author: ABMjSTBONG, Judge.

text:
    R. J. CRANE v. STATE.
    No. A-527.
    Opinion Filed May 23, 1911.
    (115 Pac. 622.)
    1. ANIMALS — Contagious and Infectious Diseases — Quarantine— Violation of Quarantine Law — Prosecution—Defenses. A person on trial charged with having violated a local quarantine, promulgated by a live stock inspector, is entitled to show as a defense to the charge that he had no knowledge of the existence of the quarantine, and no information of facts upon which he could be reasonably presumed to know of the existence of the same.
    2: ANIMALS — Contagious and Infectious Diseases — Quarantine, (a) A quarantine promulgated by a local live stock inspector under the provisions of our statute, in order to be effective, must be established after an examination and inspection of the premises quarantined, and upon a finding that the premises are infected with an infectious or contagious disease of a malignant character.
    (b) When such quarantine is so established, notice should be given to the person in charge of the premises, and to any others directly affected by the order, and by publication as near as practicable.
    3, ANIMALS — Contagious and Infectious Diseases — Quarantine — Violation of Quarantine Law — Prosecution—Defenses, (a) When a person is on trial charged with having violated the provisions of a local quarantine, he is entitled to show as a defense that the facts did not warrant the establishing of the quarantine.
    (b) The finding of an inspector to the effect that infectious or contagious diseases exist and the establishing by him of a quarantine are not conclusive as against a person charged with having violated the order.
    (Syllabus by the Court.)

      Appeal from Cleveland County Courtj N. E. Sharp, Judge.

    R. J. Crane -was convicted of violating the quarantine law, and he appeals.
    Reversed and remanded.

      A. Ilutchin and J. B. Dudley, for plaintiff in error.

      Chas. West, Atty. Gen., Smith C. Matson, Asst. Atty. Gen., and George G. Graham, Co. Atty., for the State.
   ABMjSTBONG, Judge.

Plaintiff in error was tried at tbe January, 1909, term of the county court of Cleveland county on a charge of violating the provisions of the quarantine law, and convicted, and his punishment fixed at a fine of $100 and costs.

It appears: That the plaintiff in error was a son of G. M. Crane and lived with his father in Cleveland county. ■ That John Bryant was a neighbor of Crane’s and had a pasture in section 1, township 6 north, range 1 west of the I. M., Cleveland county, Oída., and that G. M. Grane had a cow in this pasture. That oh the 3d day of September, 1909, one Thornton, a live stock inspector at Lexington, in said county, attempted to quarantine the pasture of Bryant by delivering a written notice of quarantine to said Bryant in Lexington several miles away, and without making any inspection or examination of the premises. Some time during the day G. M. Crane directed his son, the plaintiff in error, to go over to the pasture and get the cow, which he did.

Upon the trial plaintiff in error offered proof tending to show that he had no knowledge of the existence of the quarantine at the time he removed the cow from the pasture. The court refused to admit the testimony on the theory that it was unnecessary to prove knowledge of the existence of the quarantine by the plaintiff in error, but that it was sufficient if the owner of the pasture had been notified. The court, in passing on the objection of the state to this testimony, said:

' “It is the ruling of the court that it is not necessary nor the intent of the law to require actual notice to be given to all persons who may have cattle in the pasture that is quarantined; if the man in the possession of the property or premises has reasonable notice from the inspectors, then all other people who might be incidentally affected by the rules would have to take notice of the time the quarantine is established, and in viewing the matter in that light it would, of course, render the question as to what the boy might have said immaterial, in the way of notifying or saying anything to the defendant, or to the owner of the cattle, as to the quarantine.”

Testimony was introduced on the part of the state tending to show that the premises quarantined were infected with contagious diseases, and to meet this the plaintiff in error offered proof to the effect that the premises and cattle thereon were not infected with disease. Such testimony on the part of the plaintiff in error was excluded by the trial court on the ground that the findings by the inspector as to these matters were final. Plaintiff in error excepted to these rulings of the trial court. Following this same theory, the court gave the following instructions:

Instruction No. 3:

“You are instructed that it is a violation of law for any person or persons to interfere with an inspector’s possession of any premises, which he has declared to be under quarantine, or live stock thereon, or violate any of the rules and regulations made by such inspector of said premises under his possession or control. And if you find from the evidence in this case, beyond a reasonable doubt, that a duly appointed and acting live stock inspector served either written or verbal notice upon one John Bryant, on or about the 3d day of September, 1909, warning and notifying him that any of the live stock or premises in question were infected with any contagious or infectious disease, as charged in the information, of a malignant character, and, if you. further find from the evidence beyond a reasonable doubt that the said John Bryant was in lawful possession of said premises at such time, then you are instructed that the removal of any live stock from said premises after such notification to the said Bryant, and before release of such premises, would be a violation of said rules and regulations.”

Instruction No. 4:

“You are instructed that a rule or regulation adopted by a live stock inspector, as explained in these instructions, becomes of full force and effect immediately upon the provisions and extent of same being communcated to the person having the lawful possession of any premises and'live stock affected by such rules and regulations. And if you find from the-evidence, beyond a reasonable doubt, that the premises in question were duly and legally placed under quarantine by a live stock inspector of this state, as alleged in the information, and if you find from the evidence, beyond a reasonable doubt, that the defendant, R. J. Crane, removed a cow from said premises after the said Bryant was so notified, and without the consent of a live stock inspector or before such rules and regulations were modified or abolished, then you should find the defendant guilty.”

Instruction No. 6':

“You are instructed that it is not necessary for tbe state to nrove that the defendant had actual knowledge of said premises being under the possession or control of a live stock inspector in order to render said defendant amenable to such rules and regulations; it will be sufficient to render him liable to show by the evidence, beyond a reasonable doubt, that he removed a cow from said premises__ after the same was legally placed in the possession or control of a live stock inspector, as defined in these instructions.”

Plaintiff in error saved exceptions to each of these instructions.

This case appears to have been tried upon an entirely erroneous theory of the law. The rulings of the court in the admission and exclusion of testimony, as well as the instructions given, clearly indicate this.

Section 15, c. 2, art. 1, Snyder’s St., 1909, defines the duties of the state board of agriculture, among'which is to- protect the-live stock of the state from infectious and contagious diseases of a malignant character. This board is authorized and empowered to establish, maintain, and enforce such quarantine lines and also the lines established by law, and to make all reasonable and necessary rules and regulations for the enforcement and execution of the same. Section If authorizes said board to appoint a sufficient number of live stock inspectors to carry out the provisions of this act, and to enforce the regulations adopted by it relative to animal inspection and quarantine lines. Section 18 defines the authority and powbrs of the inspectors appointed by the board, and, among other things, provides that -they may enter upon any premises or into any barn, shed, pasture, etc., for purposes of inspecting or disinfection, and if upon examination the inspector is satisfied that the premises, barn, shed, etc., is infected with any infectious or contagious disease, of a malignant character or needs disinfecting, he may possess himself thereof, and establish such rules and regulations as he may deem necessary. It further provides that, if any person interferes with the inspector’s possession of said premises or violates any rules made by him, he may be deemed guilty of a misdemeanor.

In order for a person to be liable for prosecution for violations of a local quarantine established by live stock inspectors, they must have knowledge of the existence of such quarantine. We do not think.it necessary for personal notice to be served on such person, but he must have such information that he could be reasonably presumed to know of the existence of the same. In the case at bar, however, no valid quarantine existed from the facts disclosed by the record.' The live stock inspector was never closer than five miles to the pasture he attempted to quarantine, and the only act he ever did so far as the record shows was to meet Bryant, the owner, in Lexington several miles away and notify him that a quarantine existed. He never went upon the premises and after examination satisfied himself that the pasture was infected with an infectious or contagious disease of a malignant character, or that it needed disinfection. These quarantines, to be upheld, must be established in keeping with the requirements of the statute. Even if the inspector had complied with the statute and made a personal examination of the premises and declared the quarantine in the manner contemplated by law, the plaintiff in error would not be precluded from showing that the facts did not warrant the establishing of a quarantine as a defense to the prosecution. If, as a matter of fact, conditions did not warrant a quarantine, the inspector could have been enjoined from enforcing it; and if the enforcement of the quarantine could have been- enjoined, certainly a, person could not be held criminally liable for not observing it.

The finding of the inspector to the effect that infectious or contagious diseases exist and the establishing of the quarantine are not conclusive as against a pterson charged with having violated the order. He may prove on his trial that the facts did not warrant the establishing of such quarantine, and such proof would be a sufficient defense. The instructions of the court, quoted supra, are erroneous for the reason that under them a person could be convicted for violating a quarantine without any knowledge whatever of its existence. And for the further reason that they are predicated on tbe theory that notice of such quarantine is required to be given only to the person in possession of the premises, and in effect imputes knowledge of the- establishment of the quarantine to every one else. And for the further reason that they deprive the defendant of the right to show lack of .existence of facts necessary upon which to base a quarantine, as a defense; and, further, the right to show that he had no knowledge of tbe existence of such quarantine.

TJpon the proposition of the necessity of' notice, we quote the Supreme Court of South Dakota. In the case of State v. Butts, reported in 3 S. D. 577, 54 N. W. 603, 19 L. R. A. 725, that court discusses a proposition identical in principle to the one involved in the case at bar. In that case the superintendent of health promulgated a quarantine against Butts, preventing him from leaving his own residence until further ordered by such superintendent of health. The information charges the violation of this order by Butts by going openly from his house upon the public streets of the town of Miller, etc. He made a motion to dismiss the proceedings on the ground that the information stated no offense which the court had jurisdiction to try. The motion was denied, and he was tried and convicted, and appealed. The Supreme Court, in reversing and dismissing the case, said:

“The openly going from his residence upon the public street did not make plaintiff in error a criminal offender against the quarantine order, unless he knew of its existence. Such an order is unlike a law, knowledge of which is charged against every one. The order might have been duly and properly made, and) after it was so made plaintiff in error might have done the very thing which the order prohibited and still be innocent of an offense, unless he knew of such prohibition. * * * All the matters charged in the information might be proved, and yet entirely fail to show the guilt of the plaintiff in error, because his guilt would depend upon his knowledge that the act was prohibited, and therefore wrong. * * * To make it criminal (violation of quarantine regulations) it must be done with a knowledge, either actual or imputed,, that it had been authoritatively prohibited.”

On the proposition of the effect of the finding of the inspector that the conditions exist justifying the quarantine, the case of Richter v. State, from the Supreme Court of Wyoming, reported in 16 Wyo. 437, 95 Pac. 51, holds, under a statute similar to ours, that the decision of the inspector is not final, and that a prosecution under a section of that statute, which provides that any sheep inspector on finding on examination that sheep are infected with or have been exposed to infectious disease may require that they be kept within certain limits, and that any owner of sheep who breaks quarantine shall be guilty of a misdemeanor, does not preclude the defendant from, showing that the necessity of the quarantine did not exist; the question being one of fact for the jury.

On the proposition that the findings of the live stock inspector are not conclusive, the case of State of Iowa v. S. C. Curby, reported in 120 Iowa, 26, 94 N. W. 254, while not exactly in point, supports our position.

The case of Verner v. Bosworth, reported in 28 Kan. 670, supports our views as herein expressed. In that case the live stock inspector and other officers as provided by the Kansas statute had seized certain property and condemned the same under the quarantine provision. The Supreme Court of Kansas says:

“If upon a judicial hearing it shall be ascertained that the complaint was made without cause, and that the cattle complained of are not within the terms of the statute, the owner thereof would clearly be entitled to have them returned to him; and thus he has his remedy by due course of law, notwithstanding the proceedings in the first instance are ex {parte. Counsel suggest that the owner of cattle taken up under the provisions of this statute has notice prior to the sale for costs and expenses, and that no other or further notice is necessary or required in order to give Mm an opportunity to have his rights adjudged. This notice comes too late to benefit the owner in contesting the complaint, if the report of the inspectors and the order of the justice of the peace are conclusive.”

The case of Wilcox v. Johnson, reported in 34 Kan. 658, 9 Pac. 610, holds that the actions of the quarantine officer, justice of the peace, and sherifE, respectively, are not conclusive against the owner of the cattle seized under the statute, and that the owner may have his action of replevin showing that the cattle are not diseased within the meaning of the law.

For errors in excluding the testimony referred' to, and in giving the instructions quoted, the judgment of the trial court' is reversed, and this cause remanded.

FTJBMAN, Petssiding Judge, and DOYLE, Judge, concur.


source: Caselaw Access Project

author: DOYLE, Judge.

license: Public Domain

text:
    OFA BROWN v. STATE.
    No. A-545.
    Opinion Filed May 23, 1911.
    (115 Pac. 615.)
    INFORMATION — Filing Amended Information — Effect. By the filing of an amended information in a misdemeanor case the original information is thereby set aside and abandoned.
    ('Syllabus by the Court.)

      Appeal from Pawnee County Court; H. T. Conley, Judge.

    Ofa Brown was convicted of violating the prohibitory law, and appeals.
    Beversed.

      D. Lafe Subler and Geo. E. Merritt, for plaintiff in error.

      Smith C. Matson, Asst. Atty. Gen., for the State.
   DOYLE, Judge.

An information was filed in the county court of Pawnee county on, September 22, 1909, charging that ¡on the 1st day of September, A. D. 1909, in said county and state, one Ofa Brown did then and there wilfully, knowingly, and unlawfully have in his possession certain intoxicating liquor, to wit, one barrel of bottled beer, with the unlawful intent to then and there convey said intoxicating liquor from the Santa 'Fe depot in the town of Balston to the town of Fairfax. After-wards on the 24th day of September, 1909, there was filed an 'amended information which charged that on the 1st day of September, 1909, in said county and state, Ofa Brown did then and there wilfully, knowingly, and unlawfully have in his possession certain intoxicating liquor, to wit, one barrel of bottled beer, which he, the said Ofa Brown, was then and there carrying and conveying said intoxicating liquor from the Santa Fe depot, in the town of Ralston, to Fairfax. October 5th a demurrer was filed and overruled.- October 7th the cáse was called for trial, and on the same day the jury returned the following verdict: “We, the jury, impaneled and sworn to try the issues in the above-entitled cause, do, upon our' oaths, find the defendant guilty as charged in the information/’ Motions for new trial and in arrest of judgment were duly filed. October 23, 1909, the court overruled said motions and sentenced defendant to be imprisoned for a period of 30 days and that he pay a fine of $300 and costs. From which judgment an appeal was taken by filing in this court on January 13, 1910, a petition in error with case-made attached.

Of the various assignments of error, it is only necessary to consider one question presented by the record; that is, could the defendant be tried on the original information when an amended information was filed and demurrer thereto overruled.

The only recital in the record that would indicate that the defendant was tried upon the original information ■ appears -in the certificate of the trial judge wherein he states:

“I further certify that there are two informations in said case-made, one marked as ‘Amended Information.’ The defend-, ant in the above-entitled case was tried on the original information. He entered a plea of not' guilty to the charge against him in the said information, and the said original' information was read to the jury before the trial, and the .same was treated by the attorneys and by the court during the trial as an amended information.”

It is assigned as error:

“That the court erred in adding to the certificate of settlement of the case-made the statement that the defendant was tried and found guilty under-the original information treated as an amended information.”

This court must consider the cause upon the record proper.

Section 6645, Snyder’s St., provides:

“An information mav be amended in matter of substance or form at any time before the defendant pleads, without leave, and may be amended after plea on order of the court where the same can be done without material prejudice to the right of the defendant; no amendment shall cause any delay of the trial, unless for good cause shown by affidavit.”

The amended information was filed, and afterwards a demurrer thereto was overruled. There is nothing in the entire record which shows that the amended information did not supersede the original information. By the filing of an amended information in a misdemeanor case before the defendant pleads, the original information is thereby set aside and abandoned, and the defendant cannot be tried upon the original information.

It is not a matter wherein the state can elect the offense for which the defendant can be placed upon.-his trial. In the case of Bonitzer v. State, 4 Okla. Cr. 354, 111 Pac. 980, construing section 6699, Snyder’s St., Presiding Judge Furman used the following language:

“The purpose of this statute is to force the state to try but one transaction alleged to be criminal at a time. This statute also confers a valuable right upon the defendant. If the state could bring several criminal accusations against the defendant in one information or indictment, based upon more than one transaction, which might be incorporated in one indictment or information, how would it be possible for the defendant to know as to tne particular transaction for which he will be placed upon trial, and how could he prepare his defense? This makes it clear that the requirement of the statute that but one transaction should be investigated at a time is based upon reason and justice, and that it confers a valuable right upon the defendant. This is not only our statute law, but it is the very substance of our Constitution itself. Section 29 of the Bill of Rights, Bunn’s Oklahoma Constitution, among other rights secured to a defendant of which the Legislature cannot deny him, we find the following: ■Tie shall be informed of the nature and cause of the accusation against him, and have a copy thereof.’ This shows that the Constitution limits the power of the court in criminal cases to the investigation of but one accusation at a time.”

So far as the record shows, the amended information superseded the original information, and, if the defendant was tried npon the original information without setting aside and dismissing the amended information, it was error prejudicial to his substantial rights, for which the judgment must be reversed.

For the reason stated, the judgment of the county court of Pawnee county is hereby reversed, and the cause remanded, with direction to proceed in accordance with the views herein expressed.

FURMAN, PresidiNg Judge, and ARMSTRONG, Judge, concur.


author: FURMAN, PRESIDING Judge.

text:
    ANDY KERKENDALL v. STATE.
    No. A-616.
    Opinion Filed May 23, 1911.
    (115 Pac. 612.)
    1. ASSAULT AND BATTERY — Assault with Dangerous Weapon— Sufficiency of Evidence — Appeal—Review. (a) When there is any evidence in the record from which the jury could legitimately draw the conclusion of the defendant’s guilt, this court will not set aside their verdict upon the ground of the insufficiency of the testimony, unless it clearly appears from the record that the jury were influenced by improper motives in convicting the defendant.
    (b) For evidence sustaining a verdict of guilty for unlawfully assaulting another with a dangerous weapon with intent to injure such person, see facts stated in the opinion.
    2. JUDGMENT — Assault with Dangerous Weapon — Sufficiency. For a judgment held to be sufficient upon a conviction for an assault with a dangerous weapon with intent to injure, see opinion, although said judgment is not commended in the matter of form.
    3. JUDGMENT — Time—Waiver. A defendant may waive the time allowed by law after his conviction before judgment can be pronounced against him.
    (Syllabus by the Court.)

      Appeal from 'District Cowrt, Pittsburg County; Preslie B. Cole, Judge.

      Andy Kerkendall was convicted of an assault with a dangerous weapon with intent to do. bodily harm, and he appeals.
    Affirmed.

      Lester & Hammond, for appellant.

      Smith G. Matson, Asst. Atty. Gen., for the State.
   FURMAN, PRESIDING Judge.

First. The first and second assignments of error challenge the sufficiency of the evidence to sustain the verdict.

J. G. Pate, the prosecuting witness, testified as follows:

“I got on the train and started to Wilburton, and I had been working for the deputy sheriff out there, and was then, and there was a nigger. He says, Tf you find that nigger that day, arrest him/ He had got away in the courthouse here, and that was my business down there that day, and I was sitting on the south side of the coach, on the right-hand .side, and Mr. Kerkendall walked through the coach, and got a drink of water and came back, and I was sitting next to the window in the right-hand side, with my head half out the window, and he spoke something. I never noticed what he said, and just as I turned, he struck me with his fist, and I commenced knocking his licks off with one hand, and finally I slipped down, and one of my hands was on the floor, and I got one hand on the back of the seat to keep from falling between them, and commenced kicking him off with my foot, and he grabbed my foot and ran his hand in his pocket, and I think that was his left hand. I am not very certain which hand it was; but anyway he run his hand in his pocket, and I said, ‘Don’t let him cut me, boys/ I thought he wa,s getting a knife, and he struck me with a pair of knueks. The scar is there now, and, when he struck me there, it kind of addled me, and he struck me again on the nose. Q. Is that the scar? A. Yes, sir; right there is the scar, and here between the places and I commenced hollering for them to, ‘Take him off! Take him off!’ and this feller Aaron grabbed the revolver, and I grabbed the muzzle, and he throwed it down on me, and said, ‘Are you whipped? Are you whipped?’ And I kept hollering, ‘Take him off!’ And two or three more ran over there and grabbed him. Q. Where were you carrying your revolver? A. In my left hip pocket, automatic Colts, and then the conductor came in and I stayed in the coach, and these other parties went in the baggage car and got me some water, and I washed and went to Wilburton, and had my head dressed. Q. Did it bleed much? A. Right smart. Q. You say you don’t know haw many times he struck you? A. He left three sears. He struck at me about five times with knucks, and there is three scars left on me where the doctor put the plaster on those three. Q. You had a doctor to dress your head after you got to Wilburton? A. Yes, sir; Dr. Vance.”

The state introduced several other witnesses whose testimony corroborated that of the prosecuting witness.

The defendant gives an entirely different version of the difficulty. He testified as follows:

“When I got on the train that morning, I went back in what is called the smoker and sat down, and Mr. Pate and several other passengers were sitting in the rear end of the car, and 1 got up and walked through to get a drink of water, and, when I returned back, Mr. Pate says, ‘Say Andy, I want to see you a minute/ and I just sat down in the seat, and he says, ‘What did you go report me in the local, and claim that I scabbed ’ And I said, ‘Simply because you did scab on us at the powder plant, and I know you did do it.’ And he threw his hand back to his hip, and I hit him and knocked him against the window. I got up and he got up, and we passed two or'three licks, and I knocked him down, and, when 1 knocked him down, he fell over the seat, and his head hit the bottom part of the window, and he grabbed the seat with his left hand, and seemed like the gun was in this pocket and his coat dropped down and he run his hand in here, and I grabbed him by his foot and kept hitting him every time he would raise his head up, and he was hollering, and, just as Mr. Aaron ran in around like that, he got this gun just about this position, and Aaron grabbed the gun and took it away from him, and told me to quit, and I quit, and that was all there was to it.”

The defendant’s version of this difficulty was corroborated by the testimony of several other witnesses.

The defendant was prosecuted under section 2337 of Snyder’s Compiled Laws of Oklahoma of 1909, which is as follows:

“Every person who, with intent to do bodily harm, and without justifiable or excusable cause commits any assault upon the person of another with any sharp or dangerous weapon, or who, without such cause, shoots or attempts to shoot, at another, with any kind of firearm or air gun or other means whatever, with intent to injure any person, although without intent to kill such person or to commit any felony, is punishable by imprisonment in the state prison not exceeding five years, or by imprisonment in the county jail not exceeding one year.”

We think the testimony for the state sustains the offense charged under this statute. It is true that the state’s evidence was contradicted, but it was for the jury to settle all questions as to the credibility of the witnesses and conflicts in the testimony, and we cannot say in the light of the record that their verdict is contrary to the evidence. When there is any evidence in the record from which the jury could legitimately draw the conclusion of the defendant’s guilt, this court will not set aside their verdict upon the ground that the testimony is not sufficient to support the verdict, unless it clearly appears from the record that the jury was influenced by improper motives in convicting the defendant.

Second. The third assignment of error is as follows:

“Because there was no judgment and sentence rendered- in said case against the defendant as is provided by law. (A) Because the judgment and sentence does not state what offense the defendant was found guilty of. (B) Because the record does not show that at the time defendant appeared in court for judgment and sentence he was informed of the nature of the indictment or offense, or his plea and of the verdict of the jury, as is required by law.”

This assignment of error is based on section 6910, Snyder’s Comp. Laws Okla. 1909, which is as follows:

“When the defendant appears for judgment, he must be informed by the court or by the clerk under its direction of the nature of the indictment, and his plea and the verdict, if any thereon, and must be asked whether he has any legal cause to show why judgment should not be pronounced against him.”

The recitals of the judgment are as follows:

“The State of Oklahoma v. Andy Kerkendall, Defendant. Judgment and sentence on indictment for assault with dangerous weapon in Pittsburg county, state of Oklahoma. The prisoner, the above-named Andy Kerkendall, defendant, being personally present in open court, and having been legally convicted by a jury of twelve good and lawful men for the offense of assault with dangerous weapon, now, on this the 19th day of October, 1909, the same being one of the regular days of October, 1909, term of this said court, the said defendant, Andy Kerkendall, was brought to the bar of the court in custody of the sheriff of said county, and, it being demanded of him what he has to or can say why the sentence of the law upon conviction of- guilty heretofore passed ujion him by the jury in this cause on the 8th day of Oct. A. .D. 1909, shall not now be pronounced against him, he says lie has nothing further or other to say than he has heretofore said. Whereupon, the premises being seen, and by the court well and sufficiently understood, it is considered by the court that the said Andy Kerkendall for his offense aforesaid, be imprisoned in the county jail for Pittsburg county, situated at McAlester, Pitts-burg county, Oklahoma, for the term and period of six (6) months at hard labor from this date, and thereupon the court notified the defendant of his right of appeal.”

While it is true that the judgment in this case is not a model in form, yet we think,that it sufficiently shows the essential elements of a judgment Section 6487, Snyder’s Comp. Laws Okla. 1909, is as follows:

“The rule of common law that penal statutes are to be strictly construed, has no application to this chapter. This chapter establishes the law of this state respecting the subjects to which it relates, and its provisions and all proceedings under it are to be liberally construed, with a view to promote its objects, and in furtherance of justice.”

The record in this case shows that the appellant was duly arraigned and pleaded not guilty, and was -present during the entire trial and when the verdict was rendered, and therefore that he could not have suffered any possible injury because at the time the judgment of the court was pronounced against him he was not informed of the nature of the indictment, and of his plea to said indictment, and of the verdict of the jury in this cause. In the light of section 6487, Snyder’s Comp. Laws Okla. 1909, we are compelled to construe the Code' of Criminal Procedure of this state liberally, and in furtherance of justice. This compels us to ignore all mere defects of form which do not deprive the defendant of some substantial right. We think that the entire record shows that every right guaranteed to appellant by section 6910 was accorded him in this trial. But, even if we were to hold the judgment in this case fatally defective because at the time it was pronounced appellant was not informed by the court or by the clerk under its direction of the nature of the indictment, and of his plea, and of the verdict of the jury, we would still not be able to reverse this conviction on that account, but would simply send the case back for resontence.

Third. The appellant’s fourth assignment of error is as follows :

“Because the judgment and sentence of the court was at another and different time from that designated in the orders of the court.”

Upon this question the record is as follows:

“Comes on this day the defendant, Andy Kerkendall, and, waiving the time required by law in which to pronounce sentence herein, the court proceeds to sentence said defendant, Andy Ker-kendall.”

This absolutely disposes of appellant’s fourth assignment of error, and it need not be considered.

These are all of the errors complained of by appellant in the brief filed in his behalf by the counsel.

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

ARMSTRONG and DOYLE, Judges, concur.


author: PER CURIAM.

text:
    AARON CROOMS v. STATE.
    No. A-599.
    Opinion Filed May 23, 1911.
    (115 Pac. 610.)
    INTOXICATING LIQUORS — Information—Sufficiency. An information which alleges that the defendant had in his possession intoxicating liquors for an unlawful purpose, without going further and alleging the intention on the part of appellant to use such intoxicating liquors in violation of the prohibitory liquor laws of the state, is too indefinite to charge any offense, and upon motion should be set aside.
    (Syllabus by the Court.)

      Appeal from Atoha County Court; J. H. Linebaugh, Judge.

    Aaron Crooms was convicted of having whisky in his possession for unlawful purposes, and appeals.
    Reversed and remanded.

      J. G. Balls, for appellant.

      Smith C. Matson, Asst. Atty. G-en., for the State.
   PER CURIAM.

The information in this ease is as follows:

“In the name and by the authority of the state of Oklahoma, now comes J. W. Jones, the duly qualified and acting county attorney in and for Atoka county, state of Oklahoma, and gives the county court of Atoka county and state of Oklahoma to know and be informed that Aaron Crooms did, in Atoka county, and in the state of Oklahoma, on or about the 8th day of December in the year of our Lord one thousand nine hundred and nine, and anterior to the presentment hereof, commit the crime of being in the possession of intoxicating liquors for an unlawful purpose in tiie manner and form as follows, to wit: That the said Aaron Grooms did then and there have in his possession twenty-four pints, more or less, of intoxicating liquor, namely, whisky, for an unlawful purpose, contrary to the form of the statutes in such cases made and provided, and against the peace and dignity of the state.”

Appellant moved the court to set aside the information, upon the ground that it was indefinite and uncertain, and did not inform appellant of the particulars of the offense charged against him. This motion was by the court overruled. The specific objection urged against the information is that it simply alleges in general terms that appellant had in his possession intoxicating liquor for an unlawful purpose, but nowhere states facts sufficient to bring such unlawful purpose within the letter of the law. The statute makes it an offense for any person to have the possession of any such liquors with the intent to violate toy of the provisions of the prohibitory law. In the case of State v. Feeback, 3 Okla. Cr. 508, 107 Pac. 442, this court said:

“To say that a man intends to use the liquor in violating the law does not'charge any offense, for the reason that it is too indefinite.”

The information in this ease should have gone further, and have alleged the intention on the part of the appellant to violate the provisions of article 3, c. 69, of the Session Laws of 1907 and 1908. The motion to set aside the information should have been sustained.’

The judgment of the trial court is reversed, and the cause is remanded.


author: ARMSTRONG, Judge.

text:
    JIMMIE JOHNSON v. STATE.
    No. A-421.
    Opinion Filed March 21, 1911.
    (114 Pac. 339.)
    1. APPEAL — Transfer of Cause — Necessity of Filing Case-Made. Under the statute, section 6951, Snyder’s Compiled Laws, it is necessary, for the case-made to be filed with the clerk of the court from which the appeal is taken to this court. When this is not done, it will be stricken from the files.
    2. APPEAL — Necessity for Transcript and Case-Made. It is the duty of counsel appealing cases to this court to furnish a complete transcript and case-made, sufficient at least to enable this court to intelligently review the case on appeal. When this is not done, and no fundamental errors appear in the transcript, and no intelligent brief, pointing out errors sufficient to entitle appellant to a reversal, is filed, the judgment of the lower court will be affirmed.
    (Syllabus by the Court.)

      Appeal from District Court, Murray County; R. McMillan, Judge.

    Jimmie Johnson was convicted of assault with intent to kill, and he appeals.
    Affirmed.

      J. Q. Adams and J. P. Lochwood, for appellant.

      Smith C. Matson, Asst. Atty. Gen., for the State.
   ARMSTRONG, Judge.

The appellant, Jimmie Johnson, was convicted at the August, 1909, term of the district court in Murray county, on a charge of assault with intent to kill, alleged to have been committed upon D. L. Smith, "and was sentenced on the 18th day of September, 1909, to serve five years in the state penitentiary.

This appeal is attempted by case-made, and is very incomplete and defective, containing 10 pages, awkwardly put together and illogieally arranged. The most serious proposition that presents itself to our minds is whether or not this defendant was properly represented on the trial in the court below. The record being so incomplete that we are unable to determine this question, and the trial court having- permitted the judgment to stand, it will not be reversed on that ground. It is the duty of ■counsel in appealing cases to this court to present a complete transcript or case-made, intelligently gotten up> so as to be of some benefit to the court in endeavoring to determine whether or not the proceedings in the court below have been regular and in accord with approved rules.

This case-made was never filed in the office of the clerk of the district court of Murray county, as the law requires. Under repeated holdings of this court, the case-made will have to be stricken from the files. The only questions left for us to examine are the objections to the instructions of the court. The instructions of the court, taken as a whole, fairly present the law. "While they could be improved on in form, we find no fundamental errors. There is no brief filed on the part of the appellant. There is a one-page, unintelligent, typewritten sheet, marked "Counsel’s Abridgment of Case and Argument,” which is absolutely worthless to us in endeavoring to arrive at correct conclusions in this case.

. After careful consideration of the instructions of the court and the errors complained of as best we can under this record, we think the judgment of the court below should be affirmed; and it is so ordered.

FURMAN, PeesidiNg Judge, and DOYLE, Judge, concur.


text:
    STATE v. WILLIAM E. BROWN.
    No. A-587.
    Opinion Filed March 21, 1911.
    (114 Pac. 340.)
    APPEAL — Service of Notice. When a county attorney desires to appeal a case upon any question reserved by the state, it is necessary that notice of such appeal be served in the manner required by section 6949, Snyder’s Comp. Laws Okla. 1909. If this is not done, the Criminal Court of Appeals will not acquire jurisdiction of the case, and the appeal will be dismissed.
    (Syllabus by the Court.)

      Appeal from Ohlahoma County Court; S'am HooTcer, Judge.

    William E. Brown was prosecuted for wilfully failing to set forth correctly in a letter given a discharged employee the time canse of his discharge. A demurrer to the information was sustained, and the State appeals.
    Dismissed.

      Smith C. Matson, Asst. Atty. Gen., and W. D. Cardwell, for the State.

      Du Mars & Taught, Giddings & Giddings, and Taylor, Fruiett & Sniggs, for appellee.
   PER CURIAM.

On the 3d day of November, 1909, the county court of Oklahoma county sustained a demurrer to the information filed in this cause, wherein the appellee was charged with having violated the law relating to employees of corporations and contractors, by wilfully and negligently failing to correctly set forth and state in a letter given to a discharged employee the true cause why said employee was discharged from such service. At the time when this judgment was rendered the law required that all appeals in misdemeanors should be perfected within 60 days from date of said judgment, provided that for good cause shown the trial judge might extend such time an additional 60 days. The judge of the lower court did not extend the time within which such apneal might be perfected.

Section 6949, Snyder’s Comp. Laws of Okla. 1909, is as follows:

“An appeal is taken by the service of a notice upon the clerk of .the court where the judgment was entered, stating that the appellant appeals from the judgment. If taken by the defendant, a similar notice must be served upon the prosecuting attorney. If taken by the state, a similar notice must be served upon the defendant, if he can be found in the county; if not there, by posting up a notice three weeks in the office of the clerk of the district court.”

No notice of appeal was served upon the clerk of the county court of Oklahoma county^ until the 29th day of March, 1911, which was long after the 60 days had expired for perfecting the appeal. This question has heretofore been passed upon in the case of State v. Willie Richardson, 4 Okla. Cr. 373, 111 Pac. 687. In that case the Attorney General confessed error because the statute above quoted had not been complied with. We there held that, when the notices above provided for had not been given in the time required by law, this court acquires no jurisdiction of the appeal in a criminal case.

We therefore have no option except to dismiss this appeal.


author: AEMSTBONG, Judge.

text:
    STATE v. W. N. MABEN.
    No. A-790.
    Opinion Filed April 18, 1911.
    (114 Pac. 1122.)
    1. GRAND JURY — Persons Entitled to be Present — Counsel for Governor. When a grand jury is in session investigating charges against persons for violation of the laws of this state, special counsel are not entitled to appear before the grand jury for the purpose of performing any of the duties of the Attorney General of the state or of the proper county attorney of the county in which the grand jury is assmbled.
    2. GRAND JURY — Effect of Presence of Unauthorized Person. When an attorney other than the proper county attorney, or under some circumstances the Attorney General of the state, appears before a grand jury for the purpose of giving advice or performing any other duties devolving upon the county attorney or Attorney General of the state, indictments found by such grand jury, which were considered when such attorney was present, on proper motion should be set aside;
    3. GRAND JURY — Persons Entitled to be Present — Counsel for Governor. Section 24 of article 3, c. 69, Session Laws of 1907-08, does not confer upon counsel for the Governor appointed under said act authority to exercise the powers of county attorney in cases other than those involving violations of the prohibitory law.
    (Syllabus by the Court.)

      Appeal from District Cotort, Pottawatomie County; S. H. Russell, Judge,

    Prosecution of W. N. Maben for bribery. From a judgment setting aside the indictment, the State appeals.
    Affirmed.

      Chas. West, Atty. Gen., for the State.

      A. C. Cruce, Mornan Pnáett, S. M. Rutherford, M. Q. Mc-Adams, and W. 8. Pendleton, for defendant in error.
   AEMSTBONG, Judge.

This is an appeal by the state from a judgment rendered by the district court of Pottawatomie county on the 31st day of January, 1910, setting aside an indictment for bribery against the defendant in error upon the ground that Hon. Fred S. Caldwell, comise] for the Governor, an attorney who was neither the Attorney General of the state nor the 'county attorney of Pottawatomie county, was present in the grand jury room when the grand jury was in session considering the charges against the defendant in error. The findings of the trial court on this point are as follows:

“The court finds that Fred S. Caldwell, counsel to the Governor, was present in the grand ¡jury room during the April, 1909, term of said court, that the grand jury was then in session and considering matters including charges against the defendant; and the court further finds that the said Fred S. Caldwell, counsel to the Governor, was not authorized to appear before said grand jury.”

This question of the authority of the counsel for the Governor to appear and prosecute that class of public offenses designated as felonies, and conduct examinations before grand juries, involving this class of offenses, has not been raised in this court heretofore. The act creating this office and prescribing the duties thereof is what is commonly known as the prohibitory enforcement act. Section 24 of article 3, c. 69, of said act, is as follows:

“The Governor shall have power to appoint an attorney who shall have been a resident in this state for at least two years, and shall have been a lawyer licensed by some court of record for at least five years, who shall be known as counsel for the Governor. He shall, under the direction of the Governor, assist in enforcing the provisions of this act, and the other laws of the state, and shall perform such other duties as the Governor may, from time to time, require. He .shall have all the powers of county attorneys in their respective counties. He shall hold office during the pleasure of the Governor, and shall give bond, to be approved by him, conditioned for the faithful discharge of his duties in the sum of three thousand ($3,000.00) dollars and shall receive a salary to be fixed by the Governor of not more than twentjr-five hundred ($2,500.00) dollars per annum payable monthly: Provided, that in lieu of, dr in addition to appointing such attorney the Governor may call upon the Attorney General or his assistant to perform such service.” (Session Laws 1907-08, p. 594.)

This court, in the case of Childs v. State, in an opinion by Richardson, Judge, reported in 4 Okla. Cr. 475, 113 Pac. 545, passed on this question in so far as it affected the authority of the counsel for the Governor to appear and prosecute in cases involving violations of the prohibitory law, and sustained the contentions of the state upholding the authority of such counsel to act in all cases of that character, but expressly reserved the question’s of the right of such counsel to appear in other classes of cases; in fact, the only question properly before the court at that time involved the enforcement of the prohibitory law. We think the court went as far as the law justifies in the rule announced in that case. The law has since been repealed and the question there determined, as well as the one here raised, is not likely to again come before us for consideration. In view of the character and purpose of the act creating the office of counsel to the Governor, we do not think it is sufficient to clothe counsel for the Governor with authority to exercise the power of the county attorney or Attorney General in cases other than those involving violations of the prohibitory statutes. The presence of such counsel in the grand jury room during the investigation of charges against the defendant in error was unauthorized. Section 6683 of Snyder’s Statutes contains the following provision, which is the law:

“The grand jury may at all reasonable times ask the advice of the court or of the district attorney. The district attorney may at all times appear before the grand jury for the purpose of giving information or advice relative to any matter cognizable before them and may interrogate witnesses before them whenever he thinks it necessary, but no other person is permitted to be present during their sessions except the members and a witness actually under examination and no person whomsoever must be permitted to be present during the expression of their opinions or the giving of their votes upon any matter before them.”

In the case of Hartgraves v. State, ante, 114 Pac. 343, decided at the present term of the court, in an opinion by Presiding Judge Furman, in discussing a similar question, this court says:

“We think the plain meaning and import of this statute is that no one should be permitted to be present during the sessions of the grand jury except the witnesses and the officers duly authorized by law to so appear.”

The findings of the trial court are sustained by the record before us, and the judgment rendered was correct under the law, and is therefore affirmed.

FUEMAN, PRESIDING Judge, and DO'YLB, Judge, concur.


author: ARMSTRONG, Jupge.

text:
    JOE TINKER v. STATE.
    No. A-408.
    Opinion Filed May 2, 1911.
    (115 Pac. 475.)
    1. APPEAL — Sufficiency of Evidence. When issues of fact are properly submitted to a jury by the court, and the testimony in the record tends reasonably to support the finding of the jury, such finding will not be disturbed on appeal.
    2. APPEAL — New Trial — Misconduct of Jury. When the misconduct of a juror is set up as a ground for a new trial, and proof is heard by the court on the allegation for the defendant and the state, and included in the record, the judgment of the court overruling the motion on such ground will not be disturbed on appeal, when it clearly appears that such juror was guilty of no misconduct prejudicial to the appellant.
    (Syllabus by the Court.)

      Appeal from District Court, Harper County; B. FI. Loofbourrow, Judge.

    Joe Tinker was convicted of assault with a dangerous weapon, and brings error.
    Affirmed.

      Chas. Swindall, for plaintiff in error.

      Smith C. Matson, Asst. Atty. Gen., for the State.
   ARMSTRONG, Jupge.

The indictment in this case charges the plaintiff in error with unlawfully, intentionally, wrongfully, and feloniously attempting to shoot at one E. M. Claycomb with a certain pistol, and with a felonious intent to kill said Clay-comb. He was convicted by the jury of assault with a dangerous weapon, with intent to injure said Claycomb, and his punishment fixed at two years in the state penitentiary.

This prosecution grows out of a difficulty which occurred at a dance at the home of John Nickum in Harper county. It appears'that E. M. Claycomb and Nickum had arranged to have a dance and had invited certain persons, not including the plaintiff in error, to attend; that plaintiff in error came to the dance more or less intoxicated, and armed with a revolver. The testimony is conflicting as to just what was said and done; the state contending that plaintiff in error threatened to kill Claycomb, drew the pistol, pointed it at, and attempted to shoot, him. Plaintiff in error admits that he drew the pistol, but denied that he attempted to shoot prosecuting witness. The witnesses agree that considerable consternation prevailed while the plaintiff in error was being, disarmed. Four chambers of the revolver were loaded; but none of them were discharged in the scuffle. Plaintiff in error was tried at the October term of the Harper county district court, in 1908.

In his petition in error, a number of questions are raised, all of which are abandoned in the brief, except three, one of which, is that the verdict of the jury is contrary to the evidence, and is not sustained by the evidence. On this proposition we quote at length from the testimony in the record:

The prosecuting witness, E. M. Claycomb, gave the following testimony:

“Q. Did you have any trouble with him, Mr. Claycomb? A. Yes, sir. Q. You may state what that was. A. Well, what it occurred about? Q. Just state what the trouble was. A. The trouble was that he drew a gun on me, and said that he would kill me. Q. You may state the circumstances, now, of his drawing that gun. What caused him to do it? A. It seemed to be because he didn’t get number one to dance on. Q. Were you selling numbers — dance tickets? Was that number one that you refer to a dance ticket? A. Yes, sir. Q. You say this occurred because he didn’t receive number one? A. That’s my understanding. Q. WJhat did he say about it, if anything? A. He said if he couldn’t get number one, he wouldn’t get any. Q. What else did he say? A. At that time that’s all he said; but after-wards Mr. Smith taken his sister and went out on the floor to dance, and he objected to her dancing with him. He said if he didn’t dance, she couldn’t. Q. Just go ahead, Mr. Claycomb, and state what occurred there. A. Well, then I think he went out of the room, and he came hack directly, and his sister went to him and caught him around — threw her arms around him, and began to scream that he had a gun; to come and take it away from him; and it seemed that they were rather slow about doing it, and finally I went up and taken the gun away from Tinker. When I went to him— started to him — why, he .swore he would Trill that bald-headed son of a bitch,’ and drew the gun, had the gun in his left hand, and raised it about in that position. Q. Pointing the gun at you ? ' A. Yes, sir.”

This witness also testified to talcing the gun from the plaintiff in error; that it had four chambers loaded; and that he delivered the gun and cartridges to the county attorney.

Witness John W. Nickum gave the following testimony:

“Q. After Mr. Claycomb got the gun, was it loaded? A. Yes, sir. Q. How many cartridges? A. I think three or four; I wouldn’t say which. Q. Examine those, and state whether or not they are the shells or cartridges. A. Those look like the same shells. Q. You say you saw that gun in Joe Tinker’s hand? A. Yes, sir. Q. What was he doing with it, Mr. Nickum. when you first saw the gun? A. When I first saw the gun, he seemed to be in a little dispute about numbers. I told Tinker, I said, ‘If you want a number, Joe, I’ll get it for you.’ He said, T can get my own number.’ He said an oath with it. I said, Now, they have gathered for a social time. There is no use to have any trouble.’ He said, ‘You look like 30 cents. You must take me for a spring chicken’ — and started to pull the gun out of his pocket. About that time his sister discovered the gun and. halloed, ‘He has a gun.’ Mr. Claycomb came walking in about that time, and he said, ‘You bald-headed son of a bitch, I’ll get you,’ and started to raise tbe gun, and his sister grabbed him, and had her arms right around him by that time. Q. Did he snap the gun? A. I couldn’t say about that. I wasn’t close enough to hear it snap. Q.. Did you see the gun pointed toward Mr. Claycomb? A. I saw him raise it up that way. Q. When was that, with reference to the time he made the remark, Til kill the bald-headed son of a bitch?’ A. Just about the same time. Q. Was Mr. Claycomb near him when he made that remark? A. I would judge he was about as far as from here to that man. Q. Who was he addressing that remark to? A. I would judge to Mr. Claycomb. Q. Who took the gun from Tinker ? A. Mr. Claycomb. Q. Did you help ? A. Yes, sir; I had bold of one arm. Q. Did you put Mr. Tinker out of the house? A. Yes, sir; they pushed him out of the house. Q. How long did he remain there after that? A. He was back in the house after that. Q. Was there any further trouble? A. Yes, sir. Q. You may state whether Mr. Tinker was sober or otherwise that evening. A. I thought by his actions he was drinking. Q. What was the commencement of this trouble, Mr. Nickum? A. The first I heard of it was over a number. His sister was on the floor, dancing with a young fellow by the name of Hunter, and he said if he couldn’t get a number, why, she couldn’t dance; and I went and talked to him and said, ‘Come on, Joe, and have a good time, and have a good time with the rest of them,’ and the next time was when this gun play came up.”

Witness Mrs. Viva Painter gave the following testimony:

“Q. Did you hear Mr. Tinker make an assertion to Mr. Claycomb? A. I heard him cursing him about a number. He wanted a number on the dance, as I understood. Q. State how you heard it stated. A. I can’t say. He wanted — it seemed as though he wanted a number of the dance, and he wanted the first number, as I understood it; and he had asked Mr. Claycomb to give him a number, and Mr. Claycomb said he wasn’t selling numbers, and then he went outdoors, and when he came in Mr. Claycomb had given out some numbers, and it seems -as though it made Mr. Tinker mad. because he didn’t get one of the first one, and he forbid his sister dancing, was the first I noticed any trouble, and she wanted to go home, and he wouldn’t go home. Q. Did you hear him make any remark directly to Mr. Claycomb ? A. Why, yes. Q. State what it was. A. He was cursing, and I couldn’t say just to the words what he said, because you know what a woman is when there is any trouble; but he called him a ‘bald-headed, Eoman-nosed son of a bitch/ Q. You say you weren’t close enough to see the gun? A. No; there were some' men between us. There was a set dancing between where I sat and where he was. Q. Was there considerable noise there about the time you heard him malee those threats? A. Yes, sir.”

Witness E. Bates gave the■ following testimony:

“Q. Were you present when Mr. Tinker and Mr. Claycomb had an altercation? A. Yes, sir. Q. You may state what you saw there. A. Well, sir, it seems as though there was some controversy over numbers. Mr. Tinker wanted the first number, and Mr. Claycomb wasn’t ready to sell numbers when he first came up, and he told him he wasn’t, and so Mr. Tinker at this time stepped out. He wasn’t there, when Mr. Claycomb began selling numbers, and when he came in Mr. Claycomb' had sold some 10 or 12 numbers —I forget just now which — but Mr. Tinker came to Mr. Claycomb, and said something about not getting the first number, and allowed if he didn’t have the first number he wouldn’t have any, and then he got loud and began to abuse Mr. Claycomb, and said he would ‘shoot the bald-headed son of a bitch,’ I think it was now, and as he pulled his gun out (he had a gun) — pulled it out of his pocket with his left hand. Iiis sister was hold of him at that time, caught hold of him, and made some remark .about getting his gun from him, and Mr. Claycomb during this time had went toward Mr. Tinker to get the gun, and Mr. Kemper was standing beside me, and said, ‘Let’s get the gun from him,’ and Mr. Claycomb stepped forward and took the gun from him. Q. Did you see the gun pointed at any person? A. It was pointed at Mr. Claycomb when he wrenched it up in that form. Q. Was that when he made the remark that he would ‘kill the bald-headed son of a bitch’? A. Yes, sir; that’s as well as I can remember when he made it. Q. How long was it from the time he made the remark until Claycomb had hold of him? Did he rush up? A. He just walked right up to him. Q. The interval was very short between the time he made that remark and the time Mr. Claycomb seized the gun? A. Yes, sir. Q. Did you hear the snapping of the gun? A. Yes, sir. Q. How many times did it snap? A. I should judge about four or five times, as well as I remember. I know I was looking for it to go off at any time? Q. Did you see the gun at that time? A. I seen it when Claycomb wrenched it from him.”

This witness also testified that plaintiff in error acted as if Ire was intoxicated.

On cross-examination this witness gave the following testimony :

“Q. Now, yon had him by the right arm during part of the time, didn’t you? A. Yes, sir. Q. You were paying more attention to holding him than you were to how that gun was pointing? A. Yes, sir; I was at that time, because I thought that Avas mv part to hold him. Q. He hadn’t made-any threat before that to do any one any harm, until Claycomb came up, and he said he would 'shoot the son of a bitch’? You hadn’t heard him make any? A. No, sir. Qj His sister had said that he had a gun before that? A. She said it as we walked toward him. Q. That was before he said he would shoot Claycomb? • A. No, sir; right at the time. * ■ * * Q. And you didn’t hear it until they got to scuffling, and he had the gun turned down that way? A. 1 never noticed how the gun was .turned. Q. You know that he had turned it before the gun snapped? A. Yes, six; I think he had the gun. I know he had hold of the gun when the snapping was going on.”

And on redirect examination the following:

''Q. How long was it from the time his sister said, 'He’s got a gun,’ or 'Take the gun away from him,’ until Mr. Claycomb had advanced and secured the gun? A. Just as quick as Mr. Claycomb could walk to him. Q. And he got the gun soon after that? A.' Yes, sir. Q. How long would that be from the time she made that assertion, until Mr. Claycomb had the gun? A. I should judge it would be about a minute, something like that. Q. His sister, you say, had hold of him about that time? A. Yes, sir. Q. Tinker couldn’t hold the same position, could he — a steady position — with his sister on his back, trying to hold him? A. No, sir. Q. He was jerking around considerably, wasn’t he? A. He certainly was.”

Witness August Kemper gave the following testimony:

"Q. Were you present when an altercation between him and Mr. Claycomb took place? A. Yes, sir. Q. State what you saw now of that altercation. A. Well, I seen that Mr. Tinker had raised some disturbance about getting a number for the dance, and I heard him say afterward that he wasn’t going to have no number at all then, if they wouldn’t give him a number when he wanted to dance. There was a disturbance raised then, and he seemed to get mad, and we went ahead with the dance, or I was dancing, and I heard some one say, ‘He has a gun/ and, of course, that stopped the dance that we was starting, and his sister said, ‘He's got a- gun. Help me take it away from him/ I said, ‘Mr. Bates, let’s go over and take that gun away from him. He is liable to shoot somebody/ and Mr. Bates said, ‘All right/ and we started; but in the meantime Mr. Claycomb had went on ahead of us, and seemed to be scuffling with him for the gun when we got there. I went up and took hold of Mr. Tinker’s right hand, and Mr. Bates also had hold of it, and Mr. Forsythe had hold of him — was behind him, trying to hold his arms down — and his sister was in front of him, and had her arms about his neck.”

And on cross-examination the following:

“Q. Claycomb had hold of the barrel, didn’t he? A. Not when I seen the gun. Q. Did you hear the gun snap, before Claycomb got hold of it? A. Just about the time he caught hold of the gun or his wrist, or ’something like that. Q. And had the gun turned from him when it snapped? A. T couldn’t say. * * * Q. You never heard but one threat? A. He repeated that a number of times.”

"Witness Charlie Jenkins testified for the plaintiff: in error, on his direct examination, as follows:

“Q. Were you there at the time the difficulty came up between Mr. Tinker and Mr. Claycomb? A. Yes, sir. Q. Did you see where Joe Tinker’s hands were during this difficulty? A. I seen where they was part of the time. Q. Where were they when you saw them? How did he have his hands? A. Why, first, he had them in his pockets. Q. Wlhat happened after that? A. I was on the floor, ready to dance, and I heard somebody halloing, and I went over to see .about it, and him and Mr. Clay-comb was scuffling over a gun, and somebody else had hold of Mr. Tinker. Q. Now, did you ever see Mr. Tinker with his gun up before him in a shooting position, at any time? A. No, sir.” 1

And on cross-examination the following:

“Q. When you first heard of this affray, or heard some one swearing or making a noise over there, Mr. Nickum and Mr. Tinker were together? A. Mr. Claycomb and Mr. Tinker. Q. Did you see what happened between Mr. Tinker and Mr. Clay-comb, before you got there ? • A. Not all. * * * Q. Did you see Mr. Claycomb wheu he first took hold of Mr. Tinker. A. No, sir; I didn’t see him when he first grabbed him. Q. Did you see what happened, before he did grab him, between Mr. Tinker and Mr. Claycomb? A. Not all; no. Q. What did you see? A. I seen Mr. 'Claycomb go over there, and heard them talking. Q. Did you see the position of Mr. Tinker’s hands, before he took hold of him? A. No, sir; only one of them. Q. Which one? A. His right one. Q. You don’t know what he had in his left hand? A. No, sir. Q. And you don’t know what position his left hand was in? A. No, sir. Q. You don’t know what he had in it? A. No, sir. Q. Did you hear him make any assertion there in the nature of a threat? A. No, sir. Q. Did you hear everything Tinker said? A. Yes, sir; I expect I heard eyerything. Q. Did he swear any? A. Yes, sir. Q. Did you hear him make any threat at all against Mr. Claycomb? A. Not before Mr. Claycomb went oyer there. Q. Did you hear him make any when Mr. Claycomb went over there? A. No, sir. Q. Did you hear him make any assertion like, Til kill the bald-headed son of a bitch’ ? A. No, sir. Q. If he had made that assertion, you could have heard it, could you? A. I could have heard it. Q. You swear now that he didn’t make that assertion? A. I don’t swear that he didn’t. Q. Did he make any threat toward Mr. Claycomb? A. No, sir.”

Witness William Nutter, on behalf of the plaintiff in error, testified as follows on his direct examination:

“Q. Did you see Joe Tinker and Mr. Claycomb on the night of Ma}r 1, 1908, at a dance over at Nickum’s residence? A. Yes, sir. Q. Were you there at the time the difficulty came up between Mr. Claycomb and Mr. Tinker? A. Yes; sir. Q. Did you see where Tinker’s hands were ,at the time they were scuffling around there? A. No, sir. Q. Didn’t notiee’his hands? A. No, sir.”

Witness Eli Landrith, on behalf of the defendant, testified as follows :

“Q. Did you see a little difficulty there between Mr. Clay-comb and Mr. Tinker? A. I seen part of it. Q. What part did you see? A. Well, the first I noticed they was in a scuffle was when Joe’s sister said for somebody to come and get the gun, and I went back there, and he was standing there in the corner, holding the gun. Q. Who was that standing in the corner? A. Joe Tinker and Mr. Claycomb. Q. What else did yon see? A. I started to help get the gnn away from him. Q. Did you get there and help get it away? A. I helped get it away. Joe had it in his left hand, and Mr. Claycomb had ¡hold of his wrist. Q. Show the jury about how he had it. A. (Indicating). He had it right about there, and I come up and grabbed Joe by the wrist, and gave his arm a jerk. Q. What did you do then? A. That land of broke Claycomb’s hold loose, and gave me his 'hand to work on, and I pulled it up that way, on his knee, and that kind of broke his knuckles loose from the grip on the gun, and Clay-comb took the gun. Q. How did he have the gun gripped at that time? A. I didn’t notice just how he did have hold of the gun, exactly. Q. Was he trying to hold it? A. It looked like it. Q. It wasn’t pointing at anybody at any time you saw it, was it?A. No, sir.”

And on cross-examination the following:

“Q. You didn’t see them until they had been scuffling over the gun for a while ? A. No, sir. Q. You don’t know what happened before that? A. No, sir. Q. You don’t know whether he pointed it at Claycomb before that or not, do you?" A. No, sir.”

Witness Bert Forsythe testified on behalf of the plaintiff in error as follows:

“Q. Did you see a little difficulty there between Mr. Tinker and Mr. Claycomb? A. Yes, sir. Q. Did you see it from the time it commenced until it was ended? A. Yes, sir. Q. State to the court and jury what you saw. A. The first I seen, I seen Mr. Nickum go to Mr. Tinker, and says, ‘Mr. Tinker, he says, Til go and see that you get a number, if you want one,’ and Mr. Tinker says, ‘If 1 want a number, I’ll get it.’ Mr. Nickum says, ‘This is my house.’ Mr. Tinker says, ‘yes,’ and he was at a public dance and had come to it, and Mr. Nickum says he wasn’t at no public dance, and he says, ‘This is my house, and I’ll put you out,’ and Mr. Tinker says, ‘Yon look like 30 cents to me,’ and kind of stepped toward him, and his sister run in and grabbed him, and says, ‘He’s got a gun.’ I grabbed hold of his right hand, and Mr. Claycomb and Eli Landrith grabbed hold of his left hand and took the gun, I suppose. I never saw the gun, until Claycomb had it in his hand. Q. Did Mr. Tinker attempt to shoot Mr. Claycomb with a gun there? A. No. Q. Where yon were and had hold of him, if he had pointed the gun for the purpose of shooting, you would have seen it? A. Yes, sir. Q. Now, after they got the gun away from him, what did they then do? A. They took him out of doors then. Q. You say they had hold of him, and his sister had hold of him? A. Yes, sir.”

And on cross-examination the following:

''Q. Did-you see the gun when Mr. Clayeomb came up there? A. No, sir. Q. The first you saw of that affray was after Mr. Clayeomb had hold of Mr. Tinker’s hand? A. I never seen the gun, until after Mr. Clayeomb got it.”

"Witness Maggie Drummond, sister of plaintiff in error, testified as follows:

“Q. Were you there at the time the difficulty came up between Mr. Tinker and Mr. Clayeomb? A. Yes, sir. Q. Were you there when it first came up? A. Yes, sir. Q. Tell the jury and court just how it happened. A. Well, he first wanted one of the first numbers, and they wouldn’t let him have one of the first numbers, and they went on until they got up to 16 or VH, and then he couldn’t take one of those numbers. Q. Tell about the trouble that came up there. A. Mr. Niekum went to Joe and asked him if he wanted a number, and he told him, 'no,’ and told him if he wanted a number he would get it, and so Mr. Niekum said he would put him out, and he said, 'No; this is a public dance, and I am going to stay; that’s all there is to it.’ I grabbed him then, and told-them he had a gun, and to take it away from him. Q. Had he made any attempt to use the gun? A. No, sir. Q. You knew he had a gun? A. Yes, sir. Q. What did you do about the gun after that? A. Mr. Clayeomb asked me where the gun was, and I said, 'It is in his pocket.’ He had never taken it out of his pocket, and when he went to take it mv brother took the gun out of his pocket. Q. Did he ever point his gun at Mr. Clayeomb? A. No, sir.”

And on cross-examination the following:

"Q. Why did you tell him that he had the gun? A. Well, I didn’t know but what he might use the gun. I knew he had the gun; that he had brought it with him. Q. Did you know why he brought the gun with him? A. No, sir. Q. Did you hear him cursing anybody? A. No, sir. . Q, If he had, would you have heard it? A. I suppose I would; í-.was right there. Q. You are staying at your brother’s house ? A. Yes, sir. Q. And was at that time? A. Yes, sir.”

Plaintiff in error, on direct examination, testified as follows:

“Q. Just tell the court and jury how this difficulty came up between you and Mr. Claycomb. A. Well, I went oyer there to the dance, and I went around to Mr. Claycomb and asked him if he was selling numbers and he said, No, I am not selling numbers to-night,’ and I went off and stood around, and talked with some of the boys, and I guess went out of doors; I don’t know; I guess I did; and I came back and he was selling numbers. I said, ‘I thought you were not selling numbers.’ I said, ‘Give me the next number, if you are not too far ahead. I want on the first dance.’ They were running two sets, and thought 8 would catch it. Anyway, it was 13 or 14. I said, ‘Oh, m; T wouldn’t have that. If I couldn’t have something before that, I wouldn’t care to dance.’ And Mr. Nickum — I seen him pick up a chair from the north side of the 'house and carry it over to the ■east room, murmuring about something or other — I wasn’t paying much attention to him; and after awhile he came, around and said, ‘Joe, if you want a number, I’ll get it for you.’ I said, ‘If I want a number, I guess I can get it myself,’ and one word brought on another, until pretty soon my sister halloed, ‘lie’s got a gun,’ and grabbed me, and when she grabbed me I looked around to see who was coming. I didn’t know what they were liable to do to me. I saw Mr. Nickum carrying the chair along, and then I don’t know whether I halloed for anybody to get my gun, or not. Anyway, I didn’t want them to get my gun. I had been quarreling with them quite a little bit. I seen Eli coming, and I reached and got my gun, and was holding it back of me. As far as holding it up in front of me, I never did. Q. Eli Lan-drith? A. Yes, sir. Q. Your object, then, in getting your gun, or taking hold of it, was to keep Claycomb and Nickum from getting it? A. Yes, sir. Q. Did you-ever point the gun at Clay-comb? A. No, sir.”

Mrs. Tinker, wife of plaintiff in error, testified on direct examination, as follows:

“Q. Were you there when the little trouble came up between him and Mr. Claycomb ? A. Yes, sir. Q. Did you see him attempt to shoot Mr. Claycomb there, at that time? A. No sir.”

And on cross-examination as follows:

“Q. Did .yon see Mr. Claycqmb take the gun away from him ? A. No, sir. Q. You weren’t close enough to see that? A. I was standing right there by him. Q. Did yon see the gun there? A. No.” ^ '

The question in this case was a simple disputed issue of fact, and the issue was properly submitted to the jury by the court. The testimony in the record tends reasonably to support the finding of the jury, and will not be disturbed by this court. As a general rule this court does not undertake to review the testimony as far as its weight and credibility are concerned, but the record in this case sustains clearly the finding of the jury.

The other two questions urged in the brief are misconduct on the part of the jury, which prevented the plaintiff in error from having a fair and impartial trial, and that the jury received evidence outside of the court, other than that resulting from a view of the premises. These propositions are considered together in the brief, and we shall dispose of them together here. The motion for a new trial sets up that one of the jurors had formed and expressed an opinion in regard to the guilt of the defendant after he had been impaneled and sworn to try the cause, and before the same was finally submitted to the jury. Several witnesses were introduced in support of and in opposition to the motion. The testimony in the hearing covers several pages. The court, at the time the motion was passed upon, made the following findings:

“There is no testimony here that any person made any comment upon the case in the presence of any juror; and no evidence offered tending to show that the juror, or any of the jurors, were influenced in any way in arriving .at their verdict by anything, other than the testimony that was offered in the case.”

We think the finding of the court is sustained by the proof shown in the record. The defendant had a fair and impartial trial under the law.

The judgment is affirmed, with directions to the district court of Harper county to enforce its judgment and sentence.

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


author: AEM'STRO'NG, Judge.

text:
    J. P. THORP et al. v. STATE.
    No. A-521.
    Opinion Filed May 2, 1911.
    (115 Pac. 609.)
    APPEAL — Dismissal—Failure to Serve Case-Made in Time. When an appeal is taken to this court by case-made, and the time is fixed by the trial court within which a case-made is to be prepared and served in such appeal, the same must be served within the time allowed. When this is not done, this court has no jurisdiction to review the appeal on the case-made, and the same will be dismissed.
    (Syllabus by the Court.)

      Appeal from District Cowrt, Kiowa County; James B. Tolbert, Judge.

    J. P. Thorp and J. 0. Stewart were convicted of felonious assault, and they appeal.
    Dismissed.

      Conner & Terral, for plaintiffs in error.

      Chas. West, Atty. Gen., and Smith C. Matson. Asst. Atty. Gen., for the State.
   AEM'STRO'NG, Judge.

J. P. Thorp and J. C. Stewart were convicted in the district court of Kiowa county on the 12th day of Maj', 1909, on a charge of assault with a dangerous weapon with intent to do bodily harm.

Judgment was pronounced on the 3d day of July, 1909, at which time plaintiffs in error were granted 90 days to prepare and serve case-made on the county attorney for appeal. On the 27th day of September thereafter the time was extended by the trial court for making and serving the case-made for a period of 60 days from the time of the expiration of the original order, making a total of 150 days from the 3d day of July. Said 150 days expired with the 30th day of November, 1909. The case-made was served on the 1st day of December, 1909. On the 10th day of February, 1911, the Attorney General filed a motion to dismiss the appeal on the ground that the same was not served within the time provided by the order from the trial court, and raised other grounds for dismissal which we do not think it necessary to pass upon here. This motion to dismiss was served on counsel for plaintiffs in error on the 7th day of March, 1911. On the 10th day of March counsel for plaintiffs in error filed a reply to the motion to dismiss and an affidavit of said counsel, by which affidavit it is attempted to show that the case-made was served within the proper time. The acceptance of service of a case-made signed by the county attorney is_ dated the 1st day of December as the same appears in the record. The affidavit attempts to correct the record by showing that it was served prior to that time. The record was properly certified to by the trial court, and this acceptance of service is a part of the record. This court has repeatedly held that a ease-made cannot be amended or a record impeached by an affidavit. The law is plain as to how a case-made is to be amended. Counsel for plaintiffs in error have not appeared with any proper amendment. There is no transcript, and there is no alternative but for this court to dismiss the appeal, which is hereby ordered, and the trial court directed to enforce the judgment and sentence.

FNRMAN, PRESIDING Judge, and DOYLE, Judge, concur.


text:
    CHARLES SCHAFER v. STATE. LEWIS GREEN v. STATE (two cases).
    Nos. A-604, 605, 606.
    Opinion Filed May 9, 1911.
    (115 Pac. 379.)
    JURY — Number of Jurors — Superior Courts. Under section 19, art. 2, of Const, of Okla., a jury for the trial of criminal cases in the superior courts, created by act approved March 6, 1909, (article 4, c. 24, of Snyder’s Sts.), consists of 12 men, and that portion of section 1970, Snyder’s Sts., providing- for the trial of misdemeanors in the superior courts before a jury of six men, is unconstitutional and void.
    (Syllabus by the Court.)

      Appeals from Superior Court, Logan County; J. M. Sandlin, Judge.

    Charles Schafer and others were convicted of violating the prohibition law, and they appeal.
    Reversed and remanded, with directions.

      F. H. McGuire, for plaintiffs in error.

      Smith C. Matson, Asst. Atty. Gen., for the State.
   PER CURIAM.

The plaintiffs in error in each of the above-entitled causes were informed against, tried, and convicted in the superior court of Logan county for violations, of the prohibition law.

• The trial in each case was had before a jury composed of only six jurors, and the question presented on each appeal is whether a defendant, over his objection, can be lawfully placed upon trial in a superior court for a misdemeanor before a jury of six men. The record shows that in each case, an objection was interposed by defendants and the demand made for trial before a jury of twelve men.

This question has heretofore been passed upon by this court in the case of Tillie Hill v. State, 3 Okla. Cr. 686, 109 Pac. 291, wherein it was held that:

“Under the Constitution twelve men constitute a jury in the superior courts in all cases. In civil cases and misdemeanors it requires the concurrence of at least nine jurors to render a verdict, and in felony cases the concurrence of the full twelve.”

The court therefore erred in overruling the demand of plaintiffs in error for a jury of twelve men.

For this reason the judgments pronounced and entered in the above-entitled causes are hereby reversed, and said causes remanded to the superior court of Logan county with direction to grant new trials.


author: PEE OTJEIAM.

text:
    JOHNSON v. WELLS, County Judgs.

    Opinion Filed May 9, 1911.
    (115 Pac. 325.)
    1. MANDAMUS — Proceedings to Disqualify Judge — Time for Taking. Where an application for a change of judge, upon the ground of bias and prejudice, was presented to and acted upon by said judge on the 16th day of January, 1911, and the petition for an alternative writ of mandamus was not filed in this court until the 6th day of May, 1911, the writ will be denied.
    2. SAME. When an attorney desires to secure a writ of mandamus to disqualify a judge upon the ground of prejudice, it is the duty of such attorney to present his petition therefor- to this court promptly after the áppli-cation for a change -of judge has been presented -to and acted upon by said judge.
    3. JUDGES — Mandamus—Disqualification—Judge as Material Witness — Application. Where it is sought to disqualify a judge from trying a case upon the ground that such judge is a material witness in behalf of the defendant, the application for such change of judge and the petition for a writ of mandamus must clearly show wherein the testimony of said judge is material in the cause.
    (Syllabus by the Court.)
    Mandamus by G. A. Johnson against E. H. Wells, County Judge.
    Writ denied.

      Mr. Gibson, for petitioner.

      Smith 0. Matson, Asst. Atty. -Gen., for the respondent.
   PEE OTJEIAM.

The petition for a writ of mandamus in these cases shows that the application for a change of judge was in each case presented to and acted upon by the respondent on the 16th day of January, 1911, but the petition for a writ of mandamus was not filed in this court until the 6th day of May, 1911, which was more than 90 days after respondent had declined to disqualify himself to act as judge in these cases. It is the duty of an attorney, when he desires to secure a writ of mandamus to disqualify a judge, to present his petition therefor to this court as soon after the judge has declined to disqualify himself as can be conveniently done. Counsel cannot file an application for a change of judge, and, after the judge has acted upon such application, allow the matter to rest until the case is about to be tried, and then use such application as a ground for a continuance. Counsel must be vigilant, if they desire the assistance of this court. We therefore hold that the petition for a writ of mandamus in these cases was not filed in this court in proper time.

• The petition further alleges that respondent is a material witness for the petitioner upon the trial of these cases. Even if the petition for a writ of mandamus had been filed in time, we could not disqualify respondent upon the bare allegation that he was a material witness for the petitioner. If so, we would place it within the power of any defendant to disqualify a judge in anj-ease where he was willing to swear that such judge was a material witness in his behalf. If this ground is to be relied upon, the application for a change of judge must, by proper averments, show that such judge, as a matter of fact, is a material witness in said cause, and these allegations must be contained in the petition for a writ of mandamus to enable this court to determine as to whether a change of judge should be granted upon this ground.

For the reasons above stated, we decline to issue the alternative writ of mandamus prayed for.


text:
    OSCAR PARIS v. UNITED STATES.
    No. A-401.
    Opinion Filed May 9, 1911.
    (115 Pac. 373.)
    1. WITNESSES — Impeachment—Contradictory Statements. A party cannot impeach his own witness hy proof of prior contradictory statements, where such party has not been misled by the witness, and where such witness has not testified to facts which were injurious to such party. See Culpepper v. State, 4 Okla. Cr. 104, 111 Pac. 679.
    2. WITNESSES — Impeachment. Where a party has been deceived or entrapped into placing a witness upon the stand, having reasonable ground to believe, and believing, that the witness will testify to facts favorable to such party, and the witness, when upon the stand, testifies to facts injurious to such party and conflicting with previous statements made by such witness, it would be a perversion of justice to deny to such party the right to introduce in evidence statements made by such witness, conflicting with the testimony so given, which was injurious to such party. This may be done upon the ground of surprise, to explain the action of the party in placing the witness upon the stand, and to destroy the injurious effects of such testimony. See Sturgis v. State, 2 Okla. Cr. 364, 102 Pac. 57.
    (Syllabus by the Court.)

      A.ppeal from District Court, Marsh-all County; D, A. Richardson, Judge.

    Oscar Paris was convicted of manslaughter, and appeals.
    Reversed and remanded.

      George /i. Henshaw, W. I. Cruce, and Utterbaclc, I-Iayes & McDonald, for appellant.

      Smith C. Matson, Asst. Atty. Gen., for the State.
   DOYLE, Judge.

Upon the trial of this cause, Mrs. Lou Hartin was the only eyewitness to the killing introduced by the state. She testified to a clear case of self-defense upon the part of the appellant. For the purpose of impeaching her testimony, the state then introduced the following affidavit in evidence, which was admitted over the objection and exception of counsel for appellant:

'“Indian Territory, Southern District.

“Lou Hartin being duly sworn, on her oath deposes and says:

“ My name is Lou Hartin; my age is 20 years; I live about 1 % miles south of Madill, I. T. I knew J. W. McCarly in his life time. I also know S. 0. Paris and J. H. Paris. On Wednesday, April 6, 1904, I think it was, my sister, Mrs. Chas. Gullit, and myself were at our cow lot milking, about I o’clock. We beard some horses running on the south side of a branch a short distance south of the lot, coming in the direction of where we were. The first person we saw was Mr. McCarly just as he reached the south side of the branch. He was on horseback and was miming his horse. About the same time I saw S. 0. Paris and J. H. Paris. Both of the Parises were on horseback and were running their horses, and were going in the same direction that McCarly was going; that is, in a northerly direction. McCarly and S. O. Paris ran down into the branch and came out on the north side. Paris was just a few steps behind McCarly when they came out of the north side of the branch. J. H. Paris did not cross to the north side of the branch until after the killing. After they (S. 0. Paris and J. W. McCarly) came across, they ran until they came opposite the cow pen in the road, about 30 steps from where we were. The first words I heard, S. 0. 'Paris ordered McCarly to stop, and repeated the order once or twice, and called McCarly a “God damn son of a bitch.” Paris then overtook McCarly and shoved a pistol in McCarly’s face. I heard McCarly say to Paris, “Don’t.” At this time McCarley’s left hand was holding his bridle reins, and his right hand was up on the right side of his face, as if trying to shield his face. Paris presented the pistol as described and fired. McCarly fell forward in his saddle, and then fell off his horse. McCarly had no weapon in his hand at any time that I .saw them, nor did he make any demonstration. After McCarly fell from his horse, Paris wheeled his horse and ran back in the direction he came. About the time he shot, both horses reared and plunged, and Paris’ hat fell from his head. He was still running the last time I saw him. After S. 0. Paris turned and ran south from the place of the killing, he passed J. H. Paris just at the north bank of the branch. J. H. Paris came on to where McCarly was lying, and got down and picked up S. 0. Paris’ hat, and immediately remounted, and turned and ran in the same direction that S. 0. Paris had gone. We girls screamed when the shot was fired, and S. 0. Paris turned and looked in our direction and ran. After the Parises ran, we started to onr house and just before reaching the house we met Mrs. J. H. Ledbetter and our mother and older sister, when we turned and went back. Lou HartiN/

“Subscribed and sworn to before me this 17th day of Feb., A. D. 1906. Summers Hardy. [Seal.]”

It was not claimed that the attorneys who represented the state were surprised at the testimony of this witness which was favorable to the defendant, or they did not know when they placed her on the witness stand just what her testimony would be. This question has been repeatedly passed upon by this court before, and it has been decided that such evidence is not competent, unless the party placing such witness on the stand had 'been misled and entrapped by the witness, and was in good faith surprised at the testimony given. See Sturgis v. State, 2 Okla. Cr. 389, 102 Pac. 57; Culpepper v. State, 4 Okla. Cr. 121, 111 Pac. 679.

Two things must concur before a party will be permitted to impeach his own witness. First, the party must in good faith be surprised by the testimony of the witness; second, the testimony of the witness must be .injurious to such party. If either of these conditions do not exist, it is error to allow a party to impeach his own witness, and if this is done over the objection of the opposite party, and it appears from the record that such impeaching testimony may have influenced the jury, a new trial will be granted. Neither the defendant nor the state has the right to place a witness upon the stand, merely for the purpose of impeaching such witness, or to set up a straw man, simply for the purpose of knocking him down.

Counsel for the state contend that, as the homicide in this case occurred prior to statehood, and in the Indian Territory, the law in force in the Indian Territory should govern at the trial. To this proposition we agree. Section 2016 of the Indian Territory Statutes is as follows:

“The party producing a witness is not allowed to impeach his credit by evidence of bad character, unless it is in a case in which it was indispensable that the party should produce him; but he may contradict him with other evidence, and by showing that he has made statements different from his present testimony.”

This statute provides that where it is indispensable that a party should place a witness upon the stand, then such party may impeach the credibility of such witness by proof of bad character. This is only permitted to be done- where it is indispensable that such party should produce such witness. The section then proceeds as follows:

"But he may contradict him with, other evidence and by showing that he had made statements different from his present testimony.”

As we construe this statute, a party can only show the bad character of his witness where it is indispensable that such party should produce the witness. We do not think that this applies to the latter portion of this statute, and we have not been cited to any authority so holding. We think that it is a fair construction of the Indian Territory statutes to hold that, before a party will be permitted to contradict his witness by showing that he had made statements different from those to which he testified on the witness stand, it must also appear that such party was surprised at the testimony given by such witness. If it had been shown that Mrs. Hartin, at the time of the trial, bad misled or deceived the attorneys for the state as to what her testimony would be, then the statute above quoted would have been applicable. But there is no claim that this was done. We held, in Sturgis v. State and Culpepper v. State, supra, that under such circumstances a party may impeach the testimony of its witness by proof of contradictory statements made by such witness prior to being placed upon the witness stand. It is true that the court in this case did instruct the jury that the affidavit introduced could be considered by them only for the purpose of impeaching Mrs. Hartin. But, in view of the fact that without this impeaching evidence the state entirely failed to prove a case of guilt against the defendant, we cannot escape the conclusion that the jury disregarded the instructions of the court, and bas.ed their verdict upon the affi davit which was offered for the purpose of impeaching the witness. ' The facts stated in the affidavit may be true, and the testimony of this witness at the trial of this cause may have been false; but, as the affidavit was not competent and legal evidence, we cannot do otherwise than reverse this conviction.

The judgment of the lower court is therefore reversed, and the case is remanded.

FURMAN, PRESIDING Judge, and ARMSTRONG, Judge, concur.