law of procedure. Suffice it to say in the case at bar he did file informations. We are not trying the case on an imaginary condition. This court has no power to make laws or supply the deficiencies of the statute. We have discharged our duty when we construe the law as it is written. It is for the Legislature to enact a Code that will meet all emergencies.

It cannot be contended the court has not the power to direct the case to be prosecuted by information. The grant of power to determine whether prosecutions should be had carries with it all the powers to secure a prosecution according to law.- As was said by the presiding judge of this court in the case of Ex parte Johnson, 1 Okla. Cr. 286, 97 Pac. 1033:

“The grant of power to do a certain thing necessarily carries with it the power to do all things which are necessary to the full accomplishment of the purpose had in view in granting -the original power. To say that the court can direct a resubmission 6f a case to a subsequent grand jury, but is without power to hold the defendant in custody, or on bail, to answer an indictment which may be found, is to so construe the law as to result in its defeat, and thus render it absurd and abortive. It is a familiar principle of law that a statute must never be so construed as to defeat the plain purpose which it has in view.”

Section 17 of the'Bill of Right (section 36 Bunn’s Ann. Ed.) authorizes prosecutions by information as well as by indictment, and, taken with section 6751, supra, gives us the procedure as it was in California prior to the adoption of the statute in Oklahoma Territory. This statute was construed by the Supreme Court of California in the case of People v. Jordan, 63 Cal. 219. In that case, pending a demurrer to an information, a new information was filed. Afterwards a demurrer was sustained, but no order was made directing the filing of a new information. The Supreme Court held that the judgment sustaining the demurrer to the first information was a bar to another prosecution, using tire following, language:

“It makes no difference that the second information was filed before the judgment on demurrer was rendered. There being no direction for a new information or resubmission, it became and was a bar to another prosecution for the same offense. The Legislature seem, in the section referred to, to have made a second prosecution in ease of demurrer sustained depend upon the judicial opinion of the court that the objection raised by the demurrer may be avoided on a new information; and, in the absence of such opinion, the prosecution for that offense is at an end-.”

In the' case of Ex parte Williams, reported in 116 Cal. 512, 48 Pac. 499, this section was again construed by the Supreme Court. The petitioner sought for discharge on habeas corpus on the folloAving facts: “To the indictment charging him with forgery he interposed a demurrer, Avhieh demurrer was 'by the court sustained, ‘with leave to the district attorney to file a new information/ ” The syllabus by the court is as follows:

• “Under section 1008 of the Penal Code, the allowance of a demurrer to an information or indictment is a bar to another prosecution for the same offense, unless the court, being of opinion that the objection may be avoided by a new indictment or information, directs the case to be submitted to another grand jury or directs a new information to be filed; and Avhere, upon sustaining a demurrer to an information, the court merely sustains it, ‘with leave to the district attorney to file a neAv information/ such permissive order is not equivalent to the direction or command contemplated by that section, the prosecution is at an end, and .the prisoner cannot be held for trial under a new information, and Avill be discharged from custody upon habeas corpus.”

Under a similar statute, the Supreme Court of Utah, in the case of State v. Crook, 16 Utah, 212, 51 Pac. 1091, said:

“The defendant’s plea of former acquittal of the same offense charged in the information, by the judgment of the court sustaining the demurrer, and ordering the defendant discharged, without making an order directing another information to be filed, or that the cause be submitted to the grand jury, Avas, under the facts shown, a sufficient plea of former acquittal, and a bar to a prosecution under the third information filed. The information to which the demurrer was sustained and the information upon which the defendant was tried stated the same identical offense. The identity of the parties was admitted. We are of the opinion that the instruction of the court to the jury, to the effect that the judgment of the court in sustaining the demurrer to the second information and discharging the defendant thereon, without an order directing another information to be filed, would not amount to an acquittal of the defendant on that information, and the jury should so find, was error.”

There is ample provision in the statute for dismissing an indictment by motion. Section 6690, Snyder’s Comp. Laws 1909, provides:

“An order to set aside an indictment, as provided in this chapter, is no bar to a further prosecution for the same offense.”

The statute makes a difference between setting aside the indictment on motion and sustaining a demurrer to an indictment. The statute specifically makes the sustaining of a demurrer to an indictment a bar to another offense, “unless the court be of the opinion that the objection on which the demurrer is allowed may be avoided in a new indictment.”

In my opinion it is not necessary to hold section 6751 in conflict with the Constitution. On the contrary, it is enlarged by the provision of the Constitution permitting nrosecutions by information, and where an indictment for misdemeanor has been transferred to the county court, and the defendant has filed a demurrer, it is the duty of the court in sustaining the demurrer to determine whether further prosecution shall be had, and, if in the opinion of the court the objection to the indictment may be avoided in a new indictment or information, to direct that the defendant be held, and that the county attorney proceed by information. The court did not do this, but ordered the defendant discharged.

In my opinion the application for writ of habeas corpus should be granted.


source: Caselaw Access Project

author: OWEN, Judge.

license: Public Domain

text:
    Otto Bauer v. State.
    No. A-59.
    Opinion Filed February 28, 1910.
    (107 Pac. 525.)
    1. EVIDENCE — Acts of Conspirators. The existence of a conspiracy being proved, the act of any one engaged in such Conspiracy is competent evidence'against those with whom he co-operated; but the declarations of a person unconnected with the defendant on trial, and not part of the res gestae, cannot be admitted.
    2. INSTRUCTIONS — Intimating Guilt of Accused. An instruction couched in language which implies the expectation ot the court that a verdict of guilty will be returned, or an intimation that it is the duty of the jury to convict, or which tends to shift the burden of proof, is improper.
    (Syllabus by the Court.)

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

    Tlie plaintiff in error, Otto Bauer, was tried at the June term, 1908, in the district court of Washita county, on a charge of asault with intent to kill. He was convicted of assault to do bodily harm. The case is before us on appeal.
    Reversed and remanded.

      Massingale & Duff, for plaintiff in error.
    — Citing: 21 A. & E. Ene. L. 224; State v. Hawley (Conn.) 37 Atl. 420; Keith v. State (Ind.) 61 N. E. 719; State v. Laque (La.) 6 South. 787; Woolfollc v. State (Ga.) 8 South. 724; State v. May (Mo.) 43 S. W. 637.

      Charles West, Atty. Gen., and Chas. Ij. Moore, Asst. A tty. Gen., for the State.
   OWEN, Judge.

The assignments of error urged are directed to the actions of the trial court in admitting, over the objection of the defendant, proof of threats made by Lee Southworth, and a portion of the intructions given by the court.

The facts disclosed by the record are, briefly: The person on whom the assault was made was the marshal of the town of Cordell. lie had had trouble, at various times, with the defendant, and also with Lee Southworth, who was a brother-in-law of the defendant. Several months prior to the assault in this ease, Southworth had made threats against the marshal. On the night of the assault the defendant went to a pool hall, where he had previously. understood the marshal was, and invited him to go to a restaurant. On arriving at the restaurant the defendant opened the door, and said to the marshal, “Here sits a man who will call you a horse thief, and not take it back.” This brought on a controversy between the marshal and Southworth, during which Southworth was killed. The marshal started to leave the place of the difficulty, and the defendant’s brother, who was unarmed, followed him a few yards, and caught him and began to hollow for help. The defendant, with an open knife in his hand, ran to his brother and the marshal; the three grappling in a struggle in which the defendant cut the marshal a number of times.

It is unnecessary to set out the various threats made by Southworth, and proven over the objection of the defendant. They were all made several months previous to the time of the assault, and none of them in the presence of the defendant. The only theory upon which such threats could possibly have been admissible was that a conspiracy existed between the defendant and Southworth to assault the marshal. The existence of a conspiracy being proven, the action of any one engaging in such conspiracy, though not on his trial, would be competent evidence to criminate those with whom he co-operated. But in this case the proof was not sufficient to establish a conspiracy. The mere fact that both Southworth and the defendant entertained ill feeling against the marshal is not sufficient proof of a conspiracy, and the additional fact that the defendant, without the knowledge of Southworth, brought about a meeting between the marshal and Southworth, for the purpose of bringing on a difficulty between them, is not sufficient to establish a conspiracy. A “conspiracy” is a combination of two or more persons by concerted action to accomplish some criminal or unlawful purpose.' There is no proof here that there was any combination, agreement, or understanding between South-worth and the defendant. The defendant in all probability knew that Southworth and the marshal were enemies, and that upon their meeting a difficulty was probable, yet this would not constitute such proof of a conspiracy as would render the threats of Southworth, made many months previous to the difficulty, competent evidence against the defendant. It is easy to conceive that such testimony must have had a prejudicial effect against the defendant in creating the impression that bad blood existed between Southworth, the defendant, and the marshal. The issue in this ease is the motive, intent, and purpose of the defendant, in making the assault, and any difficulty, ill feeling, or controversy between Southworth and the marshal is not material in this case, unless it was part of the res gestae, or the defendant was in some way connected with it. The threats made by Southworth are no proof of a conspiracy between Southworth and the defendant, and until such conspiracy is proven, these threats are not admissible. South-worth was unarmed. The defendant was armed with an ordinary poeketknife. These circumstances, when considered with the evidence which discloses that the marshal, at the time of the previous difficulties with the defendant, was armed with a policeman’s billy and a six-shooter rebut any presumption of a conspiracy to assault. If a conspiracy had existed between these brothers-in-law to assault the marshal, it is not unreasonable to suppose. they would .have 'come- -armed .equally as welL as they knew the marshal to go. The rule announced here as to threats is so well settled that we deem it unnecessary to quote authorities. Among the best considered cases might be mentioned the following: State v. May, 142 Mo. 135, 43 S. W. 637; Woolfolk v. State, 81 Ga. 151, 8 S. E. 24; Keith v. State, 157 Ind. 376, 61 N. E, 719; State v. Hawley, 63 Conn. 47, 27 Atl. 420; State v. Porter, 32 Or. 135, 49 Pac. 964; 21 Cyc. 923.

That portion of the instructions excepted to are as follows:

“If in your deliberations you are unable to find the defendant guilty of the crime of attempt to kill, as charged in the indictment, you should then consider the evidence as applied to the next lower degree of sai'd crime, to wit, assault with a dangerous weapon. * * * You are further instructed that, if in consideration of the'evidence in this case, under the instructions of the court, you are unable to find the defendant guilty of an attempt to kill, and are also unable to find him guilty of an assault to do bodily harm, you should then consider the evidence, under the instructions of the court, to determine whether or not the defendant is guilty of assault and battery upon the said complaining witness; and, if in the consideration of the evidence you find that the defendant, at the time and place stated in the' indictment, did assault the said complaining witness by cutting him as charged in the indictment, without intent to kill of commit great bodily harm upon him, and that such assault and battery was of a character not likely to produce great bodily harm, and was done without intent to kill or do great bodily harm, you should in such case find the defendant guilty of assault and battery, unless you find that such assault and battery committed was justifiable, in which case you should find the defendant Not guilty.’ ”

It will be noticed that the language of the court is, “Tf in your deliberations you are unable to find the defendant gu-'lty.” This might have, been understood by the jury that the court expected a verdict of guilty, or construed as an intimation that it was the duty of the. jury under the evidence to find the defendant guilty. The jury should have been told if, after a fair and impartial consideration of all of the evidence in the case, they were not convinced beyond a reasonable doubt of the defendant’s guilt, as charged in the indictment, then it would be their duty to consider as to whether he was guilty of the next Ipwer offense 'embraced in the charge. It is never the duty of the jury to convict the defendant until, after a fair and impartial consideration of all the evidence ánd circumstances, they are convinced beyond a reasonable doubt of his guilt. The instructions complained of are objectionable for the further reason that the language “Unless you find that such assault and battery committed was justifiable, in which case you should find the defendant Not guilty,’ ” tends to shift the burden of proof. If the jury had any reasonable doubt as to whether the assault and battery was justifiable, it was their duty to acquit. It was not incumbent upon the jury to find affirmatively that such assault and battery was justifiable, before they would acquit the defendant.

For the reasons pointed out, the case is reversed and remanded, with directions to grant the defendant a new trial.

FUKMAN, Presiding Judge, and DOYLE, Judge, concur.


author: DOYLE, Judge.

text:
    Alf Hunter v. State.
    No. A-439.
    Opinion Filed March 4, 1910.
    (107 Pac. 444.)
    1. APPEAL — Record—Amendment of Case-Made. Where a writ ol certiorari is asked to complete the record on appeal, bv adding thereto the examination of the trial jurors on their voir dire, and it appears that the case-made was settled without suggesting' this amendment, the application will be denied.
    2. ARRAIGNMENT AND PLEAS — Withdrawal of Plea to Demur. An application for leave to withdraw a plea for the purpose of filing demurrer is properly denied, where no demurrer is prer sented, and no defect in the indictment is pointed out.
    3. SAME — Leave to Withdraw Plea — Discretion of Court. The defendant having entered a plea of not guilty, when the case was called for trial asked leave to withdraw his plea, for the purpose of presenting a motion to set aside the indictment,' which motion alleged mere conclusions of law, and was not verified. Held that, where it is plain that substantial justice will not 'be promoted nor rights of the defendant prejudiced, the application for leave to withdraw the plea should be denied. The application was addressed to the discretion of the trial court, and was properly overruled.
    4. CONTINUANCE — Time to Prepare for Trial. When the case was called for trial, defendant filed an unverified motion for a continuance, on the sole ground that his counsel had not sufficient time and opportunity to prepare for trial. The offense was committed on June 5. 1908; defendant was arrested 16 months later, was arraigned, plea entered, and the case by consent was set for trial a week later. Held, it is apparent from the nature and character of the case, as shown by the record, that the defendant had ample time to prepare for trial, and that this ground was not sufficient.

      5. EVIDENCE — Competency—Evidence Showing Guilt of Another Crime. Evidence, which is relevant to the issue by tending to explain or characterize the act in question on a criminal trial, is not incompetent or inadmissible because it also tends to prove the accused guilty of another crime.
    6. MURDER — Instructions—Not Based on Evidence. The court did not err in refusing to give instructions, based upon a theory that there was no evidence to support.
    7. Murder — Instructions. The instructions in the case reviewed, and found to be more favorable to the defendant than the la'w demands.
    (Syllabus by the Court.)

      Appeal from District Court, Blaine County; C. A. Brown, Judge.

    Alf Hunter, alias James ICingsbery, was convicted of murder, and appeals.
    Affirmed.

      Laurence H. Hampton, for plaintiff in error.
    ' Chas. West, Atty. Gen., and Chas. L. Moore, Asst. Atty. Gen., (B. G. McAdams, of counsel), for the State.
   DOYLE, Judge.

Plaintiff in error (hereinafter designated the defendant) was on the 20th day of August, 1908, charged by indictment in the district court of Blaine county with the murder of Sheriff G. W. Garrison, in said county on the 5th day of June, 1908. On October 5, 1909, the defendant was duly arraigned, and entered his plea of not guilty. By consent of counsel for state and for defendant the case was set for trial on October 13th. On October 11th the defendant asked leave of court to withdraw his plea heretofore entered, for the purpose of demurring to the indictment, which request was refused. October 11th the defendant filed his motion to set aside the indictment, which was overruled by the court. October 12th defendant filed his motion to set aside or challenge to the panel of petit jurors summoned. Upon hearing the evidence the court overruled the challenge. On the sanie day the defendant filed his motion for continuance, which was overruled by the court. October 13th the trial began, and on October 16, 1909, the' jury' returned its verdict, finding the defendant guilty of murder, and fixing his punishment' at death. Motions for new trial and in arrest of judgment, having been filed, were overruled by the court. Exceptions were taken, and the same allowed to all the aforesaid rulings of the court. On said 16th day of October, the same being the last day of the term, • the court pronounced judgment in accordance with the verdict, and set the 3d day of December, 1909, as the date of defendant’s execution. Defendant prayed an appeal. Thirty days were allowed to make and serve a case-made, 3 days to suggest amendments, the same to be settled and signed uppn 3 days’ notice by either party; the petition in error with case-made attached to be filed in the Criminal Court of Appeals of Oklahoma within 40 days from the date thereof. Thereupon defendant made application for an order of the court directing the court reporter to furnish a transcript of the evidence at the expense of Blaine county, supported by his affidavit that he was without the means to pay for the same. Whereupon the court ordered that the court reporter furnish defendant with a transcript of the evidence taken on the trial at the expense of Blaine county. November 18, 1909, there was filed in this court petition in error, with case-made attached together with proof of service of notices that defendant appeals. Whereupon an order was made granting a stajr of execution, subject to such order or judgment as may be made in said cause by this court. January 36, 1910, on motion of the defendant, he was permitted to file a corrected case-made, containing a transcript of the evidence taken on the trial and other matters omitted in the original case-made. January 38, 1910, defendant filed an application for writ of certio-rari, wherein he prays that “an order be made directing that W. R. Le Compte, court reporter, make and transcribe and duly certify the record of the examination of the jurors, which is omitted from the record contained in the case-made and that such further orders be made as may be necessary and proper for the proper settling, signing, and certifying said record of said jury examination to this court.” February 7, 1910, said cause was orally argued by Laurence H. Hampton, counsel for defendant, Chas. L. Moore,- Asst. Atty. Gen., and E. G. McAdams of counsel for the state, upon the application for writ of certio-rari, and upon the merits.

The application for writ of certiorari is without merit. The burden is imposed upon the county, where a conviction is had, of paying the costs of preparing and transcribing the record for a review of a capital case, without regard to the question whether any errors were committed on the trial or not. Thus, without any expense or burden on his part, the convicted criminal is allowed to secure a delay of many months in the execution of his sentence, and the right thus to create delay and costs is invariably availed of. The order of the trial court was that the defendant be furnished with a transcript of the evidence taken on the trial No objection has heretofore been made to the sufficiency of this order. The record before us contains a true and correct statement of all the pleadings, motions, orders, evidence, verdict, and judgment had in the case; all without cost or expense to the defendant. This is sufficient for a determination of all questions properly raised. The granting of this application could serve no purpose, except to cause additional delay and needless expense to Blaine county. It will therefore be denied.

On June 5, 1908, about 6 o’clock p. m., G. W. Garrison, sheriff of Oklahoma county, was shot by the defendant, and almost instantly killed. The circumstances attendant on .the sad affair are sufficiently stated as follows:

Edward Dewes Oldfield, a justice of the peace in and for Oklahoma county, issued a warrant for the arrest of the defendant, which warrant was based upon the duly verified complaint of M. D. Casey, and approved by the county attorney of Oklahoma county, wherein it was charged that the defendant did, at and within Oklahoma county, on May 21, 1908, kill and murder one Susie Pride. Sheriff Garrison, learning that the defendant was in Blaine county, left Oklahoma City about 10 o’clock p. m. on the day of the homicide to serve said warrant, accompanied by two of his deputies, Tod 'Warden and M. L. Sanders. They proceeded by train to Watonga, where they were joined by G. A. Mc-Arthur, sheriff of Blaine county, and his deputy, M. B. Skeen. They procured three buggies, and drove to Hitchcock, and from there to the place of a negro named Dobbs, about three miles from Hitchcock, where the defendant and Ed Ellis, another negro, were employed chopping cotton. On the day in question Ellis, who had gone to Oklahoma City on a mission for the defendant, returned on the same train to Watonga with the officers, and remained on the train until it arrived at Ferguson, a station about 10 miles north of Watonga; there he left the train and went across the country four miles to Hitchcock, a station on the Enid branch of the Dock Island Railroad, there meeting the defendant in the post office. Leaving Hitchcock, they returned to Dobbs’ place. At this time the officers appeared, driving east on the road toward the lane that led to Dobbs’ house, which is about 200 yards in from the road. Seeing the officers, the defendant and Ellis ran south into a small ravine, then turned southwest through a wheat field and into a pasture, going in the direction of another negro’s house named Earle, Sheriff Garrison and his posse pursuing them. When they reached the pasture Sheriff Garrison commanded them to halt, whereupon the defendant turned and fired three shots from an automatic pistol at the officers. The firing then became general. The defendant here advised Ellis to give himself up. Ellis turned east, and crawled under a brush heap. The officers coming np, he surrendered. The defendant ran on to Earle’s house, where he secured a 44 Winchester riñe, and ammunition. The defendant and Earle had been neighbors in Arkansas. At that time Earle owned this Winchester, and on May 30th the defendant and Ellis stopped overnight with Earle, and while there the defendant asked Earle about and examined this rifle. Thus armed, the defendant continued his flight, and took refuge behind a straw stack in a wheat field on the next farm. In a few minutes he was discovered by the officers, who were now following him on foot. After several shots were exchanged the 'defendant ran from this straw stack to another, about 75 yards distant. From there he fired with the Winchester some 20 shots, one of which struck the deceased in the neck, severing the jugular vein. Deputy Sheriff Sanders was also wounded. When Sheriff Garrison fell, the shooting 'ceased, and defendant escaped. Bewards were offered for his capture, and he was arrested in the state of Arkansas about a year and four months later. Sheriff .McArthur testified that, while bringing defendant from Little Eock to Blaine county, defendant said that he recognized that the man in the front buggy- on the left side was Sheriff Garrison.

Ex-Governor Thomas B. Ferguson, as a witness, testified that defendant stated to him “that on the day this fight took place and Garrison was killed, he thought they had come after him to take him to Arkansas for a murder he had committed there, and he thought that he would rather fight it out, and die if necessary, rather than go to Arkansas, as he thought he would be mobbed there;” and that he also stated: “When they came across the field in the running fight, that he did not have his rifle; that he. be lieved if he had had his rifle then he would have got more of them, and that he seldom missed when he fired.”

The defendant, testifying on his own behalf, stated that on the day of the homicide he chopped cotton until noon, then went to Hitchcock, and there met Ed Ellis, and returned with him to Dobbs', where Ellis got something to eat. That they were going to commence working that day for Washington Earle. That a few minutes after Ellis had eaten dinner they saw some men in buggies coming driving fast, and that he and Ellis ran in a southwest direction through a wheat field. That they ran sidé by side until they came to a wire fence, and several shots were fired. “That Ellis then said, ‘Jim, T believe I will stop/-and, knowing Ellis all his life, and knowing nothing against him, I' says to Ellis: ‘These people will not do you any harm; you give up. I am going to run for my life; I believe they are after mobbing me/” That he turned around with his revolver and-fired three shots, that the wire fence gave him time to run for his life. That he commenced running in the direction of Earle’s place'; crossed two more wire fences before reaching Earle’s. That, reaching Earle’s house, he found no one there. That he looked in behind the door, and there sat the rifle, and he got that. That the weatlier was bad, and it was muddy, and he had run about a mile and a quarter to a wheat field ThaL the wheat struck him about the hips. That he walked to the first straw stack and squatted down behind it. That the officers came on up. He further testified :

“1 judged they were hunting there for me. Pretty soon they came in the direction I was, and one man sitting on a horse, being very high, could see me behind this straw stack. He says: Tí ere he is; we have found him’ — and they opened fire, and immediately I returned fire, thinking every second was the last. I did not receive any wound on the first straw stack, but when I went from that first straw stack to another I received the wound through the stomach and side. There was men to the right, and in front of me, and I did not know who any man was that I was shooting at. As I said, it was to live as long as I could, and I had no respect for persons. I had no person picked out that I wanted to kill, but eveiy minute seemed like the last, and I was fighting to live as long as possible — was all I was doing. And after a good many shots were fired, I could not tell whether I had hit anybody or not; the wheat was high. It began to drizzle rain, and I walked out of that field; the sun was not quite down, and then I traveled on.”

The defendant stated that he was a fugitive from justice from the state of Arkansas, and also that he shot Susie Pride, a colored woman, with the same automatic pistol on May ¡31, 1908, in Oklahoma City, because she followed him on the street and said, “I am going to have you executed to death back to Arkansas,” and that he knew of Sheriff Garrison well, and voted for him, but did not know him personally. He also stated that he knew Deputy Sheriff Sanders well, but did not recognize him.

Eight or nine eyewitnesses testified that the defendant fifed the first shots.

The case has been elaborate^ briefed and ably argued by counsel on both sides. Numerous rulings have been pointed out and alleged by defendant as errors prejudicial to his substantial rights. His amended petition avers 11 assignments of error. We have examined the case with care, giving that consideration to every question which a death sentence case demands.

First. Defendant claims that the court erred in overruling his application for leave to withdraw his plea of “not guilty/’ for the purpose of demurring to the indictment. The trial court properly overruled this application. No demurrer was offered in connection with the application. The indictment is not defective. His plea of not guilty was advisedly entered, and defendant’s rights were preserved and passed upon in the court’s ruling on the motion in arrest of judgment.

Second. Defendant claims that the court erred in overruling his motion to set aside the indictment. This assignment is. without merit. The motion was filed out of time, after plea was entered. Defendant still had the right, upon a proper application át any time before trial, to apply to the court for leave to withdraw his plea for the purpose of presenting his motion, but that was not done in this case. The motion to set aside does not conform to the requirements of the statute. It'is alleged, first, that the indictment was not found, indorsed, presented, or filed as prescribed by law, and that the grand jury finding and returning said indictment was not. drawn and impaneled as provided by law; second, that said pretended indictment was not’ found, presented, and returned by the requisite number of jurors necessary under the law to find, return, and present an indictment. No informal-ities or irregularities are specifically alleged, except that L. H. Chapman had served two or more terms as jury commissioner, and that J. P. Eoetzel was, at the time of his appointment as jury commissioner, a member of the State Board of Agriculture; that they were therefore disqualified to act as jury commissioners. It is not alleged that the grand jurors, members of the grand jury that returned the indictment, were incompetent, or that the alleged irregularities were to the. prejudice of the substantial rights of the defendant. The facts stated, if true, in a motion to set aside an indictment must present a ease, not of technical, or possible, or hypothetical, but of manifest prejudice to the substantial rights of the defendant; and, where it is plain that substantial justice will not be promoted, nor manifest wrong to the defendant prevented, the indictment should not be set aside on mere technical errors, informalities, or irregularities. The motion here does not even aver that the facts stated were not known to the defendant or his counsel at the time of entering his plea, and no reason is assigned why defendant should have entered his plea without first having availed himself of the right to move to set aside the indictment. The notice to the count]' attorney was not given as required b]r statute, and the motion was not properly, verified. The court properly refused to delay the trial of the case by permitting defendant to withdraw Ins plea for the purpose of presenting the motion to set aside the indictment.

Third. Defendant, complains that the court erred in overruling his challenge to the panel of petit jurors serving at said term of court. This assignment is without a shadow of merit.

Fourth. Defendant complains that the court erred in overruling his challenge to the panel of petit jurors summoned by the sheriff from the body of the county. Evidence was heard in support of this challenge, whereupon the court as we believe correctly overruled the challenge.

Fifth. Defendant complains that the court erred in overruling his motion for a continuance. The record shows that when the case was called for trial, he moved for a continuance, and the only ground stated in the motion was that counsel for defendant did not have sufficient time and opportunity to prepare the case for trial. Tbe motion was not verified. The record shows that the defendant was arrested on or about the 1st of October, 1909,-at Pine Bluff, Ark., and was immediately transported to Blaine county, and entered his plea to the indictment, and the cause was set for October 13th by consent of counsel. Here was a period of 16 months from the time the offense was committed, and one week from the time his plea was entered, in which to prepare for trial, and from the nature and character of the case as disclosed by the record it is apparent that he had ample time to prepare for trial.

Sixth. Defendant complains that the court erred in admitting evidence on the part of the prosecution. Under this assignment his counsel contends that the court erred in admitting the complaint filed in Justice Oldfield’s court in Oklahoma county, upon which the warrant issued, and also the admission of the warrant upon which Sheriff Garrison was attempting to arrest the defendant at the time of the homicide. While it is well settled, as a general rule, that in the trial of an indictment for a specific offense evidence tending to prove the commission of other offenses is inadmissible in cases of this kind, however, in order to prove the commission of the offense charged, evidence to show that the officer killed was in possession of a warrant for the arrest of the defendant is admissible, and that such warrant was legally issued, although said proof involved the commission of another crime. It is admissible also to show guilty intent in resisting arrest. The court correctly ruled that the objections thereto were not well taken.

Seventh. Defendant complains that the court erred in refusing and ruling out legal and competent evidence on his part. A careful examination of the record discloses that all legal, competent, and material testimony, offered for or on behalf of the accused, was duly admitted.

Eighth. It is assigned as error that the court erred in giving instructions numbered 2 to II, inclusive. We have carefully examined the instructions, and it would be profitless to extend this opinion by considering them in detail. The instructions as a whole are commendably fair, and fully and correctly state the law of the ease.

Ninth. The refusal of the court to give requested instructions numbered 1, 2, and 3. An examination of those instructions shows that the same were properly refused by the court. The theory of the instructions requested and refused is set forth in a portion of the first instruction, which is in the following language :

“If the officer is acting under a warrant, he must inform the defendant, before attempting the arrest, that he acts under the authority of the warrant, and must also show the warrant, if required.” .

Also:

“That the law provides and states when an officer can use force in overcoming resistance offered to an attempted arrest, as follows: ‘That if, after notice of intention to arrest the defendant, he either flee or forcibly resist, the officer may then use all necessary means to effect the arrest.’ ”

This theory is clearly erroneous under any hypothesis based upon the evidence in this case. That the defendant knew the officers, and that he fired the first shots, is beyond 'controversy.

In the instructions given the court charged the jury as follows:

“(10) Under the law any sheriff in this state holding n warrant for the arrest of a person charged with the offense of murder committed in any county of the state is authorized to go into any county of the state, and there, either alone, or with assistants, execute such warrant by arresting the person named therein. The officer must inform the accused that he is acting under the authority of the warrant commanding his arrest, provided the officer has an opportunity so to do. If, however, when approached by the officer, and before he has an opportunity to so inform the defendant, the defendant flees, and when pursued, and before such information can be given him, he attacks or attempts to lriil the officer or his assistants, then the officer will be excused from giving such information to the accused, and may resist the attack made by the accused, and use such force as reasonably appears, under all the circumstances, to be necessary to overcome the force and resistance used by the accused, and to effect his arrest. (Excepted to by defendant.) Given. G. A. Brown, Judge.
“(11) Where a sheriff or peace officer, holding a warrant for the arrest of a person charged with the offense of murder, attempts to execute said warrant in an unlawful or unreasonable manner, and the authority of the officer is not known to the accused, and from the conduct of such officer and his assistants, if .any, intended then and there unlawfully to kill or seriously injure him, then the defendant has the right to view such- appearances from his standpoint, and to resist any such attack upon him by the officer, or officers, and use necessary force' therefor. If, however, a peace officer holding warrant of arrest attempts in a reasonable and lawful manner to execute it, and the accused knows or believes the officer to be such, and knows, or has reason to believe, he is charged with a felony, and that the purpose of the officer is to arrest him for such offense, and with intent to escape such arrest flees from tbe officer, and when pursued shoots and kills the officer, he will be guilty of murder. (Excepted to by defendant.) Given. G. A. Brown, Judge.
“(12) The state has introduced certain statements claimed to have been made by the defendant, Alf Hunter, after his arrest, and while he was in custody charged with the offense for which he is being tried, and which statements are relied on in part to establish the defendant’s guilt of the offense charged against him, and the court instructs you that confessions made by one charged with an offense must be carefully scrutinized, and received with great caution, yet, when deliberately and voluntarily made, such confessions and statements may be considered as evidence for or against the person making them the same as any other evidence. But if a confession or statement, made by one in custody under circumstances showing that he was induced to make the same by the promise or assurance that it would be to his interest to do so, show that such statement or confession was not freely and voluntarily made, then they cannot be considered as evidence against the person so making them; and in this case, if you da not find the statements made by the defendant while in custody v?ere freely and voluntarily made, then you must disregard such statements as affording any evidence against the defendant. - But the.mere fact that the confession or statements, if any, made by the defendant were made in answer to questions propounded to him while under arrest will not be sufficient to exclude such answers as evidence, if they were freely and voluntarily made. (Excepted to by defendant.) Given. G. A. Brown, Judge.
“(13) Now, bearing in mind the foregoing definitions, and carefully applying these instructions to the evidence, if you believe beyond a reasonable doubt that James Kingsbery and Alf Hunter named in the indictment is one and the same person, and that about the 25th day of May, 1908, or any time thereafter, and before June 5, 1908, a warrant was issued by Edward Dewes Oldfield, a justice of the peace in and for Oklahoma county, in the-state of Oklahoma, on- a complaint filed with said justice of the peace charging the defendant as James Kingsbery or as Alf Hunter of the offense of murder committed in said county, and that, in said warrant the sheriff of said county was commanded to arrest the defendant on said charge of murder, and you further find' that such warrant, or alias thereof, wras held by G. W. Garrison, sheriff of said Oklahoma county, on the 5th day of June, 1908, and that said G. W. Garrison, as such sheriff, was in Blaine-county, in said state of Oklahoma, for the purpose of executing said warrant and arresting the defendant by virtue thereof, and that said ■ 6. W. Garrison, or he and others assisting him, then and there approached the defendant for the purpose of making-said arrest, and that the defendant, before said Garrison had opportunity to inform him (the defendant) that he (the said Garrison) was acting under authority of the said warrant, fled from the said Garrison, and when pursued by Garrison, or by him and others assisting him, the defendant, without any cause therefor, unlawfully shot and killed the said G. W. Garrison, intending therebjr to escape arrest by such officer, and you find that such killing was done in Blaine county, in the state of Oklahoma, or. the 5th day of June, 1908, then it will be your duty to find the defendant guilty of murder, as charged in the indictment, and so say by your verdict. (Excepted to by defendant.) Given. G. A. Brown, Judge.
“(13a) If, however, you find that G. W. Garrison and others assisting him, on the pth day of June, 1908, went to the place where the defendant; Alf Hunter was, for the purpose of arresting him, and you find that the defendant at the time did not know said G. W. Garrison, or did not then recognize him, or the persons assisting him as peace officers, and did not know or believe that the said Garrison and others were peace officers and intending to arrest him (the defendant) on the charge of murder, or for some felony, and you further find that from the manner and conduct of the said Garrison and others it then and there reasonably appeared to the defendant that they were making an unlawful attack upon him, and, without any authority of law, intended then and there to kill or inflict upon him some serious bodily injury, and that there was imminent danger of such unlawful intention being executed, as viewed by the defendant from his standpoint, and you find that the defendant shot and killed the said Garrison to avoid such threatened or imminent danger to him (the defendant), then you must acquit the' defendant, and say by your verdict 'not guilty/ (Excepted to by defendant.) G. A. Brown, Judge.”
“(17) The defendant in a criminal case is not required by law to prove his innocence, but the burden is on the state to prove his guilt of the offense charged against him. He is presumed to be innocent of such charge until his guilt thereof is established by legal evidence beyond a reasonable doubt; and, in case the jury have a reasonable doubt of the defendant’s guilt, they must acquit him, and return a verdict of not guilty.”

Error, if any, in the instructions given is clearly in favor of the defendant. The presumption of law is that the officer did nothing more than was necessary to the performance of his duty, and in case of doubt this presumption must be resolved in favor of the action of the officer.

The tenth and eleventh assignments relate to the overruling of motions for new trial and in arrest of judgment. The questions therein raised have been fully considered.

The defendant was ably defended. It is commendable that counsel for the condemned in a capital case should raise every question which in his judgment might tend to the advantage of his client; however, the record discloses the most painstaking care on the part of the learned trial court to safeguard every substantial right of the defendant. For this reason the assignments of error are destitute of merit. Thrice a murderer, self-confessed, as a fugitive from justice from a neighbor state, defendant to avoid detection fiendishly murdered an inoffensive woman of his own race in Oklahoma City. To escape arrest for this crime he wantonly murdered one of the foremost citizens of the state, while as a peace officer he was fearlessly performing his duty. The killing of a peace officer in resisting a lawful arrest is not only murder, but is deemed a murder of more than usual aggravation. Thus, it has been said by an author of high authority that:

“Ministers of justice, while in the execution of their offices, are under the peculiar protection of the law. This special protection is founded in great wisdom and equity, and in every principle of political justice. For without it the public tranquility cannot possibly be maintained, or private property secured, nor, in the ordinary course of things, will offenders of any kind be amenable to justice; and, for these reasons, the killing of officers so employed hath been deemed murder of malice prepense.”

By a fair and impartial trial the defendant has been adjudged to suffer the just penalty of the law. The judgment of the district court is therefore affirmed. Wherefore it is ordered by this court in this ease that the judgment and sentence of the district court of Blaine county, on the defendant, Alf Hunter, alias James Kingsbery, be carried into effect by the sheriff of Blaine county, Okla., on Friday the 8th day of April, 1910, in the manner prescribed by said judgment.

FURMAN, PRESIDING Judge, and OWEN, Judge, concur.


text:
    John Black v. State.
    No. A-550.
    Opinion Filed March 8, 1910.
    (107 Pac. 524.)
    1. APPEAL — Refusal of Change of Venue — Discretion. A petitior for a change of venue is addressed to the sound discretion of the trial court, and the judgment below will not he reversed- hy this court for the failure to grant the change of venue unless it clearly appears that the discretion of the court was abused to the prejudice of the defendant.
    2. VENUE — Change of — Sufficiency of Petition. The petition for change of venue in this ease fails to meet the statutory requirements, and there can be no error in the trial court for refusing the change.
    3. APPEAL — Review—Assignment of Error. Assignments of error based on evidence not incorporated in the case-made, and not 'before the court by bill of exceptions, cannot he considered by this court.
    (Syllabus by the Court.)

      Error from District Court, Hughes County; John Caruthers, Judge.

    The plaintiff in error, John Black, was tried at the November term of the district court for Hughes county on an information charging him with murder. He was convicted on the 4th day of November, 1909, and his punishment fixed at death. The ease is before us on appeal.
    Affirmed.

      B. N. Hides, and W. T. Anglin, for plaintiff in error.

      Charles West, Atty. Gen., and Chas. L. Moore, Asst. Atty. Gen., for the State.
   OWEN, Judge.

The petition in error filed in this case recites six assignments. The first assignment is that the court erred in overruling the demurrer of the defendant to the information filed against him. The second and third assignments are to the action of the court in' overruling the motion of the defendant for a change of venue, and a refusal of the court to permit the defendant to take testimony in open court in support of the same. Assignments 4, 5, and 6 refer to the action of the court based on evidence offered in the lower court, but not incorporated in the case-made, and for that reason the questions raised under these assignments cannot be considered by this court. The case-made does not include the instructions of the court, the evidence offered before the jury, or any of the evidence offered in support of the motion for a new trial. It does contain the information, defendant’s demurrer thereto, affidavit for change of venue filed by the defendant, his application to take oral proof in support of the same, verdict of the jury, motion for a new trial, and proof of settling and signing the case-made. There are no briefs filed on part of plaintiff in error, but this being a capital case and the punishment fixed at death, we have carefully examined the entire record as contained in the case-made without the assistance of a brief.

The information in this case is in the usual form and charges the defendant with the crime of murder. We find no error in the action of the court in overruling defendant’s demurrer to the same.

The application for change of venue is in regular form, and alleges that, owing to the prejudice and feeling against the defendant in Hughes county, he cannot have a fair and impartial trial in said county. This application is supported by the affidavit of three disinterested persons as required by the statute. Section 6766, Comp-. Laws 1909, governs this matter, and is as follows:

“Any criminal cause pending in the district court may, at any time before the trial is begun, on the application of the defendant, be removed from the county in which it is pending to some other county in said judicial district, whenever it shall appear in the manner hereinafter provided, that the minds of the inhabitants of the county in which the cause is pending are so prejudiced against the defendant that a fair and impartial trial cannot be had therein. Such order of removal may be- made on the application of the defendant by petition, setting forth the facts verified by affidavit, if reasonable notice of the application be given to the county attorney and truth of the allegations in such petition be supported by the affidavits of at least three credible persons, who reside in said countyP

• It will be noticed that the language of this statute is: <cWhenever it shall appear in the manner hereinafter provided.5* A grant of change of venue is within the sound discretion of the court, even when the requirements of the statute have been complied with, and this court has repeatedly held that it will not reverse the judgment of the lower court for the failure to grant a change of venue unless it plainly appears that the discretion of the court has been abused to the prejudice of the defendant. The journal entry recites the fact that the attorneys for the defendant requested the court to issue subpoenas for witnesses and permit them to take oral proof in support of a change of venue, and gave as a reason therefor that while the feeling was very high and prejudice very strong against the defendant, yet they were unable to secure the affidavit of any person to these facts. Counsel-cites no authority for this kind of a proceeding. The statute provides the cnly method of proof. We find no error in the action of the court in refusing this request and in overruling the motion for a change of venue.

The evidence before the trial court referred to in the other assignments of error, not having been incorporated in the case-made and not before this court, no consideration can be given to the same.

The judgment of the lower court must be affirmed. It is therefore ordered and adjudged by this court that the sheriff .of Hughes county proceed to carry out the judgment of the district court of Hughes county in this case and that the defendant be executed on the 15th day of April, 1910, according to said judgment as rendered by that court.

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


author: PER CURIAM.

text:
    Jack Sawyer v. State.
    No. A-222.
    Opinion Filed March 9, 1910.
    (107 Pac. 947.)

      Appeal from Grady County Court; N. M. Williams, Judge.

    Jack Sawyer was convicted of violation of prohibitory law, and appeals.
    Dismissed.
   PER CURIAM.

Plaintiff in error was convicted of a violation of the prohibition law, and was sentenced to pay a fine of $200 and be confined in the county jail for a term of 30 days. An appeal was taken by filing in this court, June 19, 1909, a petition in error, with ease-made attached. Now, on March 5, 1910, said plaintiff in error has filed in this court his motion to dismiss said appeal.

Wherefore it is ordered that said appeal be, and the same is, hereby dismissed, with direction to the county court of Grady county to cause the judgment and sentence to be carried into execution.


author: PEE CUBIAM.

text:
    Pat Tolan v. State.
    No. A-308.
    Opinion Filed March 5, 1910.
    (106 Pac. 976.)

      Appeal from Grady County Court; N. M. Williams, Judge.

    Pat Tolan was convicted for violation of the prohibition law, and brings error.
    Dismissed.
   PEE CUBIAM.

Plaintiff in error was convicted of a violation of the prohibition law, and was sentenced to pay a fine of fifty dollars and be confined in the county jail for a term of thirty days. An appeal was taken by filing in this court, September 17, 1909, a petition in error, with case-made attached. On February 25, 1910, said plaintiff in error filed in this court his motion to dismiss said appeal.

Wherefore it is ordered that said appeal be, and the same is, hereby dismissed, with direction to the county court of Grady county to cause the judgment and sentence to be carried into execution.


author: PEE CUEIAM.

text:
    L. W. Beckham v. State.
    No. A-309.
    Opinion Filed March 9, 1910.
    (107 Pac. 947.)

      Appeal from Grady County Court; N. M. Williams, Judge.

    L. W. Beckham was convicted of violating the prohibition law, and appeals.
    Dismissed.
   PEE CUEIAM.

Plaintiff in error was convicted of a violation of the prohibition law, and was sentenced to pay a fine of $125 and to be confined in the county jail for a term of 30 days. An appeal was taken by filing in this court, September 18, 1909, a petition in error, with case-made attached. Now, on March 5, 1910, said plaintiff in error has filed in this court his motion to dismiss said appeal.

Wherefore it is ordered that said appeal be, and the same is, hereby dismissed, with direction to the county court of Grady county to cause the judgment and sentence to be carried into execution.


text:
      Ex parte George Jacobs.
    No. A-559.
    Opinion Filed March 11, 1910.
    (106 Pac. 977.)
    In the matter of the application of George Jacobs for writ of habeas corpus, for the purpose of obtaining bail.
    Order discharging defendant on bail.
   PER CURIAM.

This is an application for writ of habeas corpus for the purpose of granting bail. The application was filed in this court on January 18, 1910.

It appears from the petition and the return made by the sheriff that the petitioner, George Jacobs, is held under a commitment issued by Hon. R. McMillan, judge of the Fourth judicial district, on an indictment returned in McClain county charging the petitioner with murder, and the petitioner was transferred from McClain county to the eóunty jail in Cleveland county. A number of affidavits were filed as to the facts and circumstances of the homicide, and the additional' representation is made by counsel for the petitioner that the petitioner’s father is at this time dangerously ill and in a dying condition.

Under our Constitution all offenses are bailable, except in capital cases where the proof of guilt is evident or the presumption thereof is great. After due consideration of the facts disclosed by the affidavit filed in support of the petition, we are of the opinion that the defendant is entitled to bail.

It is therefore ordered that the defendant be admitted to bail in the sum of $20,000, the sufficiency of security to be approved by the clerk of the district court of McClain county, and that on his approval of the bail in said sum the defendant be discharged from the custody of the sheriff of Cleveland county, where he is at present confined.